[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12194 ELEVENTH CIRCUIT
DECEMBER 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A036-889-010
RODNEY DESMOND TELEMAQUE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 28, 2009)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Rodney Desmond Telemaque, a national and citizen of the United Kingdom,
seeks review of the decision of the Board of Immigration Appeals (BIA) which
affirmed the Immigration Judge’s (IJ’s) order of removal. Telemaque asserts
because he detrimentally relied on the continued availability of INA § 212(c), the
IJ’s1 application of the subsequent repeal of the provision by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) is
impermissibly retroactive.
We review the IJ’s statutory interpretation de novo. Ferguson v. U.S. Att’y
Gen., 563 F.3d 1254, 1269 n.25 (11th Cir. 2009). The IJ’s determination is owed
no deference when it involves the retroactive application of a statute. Id.
The former provisions of INA § 212(c) provided:
Aliens lawfully admitted for permanent resident who temporarily
proceeded abroad voluntarily and not under an order of deportation,
and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the Attorney
General without regard to the provisions of subsection (a) of this
section (other than paragraphs (3) and (9)(C)). Nothing contained in
this subsection shall limit the authority of the Attorney General to
exercise the discretion vested in him under section 1181(b) of this
title. The first sentence of this subsection shall not apply to an alien
who has been convicted of one or more aggravated felonies and has
served for such felony or felonies a term of imprisonment of at least 5
years.
1
The BIA’s decision is the agency’s final judgment subject to appellate court review,
except to the extent it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). Here, the BIA expressly adopted and affirmed the IJ’s decision with no
additional analysis, so we review the IJ’s decision as the final agency determination.
2
8 U.S.C. § 1182(c) (1994).
IIRIRA took effect on April 1, 1997. Pub. L. No. 104-208, 110 Stat. 3009-
625. IIRIRA repealed § 212(c) and ended the availability of relief under its terms.
Pub. L. No. 104-208, 110 Stat. 3009-597. IIRIRA’s repeal of INA § 212(c) did not
apply to aliens who were in exclusion or deportation proceedings prior to the
statute’s effective date. Pub. L. No. 104-208, 110 Stat. 3009-625-26.
In INS v. St. Cyr, 121 S. Ct. 2271 (2001), the Supreme Court considered the
effect of § 212(c)’s repeal on an alien who entered a guilty plea to an aggravated
felony prior to IIRIRA’s effective date, and concluded:
We find nothing in IIRIRA unmistakably indicating that Congress
considered the question whether to apply its repeal of § 212(c)
retroactively to such aliens. We therefore hold that § 212(c) relief
remains available for aliens, like respondent, whose convictions were
obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the time of
their plea under the law then in effect.
Id. at 2293.
We recently considered and applied St. Cyr in the context of an alien seeking
§ 212(c) relief after a trial conviction for a drug trafficking felony. Ferguson, 563
F.3d at 1259-71. In Ferguson, an alien who was convicted of a felony after trial
sought to “extend St. Cyr outside of the guilty plea context.” Id. at 1263. We held
“reliance is a core component of St. Cyr’s retroactivity analysis as it applies to
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aliens challenging the application of IIRIRA’s repeal of § 212(c).” Id. at 1269-70.
Because she did not enter a guilty plea and did not point to other actions that
constituted a detrimental change in her position in reliance on continued eligibility
for § 212(c) relief, we found the petitioner in Ferguson could not avail herself of
the repealed statute’s provisions. Id. at 1271. We joined the majority of circuits
and held St. Cyr does not does not apply–and § 212(c) relief is unavailable–to
aliens who were convicted after a trial, “because such aliens’ decisions to go to
trial do not satisfy St. Cyr’s reliance requirement.” Id.
Telemaque has advanced no legal argument and proffered no facts taking his
case beyond the purview of Ferguson. Telemaque pursued the opportunity to
contest his criminal charges and did not plead guilty to the trafficking offense;
thus, he cannot demonstrate he detrimentally changed his position in reliance on
continued availability of a § 212(c) waiver of inadmissibility. Such detrimental
reliance is a critical element of any claim for § 212(c) relief based on an alleged
impermissible retroactive application of IIRIRA. We deny his petition for review.
PETITION DENIED.
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