FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE DE JESUS ALVAREZ-BARAJAS,
Petitioner-Appellant,
v. No. 04-55733
ALBERTO R. GONZALES, Attorney D.C. No.
General; ANTHONY ESPOSITO, CV-03-00840-
Interim BICE Western Region WQH/JFS
Director; WAYNE K. WILLS,
OPINION
District Director for Interior
Enforcement,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
July 12, 2005—Pasadena, California
Filed August 11, 2005
Before: Jerome Farris, Dorothy W. Nelson, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge D.W. Nelson;
Concurrence by Judge Farris
10443
10446 ALVAREZ-BARAJAS v. GONZALES
COUNSEL
Kaye A. Y. Evans, Beverly Hills, California, for the peti-
tioner.
Samuel W. Bettwy (argued); Carol C. Lam and Tom Stahl (on
the brief), United States Department of Homeland Security,
Bureau of Customs and Immigration, San Diego, California,
for the respondent.
OPINION
D.W. NELSON, Circuit Judge:
Jose de Jesus Alvarez-Barajas, a native and citizen of Mex-
ico, appeals the district court’s denial of his petition for
habeas corpus. In his petition, Alvarez-Barajas argues that the
Board of Immigration Appeals (BIA) erred in affirming an
Immigration Judge’s decision that he is ineligible for relief
ALVAREZ-BARAJAS v. GONZALES 10447
under either the former Immigration and Nationality Act
(INA) § 212(c), 8 U.S.C. § 1182(c) (1996); or a waiver under
INA § 212(h), 8 U.S.C. § 1182(h). We agree that Alvarez-
Barajas is ineligible for these forms of relief, and therefore
deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Alvarez-Barajas first entered the United States in approxi-
mately 1986 and became a legal permanent resident in 1990.
On May 27, 1996, Alvarez-Barajas pled guilty to receipt of
stolen property in violation of California Penal Code § 496
and was sentenced to two years in prison. Based on this con-
viction, on April 1, 1997, the Immigration and Naturalization
Service (INS)1 issued a notice to appear (NTA) alleging that
Alvarez-Barajas was removable pursuant to INA § 237(a)(2)
(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been
convicted of an aggravated felony.
At the time Alvarez-Barajas pled guilty to receipt of stolen
property this conviction was not considered an aggravated fel-
ony. At that time, a conviction for receipt of stolen property
could be considered an aggravated felony only if the prison
term imposed was at least five years. 8 U.S.C.
§ 1101(a)(43)(G) (1996). However, at the time he pled guilty,
it was clear that if Alvarez-Barajas had been convicted of an
aggravated felony, he would have been ineligible for § 212(c)
relief because the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), which made aliens convicted of aggra-
vated felonies ineligible for § 212(c) relief, had already
become effective. AEDPA § 440(d), Pub. L. No. 104-132,
110 Stat. 1214 (effective date April 24, 1996).
1
On March 1, 2003, the INS was dissolved as an independent agency
within the United States Department of Justice and its functions were
transferred to the Department of Homeland Security. Homeland Security
Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2192, 2205.
10448 ALVAREZ-BARAJAS v. GONZALES
Following Alvarez-Barajas’ conviction, Congress further
restricted eligibility for relief from removal for aliens con-
victed of certain crimes. On April 1, 1997, the Illegal Immi-
gration Reform and Immigrant Responsibility Act of 1996
(IIRIRA) became effective and eliminated § 212(c) relief
entirely and created in its place a new form of relief called
“cancellation of removal.” Pub. L. No. 104-208, 110 Stat.
3009; see also 8 U.S.C. § 1229b (codifying cancellation of
removal). The IIRIRA also expanded the definition of aggra-
vated felonies to include receipt of stolen property if the term
of imprisonment was at least one year, and made this change
retroactive. IIRIRA §§ 321(a) (expanding the definition of
aggravated felony) & 321(b) (making this expansion retroac-
tive); see also 8 U.S.C. § 1101(a)(43)(G) (encompassing
receipt of stolen property in the aggravated felony definition).
In his hearing before the Immigration Judge (IJ) on May
26, 1998, Alvarez-Barajas conceded deportability, but applied
for cancellation of removal under INA § 240A. The same day,
the IJ issued an oral decision finding Alvarez-Barajas ineligi-
ble for either § 240A relief or any other form of relief, includ-
ing a waiver under § 212(h), due to his conviction for
receiving stolen property, which was by then considered an
aggravated felony. The IJ ordered Alvarez-Barajas removed
to Mexico. Alvarez-Barajas timely appealed to the BIA, argu-
ing that the IJ erred in finding him ineligible for cancellation
of removal or § 212(c) relief, but failing to raise the issue of
his eligibility for a § 212(h) waiver.
On March 28, 2003, the BIA affirmed the IJ’s decision
regarding Alvarez-Barajas’ removal and his ineligibility for
§ 212(c) relief or cancellation of removal. Alvarez-Barajas
did not file a petition for review with this circuit, but he filed
a motion to reconsider with the BIA regarding his eligibility
for a § 212(h) waiver. The BIA eventually denied this motion.
Subsequently, Alvarez-Barajas filed a writ of habeas corpus
under 28 U.S.C. § 2241 in the United States District Court for
the Southern District of California challenging the BIA’s find-
ALVAREZ-BARAJAS v. GONZALES 10449
ings that he was ineligible for § 212(c) or § 212(h) relief. On
October 1, 2003, the district court denied Alvarez-Barajas’
petition in part finding that he was ineligible for § 212(c)
relief and rejecting his equal protection challenge to his ineli-
gibility for a § 212(h) waiver. On February 18, 2004, the dis-
trict court dismissed the balance of Alvarez-Barajas’ petition
by concluding that IIRIRA’s amendments to § 212(h) were
intended to apply retroactively and, therefore, that Alvarez-
Barajas was ineligible for such a waiver. Alvarez-Barajas
timely appealed.
DISCUSSION
I. Jurisdiction and Standard of Review
[1] On May 11, 2005, Congress enacted the REAL ID Act
of 2005, which expanded the jurisdiction of the circuit courts
over final orders of removal. Most relevant here, the Act
makes the circuit courts the “sole” judicial body able to
review challenges to final orders of deportation, exclusion, or
removal. REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231,
§ 106(a). To accomplish this streamlined judicial review, the
Act eliminated habeas jurisdiction, including jurisdiction
under 28 U.S.C. § 2241, over final orders of deportation,
exclusion, or removal. Id. at § 106(a)(1)(B) (amending 8
U.S.C. § 1252). In writing the REAL ID Act, Congress
expressly made these judicial review provisions retroactive.
Id. at § 106(b) (“The amendments made by subsection (a)
[relating to judicial review] shall take effect [on May 11,
2005] and shall apply to cases in which the final administra-
tive order of removal, deportation, or exclusion was issued
before, on, or after the date of the enactment of this divi-
sion.”) (emphasis added); see also Fernandez-Ruiz v. Gon-
zales, 410 F.3d 585, 587 (9th Cir. 2005) (holding that the
REAL ID Act’s judicial review provisions apply retroac-
tively).
10450 ALVAREZ-BARAJAS v. GONZALES
[2] The REAL ID Act requires district courts to transfer all
habeas petitions brought by aliens that were pending before
the district court on the effective date of the REAL ID Act
(May 11, 2005) to the appropriate circuit court, which must
treat the transferred petitions as timely filed petitions for
review. Id. at § 106(c).2 In what appears to be an oversight,
Congress did not specify how similar habeas petitions pend-
ing before circuit courts should be treated. The language and
structure of the Act, however, evidences Congress’ clear
intention to make circuit courts the “sole and exclusive means
of judicial review” for challenges to removal. Id. at § 106(a).
Reading the Act to allow our review of habeas petitions pend-
ing before this court advances this Congressional intention.
Accordingly, we hold that Alvarez-Barajas’ habeas petition
should be construed as if it were a timely filed petition for
review with this court. See also Bonhometre v. Gonzales, No.
04-2037, 2005 WL 1653641 at *2 (3d Cir. July 15, 2005)
(holding that all habeas corpus petitions challenging final
orders of deportation, exclusion, or removal pending before
the Third Circuit will be construed as timely filed petitions for
review). Any other interpretation of the REAL ID Act would
create an absurd result where the circuit courts would lack
jurisdiction to review habeas petitions by aliens that were
pending before the circuits when the REAL ID Act passed,
2
Section 106(c) of the REAL ID Act states:
If an alien’s case, brought under [28 U.S.C. § 2241], and chal-
lenging a final administrative order of removal, deportation, or
exclusion, is pending in a district court on the date of the enact-
ment [of this Act], then the district court shall transfer the case
. . . to the court of appeals for the circuit in which a petition for
review could have been properly filed under [INA section
§ 242(b)(2), 8 U.S.C. 1252], as amended by this section, . . . . The
court of appeals shall treat the transferred case as if it had been
filed pursuant to a petition for review under such section 242,
except that [the 30-day filing deadline] shall not apply.
(emphasis added).
ALVAREZ-BARAJAS v. GONZALES 10451
but would allow such review if the petition was still pending
before a district court.3
The fact that we construe Alvarez-Barajas’ habeas petition
as a petition for review does not affect our standard for
review. On petition for review, we review the BIA’s decisions
regarding purely legal questions de novo, Simeonov v. Ash-
croft, 371 F.3d 532, 535 (9th Cir. 2004), the same standard we
apply when reviewing a district court’s decision to deny a
habeas petition, Singh v. Ashcroft, 351 F.3d 435, 438 (9th Cir.
2003). The conversion, however, changes the decision we
review, and we now review the BIA’s decision, not the dis-
trict court’s orders.
II. Alvarez-Barajas’ Eligibility for INA § 212(c) Relief
Having determined that we have jurisdiction to review
Alvarez-Barajas’ petition, we turn to the merits of his petition.
In light of the Supreme Court’s decision in INS v. St. Cyr, 533
U.S. 289 (2001), Alvarez-Barajas challenges the BIA’s con-
clusion that he is ineligible for relief under the former INA
§ 212(c).4 But Alvarez-Barajas’ case is factually distinct from
3
Although we hold that converting pending habeas petitions into timely
filed petitions for review is the most appropriate way to effectuate the
intent of Congress in passing the REAL ID Act in the usual case like the
present appeal, we make no comment on what should be done in the more
unusual case where the pending habeas petition requires further factual
development. In such a case, construing a pending habeas petition as a
petition for review might bar this court from remanding the petition for
further fact-finding. See INA § 242(a)(1), 8 U.S.C. § 1252(a)(1) (preclud-
ing circuit courts from remanding petitions for review for further evidenti-
ary fact-finding); but see INA § 242(b)(5)(B), 8 U.S.C. § 1252(b)(5)(B)
(setting out an exception for claims of nationality).
4
Prior to its repeal, § 212(c) provided that:
Aliens lawfully admitted for permanent residence who temporar-
ily 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[.] . . [A]n
10452 ALVAREZ-BARAJAS v. GONZALES
St. Cyr’s in two ways. First, unlike St. Cyr, under the state of
the law at the time Alvarez-Barajas pled guilty, the offense to
which he pled was not an aggravated felony, and therefore,
was not a deportable offense. Second, by the time Alvarez-
Barajas pled guilty to this crime, the law had already changed
to make all aliens convicted of aggravated felonies ineligible
for relief. Because we find that these factual distinctions are
significant, we affirm the BIA’s conclusion that Alvarez-
Barajas is ineligible for § 212(c) relief.
[3] First, we reject Alvarez-Barajas’ argument that § 321 of
the IIRIRA, which expanded the aggravated felony definition,
cannot be applied retroactively to him because the Supreme
Court has indicated otherwise in St. Cyr. 533 U.S. at 318-19.
In holding that Congress did not clearly intend for a different
section of the IIRIRA to apply retroactively, the Court con-
trasted this section with § 321(b), which the Court found
unambiguously applied retroactively. Id. (“IIRIRA’s amend-
ment of the definition of ‘aggravated felony,’ for example,
clearly states that it applies with respect to ‘conviction[s] . . .
entered before, on, or after’ the statute’s enactment date.”);
see also Aragon-Ayon v. INS, 206 F.3d 847, 851 (9th Cir.
2000) (holding that Congress “clearly manifested an intent for
the amended definition of aggravated felony to apply retroac-
tively”). Because, with respect to this section of the IIRIRA,
Congress has satisfied the “demanding” standard for making
a law unambiguously retroactive, there can be no doubt that
the expanded aggravated felony definition can be applied
retroactively to Alvarez-Barajas. St. Cyr, 533 U.S. at 316.
[4] Second, this court’s decision in United States v.
Velasco-Medina, 305 F.3d 839, 849-50 (9th Cir. 2002), fore-
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 [is not eligible for this relief].
8 U.S.C. § 1182(c) (1995).
ALVAREZ-BARAJAS v. GONZALES 10453
closes Alvarez-Barajas’ argument that AEDPA’s elimination
of § 212(c) relief for all aggravated felons cannot be applied
to him, because he pled guilty after the effective date of
AEDPA. Cf. United States v. Leon-Paz, 340 F.3d 1003, 1006-
07 (9th Cir. 2003) (distinguishing the case of an alien who
pled guilty to a non-deportable offense before the effective
date of AEDPA, and therefore, before the elimination of
§ 212(c) relief for all aliens convicted of aggravated felonies).
For these reasons, we affirm the BIA’s decision that Alvarez-
Barajas is ineligible for § 212(c) relief.
III. Alvarez-Barajas’ Eligibility for a Wavier under § 212(h)
[5] Alvarez-Barajas’ argument that he is eligible for a
waiver under § 212(h) also fails.5 In § 348(b) of the IIRIRA,
Congress not only made aliens convicted of aggravated felo-
nies ineligible for these waivers, but expressly made this
change retroactive.6 IIRIRA § 348 (stating that the changes
were effective “on the date of enactment [April 1, 1997] and
shall apply in the case of any alien who is in exclusion or
5
We note that Alvarez-Barajas did not raise the § 212(h) claim in his
appeal to the BIA, but raised it to the BIA later in a motion to reopen. We
do not decide whether such procedure was sufficient to constitute exhaus-
tion of his administrative remedies. See 8 U.S.C. § 1252(d)(1) (“A court
may review a final order of removal only if . . . the alien has exhausted
all administrative remedies available to the alien as of right[.]”). Instead,
we conclude that this constitutional challenge to the statute falls within the
narrow range of exceptions to the exhaustion requirement. See Sun v. Ash-
croft, 370 F.3d 932, 944 n.18 (9th Cir. 2004).
6
Before IIRIRA, the waiver was available to any alien satisfying the
threshold requirements so long as the alien had not “been convicted of (or
. . . ha[d] [not] admitted committing acts that constitute) murder or crimi-
nal acts involving torture, or an attempt or conspiracy to commit murder
or a criminal act involving torture.” 8 U.S.C. § 1182(h) (1996). After the
effective date of IIRIRA, “[n]o waiver [could] be granted . . . [to any]
alien who ha[d] previously been admitted to the United States as an alien
lawfully admitted for permanent residence if . . . since the date of admis-
sion the alien has been convicted of an aggravated felony.” 8 U.S.C.
§ 1182(h) (1997).
10454 ALVAREZ-BARAJAS v. GONZALES
deportation proceedings as of such date unless a final admin-
istrative order in such proceedings has been entered as of such
date”). Importantly, the Supreme Court has held out this sec-
tion of the IIRIRA as an example of where Congress made the
“IIRIRA expressly applicable to prior convictions.” St. Cyr,
533 U.S. at 320 & n.43; see also Valderrama-Fonseca v. INS,
116 F.3d 853, 856 & n.6 (9th Cir. 1997) (noting in relation to
IIRIRA § 348 that “it is apparent that Congress knew how to
make provisions of IIRIRA applicable to pending proceedings
when it wanted to”). Therefore, we conclude that § 348 of
IIRIRA can be applied retroactively to Alvarez-Barajas, ren-
dering him ineligible for a § 212(h) waiver.
CONCLUSION
[6] Accordingly, we hold that Alvarez-Barajas’ petition for
habeas corpus must be construed as a timely filed petition for
review, but deny the petition on the merits.
PETITION DENIED.
FARRIS, Circuit Judge, concurring:
I concur in the result.