Robledo-Gonzales v. Ashcroft, John D.

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 02-2475
ROMAN ROBLEDO-GONZALES,
Petitioner-Appellant,
v.

JOHN D. ASHCROFT, Attorney General
of the United States, Commissioner,
IMMIGRATION AND NATURALIZATION SERVICE,
BOARD OF IMMIGRATION APPEALS, District
1
Director, et al.,
Respondents-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 5570—William J. Hibbler, Judge.
____________
ARGUED JANUARY 24, 2003—DECIDED JULY 25, 2003
____________

1
In recent immigration cases, we have substituted the Attorney
General for the Immigration and Naturalization Service (“INS”)
because, as of March 1, 2003, the INS ceased to exist as an
independent agency within the Department of Justice and its
functions were transferred to the newly formed Department of
Homeland Security. See, e.g., Ciorba v. Ashcroft, 323 F.3d 539 (7th
Cir. 2003). However, because this case is an action for habeas
corpus, and more specifically because it concerns whether the
petitioner, at the time the action was filed, named the proper
respondents, we maintain the caption of the original action.
2 No. 02-2475

Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Roman Robledo-Gonzales sought a
writ of habeas corpus seeking release from incarceration and
other relief on the basis that the deportation order underly-
ing his conviction was contrary to law. The district court
denied Mr. Robledo-Gonzales relief. For the reasons set
forth in the following opinion, we affirm the judgment of
the district court.

I
BACKGROUND
A. Facts
1. Deportation Proceedings
Mr. Robledo-Gonzales first entered the United States
without inspection in 1980 and later became a lawful per-
manent resident. In 1993, Mr. Robledo-Gonzales pleaded
guilty to a charge of possession with intent to deliver
narcotics. He was sentenced to four years’ imprisonment.
After his conviction, the INS instituted deportation pro-
ceedings against Mr. Robledo-Gonzales as an alien con-
victed of an aggravated felony. During a hearing before an
Immigration Judge (“IJ”), Mr. Robledo-Gonzales applied for
relief pursuant to 8 U.S.C. § 1182(c) (also referred to as
2
§ 212(c)). The IJ denied Mr. Robledo-Gonzales’ application

2
8 U.S.C. § 1182(c) (1995) provided:
c) Nonapplicability of subsection (a)
Aliens lawfully admitted for permanent resident who
temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful
(continued...)
No. 02-2475 3

for § 212(c) relief, and Mr. Robledo-Gonzales appealed the
IJ’s decision to the Board of Immigration Appeals (“BIA”).
While the appeal was pending before the BIA, Congress
enacted the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and
the Illegal Immigration Reform and Immigrant Responsibil-
ity Act (“IIRIRA”), Pub. L. 104-308, 110 Stat. 3009 (1996),
which substantially curtailed the ability of certain aliens to
apply for discretionary relief and to seek judicial review of
adverse administrative decisions. Relevant to this case,
§ 440(d) of AEDPA barred § 212(c) relief to individuals who
had been convicted of certain drug offenses.
Also while Mr. Robledo-Gonzales’ appeal was pending
before the BIA, the Attorney General considered the effect
of the § 440(d) bar on aliens whose petitions for discretion-
ary relief were pending at the time of AEDPA’s passage. See
Matter of Soriano, Interim Dec. No. 3289 (AG Feb. 21, 1997).
In Soriano, the Attorney General determined that § 440(d) of
AEDPA precluded § 212(c) relief even for petitioners whose
immigration cases were pending on the date of AEDPA’s
enactment.

2
(...continued)
unrelinquished domicile of seven consecutive years, may be
admitted in the discretion of the Attorney General without
regard to the provisions of subsection (a) of this section
(other than paragraphs (3) and (9)(C)). Nothing contained in
this subsection shall limit the authority of the Attorney
General to exercise the discretion vested in him under section
1181(b) of this title. 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.
4 No. 02-2475

On March 24, 1997, the BIA affirmed the IJ’s denial of
discretionary relief to Mr. Robledo-Gonzales. Specifically,
the BIA cited Soriano and held that § 440(d) of AEDPA
prevented it from granting Mr. Robledo-Gonzales the dis-
cretionary relief that he was seeking.
Shortly thereafter, the INS issued a warrant of deporta-
tion, and Mr. Robledo-Gonzales self-deported on May 16,
1997. Mr. Robledo-Gonzales never appealed the BIA’s order,
nor did he seek to challenge his deportation in any way.

2. Criminal Proceedings
Mr. Robledo-Gonzales illegally reentered the Country
only one year later. In February 2001, Mr. Robledo-Gonzales
was apprehended and charged with violation of 8 U.S.C.
§ 1326(a) and (b)—illegal reentry. After Mr. Robledo-
Gonzales had been charged, the Supreme Court handed
down its opinion in INS v. St. Cyr, 533 U.S. 289 (2001), in
which the Court reached a different conclusion than had the
Attorney General concerning the availability of § 212(c)
relief after AEDPA. The Court stated:
We find nothing in IIRIRA unmistakably indicating that
Congress considered the question to apply its repeal of
§ 212(c) retroactively to such aliens [as St. Cyr]. We
therefore hold that § 212(c) relief remains available for
aliens, like respondent, whose convictions were ob-
tained through plea agreements and who, notwithstand-
ing those convictions, would have been eligible for
§ 212(c) relief at the time of their plea under the law
then in effect.
Id. at 326. Mr. Robledo-Gonzales moved to dismiss his in-
dictment on the basis of the St. Cyr decision, but his motion
was denied. Mr. Robledo-Gonzales then filed the present
No. 02-2475 5
3
action. Mr. Robledo-Gonzales also filed a motion to reopen
his deportation proceedings with the BIA on the same basis.
See R.6, Ex.A.

B. District Court Proceedings
In his habeas action, Mr. Robledo-Gonzales requested the
following relief. First, Mr. Robledo-Gonzales sought an
order that the 1997 deportation order was “null and void as
unconstitutional.” R.1 at 9. Mr. Robledo-Gonzales also re-
quested an order “declaring the criminal proceedings in-
stituted in the Northern District of Illinois . . . improper as
unconstitutional.” Id. Additionally, Mr. Robledo-Gonzales
asked the district court to declare that “aliens who were
unjustly and illegally deported in reliance of the Attorney
General’s now-defunct decision in Matter of Soriano have the
right to apply for, or reassert their right to § 212(c) relief,”
4
despite an INS regulation to the contrary, 8 C.F.R. § 3.44. Id.
Finally, Mr. Robledo-Gonzales sought an order requiring
the BIA to reopen his deportation proceedings “to enable
him to reassert his previously denied application for § 212(c)
relief . . . .” Id. at 10.

3
Mr. Robledo-Gonzales eventually pleaded guilty to the crim-
inal indictment. His conviction currently is on appeal to this
court. See United States v. Robledo-Gonzales, No. 02-3599.
4
The former 8 C.F.R. § 3.44 recently has been redesignated 8
C.F.R. § 1003.44; for the sake of consistency, we use the former
designation throughout this opinion.
6 No. 02-2475

The respondents then filed a motion to dismiss the peti-
5
tion, and the district court granted the motion. The district
court first determined that, because the BIA now had denied
the motion to reopen, see R.6, Ex.1, that ruling was ripe for
review. However, citing this court’s decisions in Sharif v.
Ashcroft, 280 F.3d 786 (7th Cir. 2002), and Chowdhury v.
Ashcroft, 241 F.3d 848 (7th Cir. 2001), the district court
concluded that Mr. Robledo-Gonzales had filed the action
in the wrong court; any review of the denial of the motion
to reopen should have been taken to this court.
With respect to the 1997 removal order, the district court
held that the Supreme Court’s decisions in INS v. St. Cyr,
533 U.S. 289 (2001), and Calcano-Martinez v. INS, 533 U.S. 348
(2001), allowed it to entertain a habeas action that raised
pure questions of law. However, the court rejected Mr.
Robledo-Gonzales’ argument that these recent Supreme
Court decisions afforded every convicted alien a constitu-
tional right to seek § 212(c) relief. Furthermore, the court
noted that Mr. Robledo-Gonzales had applied for § 212(c)
relief before the IJ; the IJ, however, had denied Mr. Robledo-
Gonzales that relief after a full hearing. Consequently, be-
cause Mr. Robledo-Gonzales had not suffered any prejudice
from the alleged deprivation, no constitutional violation had
occurred.
Mr. Robledo-Gonzales timely appealed the district court’s
dismissal of his habeas petition.

5
One ground of dismissal urged by the respondents was that the
issue of the motion to reopen was not ripe because the BIA had
not yet ruled on the motion. See R.3, ¶ 2.
No. 02-2475 7

II
ANALYSIS
A. Propriety of the Petition for Habeas Corpus
The respondents maintain that Mr. Robledo-Gonzales is
not currently in their custody, nor was he at the time he
filed his petition for the writ of habeas corpus. Conse-
quently, they argue, this court should dismiss the petition.
We agree.
Mr. Robledo-Gonzales brings his present action pursuant
to 28 U.S.C. § 2241. Although § 2241 is the substantive
provision for the writ of habeas corpus, 28 U.S.C. §§ 2242
and 2243 set forth the procedure one must follow to bring a
petition and to obtain the relief of the writ. Specifically,
application for the writ “shall allege the facts concerning the
applicant’s commitment or detention, the name of the
person who has custody over him and by virtue of what
claim or authority, if known.” 28 U.S.C. § 2242 ¶ 2. The
court must then issue the writ or issue an order to show
cause why the writ should not be granted. See 28 U.S.C.
§ 2243 ¶ 1. That document “shall be directed to the person
having custody of the person detained.” Id. ¶ 2. Further-
more, unless the writ raises only issues of law, “the person
to whom the writ is directed shall be required to produce at
the hearing the body of the person detained.” Id. ¶ 5. These
procedural requirements establish that “[t]he writ of habeas
corpus does not act upon the prisoner who seeks relief, but
upon the person who holds him in what is alleged to be
unlawful custody.” Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 494-95 (1973). Consequently, a peti-
tion for a writ of habeas corpus must be directed to the
individual or individuals who holds the petitioner in al-
legedly unlawful custody.
8 No. 02-2475

Furthermore, it is not sufficient that the named respon-
dent simply be involved, in some manner, with the peti-
tioner’s detention. Sections 2242 and 2243 “indicate that the
custodian is the person having a day-to-day control over the
prisoner.” Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986).
Specifically, when a prisoner is serving a sentence in a fed-
eral facility, “the warden of that facility is the prisoner’s
custodian within the meaning of 28 U.S.C. § 2242-2243 . . . .”
Id.
At the time the present petition was filed, Mr. Robledo-
Gonzales was incarcerated awaiting trial on the charge of
illegal reentry. Consequently, the proper respondent to Mr.
Robledo-Gonzales’ habeas petition was the warden of the
facility in which Mr. Robledo-Gonzales was being held. See
6
id. Mr. Robledo-Gonzales’ petition, however, failed to name
the warden of the facility in which he was being detained.
Mr. Robledo-Gonzales’ petition named only the Attorney
General, the Commissioner of the INS and the District
Director of the INS, none of whom possessed “day-to-day”
control over Mr. Robledo-Gonzales at the time the petition
was filed.
Despite this shortcoming, Mr. Robledo-Gonzales main-
tains that the court nevertheless should entertain the peti-
tion against the named respondents for a number of reasons.
First, he notes that “the ‘in-custody’ requirement is deter-
mined at the time of the filing of the petition,” and he “was
detained at the time of the filing of his petition.” Reply Br.
at 6. We do not dispute this as a general principle, see, e.g.,

6
If Mr. Robledo-Gonzales had been released on bail pending his
trial on the charge, the proper respondent would have been the
court under whose order Mr. Robledo-Gonzales was temporarily
released. See Reimnitz v. State’s Attorney of Cook County, 761 F.2d
405, 409 (7th Cir. 1985).
No. 02-2475 9

Carafas v. Lavallee, 391 U.S. 234, 238 (1968); however, it does
little to forward Mr. Robledo-Gonzales’ argument. Specifi-
cally, the question here is not whether Mr. Robledo-Gonzales
was “in custody” per se at the time his petition was filed,
but who held Mr. Robledo-Gonzales in custody at the time
he filed his petition. As set forth above, “[t]he writ of habeas
corpus does not act upon the prisoner who seeks relief, but
upon the person who holds him in what is alleged to be
unlawful custody.” Braden, 410 U.S. at 494-95. Here, Mr.
Robledo-Gonzales failed to name as a respondent the person
holding him in allegedly unlawful custody.
Mr. Robledo-Gonzales also argues that, for purposes of
this case, the Attorney General should be considered the
legal custodian because “he controls the deportation and
criminal processes for enforcement of the immigration
laws.” Reply Br. at 6. Again, this argument misses the mark.
The power to control some aspect of the petitioner’s legal
process does not render that official the petitioner’s custo-
dian for habeas purposes. In rejecting this argument with
respect to the Parole Commission, the District of Columbia
Circuit stated:
Appellees argue that because the Commission has the
power to release them, the commission is their custo-
dian. But their argument extends to any person or entity
possessing some sort of power to release them. Under
appellees’ theory, the Attorney General of the United
States could be considered the custodian of every pris-
oner in federal custody because he supervises the Fed-
eral Bureau of Prisons. See 18 U.S.C. § 4041 (1982). We
have specifically rejected this interpretation. Sanders v.
Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945).
Guerra, 786 F.2d at 416; see also Chatman-Bey v. Thornburgh,
864 F.2d 804, 811 (D.C. Cir. 1988) (“Thus it should be abun-
dantly clear that habeas petitioners, such as Chatman-Bey,
10 No. 02-2475

cannot properly bring suit against such officials as the
Attorney General and such entities as the Parole Commis-
sion. Rather the proper defendant in federal habeas cases is
the warden.”).
Finally, Mr. Robledo-Gonzales points to a number of dis-
trict court cases in which the courts have found that the
Attorney General was the proper respondent when a peti-
tioner brings a habeas petition to challenge the execution of
a final order of removal. See, e.g., Lee v. Ashcroft, 216 F. Supp.
2d 51 (S.D.N.Y. 2002). Although at least one circuit has
addressed and soundly rejected this approach, see Vasquez
v. Reno, 233 F.3d 688, 693 (1st Cir. 2000), we need not reach
the issue. Here, Mr. Robledo-Gonzales is not being detained
under a final order of deportation. Mr. Robledo-Gonzales
was not the subject of immigration proceedings at the time
his petition was filed, nor is he at the present time. Indeed,
neither the INS nor its successor agency, the Department of
Homeland Security, has taken even the preliminary step of
filing a notice of detainer with the criminal authorities. Con-
sequently, the cases cited by Mr. Robledo-Gonzales simply
are not applicable to the present situation.
Thus, at the time his petition was filed, Mr. Robledo-
Gonzales was not in the custody of any of the named
respondents for habeas purposes. “Absent custody by the
authority against whom relief is sought, jurisdiction usually
will not lie to grant the requested writ.” Campillo v. Sullivan,
853 F.2d 593, 595 (8th Cir. 1988); see also Vasquez, 233 F.3d
at 697 (“Because the petitioner did not direct his habeas
petition ‘to the person having custody of the person de-
tained,’ 28 U.S.C. § 2243, the district court ought not to
have acted on the merits.”); DiGrado v. Ashcroft, 184
F. Supp. 2d 227, 232 (N.D.N.Y. 2002) (holding that, be-
cause the petitioner named the incorrect respondent,
“jurisdiction is lacking pursuant to § 2241”). We therefore
No. 02-2475 11

affirm the district court’s judgment dismissing Mr. Robledo-
Gonzales’ petition for the writ of habeas corpus for fail-
7
ing to name the proper custodian.

7
The respondents maintain that, even if Mr. Robledo-Gonzales
had named the proper custodian in his habeas action, there are
other barriers to our granting relief, namely, that Mr. Robledo-
Gonzales has waived any challenge to the 1997 deportation order
by departing the Country. According to the respondents, the
former 8 U.S.C. § 1105a bars habeas relief to aliens who have left
the Country pursuant to a deportation order. That provision
states:
An order of deportation or of exclusion shall not be
reviewed by any court if the alien has not exhausted the
administrative remedies available as of right under the
immigration laws and regulations or if he has departed from the
United States after the issuance of the order. Every petition for
review or for habeas corpus shall state whether the validity
of the order has been upheld in any prior judicial proceed-
ing, and, if so, the nature and date thereof, and the court in
which such proceeding took place. No petition for review or
for habeas corpus shall be entertained if the validity of the
order has been previously determined in any civil or criminal
proceeding, unless the petition presents grounds which the
court finds could not have been presented in such prior
proceeding, or the court finds that the remedy provided by
such prior proceeding was inadequate or ineffective to test
the validity of the order.
8 U.S.C. § 1105a(c) (1995) (emphasis added). Consequently, a
district court cannot review an order of deportation by way of
habeas if the petitioner has departed after issuance of the order.
See, e.g., Goonsuwan v. Ashcroft, 252 F.2d 383, 387 (5th Cir. 2001).
Mr. Robledo-Gonzales counters that the former § 1105a does
not apply to him by virtue of IIRIRA’s transitional rules. Those
rules provide in relevant part:
(continued...)
12 No. 02-2475

7
(...continued)
(c) Transition for certain aliens.—
(1) General rule that new rules do not apply.—Subject
to the succeeding provisions of this subsection, in the
case of an alien who is in exclusion or deportation
proceedings before the title III-A effective date—
(A) the amendments made by this subtitle shall not
apply, and
(B) the proceedings (including judicial review thereof)
shall continue to be conducted without regard to such
amendments.
...
(4) Transitional changes in judicial review.—In the case
in which a final order of exclusion or deportation is
entered more than 30 days after the date of the enact-
ment of this Act [Sept. 30, 1996], notwithstanding any
provision of section 106 of the Immigration and Nationality
Act [section 1105a of this title] (as in effect as of the date of
the enactment of this Act [Sept. 30, 1996]) to the contrary—
...
(G) there shall be no appeal permitted in the case of an alien
who is inadmissible or deportable by reason of having
committed a criminal offense covered in section 212(a)(2)
or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Im-
migration and Nationality Act [sections 1182(a)(2) or
1251(a)(2)(A)(iii), (B), (C), or (D) of this title] (as in effect
as of the date of the enactment of this Act) [Sept. 30,
1996], or any offense covered by section 241(a)(2)(A)(ii)
of such Act [section 1251(a)(2)(A)(ii) of this title] (as in
effect on such date) for which both predicate offenses
are, without regard to their date of commission, other-
wise covered by section 241(a)(2)(A)(i) of such Act [sec-
tion 1251(a)(2)(A)(i) of this title] (as so in effect).
(continued...)
No. 02-2475 13

7
(...continued)
8 U.S.C. § 1101 (statutory notes) (emphasis added).
Mr. Robledo-Gonzales acknowledges that the transitional
rules generally exempt from IIRIRA’s coverage those individuals
whose proceedings were instituted prior to IIRIRA’s passage.
However, he also points out that the transitional rules state that,
notwithstanding any provisions of § 1105a, there is no further
review of BIA orders for individuals whose final order of
deportation issued after October 30, 1996, and who were found
deportable because of the commission of certain offenses. Because
he falls within these categories, Mr. Robledo-Gonzales maintains
that he is excepted from the general rule that the provisions of
§ 1105a, including the bar to habeas relief for aliens who have
departed the Country, apply. We disagree.
The general rule, set forth in subsection (c), quoted above, is
that aliens in removal proceedings prior to IIRIRA’s effective date
will continue to be governed by the administrative process that
existed prior to IIRIRA’s passage. However, subsection (c)(4)(G)
of the transitional rules states that “notwithstanding any provi-
sion of section 106 of the Immigration and Nationality Act [8
U.S.C. § 1105a] to the contrary,” there shall be no judicial review
in the cases of certain aliens.
The question then becomes whether the bar to habeas relief
contained in § 1105a is contrary to the provision of the transi-
tional rules that bars judicial review. We have to conclude, in
light of the Supreme Court’s recent decision in INS v. St. Cyr, 533
U.S. 289 (2001), that the two provisions are not at odds. As will be
discussed in greater detail below, the Court in St. Cyr determined
that habeas relief and judicial review have had “historically
distinct meanings” in the immigration context. Id. at 311. Thus, a
provision that barred judicial review would not necessarily
implicate the right to bring a habeas petition; it certainly would
not be “contrary” to a provision that bars habeas relief. Thus, we
believe that § 1105a’s general bar to habeas for those who have
(continued...)
14 No. 02-2475

B. Review of Motion to Reopen
1. Proper Forum for Review
As noted above, in addition to bringing his habeas action
in the district court, Mr. Robledo-Gonzales also filed a
motion to reopen proceedings with the BIA on the ground
that the BIA erred when it denied his application for § 212(c)
relief based on Soriano. The BIA denied the motion to re-
open; it stated:
[I]n his motion the respondent reported that he self-
deported to his native country of Mexico subsequent to
the Immigration Judge’s noted decision. As such, this
Board is without jurisdiction to consider the respon-
dent’s motion. 8 C.F.R. § 3.2(d)(2001) (a motion to
reopen shall not be made by a person who is the subject

7
(...continued)
departed the Country after a final order of deportation is not
contrary to the provision of the transitional rules barring judicial
review, and we conclude that § 1105a’s bar applies to Mr.
Robledo-Gonzales. Therefore, pursuant to the former 8 U.S.C.
§ 1105a(c), Mr. Robledo-Gonzales waived his right to seek habeas
review when he departed the Country in 1997.
Mr. Robledo-Gonzales further maintains that if he is subject
both to the bar to judicial review contained in subsection (c)(4)(G)
of the transitional rules and is also subject to the bar to habeas
relief contained in § 1105a(c), then a due process issue arises
because he is left without a judicial forum in which he might
challenge any errors in the immigration process. Again, we
disagree. As we shall explain later in this opinion, this court has
recognized the existence of “safety valve” review in the courts of
appeals to protect petitioners against bizarre miscarriages of
justice and substantial constitutional violations. See Lara-Ruiz v.
INS, 241 F.3d 934, 939 (7th Cir. 2001).
No. 02-2475 15

of deportation proceedings subsequent to his departure
from the United States).
R.6, Ex.1.
Before the district court, Mr. Robledo-Gonzales claimed
that the BIA’s failure to reopen the proceedings was a
violation of his equal protection rights, citing St. Cyr. The
district court determined that the issue was not properly
before it because this court has exclusive jurisdiction to
review decisions of the BIA.
Mr. Robledo-Gonzales claims that the district court’s
failure to consider the challenge to the denial of the motion
to reopen was in error. According to Mr. Robledo-Gonzales,
his only recourse to challenge the denial of the motion to
reopen was through habeas because IIRIRA and AEDPA
curtailed his right to judicial review of BIA actions in the
courts of appeals. We agree with the district court that Mr.
Robledo-Gonzales should have sought review of the denial
of the motion to reopen in this court. A brief review of
recent Supreme Court and circuit cases is helpful in under-
standing our conclusion.

a. St. Cyr
We begin our review with the Supreme Court’s decision
in INS v. St. Cyr, 533 U.S. 289 (2001). In St. Cyr, the peti-
tioner, a lawful permanent resident, pleaded guilty in
March of 1996 to a state-court charge of selling a controlled
substance. In April 1997, after the passage of IIRIRA and
AEDPA, the INS instituted deportation proceedings against
him. The INS (and BIA) took the position that, under IIRIRA
and AEDPA, the Attorney General no longer had the
discretion to grant § 212(c) relief to petitioners such as St.
16 No. 02-2475
8
Cyr. St. Cyr responded by filing a habeas action seeking a
determination of his right to apply for § 212(c) relief. In that
action, the Attorney General argued that, not only did
AEDPA and IIRIRA withdraw his ability to grant discre-
tionary relief under § 212(c), but also, “as a result of other
amendments adopted in AEDPA and IIRIRA, . . . there
[was] no judicial forum available to decide whether these
statutes did, in fact, deprive him of the power to grant such
relief.” Id. at 297.
The Supreme Court rejected the Attorney General’s posi-
tion. The Court stated that under the pre-1996 statutory
scheme, a petitioner could have challenged the Attorney
General’s position through a habeas proceeding. Further-
more, the Court held that nothing in IIRIRA or AEDPA
clearly abrogated a petitioner’s right to seek habeas relief for
pure questions of law. Most pertinent for our purposes, the

8
In St. Cyr, the Supreme Court recounted the ways in which
Congress had cut back on § 212(c) relief:
Three statutes enacted in recent years have reduced the size
of the class of aliens eligible for such discretionary relief. In
1990, Congress amended § 212(c) to preclude from discre-
tionary relief anyone convicted of an aggravated felony who
had served a term of imprisonment of at least five years. In
1996, in § 440(d) of AEDPA, Congress identified a broad set
of offenses for which convictions would preclude such relief.
And finally, that same year, Congress passed IIRIRA. That
statute, inter alia, repealed § 212(c), and replaced it with a
new section that gives the Attorney General the authority
to cancel removal for a narrow class of inadmissible or
deportable aliens. So narrowed, that class does not include
anyone previously “convicted of any aggravated felony.”
St. Cyr, 533 U.S. at 297 (citations and footnote omitted).
No. 02-2475 17
9
Court held that 8 U.S.C. § 1252(a)(2)(C) does not affect a
petitioner’s ability to seek habeas relief. The Court stated:
The term “judicial review” or “jurisdiction to review” is
the focus of each of these three provisions. In the
immigration context, “judicial review” and “habeas
corpus” have historically distinct meanings. In Heikkila,
the Court concluded that the finality provisions at issue
“preclud[ed] judicial review” to the maximum extent
possible under the Constitution, and thus concluded
that the APA was inapplicable. Nevertheless, the Court
reaffirmed the right to habeas corpus. Noting that the
limited role played by the courts in habeas corpus
proceedings was far narrower than the judicial review
authorized by the APA, the Court concluded that “it
is the scope of inquiry on habeas corpus that differ-
entiates” habeas review from “judicial review.” Both
§§ 1252(a)(1) and (a)(2)(C) speak of “judicial review”—
that is, full, nonhabeas review. Neither explicitly men-
tions habeas, or 28 U.S.C. § 2241. Accordingly, neither
provision speaks with sufficient clarity to bar jurisdic-
tion pursuant to the general habeas statute.
Id. at 311-13 (quoting Heikkila v. Barber, 345 U.S. 229, 235-36
(1953); additional citations and footnotes omitted). After
determining that habeas review was still available to the

9
8 U.S.C. § 1252(a)(2)(C) provides:
Notwithstanding any other provision of law, no court shall
have jurisdiction to review any final order of removal against
an alien who is removable by reason of having committed an
offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B),
(C), or (D) of this title, or any offense covered by section
1227(a)(2)(A)(ii) of this title for which both predicate offenses
are, without regard to their date of commission, otherwise
covered by section 1227(a)(2)(A)(i) of this title.
18 No. 02-2475

petitioner, the Court turned to the merits of the claim; it
noted that
[t]wo important legal consequences ensued from respon-
dent’s entry of a guilty plea in March 1996: (1) He be-
came subject to deportation, and (2) he became eligible
for a discretionary waiver of that deportation under the
prevailing interpretation of § 212(c). When IIRIRA went
into effect in April 1997, the first consequence was un-
changed except for the fact that the term “removal” was
substituted for “deportation.” The issue that remains to
be resolved is whether IIRIRA § 304(b) changed the
second consequence by eliminating respondent’s eligi-
bility for a waiver.
Id. at 314-15. The Court further explained why these conse-
quences were significant in determining whether the bar on
§ 212(c) was retroactive:
IIRIRA’s elimination of any possibility of § 212(c) relief
for people who entered into plea agreements with the
expectation that they would be eligible for such relief
clearly attaches a new disability, in respect to transac-
tions or considerations already past. Plea agreements
involve a quid pro quo between a criminal defendant and
the government. In exchange for some perceived ben-
efit, defendants waive several of their constitutional
rights (including the right to a trial) and grant the gov-
ernment numerous tangible benefits, such as promptly
imposed punishment without the expenditure of pros-
ecutorial resources. There can be little doubt that, as a
general matter, alien defendants considering whether to
enter into a plea agreement are acutely aware of the
immigration consequences of their convictions. Given
the frequency with which § 212(c) relief was granted in
the years leading up to AEDPA and IIRIRA, preserving
the possibility of such relief would have been one of
No. 02-2475 19

the principal benefits sought by defendants deciding
whether to accept a plea offer or instead to proceed to
trial.
Id. at 321-23 (internal quotation marks, citations and foot-
notes omitted). After reviewing these effects, the Court held
that the bar to discretionary relief contained in IIRIRA did
not apply to those whose convictions were obtained through
plea agreements that occurred prior to the law’s passage:
Prior to AEDPA and IIRIRA, aliens like St. Cyr had a
significant likelihood of receiving § 212(c) relief. Be-
cause respondent, and other aliens like him, almost cer-
tainly relied upon that likelihood in deciding whether
to forgo their right to a trial, the elimination of any
possibility of § 212(c) relief by IIRIRA has an obvious
and severe retroactive effect.
We find nothing in IIRIRA unmistakably indicating
that Congress considered the question whether to apply
its repeal of § 212(c) retroactively to such aliens. We
therefore hold that § 212(c) relief remains available for
aliens, like respondent, whose convictions were ob-
tained through plea agreements and who, notwithstand-
ing those convictions, would have been eligible for
§ 212(c) relief at the time of their plea under the law
then in effect.
Id. at 325-26 (footnotes omitted).

b. Calcano-Martinez
In Calcano-Martinez v. INS, 533 U.S. 348 (2001), a compan-
ion case to St. Cyr, the Court applied the holding in St. Cyr
and upheld the petitioners’ right to seek habeas relief. How-
ever, in doing so, the Court made the following observation
concerning IIRIRA’s bar to judicial review:
20 No. 02-2475

The scope of this preclusion is not entirely clear. Though
the text of the provision is quite broad, it is not without
its ambiguities. Throughout this litigation, the Govern-
ment has conceded that the courts of appeals have the
power to hear petitions challenging the factual deter-
minations thought to trigger the jurisdiction-stripping
provision (such as whether an individual is an alien and
whether he or she has been convicted of an “aggravated
felony” within the meaning of the statute). In addition,
the Government has also conceded that the courts of
appeals retain jurisdiction to review “substantial con-
stitutional challenges” raised by aliens who come within
the strictures of § 1252(a)(2)(C). As the petitions in this
case do not raise any of these types of issues, we need
not address this point further.
Id. at 350 n.2 (citations omitted). Consequently, the Supreme
Court explicitly left open the possibility that judicial review,
as opposed to habeas, was available to at least some aliens
despite the seemingly absolute language of § 1252(a)(2)(C).

c. Circuit case law
Soon after the passage of IIRIRA and AEDPA, this court
recognized that § 1252(a)(2)(C) did not operate as a com-
plete bar to judicial review of BIA decisions. In LaGuerre v.
Reno, 164 F.3d 1035 (7th Cir. 1998), we noted that, despite
this provision, courts of appeals maintained the power to
consider constitutional issues and to correct “bizarre mis-
carriages of justice.” Id. at 1040. We further explained this
power in Lara-Ruiz v. INS, 241 F.3d 934 (7th Cir. 2001). We
stated:
Section 1227(a)(2)(A)(iii) provides that “[a]ny alien who
is convicted of an aggravated felony at any time after
admission is deportable.” Therefore, § 1252(a)(2)(C) gen-
No. 02-2475 21

erally eliminates our jurisdiction to review any final
order of deportation against an alien convicted of an
aggravated felony. However, we retain jurisdiction to
determine whether we have jurisdiction—that is, to de-
termine whether an alien’s criminal conviction is indeed
an “aggravated felony” under the INA, thereby trig-
gering the jurisdictional bar of § 1252(a)(2)(C). See, e.g.,
Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999); Yang v.
INS, 109 F.3d 1185, 1192 (7th Cir. 1997). Moreover, in
addressing a similar jurisdictional bar announced in an
earlier enacted amendment to the INA, we have held
that an alien may challenge his deportability on consti-
tutional grounds directly in the courts of appeals, pro-
vided that he raises a substantial constitutional claim.
See Morales-Ramirez v. Reno, 209 F.3d 977, 980 (7th Cir.
2000); Singh v. Reno, 182 F.3d 504, 509 (7th Cir. 1999);
LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998).
Thus, while we honor Congress’ intent to curtail judicial
review of final deportation orders for certain disfa-
vored criminals, we have retained jurisdiction over
any substantial constitutional claims raised as a “safety
valve” to prevent “bizarre miscarriages of justice.” See
LaGuerre, 164 F.3d at 1040.
Id. at 939. See also Flores-Leon v. INS, 272 F.3d 433, 437-38 (7th
Cir. 2001). We then set out the path a court must follow to
determine whether it could address a petitioner’s claims:
[W]e must first determine whether the BIA correctly
concluded that Lara-Ruiz was “an alien deportable by
reason of having committed an aggravated felony.” If
we answer this question in the affirmative, we must
then consider whether Lara-Ruiz has nevertheless raised
substantial constitutional claims, and we may assert
jurisdiction over Lara-Ruiz’ claims only if we find that
he has.
22 No. 02-2475

Lara-Ruiz, 241 F.3d at 939. After determining that the pe-
titioner was, in fact, an aggravated felon, we went on to
address and reject his claims that his due process and equal
protection rights had been violated.
It is true that this court’s recognition of “safety valve”
review in the courts of appeals, in cases such as LaGuerre
and Lara-Ruiz, coincided with our conclusion that IIRIRA
and AEDPA had abolished habeas review for certain cate-
gories of aliens. See LaGuerre, 164 F.3d at 1038-40. However,
the Supreme Court’s decision in St. Cyr, reaching the op-
posite conclusion with respect to IIRIRA’s and AEDPA’s
effect on habeas review, has not altered our view that the
courts of appeals still play a role in reviewing substantial
constitutional questions arising in the immigration context.
See, e.g., Gomez-Chavez v. Perryman, 308 F.3d 796, 800-01 (7th
Cir. 2002), petition for cert. filed, 71 USLW 3680 (U.S. Mar. 10,
2003) (No. 02-1529); Sharif v. Ashcroft, 280 F.3d 786, 788 (7th
Cir. 2002). Specifically in Gomez-Chavez, this court stated:
Although § 1252(g) bars Gomez-Chavez from obtaining
an order commanding the INS to adjust his status or
precluding his removal, this does not mean that the
courts have ceased to exist for cases in which a true
miscarriage of justice may be occurring. LaGuerre v.
Reno, 164 F.3d at 1040. For example, the Supreme Court
held in INS v. St. Cyr, 533 U.S. 289 (2001), that the dis-
trict courts continue to have jurisdiction under 28 U.S.C.
§ 2241 to entertain habeas corpus petitions based on
pure questions of law. Furthermore, the observation in
this court’s decision in Yang v. INS, 109 F.3d 1185 (7th
Cir. 1997), remains true: the review-preclusion provi-
sions in the 1996 amendments to the immigration laws
do not preclude the court of appeals from determining
whether the alien is being removed for a permissible
reason. Thus, the agency does not have the “final say on
No. 02-2475 23

constitutional matters”; instead, that power rests with
the courts. Singh [v. Reno, 182 F.3d 504, 510 (7th Cir.
1999)].
308 F.3d at 800 (parallel citations omitted); see also Brooks v.
Ashcroft, 283 F.3d 1268, 1273 (11th Cir. 2002) (stating that the
court of appeals is not “foreclosed from consideration of
Brooks’ Petition [for review] if he has raised substantial con-
stitutional issues”).
In sum, this court repeatedly has acknowledged its auth-
ority to review substantial constitutional questions pre-
sented through a petition for review of a final order of the
BIA. Furthermore, this court has continued to assert its
jurisdiction to review substantial constitutional questions
even after the Supreme Court’s decision in St. Cyr. Finally,
the Supreme Court has not held that the ability of the
district courts to entertain an alien’s habeas action negates
the authority of the courts of appeals to consider substantial
constitutional questions when presented through a petition
for review of a decision of the BIA. See Calcano-Martinez, 533
U.S. at 350 n.2. Consequently, because Mr. Robledo-Gonza-
les raises a constitutional challenge to the BIA’s application
of its regulation in the denial of his motion to reopen, we be-
lieve that the district court properly determined that review
of the equal protection issue should have been directed to
10
this court.

10
This court’s decision in Bosede v. Ashcroft, 309 F.3d 441 (7th Cir.
2002), does not alter the above analysis. In Bosede, the petitioner
had applied for both asylum and withholding of deportation.
Bosede initially had argued that he was eligible for asylum and
that he was denied due process because his counsel had not
challenged the convictions upon which the deportation proceed-
ings were based and which rendered him ineligible for asylum.
(continued...)
24 No. 02-2475

10
(...continued)
The INS claimed that this court did not have jurisdiction to
consider Bosede’s claims on appeal. This court stated:
Bosede’s claim is governed by the rules of the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996).
Before proceeding to the merits we address the INS’s
contention that we do not have jurisdiction to hear Bosede’s
appeal because Bosede is removable as a criminal alien. 8
U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction to
review any final order of removal against an alien who is
removable by reason of having committed a criminal offense.
. . .”). Although the INS has accurately quoted the statute,
matters are more complex than it is willing to admit. At a
minimum, this court retains jurisdiction to determine its own
jurisdiction. Flores-Leon v. INS, 272 F.3d 433, 437 (7th Cir.
2001). We have held before on a number of occasions that the
review-preclusion provisions in the 1996 amendments to
the immigration laws do not prevent us from determining
whether the alien is being removed for a permissible reason.
Sandoval v. INS, 240 F.3d 577, 580 (7th Cir. 2001); Yang v. INS,
109 F.3d 1185, 1192 (7th Cir. 1997). Under the Supreme
Court’s decisions in Calcano-Martinez v. INS, 533 U.S. 348
(2001), and INS v. St. Cyr, 533 U.S. 289 (2001), it is also clear
that Bosede may not raise other constitutional or statutory
challenges in a direct review petition, but that habeas corpus
under 28 U.S.C. § 2241 remains available for some such
claims. See Calcano-Martinez, 533 U.S. at 351. We are therefore
precluded from considering in the present appeal Bosede’s
claim that his Fifth Amendment due process rights were
violated in the proceedings before the IJ, and we express no
opinion on that argument.
Id. at 445-46 (parallel citations omitted). However, on appeal,
Bosede conceded that he was ineligible for asylum. The court
“therefore [was] concerned only with the BIA’s finding that he
(continued...)
No. 02-2475 25

Despite circuit case law establishing the right of aliens to
present substantial constitutional questions to this court
through a petition for review of a final order of the BIA, Mr.
Robledo-Gonzales did not seek direct review of the BIA’s
denial of the motion to reopen in this court. Consequently,
Mr. Robledo-Gonzales’ constitutional challenges concerning
the BIA’s failure to reopen are not properly before this
court.

10
(...continued)
was ineligible for withholding of removal and deferral under [the
Convention Against Torture] because of the 1993 felony convic-
tion.” Id. at 446. With respect to his appeal of this claim, Bosede
had submitted evidence that the 1993 conviction was not a
“particularly serious” crime that rendered him ineligible for
withholding of removal. Id. at 447. The court concluded, how-
ever, that “[t]his is the kind of argument Bosede must submit first
to the agency . . .”; “the law entitles the INS to an initial opportu-
nity to consider the evidence and correct its error.” Id. Conse-
quently, the court did not need to reach the question whether
Bosede was entitled to statutory relief or whether he had suffered
a constitutional deprivation. Therefore, the court’s earlier com-
mentary on the availability of review for constitutional and
statutory-interpretation questions was dicta.
Finally, we note that the Bosede decision was not circulated
pursuant to Circuit Rule 40(e) and, therefore, cannot overrule this
court’s prior decisions concerning the availability or scope of
appellate review of final orders of the BIA. See Brooks v. Walls, 279
F.3d 518, 522 (7th Cir. 2002) (“One panel of this court cannot
overrule another implicitly. Overruling requires recognition of
the decision to be undone and circulation to the full court under
Circuit Rule 40(e).”), cert. denied, 123 S. Ct. 1899 (2003).
26 No. 02-2475

2. Equal Protection Violation
However, even if there were a viable procedural path by
which we could address Mr. Robledo-Gonzales’ equal pro-
tection challenge, it is clear that those challenges are com-
11
pletely without merit. Mr. Robledo-Gonzales argues that
8 C.F.R. § 3.44, which precludes “[a]liens with a final order
of deportation who have illegally returned to the United
12
States” from applying for § 212(c) relief, is unconstitu-
tional because it runs afoul of the Supreme Court’s deci-
sion in St. Cyr and because it irrationally distinguishes
13
one group of aliens from another. According to Mr.

11
Mr. Robledo-Gonzales makes no argument that we ought to
consider his appeal of this habeas corpus action in the alternative
as a petition for review of the BIA’s denial of the motion to
reopen. Therefore, we need not consider whether we have the
authority to do so. Nor need we consider the issue of timeliness.
12
Section 3.44 generally allows aliens who were affected by the
Soriano decision to move to reopen their proceedings to apply
for § 212(c) relief. However, § 3.44(i) precludes the following
groups of aliens from seeking relief: “(1) Aliens who have
departed the United States; (2) Aliens with a final order of
deportation who have illegally returned; or (3) Aliens who
have not been admitted or paroled.” 8 C.F.R. 3.44(i).
13
We note that, in the denial of his motion to reopen, issued after
Mr. Robledo-Gonzales filed his habeas action but before the
district court issued its opinion, the BIA stated: “[I]n his motion
the respondent reported that he self-deported to his native
country of Mexico subsequent to the Immigration Judge’s noted
decision. As such, this Board is without jurisdiction to consider
the respondent’s motion. 8 C.F.R. § 3.2(d) (2001) (a motion to
reopen shall not be made by a person who is the subject of
deportation proceedings subsequent to his departure from the
United States).” R.6, Ex.1. Although the BIA certainly could have
(continued...)
No. 02-2475 27

13
(...continued)
invoked § 3.44 to deny Mr. Robledo-Gonzales relief, it did not do
so.
Mr. Robledo-Gonzales does launch an attack, of sorts, on 8
C.F.R. § 3.2(d) as well. We note, however, that Mr. Robledo-
Gonzales never presented this argument to the district court;
thus, this argument has been waived. See Whitehead v. Cowan, 263
F.3d 708, 730 n.5 (7th Cir. 2001), cert. denied, 534 U.S. 1116 (2002).
However, even if we could address his arguments on the merits,
we would find them lacking. Mr. Robledo-Gonzales points to BIA
precedent holding that it is permissible to launch a collateral
attack on a deportation order, even after the order has been ex-
ecuted, if one can establish a gross miscarriage of justice. See
Petitioner’s Br. at 39. According to Mr. Robledo-Gonzales, “[t]he
use of § 3.2(d) to justify the denial of Petitioner’s motion is plainly
wrong in light of the Board’s precedent decisions.” Petitioner’s
Br. at 39. However, despite the BIA’s acknowledgment that a
petitioner can launch a collateral attack on a prior deportation
proceeding if there is a gross miscarriage of justice, see, e.g.,
Matter of La Grotta, 14 I & N Dec. 110, 111-12 (BIA 1972), the BIA
found such a miscarriage in only two of the cases cited by Mr.
Robledo-Gonzales, Matter of Farinas, 12 I & N Dec. 467 (BIA 1967),
and Matter of Malone, 11 I & N Dec. 730 (BIA 1966). In those cases,
the Board determined that there had been a gross miscarriage of
justice because the individual should not have been deported
based on the law as it existed at the time of the original deporta-
tion. The BIA made this clear in Malone: “We are neither reevalu-
ating evidence nor applying an interpretation of law made
subsequent to the time of the original deportation decision. We
merely state that, on the basis of judicial and administrative
decisions existing at the time of the original proceeding, no order
of deportation should have been entered.” Malone, 11 I & N Dec.
at 731-32. Such is not the case with Mr. Robledo-Gonzales, who
seeks to have applied to him “an interpretation of the law made
subsequent to the time of the original deportation decision,”
(continued...)
28 No. 02-2475

Robledo-Gonzales, St. Cyr mandates that all aliens, regard-
less of whether they have left the Country or returned
illegally, are entitled to apply for § 212(c) relief. As well,
continues Mr. Robledo-Gonzales, the Attorney General
cannot justify the regulation as complying with St. Cyr
because it initially was promulgated prior to St. Cyr and did
not acknowledge that Soriano’s retroactivity analysis was in
error. Finally, Mr. Robledo-Gonzales claims that there is no
legitimate reason to deny § 212(c) relief to aliens who have
illegally reentered the Country.
“Classifications that distinguish among groups of aliens
are subject to rational basis review, and will be found valid
if not arbitrary or unreasonable.” Brooks v. Ashcroft, 283 F.3d
1268, 1274 (11th Cir. 2002). “Under this slight standard of
review, the distinctions made by the government are given
a strong presumption of validity. The government need only
articulate a rational reason for making the distinction, and
need not provide any evidence to support the rationality of
the reason.” Domond v. INS, 244 F.3d 81, 87 (2d Cir. 2001).
The respondents have set forth several reasons for deny-
ing those who have entered the Country illegally after a
final order of deportation the opportunity to apply for
§ 212(c) relief; we focus on only one of those reasons. The
respondents maintain that the rule discourages individuals
from entering the Country illegally to apply for different
types of relief. We believe this consideration suffices as a
rational basis for denying § 212(c) relief to those who have
illegally reentered the Country. The United States has a
legitimate interest in seeing that individuals who cross their

13
(...continued)
namely St. Cyr. Consequently, Mr. Robledo-Gonzales has failed
to come forward with any BIA precedent that supports a finding
of a gross miscarriage of justice in his case.
No. 02-2475 29

borders do so legally and in accordance with set procedures.
It has a corollary interest in deterring individuals from
crossing its borders illegally; illegal reentries put the safety
of aliens and law enforcement personnel at risk and, more
generally, frustrate the orderly administration of the na-
tion’s immigration laws.
We note that other courts have recognized the legitimacy
of this rationale. In Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1169 (9th Cir. 2001), the Ninth Circuit accepted this justifica-
tion for implementing 8 C.F.R. § 3.44. In that case, the Ninth
Circuit, rejecting an equal protection challenge to § 3.44,
stated:
Alvarenga finally contends that 8 C.F.R. § 3.44(i) vio-
lates the equal protection clause because it arbitrarily
and irrationally discriminates between two classes of
aliens without a rational purpose. We disagree. Distinc-
tions between different classes of aliens in the immigra-
tion context are subject to rational basis review and
must be upheld if they are rationally related to a legiti-
mate government purpose. Ram v. INS, 243 F.3d 510, 517
(9th Cir. 2001). Section 3.44 permits certain aliens who
were in deportation proceedings before April 24, 1996 to
file a motion to reopen to seek § 212(c) relief that they
were denied on the basis of the 1997 decision of the
Attorney General in In re Soriano, 21 I. & N. Dec. 516,
1996 WL 426888 (BIA 1996), which was overruled by
Magana-Pizano. Section 3.44(i), however, states that
“[a]liens with a final order of deportation who have
illegally returned to the United States” are not eligible
for reopening under § 3.44. The government has a legit-
imate interest in discouraging aliens who have already
been deported from illegally reentering, and this dis-
tinction is rationally related to that purpose.
Id. at 1174.
30 No. 02-2475

Consequently, because the Attorney General has proffered
a rational basis for distinguishing an alien who has reen-
tered the Country illegally from one who never had de-
parted with respect to § 212(c) relief, we do not believe that
14
§ 3.44 runs afoul of the Equal Protection Clause.

Conclusion
For the foregoing reasons, the judgment of the district
court dismissing Mr. Robledo-Gonzales’ petition for the writ
of habeas corpus is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

14
We also find unpersuasive Mr. Robledo-Gonzales’ other attacks
on § 3.44. As noted above, Mr. Robledo-Gonzales questions the
validity of the regulation because, when the initial version was
promulgated, it did not acknowledge the invalidity of Soriano.
However, the fact that the regulation did not immediately
renounce Soriano in its entirety does not mean that the distinction
drawn in the regulation, among aliens who have reentered
illegally and aliens who have never departed, is illegitimate. Mr.
Robledo-Gonzales also criticizes the regulation because St. Cyr
did not specifically hold that aliens could be treated differently
based on the fact that they had reentered the Country illegally.
However, the petitioner in St. Cyr had not reentered the Country
illegally. Consequently, the Court did not have an occasion to
consider the legitimacy of this distinction.

USCA-02-C-0072—7-25-03