Cordes v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PATRICIA ANN CORDES, 
Petitioner-Appellant,
v.
ALBERTO R. GONZALES,* Attorney
General; Tom Ridge, Secretary of No. 04-15988
the Department of Homeland D.C. No.
Security; Nancy Alcantar, Interim  CV-03-05580-
Director of the San Francisco OWW/LJO
District Office for the Bureau of
OPINION
Immigration and Customs
Enforcement; Rosemary Wahl,
Commander of the Kern County
Pretrial Facility,
Respondents-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding

Argued and Submitted
April 11, 2005—San Francisco, California

Filed August 10, 2005

Before: Warren J. Ferguson, John T. Noonan, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Ferguson;
Partial Concurrence and Partial Dissent by Judge Rymer

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States. Fed. R. App. P. 43(c)(2).

10275
 CORDES v. GONZALES 10279

COUNSEL

Jagdip Singh Sekhon (argued), Sekhon & Sekhon, San Fran-
cisco, California; Scott Mossman (briefed), Sekhon &
Sekhon, San Francisco, California, for the petitioner-
appellant.

James Hunolt (argued), Department of Justice, Washington,
D.C.; Audrey B. Hemesath (briefed), Office of the United
States Attorney, Sacramento, California, for the respondents-
appellees.

OPINION

FERGUSON, Circuit Judge:

Patricia Ann Cordes (“Cordes”), a native and citizen of the
United Kingdom, appeals the District Court’s denial of her 28
U.S.C. § 2241 habeas petition challenging the constitutional-
ity of her final order of removal. Cordes pled guilty to dis-
suading a witness with threat of force and to inducing false
testimony, in violation of sections 136.1(c)(1) and 137(c) of
10280 CORDES v. GONZALES
the California Penal Code, respectively. The Board of Immi-
gration Appeals (“BIA”) determined that Cordes’s conviction
constituted an aggravated felony under the amended defini-
tion of aggravated felony in section 321 of the Illegal Immi-
gration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept.
30, 1996), and ordered her removed.

On appeal, Cordes contends that the District Court erred
when it (1) applied retroactively the amended definition of
aggravated felony under sections 321(a)(3) and 321(a)(11) of
IIRIRA; (2) rejected her due process challenge to the retroac-
tive application of the amended aggravated felony definition;
and (3) denied her equal protection challenge to the unavaila-
bility of relief from removal under section 212(c) of the
Immigration and Nationality Act (“INA”), Pub. L. No. 82-
414, 66 Stat. 163 (June 27, 1952) (hereinafter, “section
212(c)”).1

We find that like the petitioner in United States v. Velasco-
Medina, 305 F.3d 839 (9th Cir. 2002), cert. denied, 540 U.S.
1210 (2004), Cordes does not fit within the exception to sec-
tion 304(b) of IIRIRA set forth in INS v. St. Cyr, 533 U.S. 289
(2001). Cordes could not have had settled expectations as to
the continued availability of section 212(c) relief at the time
she entered her guilty plea for non-deportable offenses
because the passage of section 440(d) of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), Pub. L. No.
104-32, 110 Stat. 1214 (April 24, 1996), predated her convic-
1
Section 212(c) provided that “[a]liens lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily . . . and who are
returning to a lawful unrelinquished domicile of seven consecutive years,
may be admitted in the discretion of the Attorney General . . . .” 8 U.S.C.
§ 1182(c) (repealed 1996).
The BIA has interpreted this provision “to authorize any permanent res-
ident with a lawful unreliquished domicile of seven consecutive years to
apply for a discretionary waiver from deportation.” INS v. St. Cyr, 533
U.S. 289, 295 (2001) (internal quotation marks and citations omitted).
 CORDES v. GONZALES 10281
tion. In addition, we conclude that the retroactive application
of the amended aggravated felony definition under section
321 of IIRIRA is supported by a rational basis, and therefore
does not violate the Due Process Clause of the Constitution.

Nevertheless, we sustain Cordes’s equal protection chal-
lenge because the current judicially defined limits to the avail-
ability of section 212(c) relief post-IIRIRA, as applied by the
Bureau of Immigration and Customs Enforcement,2 create an
irrational result, namely affording discretionary relief from
removal to legal permanent residents who have committed
worse crimes than similarly situated permanent residents like
Cordes.

I. JURISDICTION

While this case was pending, Congress enacted the Real ID
Act of 2005, Pub. L. No. 109-13, 199 Stat. 231, 310-11
(amending 8 U.S.C. § 1252) (May 11, 2005). The Act amends
the INA by eliminating federal habeas jurisdiction in favor of
petitions for review that raise “constitutional claims or ques-
tions of law.” Id. at § 106(a)(1). Although the Act applies
retroactively, see id. at § 106(b), its application to pending
appeals is uncertain. See id. at § 106(c) (providing a proce-
dure only for the transfer of petitions currently before the dis-
trict courts). It is unclear, for example, whether Congress
intended for the Act to affect habeas petitions where judgment
has already been entered by a district court. But we need not
resolve this issue here because we would treat the appeal in
the same manner were it a petition for review under section
106. That is, we would still review the merits of Cordes’s
2
As of March 1, 2003, the Immigration and Naturalization Service
(“INS”) ceased to exist and its enforcement functions were transferred to
the Bureau of Immigration and Customs Enforcement within the Depart-
ment of Homeland Security. See Homeland Security Act, Pub. L. No. 107-
296, 116 Stat. 2135 (Nov. 25, 2002). For ease of reference, however, we
refer to the applicable government agency as the INS.
10282 CORDES v. GONZALES
constitutional claims. We thus proceed to decide this case
under 28 U.S.C. § 2253, as an appeal from the denial of a
habeas petition.

II. BACKGROUND AND PROCEDURAL HISTORY

Cordes was born on May 9, 1952 in Scotland. She entered
the United States legally at the age of eighteen and became a
permanent resident on February 3, 1972. Since then, she has
lawfully resided in the United States and has raised four U.S.
citizen children. In the over thirty years that she has been in
the United States, she has left the country only a handful of
times to visit her mother in Scotland.

On May 30, 1996, Cordes pled guilty to dissuading a wit-
ness from testifying with threat of force and inducing false
testimony. The circumstances of Cordes’s offenses involved
attempting to persuade her daughter—a victim of molestation
—to retract allegations against Cordes’s former boyfriend.
Cordes was sentenced to two years in prison followed by pro-
bation. As of her conviction date, Cordes’s offenses were mis-
demeanors and did not constitute an aggravated felony or
subject her to deportation. Accordingly, Cordes was ineligible
for section 212(c) relief since it was only available for perma-
nent residents who faced deportation.

On April 24, 1996, one month before Cordes’s conviction,
Congress passed section 440(d) of AEDPA, which made all
persons designated as aggravated felons ineligible for section
212(c) relief. On Cordes’s conviction date, May 30, 1996,
section 440(d) of AEDPA had no effect on her deportability
because the offenses to which she pled guilty did not consti-
tute an aggravated felony and, thereby, posed no deportation
consequences.

On September 30, 1996, four months after Cordes’s con-
viction, Congress passed IIRIRA. Section 321 of IIRIRA
expanded the definitions of aggravated felonies in 8 U.S.C.
 CORDES v. GONZALES 10283
§§ 1101(a)(43)(F) and 1101(a)(43)(S). For crimes of violence,
the required minimum term of imprisonment imposed was
lowered from 5 years to 1 year. IIRIRA § 321(a)(3). Simi-
larly, an “offense relating to obstruction of justice, perjury, or
subornation of perjury, or bribery of a witness,” which for-
merly required a potential sentence of 5 years imprisonment
or more to qualify as an aggravated felony, was changed to
require a term of imprisonment of “at least one year.” IIRIRA
§ 321(a)(11). Moreover, section 304(b) of IIRIRA repealed
section 212(c) relief altogether and replaced it with cancella-
tion of removal, a more limited form of discretionary waiver
from removal, which was also made unavailable to aggra-
vated felons. See 8 U.S.C. § 1229b(a).

On December 17, 1996, having been released from cus-
tody, Cordes was arrested for violating section 23152(a) of
the California Vehicle Code, driving under the influence of
alcohol. She was convicted of the offense on February 19,
1997, and her probation was reinstated. On October 10, 2000,
Cordes again violated probation for driving under the influ-
ence of alcohol. This time her probation was revoked and she
was returned to state custody.

On January 31, 2001, the INS brought removal proceedings
against Cordes, charging her as an aggravated felon under the
new IIRIRA reclassification of aggravated felony. The INS
contended that (1) her offenses at the time of her May 30,
1996 guilty plea now could be recharacterized as constituting
an aggravated felony, (2) she was consequently ineligible for
section 212(c) relief under section 440(d) of AEDPA since
she was an aggravated felon, and (3) she was further ineligi-
ble for cancellation of removal under section 304(b) of
IIRIRA as an aggravated felon.

On October 10, 2001, an Immigration Judge (“IJ”) ordered
Cordes removed from the United States but granted her sec-
tion 212(c) relief because, in the IJ’s view, she fit within an
exception to section 304(b) of IIRIRA that the Supreme Court
10284 CORDES v. GONZALES
carved out in St. Cyr. 533 U.S. 289. There, the Supreme Court
held that section 212(c) relief was available for aliens who
were eligible for such relief at the time of their convictions
and who relied on this relief in entering guilty pleas. The INS
timely appealed the IJ’s order, and on February 21, 2003, the
BIA overruled the IJ’s decision and found Cordes deportable
and ineligible for section 212(c) relief in accordance with this
Circuit’s decision in Velasco-Medina. 305 F.3d 839.

When Cordes challenged the BIA’s decision, 8 U.S.C.
§ 1252(a)(2)(C) precluded direct appellate review of a BIA’s
removal decision for “a crime involving moral turpitude.” 8
U.S.C. § 1182(a)(2)(A)(i)(I). Cordes, therefore, filed a 28
U.S.C. § 2241 habeas petition in the District Court on May
10, 2004 asking for a stay of removal. Specifically, she chal-
lenged the retroactive application of sections 321(a)(3) and
321(a)(11) of IIRIRA and raised an equal protection chal-
lenge. The District Court denied her petition on April 8, 2004,
and this appeal timely followed.

III. DISCUSSION

We review de novo the District Court’s decision to deny
Cordes’s habeas petition. Singh v. Ashcroft, 351 F.3d 435, 438
(9th Cir. 2003) (citation omitted). Accordingly, we conduct
the same inquiry as the District Court. We must decide the
merits of Cordes’s constitutional claims.

A. Retroactivity

Cordes first challenges the retroactive application of sec-
tions 321(a)(3) and 321(a)(11) of IIRIRA and the resulting
unavailability of section 212(c) relief under St. Cyr. 533 U.S.
289.

[1] Sections 321(a)(3) and 321(a)(11) of IIRIRA reduced
the sentencing requirement for an “aggravated felony” from
“at least 5 years” to “at least one year.” Section 321(b) of
 CORDES v. GONZALES 10285
IIRIRA made the amended definition of aggravated felony
retroactive, “appl[ying] regardless of whether the conviction
was entered before, on, or after [September 30, 1996].” This
Circuit subsequently upheld the retroactive application of sec-
tions 321(a)(3) and 321(a)(11) of IIRIRA. See Aragon-Ayon
v. INS, 206 F.3d 847, 853 (9th Cir. 2000) (“We are satisfied
that Congress intended the 1996 amendments to make the
aggravated felony definition apply retroactively to all defined
offenses whenever committed, and to make aliens so con-
victed eligible for deportation notwithstanding the passage of
time between the crime and the removal order.”).

[2] The repeal of section 212(c) by section 304(b) of
IIRIRA, however, was not made explicitly retroactive. Aliens
who had relied upon the existence of section 212(c) relief in
pleading guilty to a crime remain entitled to its protection
even after its elimination under section 304(b) of IIRIRA.
Indeed, in St. Cyr, the Supreme Court held that “[section]
212(c) relief remains available for aliens . . . whose convic-
tions were obtained through plea agreements and who, not-
withstanding those convictions, would have been eligible for
[such] relief at the time of their plea under the law then in
effect.” 533 U.S. at 326. Enrico St. Cyr had pled guilty to a
state law drug offense ten years after becoming a U.S. perma-
nent resident. Id. at 293. His guilty plea rendered him deport-
able, so he was eligible for section 212(c) relief under pre-
IIRIRA law. Id. Before the INS could bring removal proceed-
ings against him, however, Congress passed section 440(d) of
AEDPA and section 304(b) of IIRIRA, which effectively pre-
cluded granting St. Cyr section 212(c) relief because he had
committed a crime that had been reclassified as an aggravated
felony. Id. at 297. Because he had expected to be eligible for
section 212(c) relief when he pled guilty, the Supreme Court
held that he was eligible for such relief in spite of the new
legal landscape. Id. at 321.

[3] This Circuit has clearly limited the St. Cyr exception. In
Velasco-Medina, we held that section 212(c) relief was
10286 CORDES v. GONZALES
unavailable for an alien who pled guilty after the enactment
of section 440(d) of AEDPA but before the enactment of
IIRIRA. 305 F.3d 839. The court first reasoned that, unlike St.
Cyr, Velasco-Medina had not developed “settled expecta-
tions” in section 212(c) relief because he was not deportable,
and therefore ineligible for section 212(c) relief, at the time
of his plea bargain. Id. at 849. The court went on to note that
“[Section 440(d)] of AEDPA provided Velasco-Medina with
fair notice that discretionary relief under [section] 212(c)
would be unavailable in the event his conviction was reclassi-
fied as an aggravated felony. To the extent [Velasco-Medina]
anticipated the continued availability of [section] 212(c) relief
after his guilty plea, his expectations were neither reasonable
nor settled under St. Cyr.” Id. at 850.

[4] Like Velasco-Medina, Cordes pled guilty to her
offenses after the passage of section 440(d) of AEDPA and
could not have been eligible for section 212(c) relief because
at the time of her conviction her offenses did not render her
deportable. Moreover, as it did for Velasco-Medina, section
440(d) of AEDPA placed Cordes on notice that if her convic-
tion were reclassified as an aggravated felony, she would be
ineligible for section 212(c) relief. Thus, Cordes’s expecta-
tions as to the continued availability of section 212(c) relief
were, like those of Velasco-Medina, neither reasonable nor
settled under St. Cyr.3
3
Cordes contends that this Circuit’s opinion in United States v. Leon-
Paz, 340 F.3d 1003 (9th Cir. 2003), undermines the holding in Velasco-
Medina by applying the St. Cyr exception to a defendant who had not
committed a deportable offense at the time of her conviction. Like Cordes,
Leon-Paz’s conviction became an aggravated felony as a direct conse-
quence of section 321 of IIRIRA. 340 F.3d at 1005-06. Again the inquiry
turned on whether Leon-Paz had expected to be eligible for section 212(c)
relief at the time that he entered his plea. The panel found that he did
because he could not have been aware of the unavailability of section
212(c) relief in the event that his crime would be reclassified as an aggra-
vated felony since section 440(d) of AEDPA had not yet been passed. Id.
at 1006-07. Here, the passage of section 440(d) of AEDPA predated
Cordes’s conviction, so Leon-Paz is distinguishable.
 CORDES v. GONZALES 10287
B. Due Process

Cordes next contends that sections 321(a)(3) and
321(a)(11) of IIRIRA retroactively reclassified her from a
permanent resident to a removable aggravated felon without
any rational basis and without furnishing her any fair notice
or repose.

[5] The Due Process Clause of the Fifth Amendment for-
bids Congress from enacting legislation expressly made retro-
active when the “ ‘retroactive application [of the statute] is so
harsh and oppressive as to transgress the constitutional limita-
tion.’ ” Welch v. Henry, 305 U.S. 134, 147 (1938). Due pro-
cess “protects the interests in fair notice and repose that may
be compromised by retroactive legislation.” Landgraf v. USI
Film Prods., 511 U.S. 244, 266 (1994).

[6] While this court has held that section 321 of IIRIRA
overcomes the presumption against retroactive legislation
because “Congress has clearly manifested an intent for the
amended definition of aggravated felony to apply retroactive-
ly,” Aragon-Ayon, 206 F.3d at 851, we have not decided
whether the definition’s retroactive application violates due
process.

[7] We agree with the Second Circuit that the retroactive
application of section 321 of IIRIRA is rationally related to a
legitimate governmental purpose. “Congress has a legitimate
interest in protecting society from the commission of aggra-
vated felonies . . . , and legislation that deports aliens who
presently commit or who have committed those acts in the
past is a rational means of furthering that interest.” Kuhali v.
Reno, 266 F.3d 93, 111 (2d Cir. 2001) (citing Hamama v.
INS, 78 F.3d 233, 236 (6th Cir. 1996)). This conclusion com-
ports with our decision in United States v. Yacoubian, 24 F.3d
1, 8 (9th Cir. 1994), which held that the retroactive applica-
tion of 8 U.S.C. § 1251(a)(2)(C), as modified in 1990, to
deport an alien on the basis of a 1982 firearms offense did not
10288 CORDES v. GONZALES
violate the Due Process Clause. We reasoned that retroactive
application of the amended statute was rationally related to a
legitimate governmental interest because it “results in uniform
application of the deportation provision to aliens convicted of
firearms offenses, no matter when those convictions
occurred.” Id. Yacoubian also recognized “Congress’
undoubted power to exclude undesirable aliens from this
country even if that determination is made long after a crime
was committed.” Id. at 8 n.3 (citing Mahler v. Eby, 264 U.S.
32, 38-40 (1924); Mulcahey v. Catalanotte, 353 U.S. 692, 694
(1957)).4

C. Equal Protection

Finally, Cordes brings an equal protection challenge to the
INS’ decision, based on St. Cyr, 533 U.S. 289, and Velasco-
Medina, 305 F.3d 839, to afford section 212(c) relief to per-
manent residents who retroactively became aggravated felons,
but who had committed deportable offenses at the time of
their conviction, and not to those permanent residents who
retroactively became aggravated felons, but who had not com-
mitted deportable offenses at the time of their convictions.

[8] The Fourteenth Amendment mandates that “[n]o State
shall make or enforce any law which shall . . . deny to any
person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. This guarantee of equal protec-
tion applies to the federal government through the Fifth
Amendment Due Process Clause. See Catholic Soc. Servs.,
Inc. v. INS, 232 F.3d 1139, 1152 n.5 (9th Cir. 2000) (en banc)
(citation omitted) (“The Fifth Amendment has no Equal Pro-
tection Clause. An equal protection claim under the Fifth
Amendment is brought under the equal protection component
of the Due Process Clause.”).
4
Cordes relies on the concurrence in United States v. Ubaldo-Figueroa,
364 F.3d 1042, 1051 (9th Cir. 2004) (Pregerson, J., concurring), which
maintained that retroactive application of section 321 of IIRIRA violates
due process. The concurrence, however, is not the law of the circuit.
 CORDES v. GONZALES 10289
[9] The Equal Protection Clause applies to aliens. See Yick
Wo v. Hopkins, 118 U.S. 356, 369 (1886). The “disparate
treatment of similarly situated aliens under the immigration
laws” implicates the guarantee of equal protection. Aguirre v.
INS, 79 F.3d 315, 317 (2d Cir. 1996). The government must
therefore demonstrate a rational basis for treating aliens dispa-
rately. Reno v. Flores, 507 U.S. 292, 306 (1993). That is, a
legislative classification must be “ ‘wholly irrational’ ” to vio-
late equal protection. Mathews v. Diaz, 426 U.S. 67, 83
(1976).

[10] First, Cordes, as a permanent resident, is similarly situ-
ated to those permanent residents who are entitled to section
212(c) relief under St. Cyr. The only discernable difference
between the two is that those entitled to section 212(c) relief
faced deportation at the time they entered their guilty pleas.
This difference, however, is “irrelevant and fortuitous” since
Cordes quite obviously faces deportation now.5 See Francis v.
INS, 532 F.2d 268, 273 (2d Cir. 1976) (“Fundamental fairness
dictates that permanent resident aliens who are in like circum-
stances, but for irrelevant and fortuitous factors, be treated in
a like manner.”).

[11] Second, the disparate treatment of Cordes and those
permanent residents who are entitled to section 212(c) relief
under St. Cyr lacks a rational basis. Because Cordes does not
fit within the St. Cyr exception, the law treats her differently
5
The dissent stresses how Cordes “was much better situated” than per-
manent residents such as St. Cyr “because she was not deportable” at the
time she pled guilty to her offenses. See dissent at 10294. But this fact
ignores entirely Cordes’s present situation. Due to the retroactive applica-
tion of section 321 of IIRIRA, she is now precisely in the same position
as permanent residents such as St. Cyr—facing deportation because her
crime has been reclassified as an aggravated felony. Indeed, Cordes should
be much better situated than permanent residents such as St. Cyr. since,
unlike them, she pled guilty to less severe, non-deportable offenses. The
INS’ disparate grant of section 212(c) relief, however, irrationally pre-
vents this result.
10290 CORDES v. GONZALES
than those permanent resident aliens who formed settled
expectations as to the availability of section 212(c) relief
because they committed severe, deportable offenses. Had
Cordes committed a more severe crime—one that would have
rendered her deportable—she would have been eligible for
such relief and been able to preserve the relief even though
her crime was later reclassified as an aggravated felony. Put
differently, those permanent residents who committed more
serious crimes than Cordes obtain the section 212(c) bulwark
only because they had the ironic fortune of facing the prospect
of deportation at the time that they entered their guilty pleas.

Both the District Court decision and dissent, see dissent at
10295, rely on Taniguchi v. Schultz, 303 F.3d 950 (9th Cir.
2002), to dismiss Cordes’s equal protection challenge.
Taniguchi, however, has nothing to do with this case.
Taniguchi claimed that section 212(h) of the INA violated her
right to equal protection by providing a waiver of deportation
to aggravated felons who were not permanent residents while
denying the same waiver to aggravated felons who were per-
manent residents. Id. at 957. The panel held that Congress had
a rational basis for denying a discretionary waiver to aggra-
vated felons who were permanent residents since they enjoyed
greater privileges in the United States than aggravated felons
who were not permanent residents and posed a potentially
higher risk of recidivism than illegal aliens who did not have
the benefits that come with permanent resident status. Id. at
958. Taniguchi foreclosed an equal protection challenge to a
federal immigration scheme that treated permanent residents
and non-permanent residents differently. But it did not fore-
close an equal protection challenge to a federal immigration
scheme that effectively treats similarly situated permanent
residents differently, which is the situation here. No case in
this Circuit has foreclosed such a challenge.

In fact, in Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.
1981), we held that the INS’ implementation of 8 U.S.C.
§ 1182(c) violated the Equal Protection Clause because it irra-
 CORDES v. GONZALES 10291
tionally granted relief from removal to those permanent resi-
dents in exclusion proceedings who left the United States
temporarily and sought return, but not to those permanent res-
idents in deportation proceedings who had never left the
United States.6 We noted that no rational purpose would be
served by “giving less consideration to the alien ‘whose ties
with this country are so strong that he has never departed after
his initial entry’ than to the alien ‘who may leave and return
from time to time.’ ” Id. (quoting Francis, 532 F.2d at 273).

Moreover, in Servin-Espinoza v. Ashcroft, 309 F.3d 1193,
1198 (9th Cir. 2002), we again noted the irrational distinction
drawn by the INS in granting section 212(c) relief to exclud-
able aliens but not to deportable aliens. Denying section
212(c) relief to deportable aliens “contraven[ed] equal protec-
tion” because it disrupted the rational purpose of immigration
law to “treat[ ] aliens who are already on our soil (and who
are therefore deportable) more favorably than aliens who are
merely seeking admittance (and who are therefore exclud-
able).” Id.

[12] Both Tapia-Acuna and Servin-Espinoza are relevant
authority here. These cases sustained equal protection chal-
lenges to the INS’ policy of selectively granting discretionary
relief from removal. Our case should do no differently. The
INS has the burden of justifying why Cordes should be
removed in spite of her permanent resident status. See H.R.
Rep. No. 104-879, at 107-09 (1997) (available in 1997 WL
9288 p.258-262) (“[I]n the case of a long-term permanent res-
ident of the U.S., the burden [is] on the Government to estab-
lish why the alien should be removed.”). But the INS cannot
6
Effective April 1, 1997, Congress repealed 8 U.S.C. § 1182(c) and
adopted a new provision which unambiguously bars discretionary relief
for permanent residents in either exclusion or deportation proceedings
who commit one of the specified crimes in 8 U.S.C. § 1251(a)(2). Thus,
the specific issue in Tapia-Acuna is no longer material. See United States
v. Estrada-Torres, 179 F.3d 776, 778-79 (9th Cir. 1999).
10292 CORDES v. GONZALES
rationally do so. Allowing permanent residents who have
committed worse crimes than Cordes to apply for section
212(c) relief, while denying the same opportunity to Cordes,
does not achieve Congress’ express purpose behind the
expanded definition of aggravated felony and its retroactive
application: to expeditiously remove criminal aliens and make
it more difficult for them to obtain relief from removal. See
id. Indeed, the disparate grant of section 212(c) relief here
does not increase the total number of criminal aliens subject
to removal, as Congress intended, but rather perversely
increases only the number of less dangerous criminals subject
to removal.

[13] Finally, as the IJ correctly pointed out, equity in this
case unquestionably weighs in favor of allowing Cordes to
apply for section 212(c) relief.7 Cordes has lived in the United
States for over three decades and has only one relevant con-
viction for offenses that were misdemeanors when they were
committed. She has left the country only a few times to visit
her mother and attend her mother’s funeral in Scotland. She
has four U.S. citizen children, three of whom testified on her
behalf during removal proceedings that she plays a significant
role in their lives and continued well-being. She has taken
measures to rehabilitate her alcohol problem by attending
Alcoholics Anonymous meetings. She has volunteered for the
Senior Citizen Center and Salvation Army in her community.
She has taken measures to secure better financial footing by
working at restaurants and looking for work at a grocery
store. In sum, Cordes is a hard-working, engaged member of
society.
7
Of course, the “irrational inequality” necessary to sustain an equal pro-
tection challenge, see dissent at 10296, is apparent here from the INS’ dis-
parate grant of section 212(c) relief. It is the inequity to Cordes, however,
that makes the equal protection violation in this case especially severe.
 CORDES v. GONZALES 10293
IV. CONCLUSION

[14] We hold that the INS’ application of St. Cyr and
Velasco-Medina, which results in the denial of section 212(c)
relief for permanent residents, such as Cordes, violates the
Equal Protection Clause of the Constitution. We therefore
reverse the District Court’s denial of Cordes’s habeas petition
and remand with instructions to grant the writ.

REVERSED and REMANDED.

RYMER, Circuit Judge, concurring in part and dissenting in
part:

It is rational to distinguish between aliens who were deport-
able and those who were not when they entered a plea of
guilty to a crime that IIRIRA retroactively makes an aggra-
vated felony because those who — like Cordes — were not
deportable could not have relied on the availability of
§ 212(c) relief, whereas those who — unlike Cordes — were
deportable could have relied on that possibility. That’s why,
in a nutshell, there is no equal protection violation. Accord-
ingly, while I agree that United States v. Velasco-Medina, 305
F.3d 839 (9th Cir. 2002), forecloses Cordes’s claim that she
is eligible for § 212(c) relief under INS v. St. Cyr, 533 U.S.
289 (2001), and that the retroactive application of IIRIRA’s
definition of aggravated felony to render her deportable did
not violate due process, I disagree that Cordes’s ineligibility
for § 212(c) relief violates equal protection.

First, the majority concludes that Cordes as a lawful perma-
nent resident is similarly situated to those permanent residents
who are entitled to § 212(c) relief under St. Cyr. This is not
so, because she and Velasco-Medina were not deportable and
did not rely on availability of § 212(c) relief when they pled
guilty. Second, the majority holds that the disparate treatment
10294 CORDES v. GONZALES
of Cordes and those permanent residents who are entitled to
§ 212(c) relief under St. Cyr lacks a rational basis. It doesn’t,
because it is not wholly irrational to preserve § 212(c) relief
for those who relied on the availability of a discretionary
waiver to avoid deportation.

The majority believes that it is not rational to allow lawful
permanent residents who have “committed worse crimes than
Cordes” to apply for § 212(c) relief while denying her the
same opportunity.1 Maj. op. at 10290. However, this is not the
reason that Cordes is ineligible for § 212(c) relief. Under the
law in effect at the time of Cordes’s guilty plea, a lawful per-
manent resident who suffered a conviction for a deportable
offense might have had the opportunity of applying for
§ 212(c) relief. Cordes did not have this opportunity at the
time she pled guilty because she didn’t need it: her conviction
did not render her deportable. In other words, Cordes was no
worse off and, indeed, was much better situated, than a lawful
permanent resident convicted of a deportable offense. This is
because she was not deportable and was entitled to stay in this
country, whereas the deportable lawful permanent resident
could only remain if granted § 212(c) relief. It is hard to
imagine a lawful permanent resident preferring to be eligible
for § 212(c) relief from deportation, to not being deportable
at all. In short, Cordes was not deportable and so was not sim-
ilarly situated to a lawful permanent resident who was deport-
able.
1
This is not what Cordes argues, although the bottom line is the same.
Based on the statutory scheme, Cordes argues that it is irrational for the
law to treat lawful permanent residents with two convictions for a crime
involving moral turpitude better than it did her, with only one such convic-
tion. See 8 U.S.C. § 1251(a)(2)(A)(ii) (1995). She also argues that she was
treated worse than aliens with a conviction for a crime involving moral
turpitude who departed the country and returned. This argument also fails
because aliens with a conviction who departed were at risk of being denied
reentry because they were considered inadmissible. See 8 U.S.C. § 1182(a)
(2)(A)(i) (1995). Cordes was not at risk of deportation at the time of her
conviction, and therefore did not need to apply for § 212(c) relief and
could not reasonably have relied upon its availability.
 CORDES v. GONZALES 10295
It follows from St. Cyr and Velasco-Medina that in these
circumstances, Cordes’s ineligibilty for § 212(c) relief is not
“wholly irrational” and does not offend equal protection.
Taniguchi v. Schultz, 303 F.3d 950, 957 (9th Cir. 2002) (cita-
tion and internal quotation marks omitted). St. Cyr preserves
eligibility for § 212(c) relief for some lawful permanent resi-
dents even after IIRIRA reclassified their convictions as
aggravated felonies when the retroactive application of
IIRIRA to deny eligibility for discretionary waiver would “at-
tach[ ] a new disability, in respect to transactions or consider-
ations already past.” St. Cyr, 533 U.S. at 321 (quoting
Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994)). This
would be so, for example, with respect to those whose guilty
plea (before IIRIRA) would have made them deportable and
who could have relied on continuing to be eligible for
§ 212(c) relief after IIRIRA. However, as we hold in this case,
IIRIRA does not have an impermissible retroactive effect as
applied to Cordes because she could not have pled guilty in
reliance on eligibility for § 212(c) relief. Velasco-Medina, 305
F.3d at 849-50. It is perfectly rational for a lawful permanent
resident’s eligibility for § 212(c) relief after IIRIRA has
reclassified her crime of conviction as an aggravated felony
to turn on whether she relied on the possibility of § 212(c)
relief when she entered into a plea agreement.

Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981), and
Servin-Espinoza v. Ashcroft, 309 F.3d 1193 (9th Cir. 2002),
which the majority says “are relevant authority here,” maj. op.
at 10291, have nothing to do with this case. Both determined
that it was irrational for the law to prefer excludable over
deportable aliens with respect to § 212(c) relief, but reliance
was not a factor in either situation. Even though St. Cyr and
Velasco-Medina might allow permanent residents who have
committed “worse crimes” than Cordes to remain eligible for
§ 212(c) relief, this is only because they — unlike Cordes —
pled in reliance on such relief.

Finally, equity may well “weigh[ ] in favor of” allowing
Cordes a shot at § 212(c) relief, as the majority says, maj. op.
10296 CORDES v. GONZALES
at 10292, but equal protection turns on irrational inequality,
not inequity. It is not wholly irrational to save the opportunity
of applying for a discretionary waiver of deportation for law-
ful permanent residents who were deportable when they pled
guilty to a crime that was reclassified as an aggravated felony
and relied on its continuing to be available, but not to create
an opportunity for those who were not deportable and had no
reason to rely upon the possibility of applying for a waiver
when they entered a plea.

I would affirm across the board.