Hernandez De Anderson v. Gonzales

TALLMAN, Circuit Judge,

concurring in part and dissenting in part:

Today the majority untethers our retro-activity jurisprudence in the criminal alien context from the mooring the Supreme Court established in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Because Congress has chosen to reduce immigration benefits available to aliens convicted of aggravated felonies, and the Supreme Court has given us the analytical guidance to evaluate the constitutional claims of those like petitioner who were convicted by juries, I would hold that Hernandez de Anderson has failed to establish a cognizable reliance interest sufficient to invalidate retroactive application of IIRIRA’s cancellation of removal provision. I respectfully dissent.1

I

By shifting the focus away from the quid pro quo exchange inherent in a plea bargain — which was the lynchpin of the Supreme Court’s analysis in St. Cyr — the majority crafts a holding that conflicts with our retroactivity jurisprudence in the criminal alien context. We have never before invalidated the retroactive application of IIRIRA where an alien made the conscious decision to proceed to trial. Indeed, where other circuits have been content to look elsewhere to establish reasonable reliance, our court has made clear that the retroactivity analysis, at least in the criminal alien context, begins and ends with whether the alien accepted a guilty plea in reliance on then-existing discretionary relief available at the time the decision to plead guilty was made.

In Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121 (9th Cir.2002), we held that an alien who chooses to go to trial *945“cannot plausibly claim that [he] would have acted any differently if [he] had known” about the elimination of § 212(c) relief. “Outside of the plea bargain context, however, we have declined to invalidate retroactive elimination of § 212(c) relief.” Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1131 (9th Cir.2007). Indeed, in Saravia-Paguada, we made clear that Ar-mendanz-Montoya “reaffirmed a narrow reading of St. Cyr and excluded categorically claims for § 212(c) relief outside the guilty plea context.” Id. (emphasis added); see also Kelava v. Gonzales, 434 F.3d 1120, 1122-24 (9th Cir.2006) (affirming Ar-mendariz-Montoya’s reasoning and emphasizing that the St. Cyr Court was “concerned that the alien had detrimentally relied on the availability of § 212(c) relief in entering the plea, giving rise to ‘settled expectations’ that would be disrupted by the retroactive application of IIRIRA § 304(b)” (citing INS v. St. Cyr, 533 U.S. 289, 323-24, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001))).2

Thus, to the extent that the opinion relies on extracircuit case law for a post-jury-conviction retroactivity analysis, it conflicts with our court’s precedent. Moreover, it makes no difference that Hernandez de Anderson is a lawful permanent resident — as opposed to an alien residing illegally in the United States. Our language in Armendariz-Montoya and Sara-viar-Paguada was absolute; we carved out no exceptions based on the status of the particular alien. We stated simply that if an alien proceeded to trial, the retroactivity inquiry was at an end. In this case, Hernandez de Anderson took her chances at trial to defend against a murder charge, and she lost.3 Congress has declared that suspension of deportation is no longer available to this class of aliens. I would go no further.

II

Even if our precedents in this area of law permitted invalidation of IIRIRA ret-roactivity outside the plea bargain context, I would decline to do so on the grounds relied upon by the majority. The majority concludes that Hernandez de Anderson has established reasonable reliance sufficient to invalidate the retroactive application of IIRIRA’s cancellation of removal provision based on (1) her decision to wait five years before filing her naturalization application and (2) the fact that at the time of her filing she was eligible for suspension of deportation under pre-IIRIRA law. Op. at 942-44. Because neither rationale, on its own, suffices to establish reasonable reliance under our case law, cobbling them *946together does the majority no greater good. I address each ground in turn.

A

The majority makes much of Hernandez de Anderson’s decision to wait to file her naturalization application until 1995 despite the fact that she was eligible for naturalization as early as 1990. The problem with this reliance argument is that at the time that Hernandez de Anderson purportedly chose to forgo filing her naturalization application, she was not eligible for suspension of deportation. Section 244(a)(2) was still on the books in 1990, but that made no difference in Hernandez de Anderson’s situation. Thus, to the extent that she may have relied on, its future availability when she decided to wait, she had no other choice. How did she rely to her detriment? In other words, what was available to her in 1990 that she gave up by waiting another five years? I can think of nothing.

Hernandez de Anderson’s situation therefore is different from the guilty plea context because there the decision to enter a guilty plea and accept conviction results in detrimental consequences under subsequently enacted law. St. Cyr, 533 U.S. at 321-22, 121 S.Ct. 2271. When we invalidate retroactive application of new laws, we ask, “Would the alien have accepted a guilty plea if he had known that his conviction would bar him categorically from certain discretionary relief in the future?” The answer typically is no, and we allow him to pursue relief under the old law. Here we ask, “Would Hernandez de Anderson have waited to file her naturalization application if she had known that suspension of deportation would not be available to her in the future?” Whether the answer is yes or no makes no difference because her decision not to file in 1990 resulted in no detriment. See Kelava, 434 F.3d at 1124 (noting the Supreme Court’s emphasis on the petitioner’s detrimental reliance in St. Cyr). For all practical purposes, she could have done nothing differently; her decision merely maintained the status quo of ineligibility.

The majority suggests that by filing her application Hernandez de Anderson risked awakening the sleeping bureaucratic giant who might then resolve to initiate deportation proceedings against her. But the INS could have done so at any time following her release from prison. That was a risk she always faced and one she could do absolutely nothing about other than pray that the knock on her door would never come.

As a result, Hernandez de Anderson’s situation is also fundamentally different from those situations in which other circuits have invalidated retroactive application of AEDPA based on a delay in filing a § 212(c) application. See, e.g., Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-10 & n. 11 (5th Cir.2007) (invalidating retroactive application of AEDPA where an alien was eligible for § 212(c) relief but deliberately chose to postpone filing in order to develop a stronger application); Wilson v. Gonzales, 471 F.3d 111, 113 (2d Cir.2006) (same); Restrepo v. McElroy, 369 F.3d 627, 637 (2d Cir.2004) (same).4 In Restrepo v. McElroy, for example, the Second Circuit reasoned that “it is certainly plausible that aliens who decided to forgo affirmatively filing a 212(c) application would have acted differently if they had foreseen the AEDPA’s enactment.” Id. Restrepo and its progeny actually undermine the majority’s holding because in *947each case the alien’s decision affected the availability of relief for which he or she was already eligible. See Carranza-De Salinas, 477 F.3d at 202 (“[Petitioner] claims she did not immediately apply for § 212(c) discretionary relief after her [jury] conviction because she intended to apply ... [when] she would be able to show a more extensive record of rehabilitation and community ties.”); Wilson, 471 F.3d at 122 (noting that even though Wilson “could have filed an affirmative § 212(c) application,” the record was unclear as to whether “he ever intended to do so”); Restrepo, 369 F.3d at 637 (“Many [aliens in petitioner’s position] might well have chosen affirmatively to file the ‘weaker,’ but still valid, application. To the extent that aliens like Petitioner detrimentally adapted their positions in reliance on their expectation of continued eligibility for 212(c) relief, the factors considered in [a previous Second Circuit case] appear to weigh against proscribing such relief retroactively.” (emphasis added)). It may well be that the aliens in each of these cases would not have waited to file applications for § 212(c) relief if they had known that Congress would strip their eligibility for that form of relief.

Here, at the time of her alleged decision to wait, Hernandez de Anderson had no chance of relief via suspension of deportation. Had she been eligible for suspension of deportation in 1990 and made an analogous decision to strengthen her application, we might need to decide whether to extend our court’s retroactivity analysis beyond the plea agreement context. But that is not the case before us.5 The majority’s emphasis on Hernandez de Anderson’s choice to wait five years before applying for naturalization is therefore little more than a red herring.

B

Removing from the retroactivity analysis Hernandez de Anderson’s decision to wait five years before filing her naturalization application, the majority is left with nothing more than the act of her filing. While it is true that the law in effect at the time of her filing permitted discretionary relief in the form of suspension of deportation, we have held previously that an alien cannot establish impermissible retro-activity based merely on the decision to file. For example, in Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir.2003), we held that an illegal alien had no settled expectation that the former INS would initiate pre-IIRIRA deportation proceedings (as opposed to post-IIRIRA removal proceedings) following the denial of his asylum application based solely on the fact that he submitted his application prior to IIRIRA’s effective date. Id. at 1108. We reasoned that “even if [Vasquez-Zavala] assumed that the application would be denied, any expectation that an INS action would thereafter commence could not support a sufficient expectation as to when it would commence.” Id.; see also Jimenez-*948Angeles v. Ashcroft, 291 F.3d 594, 600 (9th Cir.2002) (holding that IIRIRA applied to an alien who presented herself to the INS before IIRIRA’s effective date in the hope of invoking pre-IIRIRA law). We reiterated the same logic in Lopez-Urenda v. Ashcroft, 345 F.3d 788, 794 (9th Cir.2003), which also involved an alien who filed an asylum application before IIRIRA’s enactment:

Proceedings could have begun several months after [Lopez-Urenda] filed his application, in which case suspension of deportation would have remained a viable option; or they could have begun years later, as they did, at a time when the law had undergone significant change. That Lopez-Urenda did not know of the specific change — the enactment of IIRIRA and its permanent rules abolishing suspension of deportation— does not mean that he had a settled expectation that proceedings would commence before any such change took place.

Id.

In declining to invalidate the retroactive application of IIRIRA in Lopez-Urenda, we highlighted fundamental differences between the alien’s situation in that case and the plea bargain context in St. Cyr:

The concession of alienage in this case is not comparable to the numerous constitutional rights the petitioner in St. Cyr relinquished, including the right to trial by jury and all of its attendant safeguards. Similarly, any benefit the government may have gained in this case— such as the resources it saved in locating Lopez-Urenda and locating evidence to support its proceedings' — -are not so weighty as to create a settled expectation that suspension of deportation would remain available in exchange.

Id. at 796.

The same reasoning applies to Hernandez de Anderson; she simply cannot establish the quid pro quo recognized in St. Cyr. Invalidating retroactivity based merely on the act of filing prior to IIRIRA’s effective date conflicts with our reasoning in Lopez-Urenda, Jimenez-Angeles, and Vasquez-Zavala.6 More importantly, holding that an alien can establish reasonable reliance based on nothing more than the date of filing would vitiate IIRIRA (and AEDPA) retroactivity altogether, allowing any alien who filed his application prior to the statutes’ effective dates to claim an impermissible effect and seek protection from laws Congress repealed over ten years ago.

*949III

Perhaps swayed by the sympathetic facts of this case, the majority has stretched our retroactivity doctrine in the criminal alien context beyond the bounds set by our precedent. I agree that Hernandez de Anderson’s situation is certainly sympathetic. But one wonders whether the majority would have been so eager to rewrite our jurisprudence on less heart-wrenching facts. And while I share the majority’s sympathy, I cannot join an opinion that grants relief at the expense of settled law. The majority opinion conflicts with our prior holdings restricting the ret-roactivity analysis in the criminal immigrant context to the quid pro quo exchange inherent in plea bargains where reasonable reliance can be shown. Because the majority’s reasoning relies on inadequate grounds to establish the necessary reliance interest, I respectfully dissent.7

. I concur in the majority’s conclusion that the BIA did not err in affirming the IJ’s refusal to terminate Hernandez de Anderson's removal proceedings under 8 C.F.R. § 1239.2(f).

. That this case involves suspension of deportation under § 244(a)(2), as opposed to waiver of inadmissibility under § 212(c), makes no difference. The retroactivity principles are the same. Each is a form of discretionary relief altered by the enactment of IIRIRA and AEDPA. The majority would be hard pressed to find a meaningful distinction without undermining its own analysis, which relies heavily on multiple § 212(c) cases.

. The California Court of Appeal affirmed Hernandez de Anderson’s conviction on appeal. In Hem v. Maurer, 458 F.3d 1185 (10th Cir.2006)—a case cited by the majority to support its conclusion that an alien need only establish objective reliance — the Tenth Circuit invalidated retroactive application of IIRIRA to the class of “[ajliens who gave up their right to appeal their aggravated felony conviction when a successful appeal could have deprived them of § 212(c) eligibility.” Id. at 1199. Because Hernandez de Anderson actually appealed her conviction, the Hem class is of no assistance to her. Indeed, in its haste to declare — for the first time in this circuit — that an alien need not show subjective reliance, the majority puts the cart before the horse. One must first establish a reasonable reliance interest before addressing whether that reliance must be subjective or objective.

. Restrepo, Wilson, and Carranza-De Salinas each involved aliens who had been convicted after a jury trial — as opposed to a guilty plea. As a result, the petitioners were forced to identify a reliance interest separate from the quid pro quo exchange underlying St. Cyr.

. Hernandez de Anderson’s decision to wait actually can be viewed as favorable, since she spent another five years free of adverse immigration proceedings. I find puzzling the opinion's assertion that Hernandez de Anderson somehow would have been significantly less likely to have brought her criminal convictions to the INS's attention by applying for naturalization if she had known that suspension of deportation was not available. The same can be said for any alien who seeks naturalization. At some point, they must come forward and reveal their criminal history. If naturalization was her goal, Hernandez de Anderson had no choice other than to reveal herself to INS. I find it difficult to invalidate retroactive application of the cancellation of removal provision where the only option that an applicant passes up — in order to seek naturalization — is to remain in the United States as an anonymous but deportable alien. That is not detrimental reliance. It is the hope that INS will be too busy with others to pay attention to Hernandez de Anderson.

. Notably, our reasoning in these cases did not rely on the petitioners’ status as illegal aliens. As such, Hernandez de Anderson's status as a lawful permanent resident who filed a naturalization application (as opposed to an asylum application) does not undermine the binding force of these precedents. If anything, the fact that she filed a naturalization application makes Hernandez de Anderson’s reliance argument even weaker than those put forth in our earlier cases, where the INS was under an affirmative obligation to initiate removal proceedings upon the denial of an asylum application. See, e.g., Vasquez-Zavala, 324 F.3d at 1108 ("Petitioners observe that asylum is the only alien application that necessarily results in an INS action in the event it is denied. Unlike other alien applications, where, upon denial, the INS retains discretion to formally charge the alien, in asylum cases, the INS must refer the alien to deportation (pre-IIRIRA) or removal proceedings (IIRIRA) once the application is denied.”). Hernandez de Anderson’s argument that she should have the benefit of pre-IIRIRA suspension of deportation therefore rests on two separate assumptions: (1) the former INS’s denial of her naturalization application and (2) its discretionary decision to initiate deportation/removal proceedings. Cf. id. (discounting petitioners’ argument where it was based on the presumption that the application for discretionary relief — i.e., asylum — would be denied). I cannot support such an attenuated concept of "reasonable” reliance.

. Because I do not agree that Hernandez de Anderson has established a sufficient reliance interest, I would not reach the question of whether an alien must show objective or subjective reliance.