Jurado-Delgado v. Attorney General of the United States

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit

1-15-2009

Jurado-Delgado v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4495

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 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD DISTRICT
_____________

No. 06-4495/07-1924
_____________

JIMMY JURADO-DELGADO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

Respondent.
_____________

Petition for Review of an Order of the United States
Department of Justice Board of Immigration Appeals
(BIA No. A38-846-972)
Immigration Judge Walter Durling
_____________

Argued July 22, 2008

Before: SLOVITER, JORDAN, and ALARCON*, Circuit Judges.
_____________

(Filed: January 15, 2009)
_____________

George A. Terezakis [ARGUED]
170 Old Country Road
Mineola, NY 11501
Counsel for Petitioner
_______________
*Honorable Arthur L. Alarcon, Senior Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Jesse M. Bless [ARGUED]
Edward J. Duffy
Ernesto H. Molina
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________

OPINION OF THE COURT
_____________

JORDAN, Circuit Judge.

Jimmy Jurado-Delgado petitions for review of a final order of the Board of

Immigration Appeals (“BIA”).1 He argues, among other things, that the BIA’s

determination that he is ineligible for cancellation of removal under 8 U.S.C. § 1229b is

the result of an impermissible, retroactive application of that statute. In his view, the

BIA, when determining whether he was statutorily eligible for cancellation of removal,

was not entitled to take into account crimes that he committed prior to Congress’s

creation of that remedy. We disagree, and for the reasons that follow we will deny the

petition for review.

I. Background

Jurado-Delgado was born in Ecuador and was admitted to the United States as a

permanent resident on September 15, 1985. Since that time, he has been no stranger to

1
Jurado-Delgado actually filed two petitions associated with the same case. As the
petitions implicate the identical issues, we treat them as one for purposes of this opinion.

2
the criminal justice system.2 Of particular pertinence in this case, within seven years of

his admission, he committed and was convicted of two crimes in Pennsylvania. On June

25, 1991, he pleaded guilty to retail theft in violation of 18 Pa. Cons. Stat. Ann.

§ 3929(a)(1). Then, on October 15, 1992, he pleaded guilty to making an unsworn

falsification to authorities in violation of 18 Pa. Cons. Stat. Ann. § 4904(a). He

committed those crimes on March 27, 1991, and December 19, 1991, respectively.

Jurado-Delgado pleaded guilty to two more crimes in 1997. On January 6, 1997,

he was convicted of attempting to commit theft by unlawful taking in violation of 18 Pa.

Cons. Stat. Ann. §§ 901, 3921(a). Later that year, on June 10, 1997, he was convicted of

conspiracy to commit retail theft, in violation of 18 Pa. Cons. Stat. Ann. § 903(a).

On October 27, 2001, the former Immigration and Naturalization Service (“INS”)3

served Jurado-Delgado with a notice to appear, charging him as removable 4 from the

United States under 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes

of moral turpitude that did not arise out of a single scheme of criminal misconduct. The

2
Five of Jurado-Delgado’s convictions are relevant to the issues on appeal; however,
the record indicates that his criminal record may be even more extensive.
3
In 2003, the INS was abolished and the responsibility for enforcing the relevant
immigration laws was transferred to the Bureau of Immigration and Customs
Enforcement, which is within the Department of Homeland Security. See Homeland
Security Act of 2002, Pub L. No. 107-296, §§ 441, 471, 116 Stat. 2135, 2192, 2205
(2002).
4
“The term ‘removable’ means ... in the case of an alien admitted to the United States,
that the alien is deportable under [8 U.S.C. § 1227].” 8 U.S.C. § 1229a(e)(2).

3
notice to appear specified that the bases for the charge were Jurado-Delgado’s 1997

convictions for attempting to commit theft and conspiracy to commit retail theft. The

notice did not mention Jurado-Delgado’s 1991 and 1992 convictions.

On December 22, 2005, while the removal proceedings were still pending, the

Department of Homeland Security (“DHS”) lodged an additional charge of removability

under 8 U.S.C. § 1227(a)(3)(D), which makes removable any alien who has falsely

represented himself to be a United States citizen for any purpose under federal law. The

new charge stemmed from Jurado-Delgado’s making false statements in an application

for a United States passport in 2004.

Jurado-Delgado conceded before an Immigration Judge (“IJ”) that he was

removable either under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two

crimes involving moral turpitude in 1997, or under 8 U.S.C. § 1227(a)(3)(D), for having

falsely represented himself to be a United States citizen, but he requested cancellation of

removal under 8 U.S.C. § 1229b(a). Section 1229b was enacted in 1996, became

effective in 1997, and gives the Attorney General the authority to allow an otherwise

removable alien to remain in this country if the alien meets certain statutory criteria. The

DHS opposed Jurado-Delgado’s application for cancellation of removal, arguing that his

commission of two crimes in 1991 made him ineligible for that relief. On February 7,

2006, the IJ granted Jurado-Delgado’s request for cancellation of removal. In the

process, the IJ rejected the DHS’s argument that Jurado-Delgado’s 1991 crimes made him

4
statutorily ineligible. According to the IJ, those crimes could not affect his eligibility for

cancellation of removal because the DHS had not charged Jurado-Delgado with being

removable based on those crimes, either in the original notice to appear or in the

document lodging the additional charge of removability.

The DHS appealed the IJ’s decision to the BIA. On September 28, 2006, the BIA

vacated the IJ’s grant of cancellation of removal and ordered Jurado-Delgado removed

from the United States. In re Jurado-Delgado, 24 I. & N. Dec. 29, 36 (B.I.A. 2006). It

determined that Jurado-Delgado’s 1991 and 1992 convictions were for crimes involving

moral turpitude, which, because they were committed in 1991, within seven years of his

admission, made him statutorily ineligible for cancellation of removal under 8 U.S.C.

§ 1229b(a). Jurado-Delgado, 24 I. & N. Dec. at 33-35. In arriving at its decision, it held

that the DHS was not required to have noted the 1991 and 1992 convictions in the notice

to appear or other charging document. Id. at 31-32. In addition, the BIA rejected Jurado-

Delgado’s argument that allowing those crimes to affect his eligibility for cancellation of

removal amounted to an impermissible, retroactive application of the statute. Id. at 32.

Jurado-Delgado filed a motion for reconsideration, which the BIA denied on February 27,

2007.

Jurado-Delgado now petitions for review in this Court. We have jurisdiction under

8 U.S.C. § 1252(a) to review the questions of law and constitutional claims raised in his

petition. 8 U.S.C. § 1252(a)(1),(a)(2)(D).

5
II. Discussion 5

A. Eligibility for Cancellation of Removal Under 8 U.S.C. § 1229b.

Jurado-Delgado does not challenge the determination that he is removable either

under 8 U.S.C. § 1227(a)(2)(A)(ii), for having been convicted of two crimes involving

moral turpitude in 1997, or under 8 U.S.C. § 1227(a)(3)(D), for having falsely represented

himself to be a United States citizen in 2004. Instead, he takes issue with the BIA’s

determination that his commission of two crimes in 1991 makes him ineligible for

cancellation of removal under § 1229b.

As alluded to earlier, 8 U.S.C. § 1229b(a) gives the Attorney General the authority

to cancel the removal of certain permanent residents who meet the statutory criteria. It

provides:

The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States
if the alien–
(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years,
(2) has resided in the United States continuously
for 7 years after having been admitted in any
status, and
(3) has not been convicted of any aggravated
felony.

8 U.S.C. § 1229b(a). In determining whether an alien has fulfilled the seven-year

continuous residence requirement set forth in § 1229b(a)(2), it is necessary to consult

5
We review the BIA’s legal determinations de novo but will defer to its reasonable
interpretations of the statutes it is charged with administering. Arca-Pineda v. Att’y Gen.,
527 F.3d 101, 103 (3d Cir. 2008).

6
§ 1229b(d)(1), which states that a period of continuous residence is deemed to end when

the alien receives a notice to appear or when the alien commits an offense that would

make him inadmissible or removable under certain sections of the immigration statutes.

More specifically, § 1229b(d)(1) provides:

[A]ny period of continuous residence ... in the United States
shall be deemed to end (A) ... when the alien is served a
notice to appear under [8 U.S.C. § 1229(a)], or (B) when the
alien has committed an offense referred to in [8 U.S.C.
§ 1182(a)(2)] that renders the alien inadmissible to the United
States under [8 U.S.C. § 1182(a)(2)] or removable from the
United States under [8 U.S.C. §§ 1227(a)(2) or 1227(a)(4)],
whichever is earliest.

That section is known as the “stop-time rule.”

On appeal, Jurado-Delgado makes two arguments regarding his eligibility for

cancellation of removal. First, he argues that his 1991 crimes did not stop his accrual of

time toward a period of seven years of continuous residence because those crimes did not

render him inadmissible under the relevant sections of the immigration statutes. Second,

he argues that, even if they did, the BIA’s determination that those crimes made him

ineligible for cancellation of removal resulted from a retroactive, and hence improper,

application of 8 U.S.C. § 1229b. We reject both of those arguments.

1. Crimes Involving Moral Turpitude

First we address whether the crimes Jurado-Delgado committed in 1991 are the

type of crimes that stop the accrual of a period of continuous residence pursuant to

§ 1229b(d)(1). If they are, Jurado-Delgado is statutorily ineligible for cancellation of

7
removal under § 1229b(a) because he committed those crimes prior to attaining the

requisite seven years of continuous residence in the United States.

Section 1229b(d)(1)(B) states that the commission of an offense that is “referred

to” in 8 U.S.C. § 1182(a)(2) and that “renders the alien inadmissible to the United States”

under that section stops time from accruing towards a period of continuous residence.

Section 1182(a)(2), in turn, provides that an alien is inadmissible if he commits a crime

involving moral turpitude. The statute states, in relevant part:

Except as provided in [§ 1182(a)(2)(A)(ii)], any alien
convicted of, or who admits having committed, or who admits
committing acts which constitute the essential elements of ... a
crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime
... is inadmissible.

8 U.S.C. § 1182(a)(2)(A)(i).

In this case, the BIA determined that both of the crimes committed by Jurado-

Delgado in 1991 were crimes involving moral turpitude, which rendered him inadmissible

under 8 U.S.C. § 1182(a)(2)(A)(i).6 On appeal, Jurado-Delgado challenges that

6
Section 1182(a)(2)(A)(ii) provides an exception for aliens who committed only one
crime involving moral turpitude, if other statutory criteria are met. In determining that the
stop-time rule applied to Jurado-Delgado, the BIA said that exception does not apply to
him because Jurado-Delgado committed two crimes in 1991. Because we agree with the
BIA that both of Jurado-Delgado’s 1991 crimes involved moral turpitude, we express no
opinion as to whether he would have been eligible for cancellation of removal had he
committed only one crime involving moral turpitude before attaining seven years of
continuous residence.
Although the BIA held that Jurado-Delgado’s commission of two crimes involving
moral turpitude in 1991 rendered him inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i) and
thus stopped his accrual of a period of continuous residence under § 1229b(d)(1), we note

8
determination.7 He first argues that his retail theft in violation of 18 Pa. Cons. Stat. Ann.

§ 3929(a)(1)8 does not constitute a crime involving moral turpitude because, according to

Jurado-Delgado, the statute does not require that the store be permanently deprived of its

merchandise. This hardly merits a response since it is perfectly clear that the statute is not

aimed at borrowing. Any fair reading of the statute recognizes it is aimed at theft, and no

one disputes that theft involves moral turpitude. See, e.g., Briseno-Flores v. Att’y Gen.,

492 F.3d 226, 228 (3d Cir. 2007) (recognizing that petty theft qualifies as a crime

involving moral turpitude); Quilodran-Brau v. Holland, 232 F.2d 183, 184 (3d Cir. 1956)

(“It is well settled as a matter of law that the crime of larceny is one involving moral

turpitude regardless of the value of that which is stolen.”); In re Scarpulla, 15 I. & N.

Dec. 139, 140-41 (B.I.A. 1974) (“It is well settled that theft or larceny, whether grand or

petty, has always been held to involve moral turpitude.”).

that his commission of those two crimes also rendered him removable under
§ 1227(a)(2)(A)(ii), which was also sufficient to stop his accrual of a period of
continuous residence under § 1229b(d)(1).
7
We review de novo the BIA’s interpretation of a state criminal statute, but defer to the
BIA’s reasonable interpretation of whether the elements of that statute involve moral
turpitude. Knapik v. Ashcroft, 384 F.3d 84, 88 (3d Cir. 2004).
8
A person commits retail theft in violation of 18 Pa. Cons. Stat. Ann. § 3929(a)(1) if he
“takes possession of, carries away, transfers or causes to be carried away or transferred,
any merchandise displayed, held, stored or offered for sale by any store or other retail
mercantile establishment with the intention of depriving the merchant of the possession,
use or benefit of such merchandise without paying the full retail value thereof.”

9
 Next, Jurado-Delgado argues that his making an unsworn falsification to

authorities in violation of 18 Pa. Cons. Stat. Ann. § 4904(a)9 does not constitute a crime

involving moral turpitude because the statute does not require that the false statement

have been made under oath. Jurado-Delgado has not cited any authority for the

proposition that deliberately lying to government officials is not a crime involving moral

turpitude if it is not also perjury. Since § 4904(a) requires as one of its elements that the

false statement be made “with intent to mislead a public servant in performing his official

function,” we agree with the BIA that a violation of that statute qualifies as a crime

involving moral turpitude. See, e.g., Rodriguez v. Gonzales, 451 F.3d 60, 64 (2d Cir.

2006) (recognizing that “deceit and an intent to impair the efficiency and lawful

functioning of the government” involves moral turpitude); Padilla v. Gonzales, 397 F.3d

1016, 1020 (7th Cir. 2005) (“[A]lmost all courts have held that intentionally deceiving the

government involves moral turpitude.” (quotation marks and citation omitted)); In re

Flores, 17 I. & N. Dec. 225, 229 (B.I.A. 1980) (holding that a crime involves moral

turpitude if it “impair[s] or obstruct[s] an important function of a department of the

government by defeating its efficiency ... by deceit, graft, trickery, or dishonest means”).

9
A person commits unsworn falsification to authorities in violation of 18 Pa. Cons.
Stat. Ann. § 4904(a) if, “with intent to mislead a public servant in performing his official
function, he: (1) makes any written false statement which he does not believe to be true;
(2) submits or invites reliance on any writing which he knows to be forged, altered or
otherwise lacking in authenticity; or (3) submits or invites reliance on any sample,
specimen, map, boundary mark, or other object which he knows to be false.”

10
We therefore reject Jurado-Delgado’s arguments and agree with the BIA that both of his

1991 crimes involved moral turpitude.

2. “Retroactivity” of 8 U.S.C. § 1229b

Next, Jurado-Delgado argues that the BIA’s determination that his 1991 crimes bar

cancellation of removal is the product of a retroactive application of 8 U.S.C. § 1229b.

We disagree.

Questions of retroactivity arise “[w]hen a case implicates a federal statute enacted

after the events in suit.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). This is

not such a case. At least one event independently giving rise to a charge of removability

in this case occurred after Congress’s enactment of 8 U.S.C. § 1229b, which became

effective on April 1, 1997. See Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, §§ 304(a), 309(a), 110 Stat. 3009-546,

3009-594,-625 (Sept. 30, 1996). Specifically, in 2004, Jurado-Delgado falsely

represented himself to be a United States citizen in an application for a United States

passport, which resulted in him being deportable under 8 U.S.C. § 1227(a)(3)(D)(i) (“Any

alien who falsely represents ... himself to be a citizen of the United States for any purpose

or benefit under ... any Federal or State law is deportable.”).10 At the time Jurado-

Delgado committed that offense, the law provided, as it does now, that a deportable alien

10
After IIRIRA, proceedings for deciding the deportability or inadmissability of an
alien are called “removal proceedings.” See 8 U.S.C. § 1229a. An alien who has been
admitted to the United States is removable if the alien is deportable under 8 U.S.C.
§ 1227. 8 U.S.C. § 1229a(e)(2).

11
is statutorily eligible for discretionary relief from removal under § 1229b(a) only if the

alien has resided continuously in the United States for seven years without committing

one of the offenses listed in § 1229b(d)(1)(B). 8 U.S.C. § 1229b(a)(2),(d)(1)(B).

Because the BIA applied the law in effect at the time Jurado-Delgado committed the

deportable offense, no question of retroactivity is implicated.11

Jurado-Delgado relies on the Supreme Court’s decision in INS v. St. Cyr, 533 U.S.

289 (2001), to support his retroactivity argument, but the circumstances in that case were

very different. In St. Cyr, the Supreme Court considered whether Congress’s repeal,

through IIRIRA, of former § 212(c) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1182(c) (repealed), which granted the Attorney General discretion to waive

deportation in cases where an alien had accrued seven years of lawful residence in the

United States, was impermissibly retroactive as applied to an alien who had pleaded

guilty to a deportable crime in reliance on his ability to request a waiver under that

section. The alien in St. Cyr was charged with being removable as a result of his having

pleaded guilty in 1996 to an aggravated felony. 533 U.S. at 293. At the time of his plea,

he was eligible for a waiver of deportation under INA § 212(c), but later that year

Congress repealed § 212(c) as part of IIRIRA. St. Cyr, 533 U.S. 314-15. IIRIRA

replaced § 212(c) with the new discretionary relief of cancellation of removal set forth in

11
Because Jurado-Delgado is independently removable for his having falsely
represented himself to be a United States citizen in 2004, the portion of our discussion
that addresses his retroactivity argument will focus on that charge of removability.

12
8 U.S.C. § 1229b, which is not available to an alien who has been convicted of an

aggravated felony. 8 U.S.C. § 1229b(a)(3); St. Cyr, 533 U.S. at 297. The alien in St. Cyr

was placed in removal proceedings in 1997, after the repeal of INA § 212(c) became

effective. St. Cyr, 533 U.S. at 293.

The question confronted by the Supreme Court in St. Cyr was whether Congress’s

repeal of § 212(c) was impermissibly retroactive as applied to aliens who pleaded guilty

to crimes that made them deportable but who otherwise would have been eligible for

§ 212(c) relief at the time of their plea. The Supreme Court held that it was, after

applying the two-step analysis set forth in Landgraf.12 The Court first determined that

12
In Landgraf, the Supreme Court stated:
When a case implicates a federal statute enacted after the
events in suit, the court’s first task is to determine whether
Congress has expressly prescribed the statute’s proper reach.
If Congress has done so, of course, there is no need to resort
to judicial default rules. When, however, the statute contains
no such express command, the court must determine whether
the new statute would have retroactive effect, i.e., whether it
would impair rights a party possessed when he acted, increase
a party's liability for past conduct, or impose new duties with
respect to transactions already completed. If the statute would

13
Congress had not unambiguously directed that its repeal of § 212(c) should be applied to

bar relief to aliens who pleaded guilty to deportable crimes prior to IIRIRA’s effective

date. St. Cyr, 533 U.S. at 320. It also concluded that the repeal of § 212(c) as applied to

aliens who would have been eligible for § 212(c) waivers at the time of their pleas would

have a retroactive effect, reasoning that those aliens almost certainly relied upon the

likelihood of receiving discretionary relief in deciding whether to forgo their right to a

trial. Id. at 321-25.

St. Cyr does not help Jurado-Delgado for at least two important reasons. First, and

most significantly, unlike the alien in St. Cyr, Jurado-Delgado committed the act for

which he is now being removed after Congress enacted the law that he alleges is

impermissibly retroactive. Thus, unlike the alien in St. Cyr, who was being removed as

the result of a conviction that occurred prior to Congress’s repeal of INA § 212(c),

Jurado-Delgado is being removed for an act that he committed in 2004, long after

§ 1229b took effect. Thus, there is no occasion to conduct a Landgraf analysis to

determine whether § 1229b is impermissibly retroactive as applied to Jurado-Delgado,

because this case does not “implicate[] a federal statute enacted after the events in suit.”

Landgraf, 511 U.S. at 280. We do not believe that a Landgraf analysis must be

conducted merely because, in concluding that Jurado-Delgado was not eligible for the

operate retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a result.
511 U.S. at 280.

14
new discretionary relief created by 8 U.S.C. § 1229b, the BIA took into account offenses

committed by him prior to Congress’s enactment of that statute. The analysis set forth in

Landgraf, by its terms, applies only when a case “implicates a federal statue enacted after

the events in suit,” 511 U.S. at 280, and, as explained, Jurado-Delgado is being removed

as a result of conduct that occurred after the effective date of § 1229b.

Second, unlike the alien in St. Cyr, Jurado-Delgado does not argue that Congress’s

repeal of INA § 212(c) operates retrospectively by destroying some ability to obtain relief

in this case that he would have otherwise had. Nor would that argument help him here.

Even if Jurado-Delgado had been charged with being removable as a result of his

convictions for the 1991 crimes and he were then granted a § 212(c) waiver with respect

to that charge,13 the waiver would not have expunged the underlying convictions from his

criminal record. See Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 248 (3d Cir. 2005)

(“As the BIA has explained ... ‘[t]he grant of a section 212(c) relief merely waives the

finding of deportability rather than the basis of the deportability itself. Therefore, the

crimes alleged to be grounds for deportability do not disappear from the alien's record for

immigration purposes.’” (quoting In re Balderas, 20 I. & N. Dec. 389, 391 (B.I.A. 1991)).

Accordingly, Jurado-Delgado’s receipt of a § 212(c) waiver would not change the fact

13
Under St. Cyr, § 212(c) relief remains available for aliens who pleaded guilty to
deportable offenses at a time when they would have been eligible for a waiver under
§ 212(c). 533 U.S. at 326. We express no opinion as to whether Jurado-Delgado would
be entitled to a § 212(c) waiver for a charge of removability based upon his convictions
for the 1991 crimes.

15
that he is removable based on his having falsely represented himself as a United States

citizen in 2004, nor would it change the fact that he is statutorily ineligible for

cancellation of removal relief because of his commission of two crimes involving moral

turpitude in 1991. See id. (holding that even if a charge of deportability based upon an

alien’s pre-IIRIRA conviction were waived under § 212(c), the pre-IIRIRA crime can still

operate to bar cancellation of removal relief when an alien is removable because of a

post-IIRIRA crime).

Jurado-Delgado nevertheless argues that it is the application of subsection (d)(1) of

§ 1229b, i.e., the stop-time rule, that has an impermissible retroactive effect on him. He

asserts that, but for Congress’s enactment of the stop-time rule, he would have accrued

seven years of continuous residence in the United States and would be eligible for

cancellation of removal relief under § 1229b(a). Thus, he says, we should ignore

§ 1229b(d)(1) – because it takes into account crimes he committed prior to its enactment

and stops his accrual of a period of continuous residence – and hold that he is eligible for

cancellation of removal under § 1229b(a). We do not think that the statute is a menu of

choices, though. Jurado-Delgado cannot embrace the newly created relief and

simultaneously reject Congress’s classification of those entitled to relief. While he argues

that Congress’s enactment of § 1229b(d)(1) destroys his ability to obtain cancellation of

removal under § 1229b(a), he ignores that both subsections of the statute were enacted at

the same time as part of IIRIRA. In truth, he has never been eligible for cancellation of

16
removal under § 1229b(a) because § 1229b(d)(1) has always operated to limit the class of

eligible aliens to those aliens who have continuously resided in the United States for

seven years without committing a specified crime. Thus, we reject his argument that

§ 1229b(d)(1) operates retroactively to bar his ability to obtain relief under § 1229b(a).14

Our decision in this regard is at odds with the decision of the United States Court

of Appeals for the Ninth Circuit in Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir.

2006), in which the court held that a permanent resident who was deportable based upon a

post-IIRIRA conviction could obtain relief under 8 U.S.C. § 1229b(a), notwithstanding

his commission of a disqualifying offense before he had acquired seven years of

continuous residence. The court held that the stop-time rule was impermissibly

retroactive insofar as it rendered the alien ineligible for cancellation of removal as the

result of a guilty plea entered prior to the enactment of IIRIRA. Id. 1202-03. We

respectfully decline to follow the Ninth Circuit’s approach for the reasons already noted.

In particular, we disagree with the decision to effectively excise the statutory restrictions

set forth in subsection (d)(1) from the remainder of § 1229b. Subsections (a) and (d)(1)

were enacted at the same time, and we see no basis for permitting an alien to obtain relief

in the form of cancellation of removal under subsection (a) when he does not meet all of

the contemporaneously-enacted statutory requirements for that relief.

14
Of course, the applicability of the stop-time rule with respect to an alien’s eligibility
for suspension of deportation under former 8 U.S.C. § 1254 (repealed), a type of relief
that existed prior to IIRIRA, requires a different analysis. See, e.g., Briseno-Flores, 492
F.3d at 229-30.

17
 B. Insufficient Notice

Finally, we address Jurado-Delgado’s claim that, because his 1991 crimes were not

alleged to be a basis for removability in either the 2001 notice to appear or in the 2005

document lodging an additional charge of removability, the BIA erred in relying on them

in denying him cancellation of removal. He makes three arguments in support of that

claim. First, he argues that his constitutional right to due process was violated as a result

of the failure of any charging document to allege that his 1991 crimes rendered him

ineligible for cancellation of removal. However, we join the several of our sister courts

of appeals that have rejected the argument that an alien has a due process right to have

listed in the notice to appear all crimes affecting the alien’s eligibility for discretionary

relief from removal. See, e.g., Matovski v. Gonzales, 492 F.3d 722, 738-39 (6th Cir.

2007) (“The petitioners enjoyed the right to know the charges of removability against

them and to have those charges listed on Notices to Appear. However, the petitioners had

no right to require the government to list every defense against their potential applications

for discretionary relief.”); Salviejo-Fernandez v. Gonzales, 455 F.3d 1063, 1066 (9th Cir.

2006) (“[D]ue process does not require inclusion of charges in the [notice to appear] that

are not grounds for removal but are grounds for denial of relief from removal.”); Brown v.

Ashcroft, 360 F.3d 346, 351-52 (2d Cir. 2004) (“‘[T]here is no requirement, either

statutory or constitutional, that all possible defenses or collateral remedies be explained’

18
to the alien against whom the government is proceeding.” (quoting Aalund v. Marshall,

461 F.2d 710, 712 (5th Cir. 1972)).

Jurado-Delgado next argues that the failure of any charging document to mention

his 1991 crimes violated 8 U.S.C. § 1229(a)(1), which requires that aliens in removal

proceedings be given written notice of “[t]he acts or conduct alleged to be in violation of

law” and “[t]he charges against the alien and the statutory provisions alleged to have been

violated.” 8 U.S.C. § 1229(a)(1)(C),(D). There is no dispute, however, that Jurado-

Delgado did receive written notice of the charges of removability against him and the

facts the government relied upon to support those charges. He was expressly advised that

he was removable under 8 U.S.C. § 1227(a)(2)(A)(ii) as a result of his two convictions in

1997 of crimes involving moral turpitude, and that he was removable under 8 U.S.C.

§ 1227(a)(3)(D) for having falsely represented himself in 2004 as a United States citizen.

Jurado-Delgado’s 1991 crimes were not relied on by the BIA as supporting a charge of

removability. Instead, the BIA relied on those crimes in arriving at its conclusion that

Jurado-Delgado was statutorily ineligible for discretionary relief from removal. We see

nothing in 8 U.S.C. § 1229(a)(1) that requires a notice to appear or any other charging

document to list all facts that may be detrimental to an alien’s application for

discretionary relief from removal.15 See Brown, 360 F.3d at 351 (rejecting the argument

15
For the same reason, we reject Jurado-Delgado’s argument that the failure of a
charging document to mention his 1991 crimes violated 8 C.F.R. § 1240.10(e), which
permits the DHS to lodge additional charges of removability and factual allegations in
writing at any time during the removal proceedings and requires the DHS to serve the

19
that 8 U.S.C. § 1229(a)(1) requires that an alien receive written notice of a conviction that

is not relied upon as supporting a charge of removability but that affects statutory

eligibility for discretionary relief).

Finally, Jurado-Delgado takes issue with the BIA’s determination that 8 U.S.C.

§ 1229b(d)(1) does not require an alien to have been charged in the notice to appear with

being inadmissible or removable for committing the particular offense that is invoked as

the basis for barring him from seeking cancellation of removal. In response, the Attorney

General asserts that the BIA’s interpretation of § 1229b(d)(1) is entitled to deference

under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). We need not reach the question of deference on this point, however, because we

completely agree with the BIA’s interpretation of the statute. Cf. Edelman v. Lynchburg

Coll., 535 U.S. 106, 114 (2002) (“Because we so clearly agree with the [agency], there is

no occasion to defer and no point in asking what kind of deference, or how much.”). To

stop the accrual of a period of continuous residency, the only thing § 1229b(d)(1)(B)

requires is an offense that “renders the alien inadmissible ... or removable.” There is no

requirement that the offense be the stated ground of removability. Cf. Hussain v.

Mukasey, 518 F.3d 534, 537 (7th Cir. 2008) (rejecting the argument that the statutory bar

in 8 U.S.C. § 1229b(c)(4) on cancellation of removal for aliens who are removable on

grounds of terrorism requires that terrorism also be the stated ground of removal).

alien with a copy of those additional charges and allegations.

20
III. Conclusion

We have considered the remainder of Jurado-Delgado’s arguments and find them

to be without merit. Accordingly, for the foregoing reasons, we will deny the petition for

review.

SLOVITER, Circuit Judge, concurring

I join all of Judge Jordan’s opinion with the exception of Part II.A.2., which

addresses the retroactivity of the stop-time rule. The majority abjures conducting a

Landgraf analysis because it concludes that the application of the stop-time rule to

Jurado-Delgado’s case is not impermissibly retroactive, indeed not retroactive at all. See

Landgraf v. USI Film Products, 511 U.S. 244 (1994). I disagree with the majority’s

analysis, but not with the final result.

The majority finds that this case does not “implicate[] a federal statute enacted

after the events in suit,” id. at 280, (a prerequisite for application of a Landgraf analysis)

because “Jurado-Delgado is being removed for an act that he committed in 2004, long

after § 1229b took effect.” Maj. Op. at 14. The majority is correct that Jurado-Delgado’s

post-IIRIRA crimes render him removable (as do his earlier crimes), but it is only his pre-

IIRIRA offenses that render him ineligible for cancellation of removal under the stop-

time rule. If the stop-time rule did not apply retroactively to crimes predating IIRIRA,

21
Jurado-Delgado would be statutorily eligible for cancellation of removal because his 1991

offenses would not have terminated his period of continuous presence.

The BIA based its rejection of Jurado-Delgado’s request for cancellation of

removal by applying the stop-time rule to the 1991 crimes. In re Jurado-Delgado, 241 I.

& N. Dec. 29, 35 (B.I.A. 2006). Jurado-Delgado argues that the BIA erred in applying

the stop-time retroactively, and that a correct application of Landgraf precludes such

retroactivity. The government disagrees, and asks us to deny the Petition for Review.

The majority attempts to explain its failure to apply a Landgraf analysis where it

states that the Landgraf analysis applies only when a case implicates a federal statute

enacted after the events in suit. See Maj. Op. at 15. The stop-time rule fits that scenario

in this case. It is contained in 8 U.S.C. § 1229b(d)(1) which was enacted in 1996 and

became effective in 1997. The stop-time rule would interrupt Jurado-Delgado’s accrual

of seven years continuous presence when he committed the 1991 offenses if it applies

retroactively to events before its enactment. Therefore, I believe we must deal with

Landgraf, the decision of the Supreme Court that instructs us when statutes are to be

applied retroactively.1

1
Other courts that have addressed this question in depth have applied a Landgraf
analysis. See, e.g., Martinez v. INS, 523 F.3d 365, 369-77 (2d Cir. 2008); Peralta v.
Gonzales, 441 F.3d 23, 30-31 (1st Cir. 2006); Sinotes-Cruz v. Gonzales, 468 F.3d 1190,
1198-1203 (9th Cir. 2006); Pinho v. INS, 249 F.3d 183, 187-190 (3d Cir. 2001); Appiah
v. INS, 202 F.3d 704, 708-09 (4th Cir. 2000); Henry v. Ashcroft, 175 F. Supp. 2d 288,
692-96 (S.D.N.Y. 2001).

22
 In Landgraf, the Supreme Court established a two-part analysis for determining if

a statute has an impermissibly retroactive effect: First, we must determine if Congress has

given a clear indication that the statute is to be applied retroactively. 511 U.S. at 280. “If

Congress has done so, of course, there is no need to resort to judicial default rules.” Id.

At the second step, we must consider whether retroactive application of the statute

“would impair rights a party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already completed.” Id.

Under step one of Landgraf, nothing in the stop-time rule clearly indicates that

Congress unambiguously expressed that the rule be applied retroactively. Nothing in the

statute indicates the appropriate temporal scope of the stop-time rule with respect to an

alien in Jurado-Delgado’s position. In contrast, the transitional rule expressly makes the

stop-time rule applicable to pending cases involving suspension of deportation. IIRIRA §

309(c)(5), Pub. L. No. 104-208, 110 Stat. 3009-627 (1996).2 However, that rule offers no

guidance here because Jurado-Delgado would not have been eligible for suspension of

deportation.3 The transitional rule addressed only applications for suspension of

2
This court has held that the application of the stop-time rule to transitional suspension
of deportation cases is not impermissibly retroactive because Congress clearly intended
that it be applied retroactively and doing so does not impair any vested rights. See Pinho
v. INS, 249 F.3d 183, 188-89 (3d Cir. 2001). Many of our sister circuits have come to the
same conclusion. See e.g., Tablie v. Gonzales, 471 F.3d 60, 63-64 (2d Cir. 2006); Peralta
v. Gonzales, 441 F.3d 23, 30-31 (1st Cir. 1006).
3
Jurado-Delgado does not argue that he would have been eligible for suspension of
deportation; he argues that, under pre-IIRIRA law, he would have been eligible for §
212(c) relief (Appellant’s Br. 38-39, Reply Br. 11).

23
deportation and was silent as to pending applications for § 212(c) waivers. Because

Congress’ intent to make the stop-time rule retroactive is ambiguous with respect to an

alien in Jurado-Delgado’s situation, we need to proceed to step two of Landgraf. See INS

v. St. Cyr, 533 U.S. 289, 320 (2001).

Jurado-Delgado’s claim fails under step two of Landgraf because he cannot show

that the retroactive application of the stop-time rule to his 1991 crimes “would impair

rights [he] possessed when he acted, increase [his] liability for past conduct, or impose

new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280.

“[W]hether a particular application is retroactive will depen[d] upon what one

considers to be the determinative event by which retroactivity or prospectivity is to be

calculated.” Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 100 (1992)

(Thomas, J., concurring) (internal quotation marks, citation, and emphasis omitted).

Here, the relevant conduct was the commission of the crimes, as opposed to the

subsequent guilty pleas. See Martinez v. INS, 523 F.3d 365, 373-76 (2d Cir. 2008)

(holding that the commission of the crime is the determinative event for a Landgraf

analysis of the stop-time rule).

As the majority notes, Jurado-Delgado committed the offenses underlying the

1991/92 convictions on March 27, 1991, and December 19, 1991. Jurado-Delgado

arrived as a lawful permanent resident on September 15, 1985. Because he had not

established seven years of continuous presence at the time of his commission of the

24
offenses leading to the 1991/92 convictions, his right to § 212(c) relief had not vested.

Accordingly, the Landgraf analysis does not protect Jurado-Delgado from retroactive

application of the stop-time rule because the 1996 enactment of the stop-time rule did not

impair any rights that he possessed at the time of his offenses.

25