Armendariz-Montoya v. Sonchik: 9th Circuit Finds AEDPA Restrictions on 212(c) Relief Apply...

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

ARMENDARIZ-MONTOYA V. SONCHIK: 9TH CIRCUIT FINDS AEDPA RESTRICTIONS ON 212(c) RELIEF APPLY TO LPR WITH PRE-AEDPA CONVICTION AFTER TRIAL
Immigrants' Rights Update, Web Edition, July 15, 2002

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has issued a ruling that narrows eligibility for lawful permanent residents (LPRs) seeking waivers under section 212(c) of the Immigration and Nationality Act in several significant ways. First, the decision finds that the Supreme Court's ruling in INS v. St. Cyr, 533 U.S. 289 (2001), applies only to convictions resulting from guilty pleas and not to those resulting from trials. In St. Cyr, the Court found that the provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that barred 212(c) relief for individuals convicted of a wide variety of specified criminal offenses does not apply to guilty pleas entered prior to the statute's enactment. Second, the decision finds that, while the AEDPA does not apply to individuals whose deportation cases commenced prior to the enactment of the statute, it does apply to an individual who was issued and served an Order to Show Cause (OSC) prior to the AEDPA but whose OSC was not filed with the immigration court until after the AEDPA's enactment. The AEDPA was enacted on Apr. 24, 1996.

The respondent in this case, a Mr. Armendariz-Montoya, is a Mexican national who entered the United States in 1972 when he was three years old. In 1978, he adjusted to LPR status. In 1995 he was convicted, after a jury trial, of possession of cocaine with intent to distribute. While he was incarcerated, the Immigration and Naturalization Service issued a detainer against him. On Apr. 5, 1996, the INS issued an OSC against him, charging him with being deportable based on the conviction. On Apr. 22, 1996, the INS served the OSC on Armendariz, and on Dec. 19, 1996, the INS filed the OSC with the immigration court.

At Armendariz's deportation hearing in April 1997, the immigration judge found that he was ineligible for a 212(c) waiver because of the AEDPA, and Armendariz appealed. The Board of Immigration Appeals affirmed the IJ's decision, and Armendariz then filed a petition for review. The court of appeals dismissed the petition for lack of jurisdiction, and Armendariz then filed a habeas petition with the district court. The district court found that the AEDPA does not apply to Armendariz because he was served with an OSC two days prior to the enactment of the statute. The INS appealed that ruling, and the Ninth Circuit has now ruled on that appeal.

On the issue of whether deportation proceedings had commenced at the time of the AEDPA's enactment, the court concluded that they had not, because the OSC was not filed with the immigration court until afterwards. The court found this issue to be controlled by its prior decision in Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir. 2001) (finding that for purposes of determining the applicability of provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), deportation cases commence with the filing of an OSC), and by the applicable regulations. 8 CFR § 3.14(a). The court rejected the reasoning of the First Circuit in Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999), noting that the court there reached the opposite result in a case presenting "materially identical circumstances to this case." In Wallace, the First Circuit found that for purposes of the AEDPA's bar to 212(c) relief, the INS need only have served the OSC on the respondent before the AEDPA was enacted to establish that deportation proceedings had already commenced. The First Circuit refused to defer to the regulation on this issue, noting that "we are not concerned with the INS's internal time tables, starting points, due dates, and the like, but with the judicial question of retroactivity . . . [, which] turns on . . . the realities of reasonable reliance or settled expectations on the part of litigants."

The court also rejected the reasoning of the Eleventh Circuit in Alanis-Bustamante v. Reno, 201 F.3d 1303 (11th Cir. 2000). In that case, the court found that the combination of service of an OSC with the lodging of an INS detainer against the respondent was sufficient to commence proceedings against a respondent "for purposes of determining the applicable law." Again, the Ninth Circuit rejected this reasoning on the basis of the regulation and the Cortez case.

The court summarily rejected the contention that applying the AEDPA's restrictions to the pre-AEDPA conviction in this case would be impermissibly retroactive. The court distinguished the conviction in this case from the one at issue in St. Cyr on the grounds that in this case the conviction resulted from a trial rather than a guilty plea. The court reasoned that "unlike aliens who pleaded guilty, aliens who elected a jury trial cannot plausibly claim that they would have acted any differently if they had known about [the AEDPA restriction on 212(c) relief]." The court did not appear to seriously examine whether trial strategy could be influenced by reasonable expectations regarding whether deportation would result from a conviction.

The court also rejected the claim that the AEDPA restriction on 212(c) relief violates equal protection by eliminating the relief for LPRs in deportation proceedings but not for those in exclusion proceedings. The court found this issue resolved by its previous decision in United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. 1999), overruled on other grounds, United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc). The petitioner has filed a petition for rehearing of the decision.

Armendariz-Montoya v. Sonchik, No. 01-16029 (9th Cir. May 30, 2002).