Case: 11-60396   Document: 00512044153     Page: 1   Date Filed: 11/06/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                November 6, 2012

                                  No. 11-60396                    Lyle W. Cayce
                                                                       Clerk

PETRA CARRANZA-DE SALINAS, also known as Petra Rodriguez-Salinas,

                                            Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                            Respondent



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


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
        Prior to the passage of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Petra Carranza-De Salinas (Carranza) was eligible
to apply for discretionary relief from removal despite having a criminal
conviction for possession of marijuana with intent to distribute. After the
enactment of IIRIRA, the provision granting her eligibility was repealed, and
IIRIRA specified that aliens with a criminal conviction like Carranza’s were no
longer eligible to apply for discretionary relief from removal. Carranza argues
that this constitutes impermissible retroactive legislation as applied to her case.
Because we conclude that Carranza may invoke the presumption against
retroactive application, she is entitled to pursue § 212(c) relief. Accordingly, we
   Case: 11-60396    Document: 00512044153      Page: 2   Date Filed: 11/06/2012



                                  No. 11-60396

grant Carranza’s petition for review, vacate the Board of Immigration Appeal’s
(BIA’s) order and remand the case to the BIA for additional proceedings.
                                BACKGROUND
      Carranza, a citizen of Mexico, lawfully entered the United States in 1985.
In 1993, after turning down a plea agreement, she was convicted by a Louisiana
jury of possession of marijuana with intent to distribute and was sentenced to
five years of hard labor, all but one of which were suspended, and four years of
probation. Carranza received an automatic first offender pardon in 1994, and
the conviction was expunged on April 16, 1999. At the time of her conviction,
she was eligible, under former § 212(c) of the Immigration and Nationality Act
(INA), to apply to the Attorney General for discretionary relief from deportation.
      In 1996, however, Congress passed IIRIRA. IIRIRA repealed § 212(c), see
8 U.S.C. § 1182(c), and replaced it with 8 U.S.C. § 1229b, which greatly narrows
the class of aliens who are eligible to request discretionary relief. The new
provision specifies that aliens such as Carranza, who were convicted of an
aggravated felony, are ineligible for such relief. See id. § 1229b(a)(3).
      In 1997, the Immigration and Naturalization Service (INS) served
Carranza with a Notice to Appear, charging that she was subject to removal
because her 1993 Louisiana conviction for possession of marijuana with intent
to distribute constituted both an aggravated felony and a controlled substance
offense. At her deportation hearing on January 9, 1999, an immigration judge
(IJ) determined that her conviction rendered her removable. Carranza sought
discretionary relief under § 212(c), the INS conceded that she was eligible to seek
such relief, and a hearing was set for the merits of her argument.
      When that hearing took place in 2003, the INS contended that Carranza
was not eligible for § 212(c) relief because her Louisiana conviction resulted from
a jury trial rather than a guilty plea. The IJ declined to give Carranza’s
attorney an opportunity to prepare a response to that argument and, without

                                        2
   Case: 11-60396      Document: 00512044153     Page: 3   Date Filed: 11/06/2012



                                    No. 11-60396

hearing arguments regarding her eligibility for § 212(c) relief, ordered her
removed to Mexico. After the BIA remanded the case to the IJ to issue a written
order, the IJ ruled that despite its expungement, Carranza’s conviction still
rendered her removable and that she was no longer eligible to seek § 212(c)
relief.
          Carranza appealed to the BIA, arguing that under the reasoning of
Ponnapula v. Ashcroft, 

 (3d Cir. 2004), IIRIRA’s repeal of § 212(c)
did not apply retroactively to aliens convicted of aggravated felonies who were
convicted by jury trial before the enactment of IIRIRA. The BIA declined to
follow Ponnapula because the case is not precedential in the Fifth Circuit. The
BIA also noted that regulations limited eligibility for § 212(c) relief to aliens
whose convictions were obtained by plea agreement prior to the enactment of
IIRIRA.
          Carranza appealed to this court, and we granted her petition for review,
vacated the BIA’s order, and remanded the case to the BIA. Carranza-De
Salinas v. Gonzales, 

, 210 (5th Cir. 2007) (Carranza I). Specifically,
we noted that in INS v. St. Cyr, 

 (2001), the Supreme Court had
concluded that aliens who pleaded guilty prior to the enactment of IIRIRA could
still apply for § 212(c) relief. Carranza I, 477 F.3d at 204-05. We explained that
the Supreme Court “reasoned that as plea agreements involve a quid pro quo
between a criminal defendant and the government, to deprive the defendant of
. . . continued eligibility for § 212(c) relief after the government had received the
benefit of the plea bargain, would surely be contrary to familiar considerations
of fair notice, reasonable reliance, and settled expectations.” Id. at 205 (quoting
St. Cyr, 533 U.S. at 323) (internal quotation marks omitted). “Finding that
aliens likely relied upon the significant likelihood of receiving § 212(c) relief in
choosing to forgo their right to trial,” we explained that “the Court concluded



                                          3
   Case: 11-60396     Document: 00512044153       Page: 4    Date Filed: 11/06/2012



                                    No. 11-60396

that eliminating such relief has an obvious and severe retroactive effect.” Id.
(quoting St. Cyr, 533 U.S. at 325) (internal quotation marks omitted).
       Because Carranza was convicted after a trial and did not plead guilty,
however, we determined that her case was distinguishable from St. Cyr. See id.
(citing Hernandez-Castillo v. Moore, 

, 520 (5th Cir. 2006)). In
Hernandez-Castillo, we reasoned that aliens who proceeded to trial are
differently situated from those who pleaded guilty because: (1) they did not
“detrimentally change[] [their] position[s] in reliance on continued eligibility for
§ 212(c) relief”; and (2) they can “point[] to no conduct on their part that reflects
an intention to preserve their eligibility for relief under § 212(c) by going to trial”
because there was no “quid quo pro relationship” with the government.
Hernandez-Castillo, 436 F.3d at 520. Thus, we concluded in Carranza I that,
pursuant to Hernandez-Castillo, an alien who was convicted after a jury trial
must “demonstrate actual, subjective reliance on the pre-IIRIRA state of the law
to be eligible for relief from its retroactive application.” Carranza I, 477 F.3d at
205.
       We acknowledged Carranza’s argument that she had delayed applying for
§ 212(c) relief, based on the assumption that she would continue to be eligible to
apply, “in order to establish a history of rehabilitation.” Id. at 206. And we
agreed with the reasoning of Restrepo v. McElroy, 

 (2d Cir. 2004),
in which the Second Circuit “held that an applicant’s decision to postpone
applying for § 212(c) relief to create a longer record of rehabilitation and
community ties may create a sufficient reliance interest to create an
impermissible retroactive effect of the statute.” See id. at 207-08. Such aliens,
like the alien in St. Cyr, had given up something with the expectation that they
would continue to be eligible for § 212(c) relief. Id. at 207-08. But because the
IJ in the instant case had not given Carranza an opportunity to “make a record



                                          4
   Case: 11-60396    Document: 00512044153      Page: 5    Date Filed: 11/06/2012



                                  No. 11-60396

on her retroactivity claim,” we remanded to the BIA for additional proceedings.
Id. at 210.
      On remand, Carranza acknowledged that there was no direct evidence
indicating that she had relied on the continued availability of § 212(c) relief in
delaying her application for such relief. But, she argued, there was still evidence
indicating that she was advised to delay filing for § 212(c) relief until she
received the automatic first offender pardon and that she did not appeal her
conviction in reliance on § 212(c) being available for relief.       Additionally,
Carranza argued that her decision to forgo a direct appeal was equivalent to
entering a plea agreement and therefore sufficient to show a reliance interest.
      The IJ concluded that Carranza had to demonstrate actual reliance in
order to apply for § 212(c) relief and determined that she could not do so.
Carranza appealed to the BIA, which affirmed the IJ’s decision and dismissed
her appeal. In concluding that the IJ did not clearly err, the BIA underscored
that Carranza (1) could not recall any conversations with her defense counsel
prior to or after her conviction; (2) did not recall talking to anyone in 1993 about
the immigration consequences of her conviction; and (3) thought that her pardon
would resolve any immigration problems. Carranza timely petitioned for review
in this court.
      Subsequent to the filing of Carranza’s original petition with this court, the
Supreme Court issued its opinion in Vartelas v. Holder, 

 (2012).
In Vartelas, the Supreme Court held that another IIRIRA provision, 8 U.S.C.
§ 1101(a)(13)(C)(ii), could not be applied retroactively to a lawful permanent
resident whose conviction, like Carranza’s, was obtained prior to the enactment
of IIRIRA. Id. at 1483-84. That provision required a lawful permanent resident
departing the United States, even briefly, to seek admission again upon his
return, thus subjecting certain aliens, including Vartelas, to removal. Id. at



                                         5
   Case: 11-60396     Document: 00512044153     Page: 6   Date Filed: 11/06/2012



                                  No. 11-60396

1484-85. Carranza argues that Vartelas is a “game-changer” in this case. We
agree.
                          STANDARD OF REVIEW
       “We review factual findings of the BIA and IJ for substantial evidence, and
questions of law de novo.” Zhu v. Gonzales, 

, 594 (5th Cir. 2007).
                                 DISCUSSION
       We conclude that, in light of Vartelas, Carranza may invoke the
presumption against the retroactive application of statutes. Because she has
demonstrated the kind of reliance described by the Court in Vartelas, namely a
“likelihood of reliance on prior law,” see 132 S. Ct. at 1491, she is entitled to
argue that IIRIRA’s repeal of § 212(c) relief may not be retroactively applied to
her.
                                        A.
       “[T]he presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic.”
Landgraf v. USI Film Products, 

, 265 (1994). The presumption
“finds expression in several provisions of our Constitution,” including the Ex
Post Facto Clause, the Contract Clause, and the Fifth Amendment’s Due Process
Clause. Id. at 266.
       “Elementary considerations of fairness dictate that individuals should
have an opportunity to know what the law is and to conform their conduct
accordingly; settled expectations should not be lightly disrupted.” Id. at 265.
Thus, “the principle that the legal effect of conduct should ordinarily be assessed
under the law that existed when the conduct took place has timeless and
universal appeal.” Id. (quoting Kaiser Aluminum & Chem. Corp. v. Bonjorno, 

, 855 (1990) (Scalia, J., concurring) (internal quotation marks omitted).
       To determine when a law may not apply retroactively, we look to whether
“such application would ‘tak[e] away or impai[r] vested rights acquired under

                                        6
   Case: 11-60396    Document: 00512044153      Page: 7   Date Filed: 11/06/2012



                                  No. 11-60396

existing laws, or creat[e] a new obligation, impos[e] a new duty, or attac[h] a new
disability, in respect to transactions or considerations already past.’” Vartelas,
132 S. Ct. at 1486-87 (quoting Society for the Propagation of the Gospel v.
Wheeler, 

, 767 (C.C.D.N.H. 1814) (No. 13156) (Story, J.)).
                                        B.
      In Vartelas, the Supreme Court began its analysis by noting that the
IIRIRA provision at issue there, 8 U.S.C. § 1101(a)(13), does not “expressly
prescribe [a] temporal reach.” 132 S. Ct. at 1487. The Court explained that 8
U.S.C. § 1101(a)(13) “attach[ed] ‘a new disability’” to Vartelas’s conviction
because if applied to him, it would “block[] him from occasional visits to his
parents in Greece.” Id. In so concluding, the Court rejected the argument “that
Vartelas could have avoided any adverse consequences if he simply stayed at
home in the United States.” Id. In prior “cases in which the loss at stake was
less momentous,” the Court noted, it “ha[d] rejected arguments for retroactivity.”
Id. at 1488 (citing Chew Heong v. United States, 

 (1884), Landgraf,
511 U.S. at 280-86, and St. Cyr, 533 U.S. at 321-23)).
      The Court rejected the contention that the “relevant event” in its analysis
was Vartelas’s return to the United States. Id. The Court explained that
Vartelas’s travel outside the United States “involved no criminal infraction.” Id.
at 1490. Rather, the Court concluded, the “new disability rested” on Vartelas’s
crime that rendered him removable, “a single crime committed years before
IIRIRA’s enactment.” Id.
      The Court also rejected the contention that Vartelas was required to
demonstrate that he had relied on being able to leave the United States for short
visits without being subject to admissibility requirements. Id. at 1490-91. “As
the Government acknowledges, ‘th[is] Court has not required a party challenging
the application of a statute to show [he relied on prior law] in structuring his
conduct.’” Id. at 1490 (citation omitted). “The operative presumption, after all,

                                        7
   Case: 11-60396    Document: 00512044153      Page: 8    Date Filed: 11/06/2012



                                  No. 11-60396

is that Congress intends its laws to govern prospectively only. It is a strange
presumption . . . that arises only on [so heightened] a showing [of] actual
reliance.” Id. at 1491 (citation omitted) (quoting Ponnapula v. Ashcroft, 

, 491 (3d Cir. 2004)) (internal quotation marks omitted).            The Court
explained that “[t]he essential inquiry” in determining whether a statute applies
retroactively, “is whether the new provision attaches new legal consequences to
events completed before its enactment.” Id. (quoting Landgraf, 511 U.S. at
269-70) (internal quotation marks omitted).
      The Court did add that “[w]hile the presumption against retroactive
application of statutes does not require a showing of detrimental reliance,
reasonable reliance has been noted among the ‘familiar considerations’
animating the presumption.” Id. (citations omitted) Thus, “[a]lthough not a
necessary predicate for invoking the antiretroactivity principle, the likelihood
of reliance on prior law strengthens the case for reading a newly enacted law
prospectively.” Id. (citing Olatunji v. Ashcroft, 

, 393 (4th Cir.
2004)).
      As an example, the Court offered St. Cyr, in which the Court concluded
that aliens who pleaded guilty “almost certainly relied upon th[e] likelihood [of
receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing]
their right to a trial.” Id. at 1491 (alterations in original) (quoting St. Cyr, 533
U.S. at 325) (internal quotation marks omitted). By comparison, the Court
suggested, “Vartelas’s case” might be “even easier” because St. Cyr could only
seek discretionary relief, whereas Vartelas was undisputedly free, prior to
IIRIRA, to take short trips abroad. Id. at 1491-92. Accordingly, the Court
declined to apply the new law retroactively. Id. at 1492.
                                        C.
      Under Vartelas, Carranza need only show a “likelihood of reliance on prior
law.” See id. at 1491. Carranza declined a plea agreement and proceeded to

                                         8
   Case: 11-60396    Document: 00512044153       Page: 9   Date Filed: 11/06/2012



                                   No. 11-60396

trial and, furthermore, she chose not to appeal. Under these circumstances,
Carranza has made a sufficient showing of the kind of reliance the Court
described in Vartelas.
      In the instant case, as in Vartelas, it is undisputed that 8 U.S.C. §
1229b(a)(3) does not expressly prescribe a temporal reach. The Government,
however, argues that Vartelas does not change the conclusion that Carranza
cannot show that the repeal of § 212(c) relief is impermissibly retroactive as
applied to her case. Specifically, the Government submits that Carranza cannot
show that any of the “familiar considerations” of Landgraf—fair notice,
reasonable reliance, or settled expectations—apply in her case.
      We disagree with the government’s analysis of Vartelas. First, pursuant
to Vartelas, the relevant event for the purpose of retroactivity analysis is
Carranza’s 1993 conviction, not her failure to apply for § 212(c) relief prior to the
enactment of IIRIRA. Her failure to apply earlier, like Vartelas’s travel abroad,
“involved no criminal infraction.” See Vartelas, 132 S. Ct. at 1490.
      Second, the premise on which the government’s argument relies—that a
showing of actual, subjective reliance is required—is unsupported by Vartelas.
The Court explained that the “[t]he essential inquiry” of Landgraf “is whether
the new provision attaches new legal consequences to events completed before
its enactment.” Id. (quoting Landgraf, 511 U.S. at 269-70) (internal quotation
marks omitted). The Court focused the bulk of its analysis on whether IIRIRA
applied a “new disability” to Vartelas’s pre-IIRIRA conviction in determining
whether the presumption against retroactivity should apply. See id. at 1486-90.
In the present case, the repeal of § 212(c) relief in IIRIRA attaches new legal
consequences to Carranza’s conviction: before the passage of IIRIRA, she was
eligible to apply for § 212(c) relief; afterwards, she was not.
      Moreover, the Vartelas Court emphasized that the Court has never
required a showing of reliance to demonstrate that a statute applies

                                         9
  Case: 11-60396     Document: 00512044153       Page: 10   Date Filed: 11/06/2012



                                   No. 11-60396

retroactively. Id. at 1490. In so concluding, the Court cited with approval
Olatunji, see id. at 1491, in which the Fourth Circuit concluded that based on its
analysis of the historical presumption against retroactivity and Supreme Court
precedent, “we believe that the consideration of reliance is irrelevant to statutory
retroactivity analysis.” 387 F.3d at 394.
      And even insofar as a showing of reliance “strengthens the case for reading
a newly enacted law prospectively,” the Court’s language indicates that it does
not require a showing of actual, subjective reliance, but rather only a showing
of “likelihood of reliance on prior law.” Vartelas, 132 S. Ct. at 1491. In
discussing St. Cyr as well as the case before it, the Vartelas Court notably did
not inquire into whether the alien in either case had shown actual, subjective
reliance. See id. Rather, as to St. Cyr, the Court reasoned that aliens in a
position like that of St. Cyr would likely plead guilty in reliance on the continued
availability of § 212(c) relief. Id. And as to the petitioner in Vartelas, the Court
explained that he was previously free to take short trips abroad. Id. at 1491-92.
“Armed with knowledge that a guilty plea would preclude travel abroad, aliens
like Vartelas might endeavor to negotiate a plea to a nonexcludable offense[] .
. . or exercise a right to trial.” Id. at 1492 n.10.
      Similarly, Carranza has made a sufficient showing of the kind of reliance
the Court described in Vartelas. Aliens in Carranza’s position—those who
declined a plea agreement and went to trial—could instead have negotiated to
plead guilty to a nonexcludable offense. Alternatively, an alien in Carranza’s
shoes who decided not to appeal might have chosen not to do so because she had
been sentenced to five years or fewer in prison, which, under pre-IIRIRA rules,
would allow her to remain eligible for discretionary relief under § 212. Receiving
a new trial could result in a sentence in excess of five years, thus rendering the




                                         10
  Case: 11-60396      Document: 00512044153         Page: 11    Date Filed: 11/06/2012



                                     No. 11-60396

alien deportable and counseling against appeal. In these instances, aliens such
as Carranza demonstrate a “likelihood of reliance on prior law.” See id. at 1491.1
                                   CONCLUSION
       In sum, in light the Court’s decision in Vartelas, we conclude that
Carranza is entitled to pursue §212(c) relief.             Accordingly,     we GRANT
Carranza’s petition for review, VACATE the BIA’s order, and REMAND the case
to the BIA for further proceedings consistent with this opinion.




      1
        The government’s suggestion—that rejecting its argument requires rendering the
presumption against retroactivity unrebuttable—lacks merit. As the Supreme Court indicated
in Landgraf, the presumption may be rebutted by Congress’s making its intent clear: “If the
statute would operate retroactively, our traditional presumption teaches that it does not
govern absent clear legislative intent favoring such a result.” 511 U.S. at 280.

                                            11