United States Court of Appeals
Fifth Circuit
F I L E D
In the January 13, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-50543
Summary Calendar
_______________
ENRIQUE HERNANDEZ-CASTILLO,
Petitioner-Appellant,
VERSUS
MARC J. MOORE,
AS FIELD DIRECTOR FOR DETENTION AND REMOVAL
FOR THE IMMIGRATION AND CUSTOMS ENFORCEMENT;
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
DEPARTMENT OF HOMELAND SECURITY,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before SMITH, GARZA, and PRADO, Hernandez-Castillo conceded that he was
Circuit Judges. removable as charged, but requested a waiver
of removal under § 212(c), a provision that
JERRY E. SMITH, Circuit Judge: was formerly codified at 8 U.S.C. § 1182(c)
but had been repealed by the Illegal Immigra-
Enrique Hernandez-Castillo, a removed ali- tion Reform and Immigrant Responsibility Act
en, challenges the ruling of an immigration of 1996 (“IIRIRA”), Pub. L. No. 104-208,
(“IJ”) that he is not eligible for a waiver of 110 Stat. 3009-597. The repeal was effective
removal under now-repealed § 212(c) of the immediately upon its enactment.
Immigration and Nationality Act (“INA”).
Treating this action as a petition for review, Hernandez-Castillo argued that despite the
and agreeing with the ruling of the IJ, we va- repealer, he is entitled to pursue relief under
cate the finding of habeas jurisdiction and deny that provision pursuant to INS v. St. Cyr, 533
the petition for review. U.S. 289, 326 (2001), in which the Court stat-
ed that Ҥ 212(c) relief remains available for
I. aliens . . . whose convictions were obtained
Hernandez-Castillo, a native and citizen of through plea agreements and who, notwith-
Mexico, was admitted into the United States standing those convictions, would have been
as a lawful permanent resident in 1985. In eligible for § 212(c) relief at the time of their
1989 he was tried to a jury and convicted of plea under the law then in effect.”
felony indecency with a child. The Immigra-
tion and Naturalization Service (“INS”)1 initi- The IJ found that Hernandez-Castillo was
ated removal proceedings against Hernandez- ineligible for § 212(c) relief, St. Cyr notwith-
Castillo in 2001, asserting that (1) he was re- standing, because he had been convicted of a
movable pursuant to 8 U.S.C. § 1227(a)(2)- removable offense following a jury trial rather
(A)(iii) on the ground that he had been con- than through a guilty plea. In November 2002
victed of an “aggravated felony,” which is de- the IJ ordered that Hernandez-Castillo be re-
fined by 8 U.S.C. § 1101(a)(43)(A) to include moved to Mexico. Hernandez-Castillo filed a
sexual abuse of a minor, and (2) he was re- timely appeal to the BIA, which affirmed the
movable pursuant to 8 U.S.C. § 1227(a)- removal order without opinion in March
(2)(A)(i) because he had been convicted of a 2004.
crime of moral turpitude, for which a sentence
of one year or longer could have been im- On August 9, 2004 (the same day on which
posed, within five years after his admission he had been ordered to report to the San
into the United States. Antonio office of the Department of Homeland
Security for removal), Hernandez-Castillo filed
a petition for writ of habeas corpus challenging
1
The INS ceased to exist on March 1, 2003. the removal order on the ground that he had
Its enforcement functions have been assumed by been unlawfully denied the right to seek a
the Bureau of Immigration and Customs Enforce- waiver of the order. He also requested a tem-
ment (“BICE”), an agency within the Department
porary restraining order and preliminary in-
of Homeland Security. Because many of the events
junctive relief to prevent the immigration au-
in this case took place before the reorganization of
immigration enforcement duties, we continue to
thorities from removing him before the district
refer to the agency as the INS. court ruled on the habeas petition. But, be-
2
cause the removal had been scheduled to take verted into petitions for review.”2 Pursuant to
place on that very day, Hernandez-Castillo was the REAL ID Act, we therefore vacate the
removed to Mexico before the district court district court’s finding of habeas jurisdiction
could rule on the request for a temporary and convert the habeas petition into a petition
restraining order. for review of the removal order.
On August 20, 2004, the government filed III.
a motion to dismiss the habeas petition, which We must now determine whether we have
the district court granted in March 2005, after jurisdiction to entertain this petition for review
first finding that it had jurisdiction to entertain under the REAL ID Act. The Act amends 8
the petition. The court held that Hernandez- U.S.C. § 1252(a)(2)(C) to preclude all judicial
Castillo was ineligible for § 212(c) relief. Her- review, habeas or otherwise, where a removal
nandez-Castillo appealed that order on March order is based on, inter alia, the alien’s com-
29, 2005. mission of an aggravated felony. See Pub. L.
No. 109-13, 119 Stat. 231, 310,
II. § 106(a)(1)(A)(ii). The Act also altered the
After Hernandez-Castillo filed his appeal, INA to provide that
Congress on May 11, 2005, enacted the REAL
ID Act, Pub. L. No. 109-13, 119 Stat. 231. [n]othing in subparagraph (B) or (C), or
The Act explicitly forecloses habeas review of in any other provision of this chapter
removal orders and provides that a petition for (other than this section) which limits or
review is the sole and exclusive means of ju- eliminates judicial review, shall be con-
dicial review for all removal orders except strued as precluding review of constitu-
those issued pursuant to 8 U.S.C. § 1225- tional claims or questions of law raised
(b)(1). See Pub. L. No. 109-13, 119 Stat. 231, upon a petition for review filed with an
310, § 106(a)(1)(B). The Act specifies that a appropriate court of appeals in accor-
habeas petition pending before a district court dance with this section.
as of the REAL ID Act’s effective date is to be
transferred to the appropriate court of appeals 8 U.S.C. § 1252(a)(2)(D). Because Hernan-
and converted into a petition for review. See dez-Castillo’s claim that the IJ erred in apply-
Pub. L. No. 109-13, 119 Stat. 231, 311, ing the repeal of § 212(c) to his case presents
§ 106(c). Congress did not, however, dictate a question of law, we have jurisdiction to con-
what was to be done with habeas petitions, sider the petition.
such as Hernandez-Castillo’s, that were al-
ready on appeal as of the REAL ID Act’s ef- IV.
fective date. We review the BIA’s conclusions of law de
novo, although we defer to the BIA’s interpre-
Nevertheless, we recently held in Rosales v.
BICE, 426 F.3d 733, 736 (5th Cir. 2005) (per
curiam), cert. denied, 2006 U.S. LEXIS 619 2
The Third and Ninth Circuits have reached the
(U.S. Jan. 9, 2006), that “despite Congress’s
same conclusion. See Alvarez-Barajas v. Gon-
silence on this issue, habeas petitions on appeal
zales, 418 F.3d 1050, 1052-53 (9th Cir. 2005);
as of May 11, 2005, . . . are properly con- Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d
Cir. 2005).
3
tation of immigration regulations if that inter- Court concluded that the repeal of § 212(c)
pretation is reasonable. See Lopez-Gomez v. cannot apply retroactively to pre-enactment
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). convictions of a removable offense pursuant to
Although we generally have authority to re- a guilty plea.
view only the order of the BIA, where, as in
this case, the BIA summarily affirms the ruling The Court did not address whether the ap-
of the IJ without an opinion, we review the plication of IIRIRA to pre-enactment convic-
IJ’s order. See Mikhael v. INS, 115 F.3d 299, tions following a jury trial, rather than pursu-
302 (5th Cir. 1997). In this case, no deference ant to a guilty plea, yields an impermissible
is owed to the IJ’s conclusion of law regarding retroactive effect. In the wake of St. Cyr, at
the availability of § 212(c) relief because that least two circuits have concluded that there is
conclusion was based on principles of retroac- no impermissible retroactive effect where the
tivity rather than the content of the immigra- conviction was not the result of a plea. See
tion regulations. Chambers v. Reno, 307 F.3d 284 (4th Cir.
2002); Rankine v. Reno, 319 F.3d 93 (2nd Cir.
There is a two-step process for determining 2003). The Rankine court stated that
whether a statute (or the repeal thereof) has an
impermissible retroactive effect. First, a stat- aliens who chose to go to trial are in a dif-
ute must be given retroactive effect if Con- ferent position with respect to IIRIRA than
gress has communicated, with clarity, its intent aliens like St. Cyr who chose to plead guil-
that the law be applied retroactively. See St. ty. . . . First, none of these petitioners de-
Cyr, 533 U.S. at 316 (citing Martin v. Hadix, trimentally changed his position in reliance
527 U.S. 343, 352 (1999)). Second, where a on continued eligibility for § 212(c) relief
clear statement from Congress is lacking, there . . . . Second, the petitioners have pointed
is an impermissible retroactive effect where the to no conduct on their part that reflects an
application of the statute “attaches new legal intention to preserve their eligibility for re-
consequences to events completed before [the lief under § 212(c) by going to trial. If they
statute’s] enactment.” Landgraf v. USI Film had pled guilty, petitioners would have
Prods., 511 U.S. 244, 270 (1994). participated in the quid pro quo relation-
ship, in which a greater expectation of relief
In St. Cyr, the Court held that in repealing is provided in exchange for forgoing a trial,
§ 212(c), Congress did not give a clear indica- that gave rise to the reliance interest em-
tion of its intent retroactively to strip the avail- phasized by the Supreme Court in St. Cyr.
ability of § 212(c) relief away from aliens con- As the Court made clear, it was that reli-
victed of removable offenses before the enact- ance, and the consequent change of im-
ment of IIRIRA. St. Cyr, 533 U.S. at 320. In migration status, that produced the imper-
addition, the Court held that “IIRIRA’s elimi- missible retroactive effect of IIRIRA. St.
nation of any possibility of § 212(c) relief for Cyr, 533 U.S. at 325 . . . . Here, petition-
people who entered into plea agreements with ers neither did anything nor surrendered
the expectation that they would be eligible for any rights that would give rise to a compa-
such relief clearly attaches a new disability, in rable reliance interest.
respect to transactions or considerations al-
ready past.” 533 U.S. at 321 (internal cita- Rankine, 319 F.3d at 99-100. We adopt this
tions and quotations omitted). Therefore, the reasoning and conclude that the application of
4
IIRIRA’s repeal of § 212(c) to Hernandez-
Castillo does not create an impermissible re-
troactive effect. Accordingly, we agree with
the IJ’s order declaring Hernandez-Castillo in-
eligible for § 212(c) relief.3
In summary, we VACATE the district
court’s finding of habeas jurisdiction, convert
the habeas petition into a petition for review,
and DENY the petition for review.
3
Hernandez-Castillo contends that he should
now be given an opportunity to present evidence
that he had been offered a plea agreement before
his trial for felony indecency with a child and chose
instead to take his chances with a jury because §
212(c) relief might be available to him if he were
convicted at trial. He equates the refusal to take a
plea agreement with detrimental reliance on §
212(c). As the Rankine court makes clear, how-
ever, Hernandez-Castillo’s argument is nonsensi-
cal:
Unlike aliens who entered pleas, the petitioners
made no decision to abandon any rights and
admit guilt--thereby immediately rendering
themselves deportable--in reliance on the avail-
ability of the relief offered prior to IIRIRA.
The petitioners decided instead to go to trial, a
decision that, standing alone, had no impact on
their immigration status. Unless and until they
were convicted of their underlying crimes, the
petitioners could not be deported. The claim
that they relied on the availability of § 212(c)
relief in making the decision to go to trial is
therefore somewhat hollow . . . .”
Rankine, 319 F.3d at 99.
5