[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 20, 2008
No. 07-12932 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A17-700-472
OSIRIS HUMBERTO IBANEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 20, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Petitioner Osiris Ibanez, with the assistance of counsel, petitions for review
of the Board of Immigration Appeals’s (“BIA”) decision to affirm the Immigration
Judge’s order that he was ineligible for a waiver of removal under former
Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c) (repealed).
Ibanez was found to be removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii) because he was a criminal alien. Ibanez argues that the BIA
should have held his case in abeyance or remanded for further fact finding based
on a pending Freedom of Information Act request. Ibanez also argues that the
repeal of § 212(c) relief for aliens convicted after a jury trial has an impermissible
retroactive effect. Finally, Ibanez argues that distinguishing between aliens who
pled guilty and aliens convicted after a jury trial violates his right to equal
protection and due process.
“We review de novo whether we have subject-matter jurisdiction.” Arias v.
U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007). In addition, we review
questions of law de novo, with appropriate deference to the BIA’s reasonable
interpretation of the statute in question. See Sarmiento Cisneros v. U.S. Att’y Gen.,
381 F.3d 1277, 1279-80 (11th Cir. 2004) (citing Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S. Ct. 2778, 2782 (1984)).
However, no deference is owed to the agency when the interpretation of the statute
involves the retroactive application of the statute. Id. at 1280. Finally, we review
constitutional claims de novo. Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d
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1314, 1316 (11th Cir. 2006).
We first conclude that we lack jurisdiction to address Ibanez’s claim that the
Board should have granted his request to hold the administrative proceedings in
abeyance. This court may not review “any final order of removal against an alien
who is removable by reason of having committed a criminal offense covered in” 8
U.S.C. § 1227(a)(2)(A)(iii), that is, an alien removable for an aggravated felony
offense. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). The only exception to the
jurisdictional bar is that we may review constitutional claims and questions of law.
INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D).
Because Ibanez is removable due to his convictions for aggravated felony
drug offenses, we conclude that judicial review of the Board’s discretional denial
of his request to abate the proceedings is barred. See Jean-Pierre v. U.S. Atty.
Gen., 500 F.3d 1315, 1320 (11th Cir. 2007).
Ibanez next argues that he had an expectation of the availability of a §
212(c) waiver when he went to trial in Tennessee, and that the waiver should
remain available to him, notwithstanding Congress’s repeal of § 212(c) in 1986.
He is wrong. In INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), the Supreme
Court held that the provisions that repealed discretionary relief from deportation
under § 212(c) do not apply retroactively to an alien who pleaded guilty to criminal
charges, in reliance on the possibility of § 212(c) relief, prior to the enactment of
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the repealer provisions. St. Cyr, 533 U.S. at 326, 121 S. Ct. at 2293. If an alien
pleaded guilty or nolo contendere to certain crimes before April 1, 1997, he may
file a motion to reopen his deportation proceedings in order to seek § 212(c) relief.
8 C.F.R. § 1003.44. An alien is ineligible for § 212(c) relief if he was convicted of
an aggravated felony, unless he was convicted between 1990 and 1996 and served
less than five years of his sentence, or he was convicted pursuant to a guilty plea
before 1990. Id. at §§ 1003.44(c), 1212.3(f)(4)(i)-(ii).
In Alexandre v. U.S. Att’y. Gen., 452 F.3d 1204 (11th Cir. 2006), we
concluded that § 212(c) relief is not available to aliens who were convicted after a
trial instead of on a guilty plea. Alexandre, 452 F.3d at 1207. Moreover, we have
noted as consistent with St. Cyr, the distinction between aliens who pleaded guilty
and those who proceeded to trial. See Brooks v. Ashcroft, 283 F.3d 1268, 1274
(11th Cir. 2002).
The overwhelming majority of circuit courts have held that there is no
impermissible retroactive effect in § 212(c) relief which is not granted to someone
who went to trial, because the person did not detrimentally rely on the availability
of relief. Accordingly, we reject Ibanez’s argument that he had an expectation of
the availability of § 212(c) waiver.
Finally, we reject Ibanez’s contention that distinguishing between aliens
who are convicted after a trial and aliens who plead guilty violates his right to due
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process or equal protection. See Brooks, 283 F.3d at 1274 (citing Fernandez-
Bernal v. Att’y Gen. of the U.S., 257 F.3d 1304, 1312 (11th Cir. 2001)).
For the above-stated reasons, we DISMISS the petition in part, and DENY
the petition in part.
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