Fernandes-Pereira v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 04-1473

RAMIRO FERNANDES PEREIRA,

Petitioner, Appellant,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,* ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,

Campbell and Cyr, Senior Circuit Judges.

Randy Olen for petitioner.
Robin E. Feder, Assistant United States Attorney, with whom
Robert Clark Corrente, United States Attorney, was on brief, for
respondents.

July 21, 2005

*
Alberto Gonzales was sworn in as Attorney General of the United
States on February 3, 2005. We have substituted him for John
Ashcroft, previous holder of that office, as the respondent. See
Fed. R. App. P. 43(c)(2).
 CAMPBELL, Senior Circuit Judge. Under former section

212(c) of the Immigration and Nationality Act ("INA"), the Attorney

General had authority to grant a discretionary waiver of

deportation to aliens who have accrued seven years of lawful

permanent residence in the United States. INA § 212(c), 8 U.S.C.

§ 1182(c) (1994) (repealed 1996). The statute, however, barred

application of the waiver provision to "an alien who has been

convicted of one or more aggravated felonies and has served for

such felony or felonies a term of imprisonment of at least 5

years." Id. This case presents the question whether an alien

aggravated felon, serving a state prison sentence of twelve or more

years, whose application for a section 212(c) waiver was delayed

for several years by an erroneous agency legal interpretation so

that he had served more than five years of his felony sentence by

the time he could proceed with the waiver application, is now

barred by law from seeking a waiver.

I. Background

The facts are not in dispute. Petitioner Ramiro

Fernandes Pereira ("Pereira"), who is a citizen of Portugal, was

admitted to the United States on March 8, 1969 as a lawful

permanent resident. On July 14, 1995, he pleaded nolo contendere

in Rhode Island Superior Court to first degree child molestation

and first degree sexual assault. The court sentenced him to thirty

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years' imprisonment, with twelve years to serve, eighteen years

suspended and eighteen years' probation.

On October 24, 1995, the Immigration and Naturalization

Service ("INS")1 initiated deportation proceedings against Pereira,

charging him with being deportable for having been convicted of an

aggravated felony, pursuant to what is now section

237(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000).

On October 22, 1996, after a hearing, the IJ found that Pereira had

been convicted of an aggravated felony and, therefore, ordered him

deported. The IJ noted that Pereira sought relief under former §

212(c) of the INA. He found, however, that Pereira was statutorily

ineligible for § 212(c) relief because § 440(d) of the

Antiterrorism and Effective Death Penalty Act ("AEDPA") (effective

April 24, 1996), which amended section 212(c) to read that it would

not apply to an alien who was deportable for having committed an

aggravated felony, applied retroactively to Pereira.

Pereira appealed to the BIA, arguing, inter alia, that §

440(d) of AEDPA should not be applied retroactively to him because

his conviction had occurred before its enactment. On January 30,

1998, the BIA affirmed the IJ's order and rejected Pereira's

challenge to the application of AEDPA, following Matter of Soriano,

1
On March 1, 2003, the relevant functions of the INS were
transferred to the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs
Enforcement. We refer to the agency throughout this opinion as
the INS.

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21 I & N Dec. 516 (BIA 1996). In Soriano, the BIA found that

AEDPA's amendments eliminating § 212(c) relief for certain criminal

aliens were fully retroactive. Id. at 519. At the time of the

BIA's decision, Pereira had served less than five years in prison

on his aggravated felony conviction.

In 1999, this court, in effect, reversed the BIA's

position in Soriano. See Wallace v. Reno, 194 F.3d 279 (1st Cir.

1999). We held in Wallace that § 440(d) of AEDPA could not be

applied retroactively to aliens who were in deportation proceedings

before its enactment. Id. at 286-87. Thereafter, the Supreme

Court reached a somewhat similar result, also favorable to the

consideration of Pereira's § 212(c) application, in INS v. St. Cyr.

See 533 U.S. 289, 326 (2001) (holding that "§ 212(c) relief remains

available for aliens . . . whose convictions were obtained through

plea agreements and who, notwithstanding those convictions, would

have been eligible for § 212(c) relief at the time of their plea

under the law then in effect").

Based on our decision in Wallace, Pereira and the INS

jointly moved the BIA to reopen and remand to the immigration

court. On May 17, 2000, the BIA granted the motion, but noted that

petitioner might nevertheless be ineligible for § 212(c) relief on

the basis of § 511(a) of the Immigration Act of 1990 ("IMMACT"),

which precludes an alien who has "been convicted of an aggravated

felony and has served a term of imprisonment of at least 5 years"

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from obtaining a section 212(c) waiver.2 IMMACT, Pub. L. No. 101-

649, § 511(a), 104 Stat. 4978, 5052 (1990). The BIA further noted

that a criminal alien has no enforceable right to compel the INS to

commence proceedings at a time advantageous to his ability to

establish eligibility for relief. It also stated that because

there was a reasonable possibility that Pereira would have served

five years in prison before entry of a final order granting him §

212(c) relief, it was not evident that he had a settled expectation

regarding the availability of § 212(c) relief. Because the record

did not establish how long Pereira had been incarcerated, the BIA

remanded with instructions to the IJ to determine whether Pereira

had already served at least five years in prison on his aggravated

felony conviction.

At a hearing on December 13, 2001, the IJ determined that

Pereira was statutorily ineligible for § 212(c) relief because he

had served "some six to seven years" in prison. Therefore, the IJ

denied the application for § 212(c) relief and reentered the order

of deportation. On May 30, 2002, the BIA affirmed without opinion.

2
Section 511(a) of IMMACT amended INA § 212(c), 8 U.S.C. §
1182(c), by adding at the end of § 212(c) the following:

The first sentence of this subsection shall not apply
to an alien who has been convicted of an aggravated
felony and has served a term of imprisonment of at
least 5 years.

IMMACT, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052
(1990).

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 On May 5, 2003, Pereira filed a petition for writ of

habeas corpus in the Rhode Island federal district court. The

government moved to dismiss the petition based on lack of personal

jurisdiction and Pereira's statutory ineligibility for § 212(c)

relief. The magistrate judge issued a report and recommendation,

recommending that the government's motion to dismiss be granted and

Pereira's habeas petition denied. On March 23, 2004, the district

court denied and dismissed the habeas petition. This appeal

followed.

II. Discussion

A. The Statutory Scheme

An alien convicted of an "aggravated felony" at any time

after admission to the United States is deportable. 8 U.S.C. §

1227(a)(2)(A)(iii) (2000). This Court, however, like others has

interpreted former § 212(c) of the INA to give aliens in

deportation proceedings, as well as in exclusion proceedings, the

right to apply to the Attorney General for a discretionary waiver.3

3
Former INA section 212(c) provided:

Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under
an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive
years, may be admitted in the discretion of the
Attorney General . . . . The first sentence of this
subsection shall not apply to an alien who has been
convicted of one or more aggravated felonies and has
served for such felony or felonies a term of
imprisonment of at least 5 years.

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In 1990, section 511(a) of IMMACT amended INA § 212(c) to preclude

the granting of waiver relief to an alien who had been convicted of

an aggravated felony and had served for such felony at least five

years in prison. See supra note 2.

The availability of § 212(c) relief was even more

drastically curtailed in 1996 by § 440(d) of AEDPA, which

restricted the Attorney General's authority to grant discretionary

relief from deportation to aliens convicted of certain felonies,

regardless of the amount of time they had served. On September 30,

1996, Congress enacted the Illegal Immigration Reform and Immigrant

Responsibility Act ("IIRIRA"), section 304 of which repealed INA §

212(c) and created a new form of discretionary relief called

"cancellation of removal." See INA § 240A, 8 U.S.C. § 1229b

(2000); IIRIRA § 304. Cancellation of removal is not available to

aliens who have been convicted of an aggravated felony. See INA §

240A, 8 U.S.C. § 1229b (2000); IIRIRA § 304.

B. Five-Year Bar

Whether an alien continues to accrue time toward the

five-year bar to section 212(c) relief after the issuance of a

final order of removal based upon an erroneous retroactive

INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed 1996). While
the statute expressly applied to exclusion, many courts, as well
as ours, have held that it also applied to deportation. See,
e.g., Attwood v. Ashcroft, 260 F.3d 1, 2 n.1 (1st Cir. 2001);
Barreiro v. INS, 989 F.2d 62, 63 (1st Cir. 1993).

-7-
application of AEDPA and IIRIRA is a question of law this court

reviews de novo. See Costa v. INS, 233 F.3d 31, 33 (1st Cir.

2000). In reviewing an agency's construction of a statute it is

charged with administering, we ask two questions: (1) "whether

Congress has directly spoken to the precise question at issue"; and

(2) if Congress has not so spoken, "whether the agency's answer is

based on a permissible construction of the statute." Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-

43 (1984). In this case, Congress has directly spoken to the

precise question at issue by declaring in unmistakable language

that the waiver provision does not apply to an aggravated felon who

has served for the felony a prison term of at least five years.

See supra note 2.

Pereira does not deny that he has by now served more than

five years in state prison for an aggravated felony. And on

December 13, 2001, when the IJ considered Pereira's remanded

request for § 212(c) relief, he had already been in prison for more

than five years. Pereira argues, however, that to deny him the

right to have his application considered because of the delay

caused by the BIA's prior erroneous legal position would violate

his right to due process. He further contends that he is entitled

to consideration of his § 212(c) application nunc pro tunc to the

date of his original deportation hearing because the five-year

delay in the adjudication of his § 212(c) application was solely

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due to the BIA's erroneous retroactivity determination in Soriano.

See Edwards v. INS, 393 F.3d 299 (2d Cir. 2004).4

1. The plain language of § 212(c) and our precedent in
Gomes v. Ashcroft precludes § 212(c) relief now

We "must presume that [the] legislature says in a statute

what it means and means in a statute what it says there." Conn.

Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992). The Supreme

Court has stated that "when the statute's language is plain, the

sole function of the courts--at least where the disposition

required by the text is not absurd--is to enforce it according to

its terms." Hartford Underwriters Ins. Co. v. Union Planters Bank,

N.A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted). At

the time Pereira entered his plea in state court on July 14, 1995,

the 1990 IMMACT amendments to section 212(c) limited his

eligibility for a § 212(c) waiver of deportation. The plain

language of section 212(c), in effect at that time, unequivocally

provided that discretionary relief under that section is not

4
The government argues that Pereira waived his equitable argument
by not raising it in the district court. It appears, however,
that Pereira did in fact raise this argument below. In the
district court, Pereira noted in his habeas petition that he had
argued before the BIA that he should be allowed to have his §
212(c) waiver application adjudicated nunc pro tunc to the date
of his original hearing. During the hearing on the motion to
dismiss, Pereira's counsel stated that, as relief for the alleged
due process violations, Pereira should be allowed to apply for a
§ 212(c) waiver nunc pro tunc to the date of his original
hearing. Pereira made a similar argument in his objection to the
magistrate judge's report and recommendation. We believe,
therefore, that Pereira preserved his equitable argument.

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available to "an alien who has been convicted of one or more

aggravated felonies and has served for such felony or felonies a

term of imprisonment of at least 5 years." INA § 212(c), 8 U.S.C.

§ 1182(c) (1994) (repealed 1996).

In arguing that Pereira is barred from § 212(c) relief,

the government relies on the logic of our decision in Gomes v.

Ashcroft, 311 F.3d 43 (1st Cir. 2002). In Gomes, the petitioner

was convicted of rape, an aggravated felony, on August 22, 1992 and

sentenced to six to twenty years' imprisonment. He began serving

the sentence immediately, and eventually was released from prison

nearly a decade later, on May 9, 2001. Id. at 44. On January 30,

1996, the petitioner had applied for a waiver of deportability

under former section § 212(c) of the INA. On October 23, 1996, the

IJ ruled that, under the recently enacted AEDPA, the petitioner was

ineligible for former § 212(c) relief, being an aggravated felon.

In the alternative, the IJ denied the petitioner's application as

a matter of discretion. Id. On October 31, 1997, the BIA affirmed

on the first ground and did not consider the IJ's alternative,

discretionary basis for denying relief. Id. By this time, the

petitioner had been in prison for just over five years. The

petitioner filed a habeas petition in district court, which the

court denied on the ground that the petitioner had served more than

five years' imprisonment for his felony conviction. Id. On

appeal, this Court rejected petitioner's argument that he had

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served less than five years at the time he filed his § 212(c)

application. We said there that "the relevant date is when the BIA

issued its decision." Id. at 45.

In reliance on Gomes, the magistrate's report, adopted by

the district court in this case, counted against Pereira all the

time he served in state prison after the IJ, on October 22, 1996,

held, erroneously as it turned out, that § 440(d) of the AEDPA

applied retroactively. Pereira does not question the holding in

Gomes, but he argues that Gomes is inapposite because (1) the due

process claim raised here was not raised in Gomes; and (2) such a

claim could not have been raised in Gomes because, there, the

erroneous, retroactive application of the AEDPA amendments did not

delay Gomes' proceedings; his time simply ran out.

Both in this case and in Gomes, the INS's original denial

of § 212(c) relief was based upon its erroneous legal conclusion

that the AEDPA amendments applied not only prospectively but

retroactively to any alien convicted of an aggravated felony. On

this theory, former § 212(c) became a nullity even as to those like

Pereira and Gomes whose felony convictions predated enactment of

the AEDPA. There is, to be sure, at least one difference between

Gomes and this case. In Gomes, the petitioner had served over five

years in prison on a sentence for an aggravated felony as of the

time the BIA issued its final order of removal on October 31, 1997.

In the instant case, however, when the BIA affirmed the IJ's

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original deportation order on January 30, 1998, Pereira had served

less than five years in prison. Not until sometime after the BIA

granted the joint motion to reopen, based on this court's reversal

of Soriano, had Pereira served more than five years in prison.

Despite this distinction, we believe that the holding in

Gomes governs this case. We held in Gomes that the time an alien

served in prison even after a legally erroneous denial of § 212(c)

relief was to be counted towards the five-year bar in § 212(c).

311 F.3d at 45. See also Giusto v. INS, 9 F.3d 8, 10 (2d Cir.

1993) ("reject[ing] [petitioner's] premise that the timing of the

INS's initiation of deportation proceedings, rather than the length

of time actually served, would determine the availability of the

waiver"). "[T]he relevant date is when the BIA issued its

decision." Gomes, 311 F.3d at 45 (citing Buitrago-Cuesta v. INS,

7 F.3d 291, 296 (2d Cir. 1993) ("Just as we credit aliens for time

spent in the country while an appeal is pending before the BIA so

that they are eligible for § 212(c) relief, we will also consider

the time aliens spend in prison during the course of a hearing for

purposes of rendering them ineligible for § 212(c) relief.")).

While Pereira had not served at least five years in

prison for an aggravated felony offense at the time the BIA

originally affirmed the IJ's order of deportation, he had served

more than five years in prison by the time the BIA issued its final

order of removal on May 30, 2002. And unfortunate though it may

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be, any and all eligibility for § 212(c) relief had by then run

out. For the INS to grant, or this court to order, waiver relief

now would be to provide a form of relief expressly withdrawn by the

statute. The statute states quite flatly that after service of

five years' imprisonment, the waiver provision "shall not apply" to

the alien. No exception is provided for. See INA § 212(c), 8

U.S.C. § 1182(c) (1994) (repealed 1996).5

2. Whether applying the plain language of § 212(c) to
Pereira is unconstitutional

Petitioner, indeed, does not strongly urge that, after

over five years' incarceration, the statutory language would

entitle him to § 212(c) relief. Rather he argues that to deny him

relief in this set of facts amounts to a violation of his

constitutional right to due process of law. He points out that

much of the delay was caused by the INS's insistence on an

incorrect retroactive reading of the AEDPA. Ultimately, our court

and the Supreme Court forbad retroactive application of the AEDPA

5
The scant legislative history regarding the five-year bar
supports the plain reading of the text. See Giusto, 9 F.3d at 10
(noting that the legislative history regarding the enactment of
the five-year bar is scant, and that "inclusion of that section
was plainly part of an effort to 'broaden[] the list of serious
crimes, conviction of which results in various disabilities and
preclusion of benefits under the [INA]'") (quoting H.R. Conf.
Rep. No. 955, at 132 (1990), reprinted in 1990 U.S.C.C.A.N. 6710,
6784, 6797). That Congress chose to apply the five-year bar
retroactively, see Buitrago-Cuesta, 7 F.3d at 295; Barreiro, 989
F.2d at 63-64, indicates its intent to preclude aliens who had
served at least five years in prison on an aggravated felony
offense from receiving § 212(c) relief.

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to aliens like Pereira who had pled guilty prior to enactment of

the AEDPA in presumed reliance on their right to seek discretionary

relief under § 212(c). See St. Cyr, 533 U.S. at 326; Wallace, 194

F.3d at 286-87. Pereira argues that it is unfair to the point of

being unconstitutional to count against him the time he spent in

state prison serving his felony sentence while awaiting correction

of the INS's earlier erroneous ruling. He likens his plight to the

due process violation that occurs when an alien is saddled with an

incompetent attorney whose malfeasance prevents the alien from

timely seeking discretionary relief. See generally Lozada v. INS,

857 F.2d 10 (1st Cir. 1988).

Here, however, we are not dealing with the breakdown of

process occasioned by the ineptness of counsel. Rather, we deal

with a Congressional statute providing that one who has spent at

least five years in prison because of an aggravated felony is not

entitled to be considered for discretionary relief. Congress's

antagonism towards sheltering aliens who commit felonies has been

made clear by its repeated legislation on the subject, all directed

at enforcing and expanding its wish to expel such aliens. See

supra pp. 6-7.

Against this backdrop, it seems reasonable to infer that

Congress enacted the five-year proviso less to provide an avenue of

leniency to persons like Pereira who would go on to serve longer

terms (although they, too, could apply within the five years) than

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to assist convicted aliens sentenced to less than a five-year term

or, if to a longer term, those who might be pardoned or released

before actually serving five years, perhaps because of a subsequent

determination of innocence, their exemplary conduct, or some other

favorable circumstance. Viewing the purpose of § 212(c) in this

light, it would be immaterial to Congress that Pereira might have

slipped under the bar had he been able to seek discretionary relief

earlier. The important point, once he served five years in prison,

was that he now met all the criteria laid down for mandatory

deportation: no last-minute reprieve, release, or pardon during the

five years had occurred to indicate that he was the sort of person

Congress was willing to let remain.

If the above is the thrust of the statute--and the lack

of any statutory exception to the five-year rule suggests this to

be the case--the only remaining question is whether the

Constitution forbids Congress to adopt such a statute. We see no

reason why it does. Congress is not required to provide aggravated

felons with an avenue for discretionary relief from deportation,

and currently does not do so. See INA § 240A, 8 U.S.C. § 1229b(a)

(2000). While Congress earlier allowed such relief under § 212(c),

it limited § 212(c) to those who had not been imprisoned for over

five years (a bar already in place when Pereira entered his guilty

plea in 1995). See INA § 212(c), 8 U.S.C. § 1182(c) (1994)

(repealed 1996). While the bar may in some respects fall unevenly,

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as in this case, because of fortuitous circumstances affecting the

alien's ability to present his claim before he has served five

years, many legal enactments are less than totally equitable in

their impact. See, e.g., Dodd v. United States, 125 S. Ct. 2478,

2483 (2005) ("Although we recognize the potential for harsh results

in some cases, we are not free to rewrite the statute that Congress

has enacted."); Wickard v. Filburn, 317 U.S. 111, 129-30 (1942)

("An Act of Congress is not to be refused application by the courts

as arbitrary and capricious and forbidden by the Due Process Clause

merely because it is deemed in a particular case to work an

inequitable result."). We, therefore, reject the argument that

application of former § 212(c) of the INA as written violates the

Due Process Clause.

3. Whether nunc pro tunc relief is appropriate

Recently, the Second Circuit has held that nunc pro tunc

relief should be afforded where aliens have become statutorily

ineligible for § 212(c) relief based on the five-year rule

subsequent to a legally erroneous denial of their original

applications. Edwards v. INS, 393 F.3d 299, 312 (2d Cir. 2004).

This is the only ruling so far by a circuit court on the same issue

now before us. The Second Circuit noted that, based on its

precedent, it "might well conclude that whether five years'

imprisonment has been served should be decided as of the date on

which each alien's final order of deportation was entered." Id. at

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307. It stated that INS regulations could also be read to support

this position. Id. (citing 8 C.F.R. § 3.2(c)(1) (1996) (recodified

at 8 C.F.R. § 1003.2(c)(1)), which states, broadly, that "a motion

to reopen proceedings for consideration or further consideration of

an application for [§ 212(c) relief] may be granted if the alien

demonstrates that he or she was statutorily eligible for such

relief prior to the entry of the administratively final order of

deportation") (emphasis added).

But rather than decide whether § 212(c), as a matter of

statutory interpretation, rendered the petitioners ineligible for

such relief, the court held that the petitioners were entitled to

nunc pro tunc consideration of their applications. Id. at 312. In

reaching this result, the court explained that it was justified in

providing an exception contrary to the plain language of § 212(c),

because Congress did not rule out nunc pro tunc relief and such an

approach was common in other immigration contexts. See id. at 309-

10. The court reasoned that "where agency error has prevented an

alien from seeking deportation relief, 'justice . . . require[s],'

that the agency rectify that error--and that it do so, if

necessary, by means of nunc pro tunc relief." Id. at 311 (citation

omitted). Pereira urges us to adopt the same approach so that he

can have his § 212(c) application adjudicated nunc pro tunc to the

date of his original hearing.

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 We decline the invitation. As already stated, the

language of § 212(c) seems to us utterly clear--the relief sought

simply does not exist for an aggravated felon who has served five

years of his felony term. INA § 212(c), 8 U.S.C. § 1182(c) (1994)

(repealed 1996). In describing the limits of the nunc pro tunc

doctrine under Massachusetts law, we have stated that nunc pro tunc

authority may only be used to correct inadvertent or clerical

errors, and not to remedy "a defect in a judgment, order or decree

which expressed exactly the intention of the [agency] at the time

when it was made." Fierro v. Reno, 217 F.3d 1, 5 (1st Cir. 2000).

But see Edwards, 393 F.3d at 309 n.12 (rejecting the description of

the limits of nunc pro tunc authority set out in Fierro).6

6
We recognize that it is not uncommon, when dealing with
conventional statutes of limitation, to provide for equitable
relief to individuals unable, through no fault of their own, to
meet a time limitation. One might at first believe this to be a
comparable situation. But as we indicated above, we do not see
the five years as a time bar designed to prevent stale claims or
the like, but rather as a grace period intended primarily to
screen out those convicted felons whose period of actual
imprisonment turns out to be less than five years, reflecting, at
least in many cases, a lesser degree of culpability. While, to
be sure, the statute allows felons whose term of imprisonment
goes on for more than five years to also seek waiver relief
during the first five years, this is more an incidental
consequence than a main one. Given not only the uncompromising
language of the five-year bar, which notes no exception, but also
the history of Congress's desire to expel convicted aggravated
felons, we disagree with the Second Circuit's suggestion,
expressed in Edwards, that Congress, confronted with the instant
situation, might likely have desired that a court make an
exception to its own statutory language.

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 Pereira argues that other circuits have employed the nunc

pro tunc doctrine to remedy significant errors in immigration

proceedings. See Snajder v. INS, 29 F.3d 1203 (7th Cir. 1994)

(holding that petitioner would have right to apply for § 212(c)

relief, even though he had served five years' imprisonment as an

aggravated felon, where his right to counsel had been violated in

the original deportation hearing); Batanic v. INS, 12 F.3d 662, 667

(7th Cir. 1993) ("The only way to cure the [violation of the right

to counsel] in the original hearing is to afford [petitioner] not

only a new hearing, but a new hearing in which counsel effectively

may protect [petitioner’s] rights to the same extent that the

attorney would have in the first hearing."); Castillo-Perez v. INS,

212 F.3d 518 (9th Cir. 2000) (remanding case with instructions to

apply the law as it existed at the time of the original hearing due

to ineffective assistance of counsel at the original hearing).

Pereira claims that, in light of the BIA's erroneous legal

interpretation, denial of the opportunity to apply nunc pro tunc

for § 212(c) relief would similarly amount to a due process

violation. All of those cases, however, involved a constitutional

violation of the right to counsel. Compare Lozada, 857 F.2d at 13

("Ineffective assistance of counsel in a deportation proceeding is

a denial of due process only if the proceeding was so fundamentally

unfair that the alien was prevented from reasonably presenting his

case.") (internal quotation marks omitted).

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 Here, Pereira was denied the opportunity to seek timely

section 212(c) relief under a good faith legal interpretation of

the law at the time. Thereafter, the matter was litigated and in

due course resolved. The INS's initial position, while eventually

found by the courts to be legally erroneous, was not frivolous and

there is nothing to suggest it was pursued in bad faith. While it

may seem unfair not to allow Pereira to seek discretionary relief

now, the fact remains that Congress has mandated that such relief

is now no longer available.

The plain language of former § 212(c) clearly provides

that an alien who spends at least five years in prison on an

aggravated felony offense is ineligible to seek § 212(c) relief.

Counting the time Pereira spent in prison after his § 212(c)

application was disallowed under Soriano is required by the plain

language of § 212(c) and Gomes.

Affirmed.

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