FILED
NOT FOR PUBLICATION OCT 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE MARTIN GARCIA-OLIVARRIA, No. 07-72631
Petitioner, Agency No. A044-542-105
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued December 9, 2010
Submitted October 21, 2011
San Francisco, California
Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
Jose Martin Garcia-Olivarria (Garcia), a native and citizen of Mexico,
petitions for review of the decision by the Board of Immigration Appeals (BIA),
dismissing his appeal of an immigration judge’s (IJ’s) decision denying his request
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for a waiver of inadmissibility under former Immigration and Nationality Act
(INA) § 212(c), 8 U.S.C. § 1182(c) (1994). We have jurisdiction pursuant to
8 U.S.C. § 1252, and we deny the petition for review.
The BIA denied Garcia’s application for a § 212(c) waiver, because he was
convicted after a jury trial for the sale/transportation of cocaine base. The BIA did not
err in finding Garcia statutorily ineligible for relief. Garcia did not demonstrate
objective reliance on the now-repealed § 212(c), when he rejected a plea agreement
and elected to have a jury trial. See INS v. St. Cyr, 533 U.S. 289, 325-26 (2001);
Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002) (“Unlike
aliens who pleaded guilty, aliens who elected a jury trial cannot plausibly claim that
they would have acted any differently if they had known about [the enactment of
Antiterrorism and Effective Death Penalty Act (AEDPA)] § 440(d).”). Garcia was
charged with seven separate violations of California law (five of which were felonies)
and an enhancement under California Penal Code § 12022(c). If convicted, he could
have received more than five years imprisonment. At the time of Garcia’s criminal
proceedings, the relevant law required that Garcia serve no more than a five-year term
of imprisonment for an aggravated felony in order to be eligible for § 212(c) relief.
8 U.S.C. § 1182(c) (1994). Thus, Garcia’s statutory right to apply for § 212(c) was
unknown when he proceeded to trial. Garcia states that he went to trial, in lieu of
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pleading guilty, because (1) he thought he may be acquitted and (2) he hoped for a
sentence less than five years. This statement does not suggest that Garcia “would
have acted differently if [he] had known about the elimination of the relief.” See
Hernandez de Anderson v. Gonzales, 497 F.3d 927, 941 (9th Cir. 2007) (internal
quotation marks, alterations, and citation omitted). Thus, Garcia cannot plausibly
claim that he relied on the availability of § 212(c) relief.
Garcia argues that international law prohibits family separation without due
process, therefore his deportation would violate international law. However, that
argument lacks merit. Congress clearly intended to preclude aggravated felons from
receiving relief under § 212(c) when it enacted the AEDPA. See Monoz v. Ashcroft,
339 F.3d 950, 958 (9th Cir. 2003) (“In enacting statutes, Congress is not bound by
international law; if it chooses to do so, it may legislate contrary to the limits posed
by international law, so long as the legislation is constitutional.” (internal quotation
marks and citation omitted)). In light of Congress’s adoption of AEDPA and its clear
mandate, Garcia has not pointed to “any binding obligation under international law
that has been violated.” Padilla-Padilla v. Gonzales, 463 F.3d 972, 979-80 (9th Cir.
2006).
Garcia also argues that international law entitles him to an individualized
analysis concerning his eligibility for § 212(c) relief. This argument also lacks merit.
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Garcia was provided the necessary safeguards and hearings as required by the law
enacted by Congress.
PETITION DENIED.
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