An Na Peng v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AN NA PENG, 
Petitioner, No. 06-75841
v.
 Agency No.
A042-725-947
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
June 13, 2011—Honolulu, Hawaii

Filed March 22, 2012

Before: Arthur L. Alarcón, Kim McLane Wardlaw, and
N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

3337
3340 PENG v. HOLDER

COUNSEL

Maile M. Hirota (argued) and Ann C. Kemp (briefed), Lynch
Ichida Thompson Kim & Hirota, Honolulu, HI, for the peti-
tioner An Na Peng.
 PENG v. HOLDER 3341
William C. Minick, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, Washington, D.C., for
respondent Attorney General Holder.

OPINION

N.R. SMITH, Circuit Judge:

The enactment of the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA), which repealed the
waiver of deportation under Immigration and Naturalization
Act (INA) § 212(c), 8 U.S.C. § 1182(c), does not affect the
right of aliens to use the § 212(c) waiver, when such aliens
proceeded to trial and were convicted of a crime involving
moral turpitude prior to the enactment of IIRIRA. Aliens
charged with and convicted of a crime involving moral turpi-
tude prior to the enactment of IIRIRA remain eligible for
§ 212(c) relief, regardless of whether they pleaded guilty or
proceeded to trial. Such aliens can demonstrate reasonable
reliance on § 212(c) prior to its repeal, because they may have
acted differently had § 212 relief not been possible at such
time.

However, the seven year residency requirement for a
waiver of inadmissibility under INA § 212(h), which became
effective on September 30, 1996, is not impermissibly retro-
active when removal proceedings were commenced after that
date. Further, requiring Legal Permanent Residents (LPRs)
(who have been convicted of crimes involving moral turpi-
tude) to acquire seven years of continuous presence in the
United States, but not imposing the same seven year require-
ment on non-LPRs who have been convicted of the same
crimes, does not violate equal protection. We therefore grant
the petition in part, deny it in part, and remand for further pro-
ceedings consistent with this opinion.1
1
We have jurisdiction over this petition for review pursuant to 8 U.S.C.
§ 1252(a).
3342 PENG v. HOLDER
BACKGROUND

An Na Peng is a native and citizen of China. She legally
entered the United States on May 3, 1991 as an LPR based
upon her marriage to Huan Zhang Wang, an LPR. She and her
husband have two United States citizen children.

In the mid-1990s, the Immigration and Naturalization Ser-
vice (INS)2 had authorized the Naturalization Assistance Ser-
vice and its affiliates to administer naturalization
examinations. During those years, Peng worked for a short
time at an affiliate’s testing facility. Employees of that testing
facility, including Peng, were caught providing answers to
examinees and changing incorrect answers on completed
exams. In January 1996, a grand jury indicted Peng on one
count of a conspiracy to defraud the INS, in violation of 18
U.S.C. § 371 (1995).3 Peng pleaded not guilty to the indict-
ment.

Upon indictment, this criminal prosecution presented
potential immigration consequences to Peng. First, if con-
victed, Peng would be guilty of a crime involving moral turpi-
tude. Second, at the time of Peng’s indictment, a conviction
would have rendered Peng deportable if she ultimately
received a sentence of one or more years of imprisonment.
INA § 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (emphasis
added);4 see also 18 U.S.C. § 371 (providing for a sentence of
2
The INS’s functions were transferred to the Department of Homeland
Security (DHS) on March 1, 2003. See 6 U.S.C. § 542. For consistency,
we use the former name when referring to acts taken before this date.
3
18 U.S.C. § 371 (1995) provides in relevant part:
If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or
more of such persons do any act to effect the object of the con-
spiracy, either shall be fined under this title or imprisoned not
more than five years, or both.
4
INA § 241(a)(2)(A)(i) (effective until April 23, 1996) provided:
Any alien who [ ] is convicted of a crime involving moral turpi-
 PENG v. HOLDER 3343
up to five years). Lastly, at the time of her indictment, INA
§ 212(c) allowed for a discretionary waiver of removal, unless
an alien “ha[d] been convicted of one or more aggravated fel-
onies and ha[d] served for such felony or felonies a term of
imprisonment of at least 5 years.” 8 U.S.C. § 1182(c) (1995).
However, it is important to note that Peng was charged with
a crime involving moral turpitude, not an aggravated felony.
Further, a conviction could not have resulted in a term of
imprisonment of over five years. Thus, although a conviction
could have rendered her deportable, it would not have dis-
qualified her from eligibility to apply for relief under
§ 212(c).

These potential consequences changed just prior to Peng’s
trial, because the law changed. Effective April 24, 1996, Con-
gress enacted the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), which amended the INA to make
crimes of moral turpitude deportable offenses as to any alien
“convicted of a crime for which a sentence of one year or lon-
ger may be imposed.” 8 U.S.C. § 1251(a)(2)(A)(i) (effective
April 24, 1996) (emphasis added), codified at INA
§ 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (2008). There-
fore, because Peng was charged under a statute allowing for
at most a five-year sentence, she faced a trial on a charge that
would automatically render her deportable if convicted. Addi-
tionally, by enacting AEDPA, “Congress further restricted the
scope of § 212(c) relief by denying it to any alien who had
been convicted of an aggravated felony or [two or more]
crimes of moral turpitude.” Luna v. Holder, 659 F.3d 753,
756 (9th Cir. 2011). Thus, although (just prior to trial) a con-
viction would have rendered Peng deportable, it would not

tude committed within five years (or 10 years in the case of an
alien provided lawful permanent resident status under section
1255(i) of this title) after the date of entry, and [ ] either is sen-
tenced to confinement or is confined therefor in a prison or cor-
rectional institution for one year or longer, is deportable.
3344 PENG v. HOLDER
have disqualified her from eligibility to apply for relief under
§ 212(c), because (1) Peng was not charged with an aggra-
vated felony and (2) she stood charged with only a single
crime involving moral turpitude.

Peng did not change her plea before trial. Her jury trial
commenced on May 8, 1996. On May 9, the jury returned a
guilty verdict. On December 2, 1996, Peng received a non-
custodial sentence of two years of probation.

While Peng awaited sentencing, Congress enacted the
IIRIRA on September 30, 1996. IIRIRA § 304(b) repealed
INA § 212(c), replacing it with a narrower form of relief cal-
led cancellation of removal. See 8 U.S.C. § 1229b. In addi-
tion, IIRIRA § 304(b) added a seven-year continuous
presence requirement to INA § 212(h), 8 U.S.C. § 1182(h),
under which an LPR may apply for a waiver of inadmissibil-
ity.

The INS commenced removal proceedings against Peng on
September 10, 1997. Peng conceded removability and applied
for asylum and voluntary departure. The Immigration Judge
(IJ) denied her applications, and the Board of Immigration
Appeals (BIA) dismissed her appeal in 2002.

Peng then filed a motion to remand to apply for adjustment
of status. The BIA denied the motion, because (1) Peng’s con-
viction rendered her inadmissible and (2) Peng had not sub-
mitted an application for a waiver of inadmissibility under
§ 212(h). Peng appealed. In 2005, our court granted Peng’s
petition for review to allow her to submit the requisite appli-
cation. Peng v. Ashcroft, 121 Fed. App’x 776, 2005 WL
352573 (9th Cir. Feb. 15, 2005). The BIA then remanded
Peng’s case to the immigration court.

On remand from the BIA, the IJ denied Peng’s request for
a waiver of inadmissibility under § 212(h), because Peng had
not maintained a continuous presence in the United States for
 PENG v. HOLDER 3345
seven years before the commencement of her removal pro-
ceedings. Because Peng was statutorily ineligible for the
§ 212(h) waiver, she remained inadmissible and could not
qualify for an adjustment of status. See INA § 245(a). Addi-
tionally, the IJ denied Peng’s request for a continuance to
apply for a waiver of removal under former § 212(c), on the
ground that Peng’s immigration proceedings had been ongo-
ing since 1997. The IJ also cited 8 C.F.R. § 1003.44(b) noting
that, due to the repeal of § 212(c), the waiver was not avail-
able to aliens who had pleaded not guilty at their criminal pro-
ceedings. Peng appealed.

The BIA dismissed Peng’s appeal in 2006. It concluded
that Peng was ineligible for a § 212(c) waiver of removal,
because the repeal of § 212(c) was impermissibly retroactive
only as applied to aliens who had pleaded guilty to their crim-
inal charge(s). Because Peng had pleaded not guilty and pro-
ceeded to a jury trial, the BIA concluded she was ineligible
to apply for former § 212(c) relief. The BIA also noted that
8 C.F.R. § 1003.44(b) limited relief to aliens who entered a
plea agreement. It further held that § 212(h) was not imper-
missibly retroactive as applied to Peng. Because Peng did not
establish that she had lived in the United States for seven
years prior to the commencement of her removal proceedings,
the BIA held her ineligible to apply for a § 212(h) waiver of
inadmissibility. Peng thus remained ineligible for an adjust-
ment of status. She now petitions this court for review.

STANDARD OF REVIEW

Where, as here, the BIA conducts its own independent
review, “our review is limited to the BIA’s decision, except
to the extent the IJ’s opinion is expressly adopted.” Cordon-
Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000).
3346 PENG v. HOLDER
DISCUSSION

I. The BIA abused its discretion when it denied Peng a
continuance, because she was eligible to apply for a
waiver of deportation under INA § 212(c)

Peng contests the BIA’s decision affirming the denial of a
continuance in order to apply for the § 212(c) waiver of
removal. We review the denial of a continuance for an abuse
of discretion. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988).
The BIA abuses its discretion “when it fails to state its rea-
sons and show proper consideration of all factors when
weighing equities and denying relief.” Ahmed v. Holder, 569
F.3d 1009, 1014 (9th Cir. 2009) (internal quotation marks
omitted). An IJ may grant a motion for a continuance for
“good cause shown.” 8 C.F.R. § 1003.29; Ahmed, 569 F.3d at
1012. The regulations do not define “good cause,” but the IJ
—and, on appeal, the BIA—should consider factors including
“(1) the nature of the evidence excluded as a result of the
denial of the continuance, (2) the reasonableness of the immi-
grant’s conduct, (3) the inconvenience to the court, and (4) the
number of continuances previously granted.” Id.

In reviewing the IJ’s decision, the BIA did not review these
relevant factors. Instead, the BIA affirmed the IJ’s denial of
the requested continuance, because Peng was not eligible for
a § 212(c) waiver as she was convicted after a trial and not
under a plea agreement.5 When the BIA denies a continuance
on legal grounds such as these, we will find an abuse of dis-
cretion if the BIA acted “arbitrarily, irrationally, or contrary
to law.” Hernandez-Velasquez v. Holder, 611 F.3d 1073,
5
We note that the BIA also cited 8 C.F.R. § 1003.44 in affirming the
denial of a continuance. Section 1003.44 provides for a special motion to
seek § 212(c) relief for aliens who pleaded guilty or nolo contendere to
certain crimes before April 1, 1997. It explicitly does not apply to former
LPRs who were convicted after a trial, but it does not say that such aliens
are ineligible to apply for § 212(c) relief through some other avenue. Id.
§ 1003.44(a).
 PENG v. HOLDER 3347
1077 (9th Cir. 2010) (internal quotation marks and alterations
omitted).

To determine whether the BIA acted arbitrarily, irratio-
nally, or contrary to law, we must determine whether Peng’s
reliance upon the availability of § 212(c) relief (when she
decided to proceed to a jury trial) is sufficient to distinguish
Supreme Court and Ninth Circuit general precedent that
§ 212(c) relief is only available to aliens whose convictions
were obtained through plea agreements. See INS v. St. Cyr,
533 U.S. 289, 326 (2001); Armendariz-Montoya v. Sonchik,
291 F.3d 1116, 1121 (9th Cir. 2002). We review de novo
whether the enactment of IIRIRA (repealing § 212(c) relief)
is impermissibly retroactive. Hernandez de Anderson v. Gon-
zales, 497 F.3d 927, 932 (9th Cir. 2007).

Peng argues that, because § 212(c) relief was available to
her at the time she proceeded to trial, the application of
IIRIRA § 304(b)’s repeal of § 212(c) relief would result in an
impermissible retroactive effect. We agree.

A. Section 212(c) is available to aliens who pleaded
guilty

Though Congress has the power to make statutes apply
retroactively, such statutes pose special concerns. See Land-
graf v. USI Film Prods., 511 U.S. 244, 266 (1994). The
Supreme Court has thus recognized that a “presumption
against retroactive legislation” is “deeply rooted” in its juris-
prudence. Id. at 265.

Elementary considerations of fairness dictate that
individuals should have an opportunity to know what
the law is and to conform their conduct accordingly;
settled expectations should not be lightly disrupted.

Id. In determining whether legislation’s effects are impermiss-
ibly retroactive, a two-step test is employed. United States v.
3348 PENG v. HOLDER
Reynard, 473 F.3d 1008, 1014 (9th Cir. 2007). Under the first
step, “[a] statute may not be applied retroactively . . . absent
a clear indication from Congress that it intended such a
result.” St. Cyr, 533 U.S. at 316. “If Congress’s intent is suffi-
ciently clear from the text and legislative history, then the
statute may be applied retroactively, and the court need not
address the second step.” Reynard, 473 F.3d at 1014. “Step
two must be employed where Congress’s retroactive intent is
not clear. We must then determine whether application of the
act violates the Due Process Clause and consequently has a
‘retroactive effect.’ ” Id.6

[1] In St. Cyr, the Supreme Court addressed the retroactiv-
ity of IIRIRA § 304(b) in the context of an alien who had
pleaded guilty to an aggravated felony. Applying the retroac-
tivity analysis laid out in Landgraf, the Court first asked
whether Congress had clearly expressed an intention to make
IIRIRA § 304(b) retroactive. St. Cyr, 533 U.S. at 315. The
Court concluded that it had not. Id. at 320. Proceeding to step
two, the Court inquired whether the new law would produce
an impermissibly retroactive effect upon aliens who had
pleaded guilty “at a time when their plea would not have ren-
dered them ineligible for § 212(c) relief.” Id.

“The inquiry into whether a statute operates retroac-
tively demands a commonsense, functional judgment
about ‘whether the new provision attaches new legal
6
The government argues that, because relief is entirely discretionary
under § 212(c) and § 212(h), Peng cannot establish a substantive due pro-
cess violation. This argument lacks merit. While the Attorney General has
discretion to grant the waiver of removal, the right to apply for the waiver
is not subject to the Attorney General’s discretion. Cf. United States v.
Leon-Paz, 340 F.3d 1003, 1005 (9th Cir. 2003) (holding that alien’s due
process rights were violated because the IJ incorrectly informed him that
he was ineligible for § 212(c) relief); 8 C.F.R. § 1240.49(a) (“The immi-
gration judge shall inform the respondent of his or her apparent eligibility
to apply for . . . [a waiver of deportation] and shall afford the respondent
an opportunity to make application therefor during the hearing.”).
 PENG v. HOLDER 3349
consequences to events completed before its enact-
ment.’ ” Martin [v. Hadix, 527 U.S. 343, 357-58
(1999)] (quoting Landgraf, 511 U.S., at 270, 114 S.
Ct. 1483). A statute has retroactive effect when 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 considerations already past . . . .’ ”
Id., at 269, 114 S. Ct. 1522 (quoting Society for
Propagation of the Gospel v. Wheeler, 22 F. Cas.
756, 767, No. 13,156 (C.C.D.N.H. 1814) (Story, J.)).

Id. at 321 (footnote omitted). Examining the situation of
aliens who entered plea agreements with the government (pre-
sumably with the expectation that they would receive sen-
tences that would leave them eligible for § 212(c) relief, see
id. at 323), the Court concluded the repeal of § 212(c) “clearly
attache[d] a new disability” to the past decision to give up
certain rights by pleading guilty. Id. at 321-22 (internal quota-
tion marks omitted). As the Court stated, “[p]lea agreements
involve a quid pro quo between a criminal defendant and the
government,” such that by giving up the right to a trial, a
defendant “grant[s] the government numerous tangible bene-
fits, such as promptly imposed punishment without the expen-
diture of prosecutorial resources.” Id. at 322 (internal
quotation marks omitted). It would be unfair to an alien, hav-
ing given up his right to trial in reliance on remaining eligible
to apply for the § 212(c) waiver, to then deprive him of the
opportunity to apply for that relief. Thus, the Court concluded
that IIRIRA § 304(b) was impermissibly retroactive as
applied to aliens who had pleaded guilty to deportable
offenses before its effective date. Id. at 322-23.

B. Section 212(c) is not available to aliens who pro-
ceeded to trial if they cannot plausibly argue that they
relied on the availability of relief

[2] One year after St. Cyr, our court decided Armendariz-
Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. 2002), a case
3350 PENG v. HOLDER
that was factually similar to St. Cyr except that Armendariz-
Montoya had pleaded not guilty and was convicted of an
aggravated felony by a jury. Focusing on this factual differ-
ence, we determined that—unlike aliens who gave up their
right to a trial in reliance on the possibility of remaining eligi-
ble for § 212(c) relief—aliens accused of aggravated felonies
who pleaded not guilty could not demonstrate any past act
done in reliance on the availability of § 212(c) relief. Id. at
1121. Aliens accused of aggravated felonies were on notice
that, if convicted and sentenced to more than five years’
imprisonment, they would be ineligible to apply for the
§ 212(c) waiver. See INA § 212(c), 8 U.S.C. § 1182(c) (1995)
(repealed). By proceeding to trial and leaving their sentences
in the hands of the sentencing court, these aliens could not
plausibly argue that they relied on the availability of § 212(c)
relief. Nor could such aliens argue that reliance on the avail-
ability of § 212(c) relief caused them to change any other past
behavior. See Armendariz-Montoya, 291 F.3d at 1121 (rea-
soning that “[i]t would border on the absurd to argue that
these aliens might have decided not to commit [aggravated
felonies], 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 deportation” (quot-
ing LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)).
Accordingly, we held that the elimination of § 212(c) did not
result in an impermissible retroactive effect on Armendariz-
Montoya. Id. at 1122.

In Kelava v. Gonzales, 434 F.3d 1120 (9th Cir. 2006), we
reaffirmed our holding in Armendariz-Montoya. Kelava was
charged by the INS as removable for (1) having been con-
victed of an aggravated felony and (2) engaging in terrorist
activity. Kelava, 434 F.3d. at 1122. We found Kelava ineligi-
ble for § 212(c) relief despite Kelava’s plea of guilty to the
aggravated felony. Id. at 1126. We held that Kelava’s terrorist
activity (which rendered him removable) precluded reliance
on relief, because he could not plausibly claim that he would
 PENG v. HOLDER 3351
not have committed the terrorist activity if he had known
about the elimination of § 212(c) relief. Id.

Thereafter, the BIA interpreted Armendariz-Montoya and
Kelava to create a bright-line rule barring aliens who pro-
ceeded to trial from seeking § 212(c) relief. The DHS urges
us to adopt this interpretation. Although not wholly unreason-
able, see Hernandez de Anderson, 497 F.3d at 944 (Tallman,
J., dissenting), we have rejected such a bright-line rule. Id. at
940 (panel opinion) (“Landgraf and St. Cyr make clear that
entering into a quid pro quo exchange is not the sole form of
reliance on prior law that can support a retroactivity claim.”);
accord Ponnapula v. Ashcroft, 373 F.3d 480, 493 (3d Cir.
2004). Indeed, the Supreme Court has explicitly warned
against creating presumptions in favor of retroactivity. See
Hughes Aircraft Co. v. United States ex rel. Schumer, 520
U.S. 939, 950 (1997).

C. Section 212(c) is available to aliens who proceeded to
trial if they can plausibly argue that they relied on
the availability of relief

[3] In the case before us, we are presented with an issue of
first impression. Unlike the aliens in St. Cyr, Armendariz-
Montoya, and Kelava, Peng was not charged with or con-
victed of an aggravated felony. Thus, those cases are distin-
guishable from our present case. Here, Peng was charged with
and convicted of a crime involving moral turpitude. Thus, St.
Cyr compels us to evaluate this case on its own merits, apply-
ing a “commonsense, functional judgment about whether
[IIRIRA § 304(b)] attaches new legal consequences to events
completed before its enactment.” 533 U.S. at 321 (internal
quotation marks omitted), quoted in Hernandez de Anderson,
497 F.3d at 937.

We are convinced that applying IIRIRA § 304(b) retroac-
tively to Peng’s case would result in an impermissible retroac-
tive effect. To prevail on a retroactivity argument, an alien
3352 PENG v. HOLDER
must demonstrate reasonable reliance on pre-IIRIRA law.
Hernandez de Anderson, 497 F.3d at 939. An alien demon-
strates reasonable reliance “if it would have been objectively
reasonable under the circumstances to rely on the law at the
time.” Id. at 941.

[4] At the time Peng was charged with her crime involving
moral turpitude, a guilty plea with a guaranteed sentence of
less than one year could have protected Peng against deporta-
tion. Notwithstanding, a conviction (by guilty plea or guilty
verdict)—even if sentenced to the maximum sentence of five
years—would not have disqualified her from eligibility to
apply for § 212(c) relief, because only aliens who (1) were
convicted of an aggravated felony and (2) served more than
five years were disqualified from § 212(c) relief. By pleading
not guilty, Peng had “two bulwarks” to protect herself against
possible deportation. See United States v. Leon-Paz, 340 F.3d
1003, 1006 (9th Cir. 2003). She could either be acquitted,
thereby remaining non-deportable, or, if convicted, she could
count on being eligible to apply for § 212(c) relief. Cf. id.

On the other hand, before trial, if Peng pleaded guilty to the
crime as charged, she would have automatically rendered her-
self removable. At that time, Peng could only avoid the possi-
bility of deportation by being acquitted at trial. There would
be no quid pro quo for Peng: the prosecution would get the
benefit of a conviction without expending resources, see St.
Cyr, 533 U.S. at 322, and the DHS would similarly get an
easy proof of removability. Meanwhile, based upon the plain
language of § 212(c) (under either the pre or post April 24,
1996 amendment), Peng’s eligibility to apply for § 212(c)
relief remained the same, even if she were convicted by jury
and afforded the maximum five-year sentence. We cannot
fault her for exercising her constitutional right to a trial under
these circumstances. Doing so was in no way “inconsistent
with preserving a contingent interest in § 212(c) relief.” Pon-
napula, 373 F.3d at 495.
 PENG v. HOLDER 3353
[5] Aliens in Peng’s situation, who were not charged with
aggravated felonies and made the decision to proceed to trial,
thus did so in reasonable reliance on the pre-IIRIRA state of
the law. See Hernandez de Anderson, 497 F.3d at 941. At the
time she pleaded not guilty, Peng had a settled expectation
that she would remain eligible to apply for § 212(c) relief. Cf.
id. at 942. To draw a line between aliens who pleaded guilty
and those who pleaded not guilty to a first crime involving
moral turpitude would thus be arbitrary and out of line with
Landgraf and St. Cyr’s admonition to apply a “commonsense,
functional judgment” to the facts of each individual case.
Therefore, prior to the enactment of IIRIRA on September 30,
1996, an alien, who proceeded to trial on a crime involving
moral turpitude (having not been convicted of one prior crime
involving moral turpitude), remains eligible to apply for a
§ 212(c) waiver.

[6] Reviewing the factors necessary to determine whether
good cause has been shown for a continuance, the BIA’s
denial of a continuance was an abuse of discretion. Peng
should have been allowed to present evidence that she was
eligible for § 212(c) relief. There is no evidence that Peng’s
conduct was unreasonable during the entirety of this underly-
ing case. A continuance would not have inconvenienced the
BIA. Lastly, as explained above, the BIA’s denial of the con-
tinuance on legal grounds was contrary to law. We therefore
grant the petition as to this issue and remand the case back to
the BIA. On remand, Peng should be allowed a continuance
to apply for a § 212(c) waiver of removal, though we make
no comment on her ultimate eligibility for such relief.7
Because we hold that Peng may apply for § 212(c) relief, we
7
The DHS argues that we may deny Peng’s petition by holding that she
did not maintain a seven-year continuous presence in the U.S. before the
commencement of her removal proceedings. See INA § 212(c), 8 U.S.C.
§ 1182(c) (repealed). However, neither the IJ nor the BIA ruled on this
ground, and our review is confined to the decision of the BIA. See
Cordon-Garcia, 204 F.3d at 990. We thus remand this issue to the BIA
for decision in the first instance.
3354 PENG v. HOLDER
do not reach her equal protection claim based on the distinc-
tion between aliens who plead guilty and those who plead not
guilty to identical crimes.

II. The BIA did not err when it held that INA § 212(h)’s
seven-year continuous presence requirement was not
impermissibly retroactive

Peng next contests the denial of her application for a waiver
of inadmissibility under INA § 212(h). Without the waiver of
inadmissibility, Peng’s conviction renders her inadmissible,
INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), and
thus ineligible to apply for an adjustment of status. See INA
§ 245(a), 8 U.S.C. § 1255(a). Peng argues that § 212(h)’s
seven-year residency requirement was impermissibly applied
retroactively to her case. She also raises an equal protection
claim based on the distinction between LPRs—who are sub-
ject to the seven-year residency requirement—and non-LPRs
—who are not.

A. Retroactivity of the seven-year residency requirement

[7] Effective September 30, 1996, Congress amended INA
§ 212(h) to add a seven-year residency requirement:

(a) IN GENERAL. — Section 212(h) (8 U.S.C.
1182(h)) is amended by adding at the end the follow-
ing: “No waiver shall be granted under this subsec-
tion in the case of an alien who has previously been
admitted to the United States as an alien lawfully
admitted for permanent residence if either since the
date of such admission the alien has been convicted
of an aggravated felony or the alien has not lawfully
resided continuously in the United States for a period
of not less than 7 years immediately preceding the
date of initiation of proceedings to remove the alien
from the United States.[”]
 PENG v. HOLDER 3355
(b) EFFECTIVE DATE. — The amendment made
by subsection (a) shall be effective on the date of the
enactment of this Act and shall apply in the case of
any alien who is in exclusion or deportation proceed-
ings as of such date unless a final administrative
order in such proceedings has been entered as of
such date.

IIRIRA § 348, Pub. L. No. 104-208, at 3009-639.

[8] proceedings did not commence until September 10,
1997, nearly one year after the amendment to § 212(h). Sec-
tion 212(h)’s residency requirement is thus prospective as
applied to Peng’s case. Its effective date in relation to her
criminal proceedings is irrelevant. Because Peng was admit-
ted to the U.S. in May 1991, and her removal proceedings
commenced in September 1997, Peng does not meet the
seven-year residency requirement and is ineligible for
§ 212(h) relief. We therefore deny her petition for review as
to her due process claim under § 212(h).

B. Equal protection challenge

[9] Finally, Peng argues that it is a denial of equal protec-
tion to require LPRs, who have been convicted of crimes
involving moral turpitude, to acquire seven years of continu-
ous presence in the United States but not to impose the same
requirement on non-LPRs who have been convicted of these
crimes. Aliens are entitled to the benefits of equal protection.
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Nonetheless,
Congress retains broad power to regulate the admission and
removal of aliens. See United States v. Viramontes-Alvarado,
149 F.3d 912, 916 (9th Cir. 1998). Accordingly, our review
of the immigration laws is limited, and we will uphold a stat-
ute if there is a “facially legitimate and bona fide reason for
enacting a discriminatory rule.” Id. (internal quotation marks
omitted).
3356 PENG v. HOLDER
[10] We hold that there is a rational basis for applying the
seven-year residency requirement to LPRs and not to non-
LPRs, having considered a similar challenge in Taniguchi v.
Schultz, 303 F.3d 950 (9th Cir. 2002). There, we held that a
rational basis exists for denying a § 212(h) waiver to LPRs
(who had been convicted of aggravated felonies) but not to
non-LPRs (who had been convicted of aggravated felonies).
Id. at 957-58. We noted that “LPRs enjoy substantial rights
and privileges not shared by other aliens, and therefore it is
arguably proper to hold them to a higher standard and level
of responsibility than [non-LPRs].” Id. at 958 (alteration in
original) (internal quotation marks omitted). In addition,
LPRs that were convicted of aggravated felonies have demon-
strated that the generally “stronger ties” they have to the
United States “were insufficient to deter this criminal con-
duct.” Id. “Therefore, Congress could have reasoned that
aggravated felon LPRs pose a higher risk for recidivism than
illegal aliens who did not have all of the benefits of legal per-
manent resident status to deter them from committing their
crimes.” Id. (internal quotation marks omitted). Congress may
have deemed LPRs “less deserving of a second chance than
non-LPRs.” Id. (internal quotation marks omitted). Noting
that it may have been wise to eliminate § 212(h) relief for
non-LPR aggravated felons as well, we were nonetheless con-
fined by our deferential standard of review to conclude that a
rational basis existed for the LPR versus non-LPR distinction.
Id.

[11] That Taniguchi involved an LPR convicted of an
aggravated felony, rather than a crime involving moral turpi-
tude, makes no difference. Taniguchi’s rationale—that Con-
gress may have wished to hold LPRs to a higher standard and
considered them less deserving of a second chance—should
apply equally regardless of the category of crime the LPR
commits. Accord Camacho-Salinas v. U.S. Att’y Gen., 460
F.3d 1343, 1348-49 (11th Cir. 2006) (per curiam); see also De
Leon-Reynoso v. Ashcroft, 293 F.3d 633, 640 (3d Cir. 2002).
The rationale focuses on the status of the alien, not the cate-
 PENG v. HOLDER 3357
gory of the crime committed. The framework for this equal
protection challenge thus differs from our analysis concerning
an alien’s eligibility to apply for statutory relief under
§ 212(c), where Congress specifically precluded relief based
upon offense category. We accordingly deny the petition for
review as to Peng’s equal protection claim, because a rational
basis exists for the seven-year continuous presence require-
ment of § 212(h).

CONCLUSION

The petition for review is granted, and this case is
remanded to allow Peng a continuance to apply for the former
§ 212(c) waiver of removal. The petition is denied as to
Peng’s claims arising under INA § 212(h).

Each party shall bear their own costs.

GRANTED and REMANDED in part; DENIED in
part.