Saravia-Paguada v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTOR SARAVIA-PAGUADA, 
Petitioner, No. 05-73098
v.
 Agency No.
A17-266-808
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 13, 2007—San Francisco, California

Filed May 21, 2007

Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Alfred V. Covello,*
Senior District Judge.

Opinion by Judge Gould

*The Honorable Alfred V. Covello, Senior United States District Judge
for the District of Connecticut, sitting by designation.

5893
 SARAVIA-PAGUADA v. GONZALES 5897
COUNSEL

Marc Van Der Hout, San Francisco, California, for the peti-
tioner.

Edward A. Olsen, Assistant United States Attorney, San Fran-
cisco, California, for the respondent.

OPINION

GOULD, Circuit Judge:

In 1988, Petitioner, Victor Saravia-Paguada, a legal perma-
nent resident (“LPR”), was convicted of several felonies in
California, for which he served three years and two months in
prison. After his release, Petitioner conceded deportability but
requested discretionary relief under former § 212(c) of the
Immigration and Naturalization Act (“INA”). While his
deportation proceedings were pending, in 1992 Petitioner was
again convicted for felony offenses and received a sentence of
six years and four months, which reflected in part a three-year
recidivist enhancement. Petitioner served three years and
three months of this sentence. In 2002, the Board of Immigra-
tion Appeals (“BIA”) summarily affirmed the immigration
judge’s (“IJ”) pretermitting of relief under former § 212(c)
because, by an intervening act of Congress, eligibility for
relief was barred for any alien who has been convicted of
“one or more aggravated felonies and has served for such fel-
ony or felonies” a term of imprisonment of at least five years.
See § 306(a)(10) of the Miscellaneous and Technical Immi-
gration and Naturalization Amendments, Pub. L. No. 102-
232, 105 Stat. 1733, 1751 (effective Dec. 12, 1991)
(“Technical Amendments”) (modifying § 511(a) of the Immi-
gration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978,
5052 (effective Nov. 29, 1990) (“IMMACT”)).1 Petitioner
1
When referring generically to the eligibility bar to those aliens who
served at least five years for aggravated felonies under these amendatory
5898 SARAVIA-PAGUADA v. GONZALES
petitions for review of the BIA’s summary affirmance, claim-
ing that time served pursuant to the recidivist statute should
not have been counted for purposes of the IMMACT bar, and,
in the alternative, that applying the IMMACT bar to the 1988
sentence had an impermissibly retroactive effect on the crimi-
nal conduct underlying Petitioner’s convictions. We deny the
petition for review.

I

The Petitioner is a Honduran national who has been an LPR
in the United States since 1966 and has returned to Honduras
only once for a brief stay. Petitioner asserts that he was raised
in the United States from an early age and has no appreciable
ties to his native country. Petitioner also asserts that his
mother, daughter and siblings are either U.S. citizens or LPRs
who live in the United States.

On October 19, 1988, a jury in California convicted Peti-
tioner of the following offenses: (1) possession of cocaine for
sale in violation of California Health and Safety Code
§ 11351; (2) possession for sale of methamphetamine in vio-
lation of California Health and Safety Code § 11378; (3) con-
spiracy to sell cocaine and methamphetamine in violation of
California Penal Code § 182.1 and California Health and
Safety Code §§ 11352 and 11379; and (4) possession of a
throwing star in violation of California Penal Code
§ 12020(c). The superior court in Santa Clara County imposed
a prison term of five years and eight months, of which Peti-
tioner served three years and two months.

On May 2, 1990, the former Immigration and Naturaliza-
tion Service (“INS”) initiated deportation proceedings under

statutes, we use the denomination “IMMACT provisions” or “IMMACT
bar” where there is no significant difference between the two statutory
versions.
 SARAVIA-PAGUADA v. GONZALES 5899
former § 241(a)(11) of the INA, 8 U.S.C. § 1251 (a)(11), in
connection with Petitioner’s conviction for possession of
cocaine for sale. Conceding deportability, Petitioner sought
discretionary relief under former § 212(c) of the INA, 8
U.S.C. § 1182(c) (1996). While the deportation proceedings
were pending, however, Petitioner was convicted on June 30,
1992, after a guilty plea, for violation of California Health and
Safety Code §§ 11378 (possession for sale of methamphet-
amine) and 11358 (cultivation of marijuana). This time the
Santa Clara County superior court imposed a sentence of six
years and four months, which in part reflected a three-year
sentencing enhancement pursuant to a recidivist statute, Cali-
fornia Health and Safety Code § 11370.2, in light of Petition-
er’s prior convictions. Petitioner served three years and three
months.

On February 23, 1996, the IJ pretermitted § 212(c) relief
because he determined that Petitioner served in aggregate six
years and five months for the 1988 and 1992 aggravated fel-
ony convictions.2 The IJ rested his decision on an intervening
amendment to § 212(c) that barred relief for any alien who
2
In the briefing, Petitioner asserts that he served only two years and one
month for the 1988 convictions. This calculation is belied by Petitioner’s
testimony before the IJ and the state court criminal records. Before the IJ,
Petitioner attempted to shorten the period of incarceration for the 1988
convictions by calculating from the time of his sentencing in 1988 to reach
the figure of two years and one month. The IJ rejected Petitioner’s conten-
tion that pre-trial or pre-sentencing detention did not count as “time
served,” concluding that the theory was foreclosed under Matter of Val-
dovinos, 18 I. & N. Dec. 343, 344 (1982). Based on Petitioner’s prison
records, the IJ found that Petitioner entered the California prison system
on November 17, 1987 at the time of his arrest and was paroled on Janu-
ary 14, 1991. The resulting total is three years, one month and twenty-
seven days, or nearly three years and two months as the IJ concluded. As
for the 1992 convictions, Petitioner testified consistent with his prison
records that he had been arrested on April 7, 1992 and released from
prison on August 4, 1995, indicating roughly a three-year and four-month
term of incarceration. However, the IJ settled on a more conservative fig-
ure of three years and three months.
5900 SARAVIA-PAGUADA v. GONZALES
has been convicted of “one or more aggravated felonies and
has served for such felony or felonies” a term of imprison-
ment of at least five years.3 See § 306(a)(10) of the Technical
Amendments. The IJ recited Petitioner’s convictions and
acknowledged that no party disputed that the convictions were
accurately characterized as aggravated felonies. The IJ also
rejected Petitioner’s interpretation of § 306(a)(10) that time
served pursuant to the three-year sentencing enhancement due
to his 1992 convictions could not be counted toward the five-
year IMMACT bar. Noting that “the enhancement itself can-
not be regarded as a conviction independent of other convic-
tions,” the IJ concluded that it was indisputable that the
“enhancement . . . imposed on Mr. Saravia in 1992 was part
of the sentencing for the conviction . . . for the violation of
California Health and Safety Code § 11378.”
3
We note as background that Petitioner’s convictions occurred during a
period in the development of this country’s immigration laws, which
increasingly restricted availability of relief for LPRs convicted of felony
offenses. Previous to IMMACT’s passage, “§ 212(c) allowed the Attorney
General to grant discretionary waivers of relief from deportation for aliens
who were lawful permanent residents of the United States and who had
accrued seven consecutive years of lawful unrelinquished domicile in the
United States.” Toia v. Fasano, 334 F.3d 917, 918 (9th Cir. 2003). After
Petitioner’s 1988 convictions, Congress made relief unavailable for an
alien “who has been convicted of an aggravated felony and served a term
of imprisonment at least five years.” See § 511(a) of the IMMACT. In
1991, Congress inserted the “for such felony or felonies” language into
§ 511(a) of the IMMACT to “clarify that the bar [to § 212(c) relief]
applied to multiple aggravated felons whose aggregate terms of imprison-
ment exceeded five years.” See Toia, 334 F.3d at 919 n.1; § 306(a)(10) of
the Technical Amendments. In 1996, Congress eliminated § 212(c) relief
for convictions of controlled-substance violations and aggravated felonies
regardless of the amount of time served. See § 440(d) of the Antiterrorism
and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, 1277 (1996). Finally, under the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, § 304(b),
110 Stat. 3009, 3009-597 (1996), a waiver of relief from deportation under
§ 212(c) was repealed and replaced with cancellation of removal, which
is unavailable to any alien with an aggravated felony conviction. See 8
U.S.C. § 1229.
 SARAVIA-PAGUADA v. GONZALES 5901
The BIA affirmed the IJ on March 24, 1997, but remanded
the case with leave for Petitioner to file a motion to reopen
under Matter of Soriano, 21 I. & N. Dec. 516 (A.G. 1996).4
On May 30, 2002, the IJ determined that Matter of Soriano
did not apply to Petitioner’s circumstances and ordered him
deported under the previous findings from the February 26,
1996 hearing. The BIA affirmed the decision summarily on
September 25, 2002. Under § 309(c)(4)(G) of IIRIRA, we
then dismissed Petitioner’s initial petition for review for lack
of jurisdiction.

After Petitioner was ordered to appear for deportation, he
filed a petition for writ of habeas corpus on September 17,
2004 in the Northern District of California, asserting that the
IJ erroneously concluded that § 212(c) relief was unavailable.
The district court denied the habeas petition because Peti-
tioner had served more than five years for his aggravated fel-
ony convictions, which, “under the plain language of the
[IMMACT],” barred § 212(c) relief. After Petitioner filed a
motion to amend the judgment under Federal Rule of Civil
Procedure 59(e), Congress passed the REAL ID Act, Pub. L.
No. 109-13, 119 Stat. 231 (2005), which required the district
court to transfer the case to us for consideration of the habeas
claims as a petition for review.5 See 8 U.S.C.
§ 1252(a)(2)(D)(5); Smolniakova v. Gonzales, 422 F.3d 1037,
1044 (9th Cir. 2005).

II

Petitioner first argues that the IJ erroneously included time
served pursuant to the three-year sentence enhancement under
4
Matter of Soriano, allowed repleading in cases where a petitioner
relied on the availability of § 212(c) relief in conceding deportability
before passage of § 440(d) of AEDPA. See 21 I. & N. Dec. at 520.
5
Under the REAL ID Act, we retain jurisdiction over “constitutional
claims or questions of law raised upon a petition for review filed with an
appropriate court.” See 8 U.S.C. § 1252(a)(2)(D).
5902 SARAVIA-PAGUADA v. GONZALES
California Health and Safety Code § 11370.2, when conclud-
ing that Petitioner had served more than five years for his
aggravated felony convictions.6 Petitioner claims that our
authority in United States v. Corona-Sanchez, 291 F.3d 1201
(9th Cir. 2002), and Rusz v. Ashcroft, 376 F.3d 1182 (9th Cir.
2004), supports his contention.7

Petitioner’s reliance on Corona-Sanchez and Rusz is mis-
placed. In Corona-Sanchez, we rejected the Government’s
theory that a conviction for petty theft under California Penal
Code §§ 484(a) and 488, which resulted in a two-year sen-
tence under California Penal Code § 666 (a recidivist statute),
was an “aggravated felony” for purposes of increasing the
penalty for a violation of 8 U.S.C. § 1326(a) (being a deported
alien found in the United States). Corona-Sanchez, 291 F.3d
at 1208-09. We reached this decision because Taylor v.
United States, 495 U.S. 575 (1990), required a court in the
context of federal sentence enhancements to “examine the
prior crimes by considering the statutory definition of the
crimes categorically, without reference ‘to the particular facts
6
As a remedy, Petitioner asks us to prorate the time served for the 1992
substantive offenses as separate from time served under the three-year
enhancement. Petitioner reckons that of the 76-month sentence for the
1992 convictions, 36 months are attributable to the sentencing enhance-
ment and 40 months are attributable to the substantive offenses. Petitioner
calculates that 47% of the 39 months served should be prorated such that
only “one year and 6.3 months” may be counted for purposes of the five-
year prison term that bars relief. Thus Petitioner calculates that his “time
served” amounts to only four years and 8.3 months so as to escape the
IMMACT bar to § 212(c) eligibility.
7
When the BIA does not perform an independent review of the IJ’s
decision we review the IJ’s decision. See Khup v. Ashcroft, 376 F.3d 898,
902 (9th Cir. 2004). We review “determination of purely legal questions
regarding the Immigration and Nationality Act de novo,” Kankamalage v.
INS, 335 F.3d 858, 861 (9th Cir. 2003), “the same standard we apply when
reviewing a district court’s decision to deny a habeas petition . . . [except
that] we now review the BIA’s decision, not the district court’s orders.”
Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir. 2005) (inter-
nal citation omitted).
 SARAVIA-PAGUADA v. GONZALES 5903
underlying those convictions’ . . . [and] without considering
separate recidivist sentencing enhancements.” Corona-
Sanchez, 291 F.3d at 1208-09 (quoting Taylor, 495 U.S. at
600). We recognized this distinction because “ ‘recidivism
does not relate to the commission of the offense.’ ” Id. at 1209
(quoting Apprendi v. New Jersey, 530 U.S. 466, 488 (2000).

In Rusz, we likewise declined to characterize a petty theft
conviction under California Penal Code §§ 484(a) and 488 as
an offense “for which a sentence of one year or longer may
be imposed” under 8 U.S.C. § 1227(a)(2)(A)(i)(II), which
barred appellate jurisdiction over a final order of removal,
where a statutory maximum sentence of six months was
enhanced to three years under § 666. Rusz, 376 F.3d at 1183,
1185. In that case we held that the Taylor categorical
approach required us to separate the substantive misdemeanor
offense from the sentencing enhancement in considering the
applicability of INA removal provisions. Id. at 1185.

Finally, our recent decision in United States v. Rodriquez,
464 F.3d 1072 (9th Cir. 2006), is congruent with this line of
authority and does not assist Petitioner’s position. In
Rodriquez, we considered for federal sentencing enhancement
purposes whether a prior conviction for delivery of a con-
trolled substance, in violation of Washington Revised Code
§ 9A.20.021(1)(c), which carried a maximum term of five
years for the substantive crime, but was enhanced to ten years
as a “second or subsequent offense[ ]” under a recidivism pro-
vision, qualified as a “serious drug offense” under the perti-
nent definition in the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924 et seq., namely “ ‘an offense under State law,
involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . .
for which a maximum term of imprisonment of ten years or
more is prescribed by law.’ ” Id. at 1079 (quoting 18 U.S.C.
§ 924(e)(2)(A)(ii)) (emphasis in original). Following Corona-
Sanchez, we held that Rodriquez’s prior controlled-substance
violation could not be classified as a “serious drug offense,”
5904 SARAVIA-PAGUADA v. GONZALES
though he received an enhanced sentence of ten years under
the recidivist statute, because “recidivism does not relate to
the commission of the offense.” Id. at 1082 (internal quotation
marks omitted).

[1] Here, unlike in Corona-Sanchez, Rusz, and Rodriquez,
we do not consider whether or not Petitioner committed cer-
tain past crimes, such as an “aggravated felony” or a “serious
drug offense,” the nature of which might give rise to adverse
consequences attaching to a present conviction. For this rea-
son, the traditional concern that recidivism should not inform
the nature of an offense, cf. Apprendi, 530 U.S. at 488, is not
at play. It is undisputed that Petitioner’s 1988 and 1992
offenses were properly characterized as “aggravated felo-
nies.” The focus here is on calculating the amount of time
served on account of the felony convictions, which is an
inquiry not related to the nature of the offense under the Tay-
lor categorical approach and absent from our analysis in
Corona-Sanchez and its progeny. The question here is
straightforward: whether Petitioner “served for such felony or
felonies a term of imprisonment of at least 5 years.” See
§ 306(a)(10) of the Technical Amendments.

Having rejected the applicability of Corona-Sanchez, Rusz,
and Rodriquez to this context, we recur to the plain meaning
of § 306(a)(10) of the Technical Amendments. See Altami-
rano v. Gonzales, 427 F.3d 586, 592 (9th Cir. 2005) (“The
starting point for our interpretation of a statute is always its
language. . . . We begin by looking to the plain meaning of
the terms at issue.”) (internal citation and quotation marks
omitted)). “If a statute is silent regarding an issue, we will
defer to the interpretation of the administrative agency
charged with implementing the statute.” United States v.
Lopez-Perera, 438 F.3d 932, 933 (9th Cir. 2006). However,
we are not obligated to accept an interpretation clearly con-
trary to the plain meaning of the statute. See Chowdhury v.
INS, 249 F.3d 970, 972 (9th Cir. 2001).
 SARAVIA-PAGUADA v. GONZALES 5905
In interpreting § 306(a)(10), the IJ here found that “the
enhancement itself cannot be regarded as a conviction inde-
pendent of other convictions,” concluding that the “enhance-
ment . . . imposed . . . was part of the sentencing for the
conviction . . . for the violation of California Health and
Safety Code § 11378.” Petitioner contends that this finding
was in error because the prepositional phrase “for such felony
or felonies” inserted into the IMMACT provision under
§ 306(a)(10) qualifies any time served so as to bracket out
time served pursuant to an enhancement as distinct from the
aspect of the sentence attributable to the substantive offense.
This reading is unpersuasive.

[2] Nothing in the language of § 306(a)(10) suggests that an
enhanced sentence may not be imposed “for such felony or
felonies.” As the IJ reasonably concluded, the enhancement is
not separable from the sentence. Rather, the enhancement is,
by definition, “an additional term of imprisonment added to
the base term,” see People v. Wims, 895 P.2d 77, 83 (Cal.
1995) (internal quotation marks and citation omitted), which
is imposed because of some aggravating circumstance such as
recidivism. Because the terms of the statute require a court
only to determine the ultimate amount of time served, it is
immaterial whether a sentencing enhancement may have
increased the base term. Moreover, Petitioner’s interpretation
based on a misapplication of Corona-Sanchez also creates
practical difficulties Congress cannot have intended. Under
Petitioner’s approach, an IJ, when calculating the time served,
would be forbidden from examining circumstances underlying
the substantive offense, including recidivist concerns and any
other aggravating factors that informed the sentencing court.
A requirement to prorate the “time served” based on any con-
ceivable aggravating factors a sentencing judge might apply
would be unworkable because the IJ would be forced to con-
trive proportionate values for each aggravating factor, then
deduct those artificial values from the imposed sentence. We
reject such an unwieldy approach that is contrary to
§ 306(a)(10)’s plain meaning.
5906 SARAVIA-PAGUADA v. GONZALES
[3] In a related theory, Petitioner argues that the congres-
sional act itself of amending the IMMACT under § 306(a)(10)
to add the prepositional phrase “for such felony or felonies”
exhibited an intent that the time served be calculated without
regard to sentencing enhancements. Petitioner’s argument
runs counter to our authority in Toia v. Fasano, 334 F.3d 917
(9th Cir. 2003). In Toia, we acknowledged that the intent of
§ 306(a)(10) was to “clarify that the bar [to § 212(c) relief]
applied to multiple aggravated felons whose aggregate terms
of imprisonment exceeded five years,” see id. at 919 n.1,
rather than basing ineligibility on a prison term of at least five
years pursuant to a single conviction. See De Osorio v. INS,
10 F.3d 1034, 1037 n.2 (4th Cir. 1993) (“The language of this
amendment to § 212(c) was further revised in [§ 306(a)(10)]
to clarify that the five-year term could be served for multiple
convictions.”). Petitioner cites no relevant authority or legisla-
tive history that the congressional intent was otherwise.8 At
most, Petitioner points to a proposed amendment to the INA
in the Comprehensive Immigration Reform Act of 2006,
which makes explicit that time served under sentencing
enhancements may be considered for determining immigra-
tion consequences.9 According to Petitioner, this unenacted
8
The congressional record is free of specific reference to § 306(a)(10).
See 137 CONG. REC. S18244 (daily ed. Nov. 26, 1991) (stating Senator
Kennedy’s description of the Technical Amendments to the IMMACT as
“non-controversial but necessary” without mentioning § 306(a)(10)); see
also Iris Gomez, The Consequences of Nonappearance: Interpreting New
Section 242b of the Immigration and Nationality Act, 30 San Diego L.
Rev. 75, 94 -95 (1993) (reciting legislative history of the Technical
Amendments without noting particular rationale for enactment of
§ 306(a)(10)).
9
This unenacted federal legislation concerns the following proposed
amendment to the definition of “aggravated felony” under 8 U.S.C.
§ 1101(a)(43): “[T]he term ‘aggravated felony’ applies to an offense
described in this paragraph, whether in violation of Federal or State law
. . . for which the term of imprisonment was completed within the previous
15 years, even if the length of the term of imprisonment is based on recidi-
vist or other enhancements . . . .” Comprehensive Immigration Reform
Act, S.R. 2611, 109th Cong. § 203 (2006) (emphasis added).
 SARAVIA-PAGUADA v. GONZALES 5907
bill reflects the fact that under the current law sentencing
enhancements may not be included in calculating time served
in determining the availability of § 212(c) relief. Even if
§ 306(a)(10) were ambiguous, this theory runs afoul the canon
of construction that “[w]here . . . an act is ambiguous, an
amendment thereto is an indication that it is intended to clar-
ify, rather than change, the existing law.” See Bedoni v.
Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119,
1121 (9th Cir. 1989) (internal quotation marks and citation
omitted).

[4] Under the plain meaning of the IMMACT provisions,
we conclude that an IJ may include time served under a recid-
ivist statute or any other sentencing enhancement when con-
sidering eligibility for relief under former § 212(c). In
pretermitting relief, the IJ reasonably interpreted this statutory
command and properly calculated the time served based on
both the sentence attributable to the 1992 substantive offenses
and the sentencing enhancement under California Health and
Safety Code § 11370.2.

III

In his alternative claim, Petitioner argues that the IJ’s appli-
cation of the IMMACT bar to his 1988 sentence had an
impermissibly retroactive effect by attaching new legal conse-
quences to the criminal conduct underlying the convictions.10

The Government claims that Petitioner waived his retroac-
tivity argument under 8 U.S.C. § 1252(d)(1) because it was
not raised before the IJ or BIA. Petitioner responds that we
have jurisdiction over the retroactivity claim because due pro-
cess concerns are implicated. Alternatively, Petitioner argues
that it would have been futile to assert such a claim because
at the time he sought administrative review, our authority in
10
“We review de novo whether a statute may be applied retroactively.”
Scott v. Boos, 215 F.3d 940, 942 (9th Cir. 2000).
5908 SARAVIA-PAGUADA v. GONZALES
Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 1995), over-
ruled by, Toia, 334 F.3d 917, precluded the BIA from consid-
ering the retroactivity claim.

As a general rule, we “may review a final order of removal
only if . . . the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
However, “due process claims . . . are exempt from this
administrative exhaustion requirement.” Garcia-Ramirez v.
Gonzales, 423 F.3d 935, 938 (9th Cir. 2005) (“Retroactivity
challenges to immigration laws implicate legitimate due pro-
cess considerations that need not be exhausted in administra-
tive proceedings because the Board of Immigration Appeals
cannot give relief on such claims.”). The Government’s
exhaustion defense is thus foreclosed by Garcia-Ramirez.11

Proceeding to the merits, we are guided by our circuit’s
interpretation of the analytical framework for retroactivity
established in Landgraf v. USI Film Products, 511 U.S. 244
(1994), and as applied in the immigration context in INS v. St.
Cyr, 533 U.S. 289 (2001). See generally Armendariz-Montoya
v. Sonchik, 291 F.3d 1116 (9th Cir. 2002).

[5] Under the test in Landgraf, when a statutory provision
lacks an effective date, we first ask whether Congress has pre-
scribed its temporal reach. See 511 U.S. at 280.12 “If there is
no congressional directive on the temporal reach of a statute,
we determine whether the application of the statute to the con-
duct at issue would result in a retroactive effect.” Martin v.
Hadix, 527 U.S. 343, 352 (1999) (internal quotation marks
11
Because Garcia-Ramirez exempts Petitioner from the exhaustion
requirement, we need not address his futility argument.
12
Here, it is undisputed that the IMMACT provision is ambiguous with
respect to whether Congress intended to apply the five-year eligibility bar
to aliens whose convictions occurred before the statute’s effective date.
See Toia, 334 F.3d at 920 (“Section 511(a) lacks clear, strong language,
. . . which can be subject to only one interpretation.”).
 SARAVIA-PAGUADA v. GONZALES 5909
omitted). Absent an unmistakable congressional directive, we
may determine that a statute is impermissibly retroactive if it
“takes away or impairs vested rights acquired under existing
laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or consid-
erations already past.” Landgraf, 511 U.S. at 269 (internal
quotation marks and citation omitted).

[6] In the immigration context, the Supreme Court in St.
Cyr concluded that “IIRIRA’s elimination of any possibility
of § 212(c) relief for people who entered into plea agreements
with the expectation that they would be eligible for such relief
clearly ‘attaches a new disability, in respect to transactions or
considerations already past.’ ” 533 U.S. at 321 (quoting Land-
graf, 511 U.S. at 269). Central to the St. Cyr analysis was the
nature of the plea agreement and a petitioner’s reliance on the
pre-IRRIRA availability of § 212(c) relief:

Plea agreements involve a quid pro quo between a
criminal defendant and the government. . . . In
exchange for some perceived benefit, defendants
waive several of their constitutional rights (including
the right to a trial) and grant the government numer-
ous tangible benefits, such as promptly imposed pun-
ishment without the expenditure of prosecutorial
resources. . . . There can be little doubt that, as a
general matter, alien defendants considering whether
to enter into a plea agreement are acutely aware of
the immigration consequences of their convictions.
. . . [P]reserving the possibility of such relief would
have been one of the principal benefits sought by
defendants deciding whether to accept a plea offer or
instead to proceed to trial.

Id. at 321-23 (internal quotation marks, citations, and foot-
notes omitted).

In our circuit, we have generally limited St. Cyr to the fac-
tual context of a guilty plea. In Toia, we considered a chal-
5910 SARAVIA-PAGUADA v. GONZALES
lenge by an LPR to the retroactive application of the bar to
§ 212(c) relief under § 511(a) of the IMMACT after the peti-
tioner was convicted of a drug-related aggravated felony on
a guilty plea in 1989 and sentenced to ten years imprison-
ment. 334 F.3d at 918. In that case we held that St. Cyr com-
pelled making § 212(c) relief available to the alien despite the
pre-IMMACT convictions because his guilty plea evinced the
alien’s reliance on relief under the then-existing law. Id. at
921 (“Extinguishing the availability of § 212(c) relief for
aliens who pleaded guilty . . . upsets ‘familiar considerations
of fair notice, reasonable reliance, and settled expecta-
tions.’ ”) (quoting St. Cyr, 533 U.S. at 323).

[7] Outside of the plea bargain context, however, we have
declined to invalidate retroactive elimination of § 212(c)
relief. In Armendariz-Montoya, we held that there was no
impermissibly retroactive effect in applying § 440(d) of
AEDPA to a petitioner who was convicted pre-AEDPA after
a jury trial for a drug-related aggravated felony, but was still
in deportation proceedings when AEDPA was enacted. See
291 F.3d at 1121-22. In that case, we reasoned that aliens who
chose to go to trial “cannot plausibly claim that they would
have acted any differently if they had known” about the elimi-
nation of § 212(c) relief.13 Id. at 1121. In concluding that such
a claimed reliance interest is per se unreasonable, we reaf-
firmed a narrow reading of St. Cyr and excluded categorically
claims for § 212(c) relief outside the guilty plea context.14 Id.
13
Our decision in Armendariz-Montoya quoted Judge Posner’s rejection
of a similar argument:
It would border on the absurd to argue that these aliens might
have decided not to commit drug crimes, or might have resisted
conviction more vigorously, had they known that if they were not
only imprisoned but also, when their prison term ended, ordered
deported, they could not ask for a discretionary waiver of depor-
tation.
291 F.3d at 1121 (quoting LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th
Cir. 1998)).
14
Recently, in a case involving a retroactive application of the aggra-
vated felon bar under § 304(b) of IIRIRA, we likewise rejected an argu-
 SARAVIA-PAGUADA v. GONZALES 5911
at 1122 (“Armendariz pleaded not guilty and elected a jury
trial. Therefore, application of § 440(d) does not result in any
retroactive effect.”).

The Government contends that Landgraf’s second prong, as
applied under St. Cyr and Toia, can be distinguished from the
case here, and that the authority in Armendariz-Montoya fore-
closes Petitioner’s theory, because Petitioner did not partici-
pate in the quid pro quo of the plea bargain and thus cannot
have reasonably relied on the availability of discretionary
§ 212(c) relief prior to the jury trial conviction in 1988. Disre-
garding the significance of a guilty plea, Petitioner replies that
the IMMACT provisions have an impermissible retroactive
effect because, as applied to the 1988 convictions, the statu-
tory change subjects him to new legal consequences in regard
to his past conduct, i.e. the commission of the underlying
criminal acts that gave rise to his 1988 convictions. Petitioner
also replies that Armendariz-Montoya is not controlling
because that case pertained to the retroactive application of
§ 440(d) of AEDPA, where the alien was convicted pre-
AEDPA and requested § 212(c) relief after the effective date
of AEDPA. As such, Petitioner argues that Armendariz-
Montoya did not address the theory that the bar under
IMMACT cannot be retroactively applied to the 1988 convic-
tions and the underlying criminal conduct. We agree with the
Government.

ment that § 212(c) relief could be available for an alien convicted pre-
IIRIRA by guilty plea of the aggravated felony of armed imprisonment
where in 1978 he seized several foreign nationals at a consulate in Chi-
cago. See Kelava v. Gonzales, 434 F.3d 1120, 1122-24 (9th Cir. 2006).
Although we ultimately denied § 212(c) relief based on AEDPA’s inde-
pendent terrorist activity ground, id. at 1126, we expressly affirmed the
reasoning of Armendariz-Montoya and emphasized that the Supreme
Court in St. Cyr was “concerned that the alien had detrimentally relied on
the availability of § 212(c) relief in entering the plea, giving rise to ‘settled
expectations’ that would be disrupted by the retroactive application of
IIRIRA § 304(b).” Id. at 1124 (citing St. Cyr, 533 U.S. at 323-24).
5912 SARAVIA-PAGUADA v. GONZALES
First, Petitioner’s attempt to distinguish Armendariz-
Montoya based on its varying procedural posture from the
case here is unavailing. There is no meaningful difference
between Petitioner’s and Armendariz’s circumstances. Peti-
tioner was convicted in 1988. On May 2, 1990, he was placed
in deportation proceedings and requested § 212(c) relief.
However, due to Petitioner’s 1992 convictions, his claim for
§ 212(c) relief could not be adjudicated until February 26,
1996, after the IMMACT effective date, at which time his
1992 sentence pushed Petitioner over the five-year limit.
Armendariz was convicted of a felony offense in September
1995, was ordered to show cause on April 5, 1996 why he
should not be deported, and in April 1997 requested § 212(c)
relief after the effective date of AEDPA. Armendariz-
Montoya, 291 F.3d at 1118. In both cases, eligibility for
§ 212(c) relief was withdrawn based on a statute retroactively
applied after the aliens had committed acts that resulted first
in criminal convictions and then in concessions of deporta-
bility from which both sought previously available forms of
§ 212(c) relief. The fact that different statutes were imposed
to bar eligibility is inconsequential for retroactivity analysis
so as to distinguish Armendariz-Montoya.

[8] Petitioner’s main contention that we must consider as
past relevant conduct the commission of the underlying crime,
irrespective of any specific reliance on the pre-IMMACT law,
is squarely foreclosed by Armendariz-Montoya. Although
Armendariz-Montoya did not expressly designate the past rel-
evant conduct, it can be readily inferred from the decision that
the past relevant conduct is an alien’s decision whether to
enter a guilty plea or to proceed to trial, and not the commis-
sion of the underlying criminal conduct. See 291 F.3d at 1121
(“If those aliens had been aware of § 440(d) at the time of
plea, they might have elected to proceed to trial in lieu of
pleading guilty.”) (emphasis added); see also Ponnapula v.
Ashcroft, 373 F.3d 480, 494 (3d Cir. 2004) (“This focus [on
the decision] is logical because the reliance interest of an alien
who accepts a plea agreement arises at the time the choice is
 SARAVIA-PAGUADA v. GONZALES 5913
made to accept the agreement. Generally speaking, reliance
interests (in the legal sense) arise because some choice is
made evincing reliance.”) (citing Restatement (Second) of
Contracts § 90 (1981) (requiring “action or forbearance” to
invoke promissory estoppel)).

[9] Here, Petitioner makes only the unremarkable assertion
that “pre-IMMACT alien defendants might either accept a
plea or decide to go to trial” where, under the prior law, any
sentence the alien received would not be a factor for purposes
of determining the availability of § 212(c) relief. Armendariz-
Montoya negated the premise that new legal consequences
arising from a change in statutory regime alone was sufficient
to invalidate the retroactive application of the IMMACT pro-
vision. See 291 F.3d at 1121 (holding that retroactive applica-
tion of the bar to discretionary relief under § 440(d) of
AEDPA for any aggravated felony regardless of time served
was permissible despite § 440(d)’s displacement of
IMMACT’s five-year rule); see also Garcia-Ramirez, 423
F.3d at 953-54 (rejecting theory that mere change in “statu-
tory structure” could produce an impermissible retroactive
effect) (Gould, J., concurring). Under the logic of
Armendariz-Montoya, Petitioner’s claimed reliance interest is
per se unreasonable because of the “ ‘absurd’ ” argument that
aliens “ ‘might have decided not to commit drug crimes, or
might have resisted conviction more vigorously, had they
known that . . . they could not ask for a discretionary waiver
of deportation.’ ” See Armendariz-Montoya, 291 F.3d at 1121
(quoting LaGuerre, 164 F.3d at 1041).15
15
Although the Third Circuit has not confined its retroactivity inquiry to
the quid pro quo of a guilty plea, it has recognized the validity of
LaGuerre where an alien might have only an “attenuated” reliance interest
in previously available § 212(c) relief because of the law’s “causal
remoteness” to one’s decision-making at the time he commits the underly-
ing offense. See Ponnapula, 373 F.3d at 495-496 n.14 (noting that the
Seventh Circuit in LaGuerre “properly” recognized the absurdity of such
a claim).
5914 SARAVIA-PAGUADA v. GONZALES
Equally unpersuasive is Petitioner’s claim that the Govern-
ment’s emphasis on Armendariz-Montoya is inapposite
because that case is at odds with Landgraf, 511 U.S. 244, and
its progeny. In addition to Landgraf, Petitioner relies on
Hughes Aircraft Co. v. United States ex rel. Schumer, 520
U.S. 939 (1997), for the proposition that a court should only
examine whether a retroactive application of the new law
alters the legal consequences of past relevant conduct, without
scrutinizing a particular group’s reliance on the former law.
It is beyond dispute that these cases did not emphasize a rea-
sonable reliance interest.16 However, a reliance interest is not
inconsistent with this Supreme Court authority. See Landgraf,
511 U.S. at 270 (“The conclusion that a particular rule oper-
ates ‘retroactively’ comes at the end of a process of judgment
concerning the nature and extent of the change in the law and
the degree of connection between the operation of the new
rule and a relevant past event.”) (emphasis added). Petitioner
overlooks, moreover, that the central focus of Hadix and St.
Cyr, both of which post-date Landgraf and Hughes Aircraft,
was the party’s reliance interest. In Hadix, the Supreme Court
held that an amendment that affected the hourly fee recover-
able by attorneys engaged in post-judgment monitoring in
prison reform suits was impermissibly retroactive where it
reduced their hourly rate for work performed before the effec-
tive date of the amendment, see 527 U.S. at 347, 360-61; con-
versely, however, the Hadix court rejected any impermissible
effect for work performed after the effective date of the
16
In Landgraf, the Supreme Court did not inquire into a defendant busi-
ness owner’s reliance on the previous statutory framework where the
defendant challenged the retroactive application of provisions in the Civil
Rights Act of 1991 that authorized prevailing plaintiffs to recover com-
pensatory and punitive damages for certain violations of Title VII of the
Civil Rights Act of 1964. See 511 U.S. 248-49. Likewise, in Hughes Air-
craft, the Supreme Court held that the elimination of certain defenses to
qui tam suits under the False Claims Act could not be applied retroactively
to Hughes Aircraft without requiring a showing that Hughes Aircraft, or
similarly situated government contractors, relied on the eliminated defense
to its detriment. 520 U.S. at 950.
 SARAVIA-PAGUADA v. GONZALES 5915
amendment where attorneys claimed only that they could not
ethically withdraw from the case. Id. at 361. In acknowledg-
ing a reasonable reliance standard, the Hadix court reasoned:
“To impose . . . new standards now, for work performed
before the [amendments] became effective, would upset the
reasonable expectations of the parties”; whereas “[a]fter [the
effective date], any expectation of compensation at the [pre-
amendment] rates was unreasonable.” Id. at 360. The
Supreme Court in St. Cyr similarly highlighted a reliance
interest in an alien’s quid pro quo expectations at the plea bar-
gain. 533 U.S. at 323. In light of this authority, we reject Peti-
tioner’s position that our emphasis on an alien’s reasonable
reliance on a prior law is inconsistent with Supreme Court
precedent.

In a final effort to avoid the force of Armendariz-Montoya,
Petitioner argues that the Supreme Court’s decision in
Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422 (2006), over-
ruled our controlling authority. In Fernandez-Vargas, the
Supreme Court addressed the reinstatement provisions for
removal orders under § 241(a)(1) of IIRIRA, which displaced
a previous statutory exemption of certain classes of illegal
reentrants and authorized the removal of any alien under a
previous deportation order entered after the time of illegal
reentry. 126 S. Ct. at 2426. The Supreme Court concluded
that Fernandez-Vargas, who had illegally reentered the United
States in 1982 well before the advent of § 241(a)(1), suffered
no retroactive effect of the sterner reinstatement provisions
because unlike the past, completed conduct of the quid pro
quo plea deal in St. Cyr, “the alien’s choice to continue his
illegal presence, after illegal reentry and after the effective
date of the new law, [is the conduct] that subjects him to the
new and less generous legal regime, not a past act that he is
helpless to undo up to the moment the Government finds him
out.” Id. at 2432. Rejecting Fernandez-Vargas’s claims that he
would have had recourse to certain forms of discretionary
relief but for application of § 241(a)(1), the Supreme Court
stated:
5916 SARAVIA-PAGUADA v. GONZALES
These putative claims to relief are not ‘vested
rights,’ a term that describes something more sub-
stantial than inchoate expectations and unrealized
opportunities. . . . Fernandez-Vargas’s claim to such
relief was contingent, and it was up to him to take
some action that would elevate it above the level of
hope. It is not that these forms of relief are discre-
tionary, . . . it is rather that before IIRIRA’s effective
date Fernandez-Vargas never availed himself of
them or took action that enhanced their significance
to him in particular, as St. Cyr did in making his
quid pro quo agreement.

Id. at 2432 n.10 (internal citations and quotation marks omit-
ted). Contrary to Petitioner’s contention, the Fernandez-
Vargas decision thus reinforces the central premise in
Armendariz-Montoya that an alien must demonstrate some
affirmative reliance on a previously available immigration
benefit to show impermissible retroactivity.

[10] Under Armendariz-Montoya, an alien’s decision to
enter a guilty plea or proceed to trial is the past relevant con-
duct for purposes of Landgraf analysis, not the commission of
the underlying crime. We hold that application of the
IMMACT provisions to time served for criminal sentences
that stemmed from jury convictions pre-dating both §§ 511(a)
of the IMMACT and 306(a)(10) of the Technical Amend-
ments creates no impermissibly retroactive effect. The IJ,
therefore, did not erroneously include the three years and two
months served for the 1988 convictions in concluding that
§ 212(c) relief was barred because of IMMACT’s rule that
aliens who served five years or more for one or more aggra-
vated felony convictions may not gain discretionary waiver of
relief from deportation.

PETITION DENIED.