Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-2008

Jones v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1040




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 07-1040
                                   ____________

                           CAROL JACQUELINE JONES,
                               a/k/a Carol J Jones,

                                                  Petitioner

                                         v.

                  ATTORNEY GENERAL OF THE UNITED STATES,

                                                   Respondent

                                   ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                              (Board No. A37-776-025)
                     Immigration Judge: Honorable Annie Garcy
                                    ____________

                              Argued April 10, 2008
              Before: SMITH, HARDIMAN and ROTH, Circuit Judges.

                             (Filed: September 8, 2008)


Matthew L. Guadagno (Argued)
Bretz & Coven
305 Broadway
Suite 100
New York, NY 10007-0000
       Attorney for Petitioner
Ethan B. Kanter (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044-0000
       Attorney for Respondent

                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       Carol Jacqueline Jones petitions for review of a decision of the Board of

Immigration Appeals (BIA) affirming the decision of an Immigration Judge (IJ) denying

her application for cancellation of removal. For the reasons that follow, we will deny the

petition.

                                            I.

       Because we write exclusively for the parties, we recount only those facts essential

to our decision.

       A native and citizen of Jamaica, Jones was admitted as a lawful permanent resident

on May 19, 1983. Since coming to the United States, Jones has been convicted of three

crimes. On December 11, 1986, she was convicted of criminal possession of marijuana in

the first degree, in violation of New York Penal Law (NYPL) § 221.30. On August 25,

1993, she was convicted of theft of services, in violation of NYPL § 165.15. Finally, on

June 8, 2005, she was convicted of petit larceny, in violation of NYPL § 155.25.


                                             2
       On February 13, 2006, Immigration and Customs Enforcement (ICE) placed Jones

in removal proceedings based upon her 1986 drug conviction; two weeks later, ICE

issued an additional charge of removability based upon Jones’s theft of services and

larceny convictions. Jones conceded her convictions and applied for two forms of relief:

(1) cancellation of removal and (2) relief under former § 212(c) of the Immigration and

Naturalization Act (INA).

       In a hearing before the IJ, Jones admitted that she was ineligible for cancellation of

removal based upon the application of the “stop-time rule” to her 1986 conviction.1 In

addition, Jones faced difficulties with her former § 212(c) application. Because § 212(c)

was repealed in 1996, that form of relief would not reach her 2005 petit larceny

conviction, meaning that she would still be removable on the basis of that conviction even

if her former § 212(c) application were granted. As a result, Jones filed a late notice of

appeal in state court in an attempt to overturn her 2005 conviction so that a successful

former § 212(c) application could provide her with relief from removal.

       Jones sought and received continuances from the IJ while awaiting the state court’s

decision on her notice of appeal. As no action was taken by the state court after several

continuances, the IJ denied Jones’s request for a further continuance on July 26, 2006,




       1
         As will be discussed below, the “stop-time rule” renders an alien ineligible for
cancellation of removal upon the commission of certain crimes within seven years of the
alien’s admission to the United States.

                                             3
noting that the case could be reopened if Jones’s state court appeal was ultimately

successful.

       In the absence of state court action on her 2005 conviction, Jones conceded that

her former § 212(c) application was, at least for the moment, futile. Accordingly, the IJ

noted in her decision that Jones had “not sought a hearing concerning eligibility for relief

under [former] [s]ection 212(c) of the Act” and had thus “at least temporarily abandoned

the application in light of her current predicament.” (IJ Dec. at 5-6 n. 1) (emphasis in

original). The IJ also denied Jones’s application for cancellation of removal, noting that

“both of the parties agreed that the respondent is subject to the stop-time rule under

Section 240A of the Immigration and Nationality Act because the respondent’s first

conviction was only two years after the respondent acquired her lawful permanent

residence.” (IJ Dec. at 5).

       Subsequently, the state court denied Jones’s notice of appeal on her 2005

conviction, thus rendering her former § 212(c) application futile. With that avenue of

relief closed, Jones attempted to resuscitate her cancellation of removal application in her

appeal to the BIA, arguing for the first time that application of the stop-time rule to her

1986 conviction was impermissibly retroactive because the rule was enacted in 1996. In

affirming the IJ, the BIA rejected Jones’s retroactivity argument as untimely, noting that

Jones had “conceded that she was ineligible for cancellation of removal at the hearing,

and therefore did not raise her current argument in a timely manner.” (BIA Dec. at 1).



                                              4
Furthermore, the BIA noted that under its precedent, “an offense is deemed to end an

alien’s continuous residence as of the date of its commission, even if the offense was

committed prior to the enactment of [the stop-time rule].” (BIA Dec. at 2) (citing Matter

of Jurado, 24 I&N Dec. 29, 32 (BIA 2006); Matter of Robles, 24 I&N Dec. 22, 27-28

(BIA 2006)). Jones timely filed this petition for review, again asserting that the

application of the stop-time rule to her petition for cancellation of removal was

impermissibly retroactive.

                                              II.

       Both cancellation of removal and the stop-time rule were created with the 1996

enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

In particular, cancellation of removal is a form of discretionary relief available to aliens

who meet a series of eligibility requirements, including seven years of continuous

presence in the United States. See INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). In turn,

the stop-time rule terminates an alien’s accrual of time towards this seven-year

requirement upon the commission of certain crimes. See INA § 240A(d)(1), 8 U.S.C. §

1229b(d)(1). Consequently, an alien who commits a qualifying offense within seven

years of being admitted to the United States cannot satisfy the continuous presence

requirement and is ineligible for cancellation of removal.

       Therefore, if the stop-time rule were to apply to Jones with her 1986 drug offense,

she would be rendered ineligible for cancellation of removal. As noted above, Jones



                                              5
initially conceded the rule’s applicability before the IJ; however, once her state court

efforts to overturn her 2005 petit larceny conviction failed (thus rendering her former §

212(c) application futile), she put forth the present retroactivity argument to the BIA in an

attempt to breathe new life into her cancellation of removal application.2

                                             III.

       We now turn to the substance of Jones’s retroactivity argument. In Landgraf v.

U.S.I. Film Products, 

(1994), the Supreme Court set forth a two-step test to

determine whether it is permissible to apply a statute retroactively. The first step asks us

to “ascertain whether Congress has directed with the requisite clarity that the law be

applied retrospectively.” INS v. St. Cyr, 

, 316 (2001) (citing Martin v.

Hadix, 

, 352 (1999)). If the statute is not sufficiently clear, we proceed to

the second step, which asks us to “determine whether the new statute would have

retroactive effect, i.e., whether it would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new duties with respect to

transactions already completed.” 

.




       2
          Though the inconsistency of Jones’s positions before the IJ and the BIA raise the
specter of judicial estoppel, we note that this “is an extreme remedy, to be used only when
the inconsistent positions are tantamount to a knowing misrepresentation to or even fraud
on the court.” Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 

, 319-20 (3d Cir. 2003) (citation omitted). We do not think that Jones’s attempts
to find an alternative avenue of relief in the face of removal are properly characterized as
a “knowing misrepresentation” or “fraud on the court.”

                                              6
       With regard to the first step of the Landgraf analysis - whether Congress has

clearly specified that the stop-time rule should be applied retroactively to a petition for

cancellation of removal - we note that “[t]he standard for finding such unambiguous

direction is a demanding one,” involving statutory language “so clear that it could sustain

only one interpretation.” St. 

(citing Lindh v. Murphy, 

, 328 n.4 (1997)). Our review of the statute and its legislative history convinces us

that Congress has not clearly directed whether the stop-time rule should apply in these

circumstances.

       We turn therefore to the second step of Landgraf, which asks us to “determine

whether the new statute would have retroactive effect, i.e., whether it would impair rights

a party possessed when he acted, increase a party’s liability for past conduct, or impose

new duties with respect to transactions already 

. Moreover,

this determination “should be informed and guided by ‘familiar considerations of fair

notice, reasonable reliance, and settled expectations.’” 

(quoting

).

       Jones attempts to analogize her request for cancellation of removal to the

availability of § 212(c) relief as determined in St. Cyr. She argues that when she pled

guilty to drug possession in 1986, she did so in reliance upon her ability to seek

discretionary relief from deportation, an interest she claims was impaired when IIRIRA

created the stop-time rule ten years later. This argument fails because neither the stop-



                                              7
time rule nor cancellation of removal itself was “in existence, or even pending enactment,

at the time the respondent committed [her] offense more than a decade earlier”;

accordingly, it is “difficult to understand how [Jones] might have relied on the future

availability of such relief [cancellation of removal] as undergirding a retroactivity claim.”

Robles, 24 I&N Dec. at 27.

       Rather, any reliance interest that Jones had in discretionary relief at the time of her

1986 guilty plea involved § 212(c) — which was the form of relief available at that time

— and not cancellation of removal. Moreover, the Supreme Court’s holding in St. Cyr

ensured that this interest would be undiminished by IIRIRA’s repeal of § 212(c). Because

of St. Cyr, aliens who could apply for § 212(c) relief before IIRIRA’s enactment can still

apply for former § 212(c) relief after IIRIRA’s enactment, as Jones did in this case.3

       As IIRIRA’s enactment of the stop-time rule did not impair rights that Jones

possessed when she acted, increase her liability for past conduct, or impose new duties

with respect to already-completed transactions, we hold that the stop-time rule did not

have an impermissible retroactive effect upon her.

                                             IV.

       For the foregoing reasons, we will deny the petition for review.




       3
          As noted earlier, the reason that former § 212(c) is of no help to Jones now is
that her attempts to overturn her 2005 state court conviction for petit larceny (which
former § 212(c) does not reach) fell through.

                                              8