Paul Taylor v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1519

PAUL IGNATIUS TAYLOR,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent,

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IMMIGRANT DEFENSE PROJECT; NATIONAL IMMIGRATION PROJECT OF
THE NATIONAL LAWYERS GUILD,

Amici Supporting Petitioner.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: November 20, 2012 Decided: January 7, 2013

Before KEENAN, WYNN, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Dean E. Wanderer, DEAN E. WANDERER & ASSOCIATES, Fairfax,
Virginia, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Daniel E. Goldman, Senior Litigation Counsel,
Jem C. Sponzo, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina
Realmuto, Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, Boston, Massachusetts.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Paul Ignatius Taylor, a native and citizen of Jamaica,

petitions for review of the Board of Immigration Appeals’

(“Board”) order dismissing his appeal of the immigration judge’s

(“IJ”) order, which granted the Attorney General’s motion to

pretermit Taylor’s application for cancellation of removal, on

the basis that Taylor was statutorily ineligible for that relief

by operation of the “stop-time” rule embodied in 8 U.S.C.

§ 1229b(d)(1)(B) (2006). Because we conclude that the Board did

not err in ruling that the permanent stop-time rule is

retroactively applicable to Taylor’s 1980s-era convictions, we

deny the petition for review.

Under 8 U.S.C. § 1252(a)(2)(C) (2006), this court

generally lacks jurisdiction to review the final order of

removal of an alien convicted of certain enumerated crimes,

including controlled substance offenses referenced in 8 U.S.C.

§ 1227(a)(2)(B) (2006). Taylor does not dispute that he

committed a controlled substance offense, rendering him

deportable under § 1227(a)(2)(B). Nevertheless, this court

retains jurisdiction to review “constitutional claims or

questions of law” raised in a petition for review of an

otherwise unreviewable deportation order. 8 U.S.C.

§ 1252(a)(2)(D) (2006); see Turkson v. Holder, 667 F.3d 523,

526-27 (4th Cir. 2012). We review the Board’s legal

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determinations de novo, generally giving deference to its

interpretations of its own governing regulations. Turkson, 667

F.3d at 527. Where the statutory text is unambiguous, however,

there is no unclarity over which the agency may assert its

interpretive prerogative, and deference to its interpretation is

therefore unwarranted. Salem v. Holder, 647 F.3d 111, 115 (4th

Cir. 2011), cert. denied, 132 S. Ct. 1000 (2012); see

also INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001).

Taylor primarily challenges the Board’s conclusion

that the permanent stop-time rule retroactively applies to him.

The relevant facts are well-known to the parties. In short,

fewer than six years after he entered the United States as a

lawful permanent resident, Taylor pled guilty in 1980 and in

1981 to two controlled substance offenses. Although at least

his 1980 conviction rendered him deportable, Taylor remained in

the United States. In 2007, he committed two more deportable

controlled substance offenses. Deportation proceedings were

commenced, and Taylor conceded removability. Although Taylor

applied for cancellation of removal under 8 U.S.C. § 1229b(a)

(2006), the IJ granted the Attorney General’s motion to

pretermit the application, citing the stop-time rule. According

to the IJ, Taylor’s period of continuous residence stopped with

the commission of his 1980 offense, rendering him bereft of the

seven years of continuous residence required under § 1229b(a)(2)

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for eligibility for cancellation of removal. On appeal, the

Board agreed with the IJ’s assessments. Taylor then filed this

petition for review.

Taylor concedes that if the stop-time rule applies to

his case, he does not possess the requisite seven years of

continuous residence. So he attempts to evade the

straightforward application of the stop-time rule by observing

that it came into effect only with the introduction of the

Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104-208, 110 Stat. 3009-546 — a decade and a

half after he had pled guilty to the offenses that now trigger

the stop-time rule. According to Taylor, the stop-time rule may

not be applied retroactively to give his previous convictions an

effect that he did not contemplate at the time of his pleas. As

the Supreme Court has explained, there is a “presumption”

against retroactive legislation: “[C]ourts read laws as

prospective in application unless Congress has unambiguously

instructed retroactivity.” Vartelas v. Holder, 132 S. Ct. 1479,

1486 (2012).

The determination whether a statute applies

retroactively is an exercise in deciphering Congressional

intent. Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).

It involves two steps. First, the court must determine whether

“‘Congress has expressly prescribed the statute’s proper

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reach.’” Appiah v. INS, 202 F.3d 704, 708 (4th Cir. 2000)

(quoting Landgraf, 511 U.S. at 280). If Congress has done so,

“this is the end of the analysis and there is no need ‘to resort

to judicial default rules.’” Id. (quoting Landgraf, 511 U.S. at

280). Where, by contrast, the statute does not contain explicit

language reflecting Congressional intent, the court must

determine whether the statute would have impermissible

retroactive effect; that is, 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 considerations already past.” St.

Cyr, 533 U.S. at 320, 321 (internal quotation marks omitted).

While “likelihood of reliance on prior law strengthens

the case for reading a newly enacted law prospectively,” the

presumption against retroactive application “does not require a

showing of detrimental reliance.” Vartelas, 132 S. Ct. at 1491.

Instead, “[t]he essential inquiry . . . is ‘whether the new

provision attaches new legal consequences to events completed

before its enactment.’” Id. (quoting Landgraf, 511 U.S. at

270). “If the statute would operate retroactively, our

traditional presumption teaches that it does not govern absent

clear congressional intent favoring such a result.” Landgraf,

511 U.S. at 280.

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In our view, even if the relevant statutory language

is silent as to Congressional intent, * application of the

permanent stop-time rule to Taylor’s circumstances would not

have an “impermissible retroactive effect.” St. Cyr, 533 U.S.

at 320. Despite the fact that Taylor claims that he pled guilty

to his 1980s-era offenses in reliance on the availability of a

waiver under former Immigration and Nationality Act § 212(c), 8

U.S.C. § 1182(c) (1976), it is apparent that he cannot have done

so. Cf. St. Cyr, 533 U.S. at 321-26. Simply put, he was not

eligible for such relief at the time of his guilty pleas. There

is no dispute that, at the time of his conviction, his 1980

controlled substance offense was a deportable offense. See 8

U.S.C. § 1251(a)(11) (1976). And given that he committed his

offense fewer than six years after arriving in the United

States, Taylor was not eligible at the time of his conviction to

apply for a § 212(c) waiver, because such a waiver required

permanent residents to possess at least seven consecutive years

of “lawful unrelinquished domicile.” 8 U.S.C. § 1182(c)

*
We take no position as to whether our reasoning in Appiah,
202 F.3d at 708-09, which ruled on the retroactivity of the
transitional stop-time rule, controls the result here. See
Martinez v. INS, 523 F.3d 365, 371 (2d Cir. 2008) (describing
the difference between the permanent and transitional stop-time
rules); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1199-200 (9th
Cir. 2006); Heaven v. Gonzales, 473 F.3d 167, 174 (5th Cir.
2006).

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(1976); see also St. Cyr, 533 U.S. at 294-96 (discussing the

relief available under § 212(c)). Because Taylor was not

eligible for discretionary relief under § 212(c) at the time of

his 1980 offense, it cannot be the case that retroactive

application of the permanent stop-time rule imposes any new

legal disability on the fact of Taylor’s

conviction. See Martinez, 523 F.3d at 374. Accordingly, the

permanent stop-time rule does not have an impermissible

retroactive effect when applied to Taylor. See Vartelas, 132 S.

Ct. at 1490-92; St. Cyr, 533 U.S. at 321-26.

Finally, to the extent that Taylor asserts that his

brief exit from and reentry into the United States in 1984

restarted his ability to accrue the requisite period of

continuous residency, we decline his invitation to overturn the

Board’s rejection of his argument. See Nelson v. Attorney Gen.,

685 F.3d 318, 323-25 (3d Cir. 2012) (upholding Board’s

conclusion that reentry did not “restart the clock”).

Accordingly, we deny the petition for review. We

dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

PETITION DENIED