Perriello v. Napolitano

05-2868-ag
Perriello v. Napolitano

1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2008
6
7
8 (Argued: June 2, 2009 Decided: September 1, 2009)
9
10 Docket No. 05-2868-ag
11
12 - - - - - - - - - - - - - - - - - - - - - -x
13
14 SAVARIO PERRIELLO,
15
16 Petitioner,
17
18 -v.- 05-2868-ag
19
20 JANET NAPOLITANO; JOHN T. MORTON, Asst.
21 Secretary, United States Immigration and
22 Customs Enforcement; CHRISTOPHER SHANAHAN,
23 Field Office Director of New York City,
24 U.S. Immigration and Customs Enforcement,
25 Department of Homeland Security; UNITED
26 STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, *
27
28 Respondents.
29
30 - - - - - - - - - - - - - - - - - - - - - -x

31

*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Secretary Janet Napolitano of the Department of
Homeland Security is automatically substituted for former
Secretary Tom Ridge; Assistant Secretary John T. Morton of
the Department of Homeland Security is automatically
substituted for former Assistant Secretary Michael J.
Garcia; and Field Office Director Christopher Shanahan is
automatically substituted for former Field Office Director
John P. Carbone as respondents in this case.
1 Before: JACOBS, Chief Judge, KEARSE and SACK,
2 Circuit Judges.
3
4 Petitioner Savario Perriello seeks review of a December

5 17, 2004 decision of the Board of Immigration Appeals

6 finding him ineligible for relief from removal. Perriello

7 argues for termination of his removal proceedings pursuant

8 to 8 C.F.R. § 1239.2(f) and a waiver of inadmissibility

9 pursuant to former Immigration and Nationality Act § 212(c) .

10 The petition is denied.

11 MATTHEW L. GUADAGNO (Ruchi
12 Thaker, Jules E. Coven, Kerry W.
13 Bretz on the brief), Bretz &
14 Coven LLP, New York, New York,
15 for Petitioner .
16
17 NATASHA OELTJEN, Assistant
18 United States Attorney (Sarah S.
19 Normand, Assistant United States
20 Attorney on the brief) for Lev
21 L. Dassin, Acting United States
22 Attorney for the Southern
23 District of New York, New York,
24 New York , for Respondents.
25
26 DENNIS JACOBS, Chief Judge:
27
28 Petitioner Savario Perriello, a native and citizen of

29 Italy and a lawful permanent resident of the United States,

30 seeks review of a December 17, 2004 order of the Board of

31 Immigration Appeals (“BIA”) affirming the August 30, 2002

32 decision of Immigration Judge (“IJ”) Robert D. Weisel

2
1 finding Perriello inadmissible and ordering him removed to

2 Italy. In re Savario Perriello, No. A 12 363 855 (B.I.A.

3 Dec. 17, 2004), aff’g No. A 12 363 855 (Immig. Ct. N.Y. City

4 Aug. 30, 2002). Perriello argues for termination of his

5 removal proceedings pursuant to 8 C.F.R. § 1239.2(f) 1 and a

6 waiver of inadmissibility pursuant to former Immigration and

7 Nationality Act (“INA”) § 212(c) .

8 We acknowledge the significant hardship that Perriello

9 and his family will face as a result of the unaccountable

10 delay in the decision to seek his removal decades after his

11 conviction, and notwithstanding his evidently lawful and

12 productive life in the interval. Nonetheless, we conclude

13 that [i] Perriello is not entitled to relief under

14 § 1239.2(f) (which has been rendered vestigial by revisions

15 to the INA), because he has not established prima facie

16 eligibility for naturalization, and [ii] that he is barred

17 from relief under INA § 212(c) by virtue of § 511(a) of the

18 Immigration Act of 1990 (“IMMACT”), Pub. L. No. 101-649,

19 § 511(a), 104 Stat. 4978, 5052. Accordingly, the petition

20 is denied.

21

1
Unless otherwise noted, all citations to statutes and
regulations refer to the current versions as of the filing
of this opinion.
3
1 I

2 Perriello first entered the United States on December

3 27, 1961, when he was thirteen years old. On December 28,

4 1977, Perriello was convicted by a jury of Arson in the

5 Second Degree in violation of New York Penal Law § 150.15

6 and eight counts of Criminal Mischief in the Second Degree

7 in violation of New York Penal Law § 145.10. Perriello was

8 sentenced to a term of seven to twenty-five years in prison,

9 and he served seven years before his release on parole in

10 1984.

11 After his release from prison, Perriello started a

12 business and contributed to his community. Perriello

13 married a United States citizen in 1991, and he has four

14 United States citizen children. Perriello and his wife

15 operate a restaurant in Haverstraw, New York.

16 On November 28, 2000, Perriello was detained at Newark

17 Airport on his return from a brief trip to Italy. The

18 Immigration and Naturalization Service (“INS”),2 having

19 discovered Perriello’s 1977 conviction, paroled him into the

2
Effective March 1, 2003, the INS ceased to exist.
The Department of Homeland Security has assumed
responsibility for the immigration functions formerly
performed by INS. See Ali v. Mukasey, 529 F.3d 478, 482 n.4
(2d Cir. 2008).

4
1 country pending a determination of his admissibility. On

2 February 13, 2001, the INS issued a Notice to Appear and

3 placed Perriello in removal proceedings based on his 1977

4 conviction for a crime involving moral turpitude.

5 Perriello admitted the allegations contained in the

6 Notice to Appear, but sought to avoid removal by filing an

7 application for naturalization and moving for termination of

8 his removal proceedings pursuant to 8 C.F.R. § 1239.2(f),

9 which permits an IJ to terminate removal proceedings while

10 an application for naturalization is pending. The IJ

11 declined to terminate the removal proceedings and ordered

12 Perriello removed on August 30, 2002. The BIA affirmed on

13 December 17, 2004.

14 On February 22, 2005, Perriello challenged the BIA’s

15 decision in a habeas corpus petition filed in the Southern

16 District of New York . While the petition was pending,

17 Congress enacted section 106(a)(1) of the Real ID Act of

18 2005 (“Real ID Act”), Pub. L. No. 109-13, Div. B,

19 § 106(a)(1)(B), 119 Stat. 231, 310, which provides that “a

20 petition for review filed with an appropriate court of

21 appeals . . . shall be the sole and exclusive means for

22 judicial review of an order of removal.” The district court

5
1 transferred Perriello’s habeas petition to this Court

2 pursuant to Real ID Act § 106(c), which requires that any

3 habeas petition [i] challenging an order of removal, and

4 [ii] pending in district court on the date of the Act’s

5 enactment, be transferred to the appropriate court of

6 appeals.

7

8 II

9 By virtue of 8 C.F.R. § 1239.2(f), 3 an IJ may terminate

10 removal proceedings to permit an alien who has established

11 prima facie eligibility for naturalization to proceed to a

12 “final hearing” on a pending naturalization application.

13 The BIA has held, however, that an IJ may not terminate

3
The current text of the regulation is:

An immigration judge may terminate
removal proceedings to permit the alien
to proceed to a final hearing on a
pending application or petition for
naturalization when the alien has
established prima facie eligibility for
naturalization and the matter involves
exceptionally appealing or humanitarian
factors; in every other case, the removal
hearing shall be completed as promptly as
possible notwithstanding the pendency of
an application for naturalization during
any state of the proceedings.

8 U.S.C. § 1239.2(f).
6
1 removal proceedings unless the alien has obtained an

2 affirmative communication from the Department of Homeland

3 Security (“DHS”) stating that the alien is prima facie

4 eligible for naturalization. See In re Hidalgo, 24 I. & N.

5 Dec. 103, 106 (B.I.A. 2007) . But nothing seems to compel

6 DHS to make such a determination, let alone to issue such a

7 communication. Moreover, in many cases (including this

8 one), DHS is prohibited by statute from considering a

9 naturalization application (a prerequisite to determining

10 prima facie eligibility) while removal proceedings are

11 pending. The law, in effect, seems to be chasing its tail.

12 We review de novo Perriello’s claim that the IJ and BIA

13 erred as a matter of law in denying relief from removal.

14 See, e.g., Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir.

15 2007). But we owe deference to the BIA’s interpretation of

16 its own regulations, and the BIA’s interpretation will be

17 “controlling unless plainly erroneous or inconsistent with

18 the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997)

19 (internal quotation marks omitted); see also Bah v. Mukasey,

20 529 F.3d 99, 110-11 (2d Cir. 2008).

21 In order to analyze Perriello’s arguments and to

22 appreciate the anomaly that complicates the analysis, it is

7
1 necessary to describe the evolution of the statutes and

2 regulations relevant to this appeal.

3 A. Naturalization and Removal Law Before 1990

4 From 1906 until 1990, an application for naturalization

5 was reviewed in two stages. See Etape v. Chertoff, 497 F.3d

6 379, 385 (4th Cir. 2007); Admin. Naturalization, 56 Fed.

7 Reg. 50475, 50476 (Oct. 7, 1991). First, the Attorney

8 General considered the application and made a recommendation

9 to the naturalization court as to the alien’s prima facie

10 eligibility for naturalization. See 8 U.S.C. § 1446(a)-(d)

11 (1988). The second stage was a “final hearing” held “in

12 open court before a judge or judges.” 8 U.S.C. § 1447(a)

13 (1988). Under this system, courts were vested with

14 “[e]xclusive jurisdiction to naturalize persons as citizens

15 of the United States.” 4 8 U.S.C. § 1421(a) (1988).

16 Until 1990, “naturalization authority and removal

17 authority were vested in different branches of government,

18 with naturalization being the province of the courts and

4
Courts with authority to naturalize aliens included
United States district courts and “also all courts of record
in any State or Territory . . . having a seal, a clerk, and
jurisdiction in actions at law or equity, or law and equity,
in which the amount in controversy is unlimited.” 8 U.S.C.
§ 1421(a) (1988).

8
1 removal the province of the executive acting through the

2 Attorney General.” Ajlani v. Chertoff, 545 F.3d 229, 235

3 (2d Cir. 2008). Prior to 1950, this led to “both the

4 deportation and naturalization processes . . . proceed[ing]

5 along together until either petitioner’s deportation or

6 naturalization ipso facto terminated the possibility of the

7 other occurring.” Shomberg v. United States, 348 U.S. 540,

8 543 (1955).

9 In 1950, Congress put an end to this “race between the

10 alien to gain citizenship and the Attorney General to deport

11 him,” id. at 544, by enacting section 27 of the Internal

12 Security Act of 1950, Pub. L. No. 81-831, § 27, 64 Stat.

13 987, 1015, reenacted without significant change by

14 Immigration and Nationality Act of 1952, Pub. L. No. 82-414,

15 § 318, 66 Stat. 163, 244 (codified as amended at 8 U.S.C.

16 § 1429). That statute “afforded [priority to] removal

17 proceedings,” Ajlani, 545 F.3d at 239, and “prohibited

18 naturalization or the holding of final hearings on

19 naturalization petitions where deportation proceedings were

20 instituted,” Shomberg, 540 U.S. at 544. As a result, aliens

21 who had successfully navigated the first stage of the

22 naturalization process, and were thus prima facie eligible

9
1 for naturalization, were in limbo because courts were

2 prohibited from conducting final hearings on their

3 applications. To provide such aliens access to court, the

4 BIA held, in Matter of B-, 6 I. & N. Dec. 713, 720 (B.I.A.

5 1955), that “there exists inherent authority in the Attorney

6 General to terminate deportation proceedings for the limited

7 purpose of permitting the alien to file a petition for

8 naturalization and to be heard thereon by a naturalization

9 court.”

10 In 1974, the BIA’s decision in Matter of B- was adopted

11 in the regulation now found at § 1239.2(f). The regulation

12 provided, in relevant part:

13 A[n immigration judge] may, in his
14 discretion, terminate deportation
15 proceedings to permit respondent to
16 proceed to a final hearing on a pending
17 application or petition for
18 naturalization when the respondent has
19 established prima facie eligibility for
20 naturalization and the case involves
21 exceptionally appealing or humanitarian
22 factors; in every other case, the
23 deportation hearing shall be completed as
24 promptly as possible notwithstanding the
25 pendency of an application for
26 naturalization during any stage of the
27 proceedings.
28
29 8 CFR § 242.7 (1974).

30 Soon after, in Matter of Cruz, 15 I. & N. Dec. 236

10
1 (B.I.A. 1975), the BIA considered the regulation’s

2 requirement that an alien “ha[ve] established prima facie

3 eligibility for naturalization.” Id. at 236-38. The BIA

4 held that “neither [it] nor immigration judges have

5 authority with respect to the naturalization of aliens,” and

6 concluded therefore that the alien must establish “prima

7 facie eligibility” by adducing “an affirmative communication

8 from the [INS] or . . . a declaration of a court that the

9 alien would be eligible for naturalization but for the

10 pendency of the deportation proceedings or the existence of

11 an outstanding order of deportation.” Id. at 237.

12 B. Naturalization and Removal Law After 1990

13 With the passage of IMMACT in 1990, Congress

14 substantially reformed the naturalization process. Two

15 features of that reform are relevant to this case. First,

16 IMMACT eliminated “final hearing[s] . . . in open court,”

17 IMMACT § 407(d)(14), 104 Stat. at 5044, and established that

18 “[t]he sole authority to naturalize persons as citizens of

19 the United States is conferred upon the Attorney General,”

20 id. § 401(a), 104 Stat. at 5038 (codified at 8 U.S.C.

11
1 § 1421(a)).5 To implement this shift in authority, IMMACT

2 streamlined the naturalization process and provided for

3 comprehensive review of applications by immigration officers

4 empowered to grant or deny naturalization. Id.

5 § 407(d)(13)(E), 104 Stat. at 5043 (codified at 8 U.S.C.

6 § 1446(d)); see also Etape, 497 F.3d at 385-86.

7 Second, IMMACT froze the processing of naturalization

8 applications while removal proceedings are pending. Before

9 IMMACT, the Attorney General had an unrestricted ability to

10 review naturalization applications notwithstanding the

11 pendency of removal proceedings: only courts were prohibited

12 from conducting “final hearings.” IMMACT, however, amended

13 § 1429 to provide that “no person shall be naturalized

14 against whom there is outstanding a final finding of

15 deportability . . . and no application for naturalization

16 shall be considered by the Attorney General if there is

5
IMMACT preserved a role for federal courts in the
naturalization process: “after exhausting administrative
remedies, [an alien] may petition for de novo review in the
district court.” See Etape, 497 F.3d at 386 (citing 8
U.S.C. § 1421(c)). An alien may also seek relief in
district court if DHS fails to act on a naturalization
application within 120 days of an alien’s examination by an
immigration officer. See 8 U.S.C. § 1447(b). Additionally,
naturalization courts continue to administer the oath of
allegiance to new citizens. See 8 U.S.C. § 1421(b).

12
1 pending against the applicant a [removal] proceeding.”

2 IMMACT § 407(d)(3), 104 Stat. at 5041 (codified as amended

3 at 8 U.S.C. § 1429 (Supp. II 1990)) (emphasis added).

4 C. The Application of § 1239.2(f) After IMMACT

5 After IMMACT, courts considered the continued viability

6 of § 1239.2(f), as interpreted by the BIA in Cruz. Several

7 circuit courts of appeal questioned whether the BIA could

8 continue to rely on courts to issue declarations as to prima

9 facie eligibility for naturalization in light of the

10 language in § 1421(a) granting the Attorney General

11 exclusive jurisdiction over naturalization applications.

12 See, e.g., Saba-Bakare v. Chertoff, 507 F.3d 337, 341 (5th

13 Cir. 2007); De Lara Bellajaro v. Schiltgen, 378 F.3d 1042,

14 1047 (9th Cir. 2004); Zayed v. United States, 368 F.3d 902,

15 907 & n.6 (6th Cir. 2004). And at least one circuit

16 questioned whether the Attorney General could consider

17 naturalization applications for the limited, administrative

18 purpose of terminating removal proceedings in light of the

19 bar in § 1429. Apokarina v. Ashcroft, 93 Fed. App’x 469,

20 470, 472 (3d Cir. 2004).

21 In 2007, the BIA reconsidered Cruz and overruled the

22 decision insofar as it contemplated that aliens would obtain

13
1 declarations from courts as to prima facie eligibility for

2 naturalization. Hidalgo, 24 I. & N. Dec. at 105. The BIA

3 concluded that courts no longer had jurisdiction to provide

4 such declarations, in light of § 1421. Id.

5 Nonetheless, the BIA reaffirmed its instruction that

6 “the Board and . . . Immigration Judges . . . require some

7 form of affirmative communication from the DHS prior to

8 terminating proceedings based on [an alien’s] pending

9 naturalization application.” Id. at 106. In doing so, the

10 BIA did not take into account IMMACT’s revisions to § 1429,

11 which limited administrative review of naturalization

12 applications while removal proceedings are pending.

13 Likewise, the Attorney General (and DHS) failed to conform

14 the antiquated language in § 1239.2(f), which has caused

15 inconsistency. 6 In some cases (such as this one), DHS has

6
In 1997, INS made technical changes to the language
of the regulation after passage of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Pub. L. 104-208, Div. C, 110 Stat. 3009, 3009-546 et seq.
Specifically, INS replaced the word “deportation” with the
word “removal” in two places. Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens; Conduct
of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.
10312, 10367 (March 6, 1997). Although the agency revised
the regulation to reflect changes in IIRIRA, it never
revised the regulation in response to IMMACT, and the
regulation remains inconsistent with that statute.

14
1 adjudicated naturalization applications while aliens have

2 awaited termination of their removal proceedings,

3 notwithstanding the bar in § 1429. See, e.g., Saba-Bakare,

4 507 F.3d at 339; Hidalgo, 24 I. & N. Dec. at 106-07. In

5 other cases, IJs have determined prima facie eligibility for

6 naturalization, notwithstanding the BIA’s holding in Cruz

7 that they lack jurisdiction to do so. See, e.g., Nolan v.

8 Holmes, 334 F.3d 189, 191-92 (2d Cir. 2003); Fretas v.

9 Hansen, No. 1:06CV1475, 2008 WL 4404276, at *1 (N.D. Ohio

10 Sep. 23, 2008). And in yet other cases, no determination of

11 prima facie eligibility has been made by anybody, leaving

12 aliens to pursue writs of mandamus in an effort to compel

13 DHS to produce “affirmative statement[s]” as to prima facie

14 eligibility. See, e.g., Sandoval-Valenzuela v. Gonzalez,

15 No. C 08-2361 RS, 2008 WL 3916030, at *1-2 (N.D. Cal. Aug.

16 25, 2008); Escobar-Garfias v. Gonzales, No. 06-CV-103-BR,

17 2007 WL 281657, at *2 (D. Or. Jan. 26, 2007); Fuks v.

18 Devine, No. 05 C 5666, 2006 WL 2051321, at *2-4 (N.D. Ill.

19 July 20, 2006).

20 One of these cases is edifying, at least to illustrate

21 the prevailing muddle. A writ of mandamus was sought “to

22 the Attorney General, ordering him to perform his legal duty

15
1 and prevent different parts of the Department of Justice

2 from adopting conflicting view[s] of Cruz.” Fretas, 2008 WL

3 4404276, at *2. The alien sought this relief after DHS

4 concluded that it lacked jurisdiction over Fretas’

5 application because of § 1429, but nonetheless advised that

6 Fretas was not prima facie eligible for naturalization. Id.

7 An IJ had previously ruled that Fretas was prima facie

8 eligible for naturalization, but the BIA reversed, holding

9 that Cruz prohibited the IJ from making that determination.

10 Id. at *1.

11 D. Perriello’s Motion to Terminate Removal Proceedings

12 In this case, the IJ denied Perriello’s motion to

13 terminate the removal proceedings on the ground that he had

14 not obtained an “affirmative communication from [INS]

15 regarding [his] naturalization eligibility.” But the agency

16 could not provide an “affirmative communication,” because

17 § 1429 prohibited it from considering Perriello’s

18 naturalization application while removal proceedings were

19 pending.

20 The effect of IMMACT is that aliens can no longer do

21 what Perriello did in this case: apply for naturalization

22 after removal proceedings have commenced and then move for

16
1 termination of the removal proceedings. 7 Once removal

2 proceedings are in progress, DHS is barred by IMMACT from

3 considering an alien’s application; so it will be impossible

4 for an alien to establish prima facie eligibility for

5 naturalization. 8

6 Perriello argues that it is unnecessary for him to

7 obtain a statement from DHS, because IJs and the BIA may

8 make prima facie determinations as to eligibility for

9 naturalization. Perriello is mistaken for two reasons.

10 First, the BIA determined in Hidalgo that it and IJs

11 lack jurisdiction to make prima facie determinations of

12 eligibility for naturalization. The BIA’s conclusion is

13 consistent with § 1421(a), which states that “[t]he sole

14 authority to naturalize persons as citizens of the United

15 States is conferred upon the Attorney General.” We owe

7
In Nolan, 334 F.3d at 193-204, we considered the
petitioner’s prima facie eligibility for naturalization. In
Nolan, neither party raised the question whether IMMACT
limited our review, and the question therefore was not
considered, let alone decided. Moreover, Nolan involved an
application for naturalization under INA § 329, which
exempts veterans who have served during periods of military
hostilities from the bar in § 1429. See 8 U.S.C.
§ 1440(b)(1).
8
We need not decide on this appeal whether, and in
what circumstances, an alien could benefit from § 1239.2(f)
if she has a naturalization application pending at the time
removal proceedings commence.
17
1 deference to the BIA’s conclusions about the scope of its

2 jurisdiction under the immigration laws, and the BIA’s

3 holding is neither “plainly erroneous [n]or inconsistent

4 with the regulation.” Auer, 519 U.S. at 461 (internal

5 quotation marks omitted).

6 Second, the plain language of § 1429 prohibits the

7 Attorney General from considering naturalization

8 applications while removal proceedings are pending, and we

9 have held that “district court authority [under 8 U.S.C.

10 § 1447(b)] to grant naturalization relief while removal

11 proceedings are pending cannot be greater than that of the

12 Attorney General,” Ajlani, 545 F.3d at 240. It would be odd

13 if the Attorney General and district courts were barred from

14 considering naturalization applications while removal

15 proceedings are pending, yet the BIA and IJs--who have no

16 jurisdiction over such applications in any case--were not.

17 Perriello also argues that this Court should not

18 interpret the regulation in a way that restricts its benefit

19 to aliens. But it is not a judicial role to save a

20 regulation that now conflicts, at least in part, with the

21 underlying statute. As reflected in federal court decisions

22 around the country, the failure of DHS to amend § 1239.2(f)

18
1 has made for considerable confusion. It is for DHS or

2 Congress to reconcile the regulation with the INA.

3 For the foregoing reasons, we affirm the denial of

4 relief under § 1239.2(f), on the ground that Perriello has

5 not (and cannot) establish prima facie eligibility for

6 naturalization. 9

7

8 III

9 Perriello also claims that he is eligible for a waiver

10 of inadmissibility pursuant to former INA § 212(c). That

11 section provided that:

12 Aliens lawfully admitted for permanent
13 residence who temporarily proceeded
14 abroad voluntarily and not under an order
15 of deportation, and who are returning to
16 a lawful unrelinquished domicile of seven
17 consecutive years, may be admitted in the
18 discretion of the Attorney General

9
Perriello points out that DHS’s denial of his
naturalization application (while his appeal was pending
before the BIA) was without prejudice, and argues that the
willingness to leave open the prospect of future proceedings
amounts to an affirmative statement that he is prima facie
eligible for naturalization. Accordingly, he contends that
the BIA should have remanded his motion for termination of
the removal proceedings to the IJ for further consideration.
But especially considering that DHS was prohibited from
ruling on Perriello’s naturalization application while
removal proceedings were pending, denial without prejudice
does not signify a ruling on prima facie eligibility one way
or another.

19
1 without regard to the provisions [setting
2 forth various grounds for exclusion].
3
4 Buitrago-Cuesta v. I.N.S., 7 F.3d 291, 292 (2d Cir. 1993)

5 (quoting 8 U.S.C. § 1182(c)).

6 However, the class of aliens eligible for relief under

7 § 212(c) was narrowed by IMMACT § 511(a), 104 Stat. at 5052,

8 which precludes an alien who has “been convicted of an

9 aggravated felony and has served a term of imprisonment of

10 at least 5 years” from relief under § 212(c). In

11 Buitrago-Cuesta, we ruled that § 511(a) applies

12 retroactively to aliens convicted of aggravated felonies

13 before the statute was enacted. 7 F.3d at 295. “[T]he

14 plain language of the statute indicates a congressional

15 intent that § 511 apply retroactively.” Id.

16 Perriello argues that under Restrepo v. McElroy, 369

17 F.3d 627 (2d Cir. 2004), his reliance on the continuing

18 availability of § 212(c) during the period between his

19 release from prison and the enactment of § 511(a) precludes

20 the retroactive application of § 511(a) in his case.

21 Restrepo held that ambiguity in the Antiterrorism and

22 Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

23 110 Stat. 1214--which barred certain aliens, including those

24 convicted of aggravated felonies, from obtaining § 212(c)

20
1 relief--precludes retroactive application of that statute to

2 aliens who delayed proactively seeking § 212(c) relief

3 because they believed such relief would be available in the

4 future. 369 F.3d at 638.

5 Restrepo is of no help to Perriello, because we held in

6 Buitrago-Cuesta that § 511(a) unambiguously applies

7 retroactively.10 7 F.3d at 295; see also Singh v. Mukasey,

8 520 F.3d 119, 123 (2d Cir. 2008) (per curiam) (restating

9 Buitrago-Cuesta’s holding “that the plain language of IMMACT

10 indicates a congressional intent that § 511 apply

11 retroactively” (internal quotation marks and brackets

12 omitted)); Thom v. Ashcroft, 369 F.3d 158, 163 n.7

13 (observing that Restrepo had no impact on Buitrago-Cuesta’s

14 holding with respect to aliens convicted after trial); Reid

15 v. Holmes, 323 F.3d 187, 188 (2d Cir. 2003) (per curiam)

16 (noting that Buitrago-Cuesta “clearly established that

17 § 511(a) of the Immigration Act of 1990 could be applied

18 retroactively to aliens whose criminal convictions pre-dated

10
Restrepo itself did not involve § 511(a), presumably
because “[t]he record d[id] not indicate the length of
[Restrepo’s] term of imprisonment.” 369 F.3d at 630 n.1.
Also, Restrepo was convicted in 1992 and INS initiated
removal proceedings in 1996, id. at 630, which was too soon
for the agency to rely on § 511(a).

21
1 the statute’s enactment”). When a statute is unambiguous,

2 we are bound by the clear intent of Congress. See Landgraf

3 v. USI Film Prods., 511 U.S. 244, 280 (1994) (holding that

4 courts must defer to express congressional prescriptions in

5 determining the retroactivity of civil statutes). We

6 conclude that Restrepo is inapplicable to an alien convicted

7 of an aggravated felony at trial who is barred by § 511(a)

8 from obtaining § 212(c) relief.11

9 For the foregoing reasons, the petition is denied.

11
Because Perriello was convicted after a jury trial,
we express no view as to the possible retroactivity of
§ 511(a) to aliens who were convicted pursuant to plea
agreements. See 8 C.F.R. § 1212.3(f)(4)(ii) (“An alien is
not ineligible for section 212(c) relief on account of an
aggravated felony conviction entered pursuant to a plea
agreement that was made before [the enactment of
§ 511(a)].”).

22