Canto v. Holder

593 F.3d 638

Fernando CANTO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 08-4272.

United States Court of Appeals, Seventh Circuit.

Argued September 18, 2009.

Decided January 28, 2010.

James C. Ten Broeck, Jr. (argued), Chicago, IL, for Petitioner.

Keith I. McManus, Jessica E. Sherman (argued), Department of Justice, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and WILLIAMS and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

Fernando Canto was convicted of counterfeiting over two decades ago. Since then, by all accounts, his life has been on the straight and narrow. After returning from a trip abroad, he was detained and found to be deportable because of his counterfeiting conviction. Canto concedes deportability but argues that the differing treatment of foreign and domestic convictions violates his equal protection rights—foreign convictions over fifteen years old cannot be a basis for deportation, whereas similar domestic convictions can. Because several rational bases, including concerns about the rights and protections of foreign justice systems as compared to our own, may have motivated Congress in drawing this distinction, Canto's argument fails. Canto also argues that the repeal of section 212(c) of the Immigration Code, which allowed certain deportable aliens to petition the Attorney General for relief from deportation, was impermissibly retroactive as applied to him. Our precedent has already addressed this question and found that aliens who went to trial did not forgo any rights in reliance on the continued existence of section 212(c), so it was not impermissibly retroactive. We therefore deny Canto's petition for review.

I. BACKGROUND

Fernando Canto, a native of Mexico, was admitted to the United States as a lawful permanent resident in 1971. Since his arrival in this country, he has married, started a family, and owned his own business that employed twenty people. In 1983, however, he was convicted, after a trial, of two counts of federal counterfeiting in violation of 18 U.S.C. §§ 472 and 473, and a related weapons charge. He was sentenced to two years' imprisonment.

Over two decades later, upon reentering the United States from a trip to Mexico in April 2005, immigration officials detained him and charged him with removability as a result of his commission of a crime of moral turpitude. Canto does not dispute that federal counterfeiting is a crime of moral turpitude, nor does he dispute that a crime of moral turpitude fits the definition of an "aggravated felony," for which he is removable under 8 U.S.C. § 1252(a)(2)(c). Although Canto conceded removability before the Immigration Judge and the Board of Immigration Appeals ("BIA"), he argued that he should be allowed to petition the Attorney General for a deportation waiver under section 212(h) and now-repealed section 212(c) of the Immigration Code. The BIA denied his petition and he now appeals.

II. ANALYSIS

A. Equal Protection

Canto first argues that the definition of "aggravated felony" in the Immigration Code violates the equal protection component of the Due Process Clause. The Immigration Code defines "aggravated felony" to include all domestic aggravated felony convictions but only those foreign felony convictions for which the petitioner had completed his term of imprisonment during the fifteen years prior to the commencement of removal proceedings against him. See 8 U.S.C. § 1101(a)(43). Because Canto's domestic conviction for counterfeiting was over twenty years old in March 2005, had it been a foreign conviction, he would not have been removable. He contends that this differing treatment of foreign and domestic convictions violates equal protection principles.

Since this classification involves neither a fundamental right nor a suspect classification, it is accorded a strong presumption of validity and need only be supported by a rational basis. Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Federal classifications in immigration matters are subject to "relaxed scrutiny," Nyquist v. Mauclet, 432 U.S. 1, 7 n. 8, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977), and should be found valid unless they are "wholly irrational," Mathews v. Diaz, 426 U.S. 67, 83, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). Further, "review of decisions made by Congress in the immigration context is extremely limited, and this is particularly true where the challenged legislation sets criteria for the admission or expulsion of aliens." Lara-Ruiz v. I.N.S., 241 F.3d 934, 946 (7th Cir.2001). If any plausible reason could provide a "rational basis for Congress' decision to treat the classes differently, our inquiry is at an end, and we may not test the justification by balancing it against the constitutional interest asserted by those challenging the statute." Id.

Congress could have had several rationales for exempting older foreign convictions from the Immigration Code's reasons for removability. For example, Congress may have been concerned about the legal protections afforded to defendants in other countries. Congress cannot know how reliable a foreign country's justice system is. Our justice system, constitutional rights, and protections against wrongful conviction differ from those rights offered in Canada, which differ from those rights offered in Botswana, which differ from those rights offered in almost every country in the world. This is especially true when the foreign law in question is constantly evolving, and subject to change within a fifteen-year period. So, it is perfectly rational that Congress might not want to prevent an alien from seeking a waiver because of a foreign conviction based on different laws without analogous constitutional guarantees.

Congress also might have exempted older foreign convictions because it felt that an alien who committed a crime in the United States forfeited his right to avail himself of the benefits of living in this country because his actions showed a lack of respect for United States law, whereas an alien who committed a crime in another country did not show a similar disrespect. See Klementanovsky v. Gonzales, 501 F.3d 788, 794 (7th Cir.2007). Canto retorts that this court should give just as much credence to foreign law as it does to domestic law because, among other things, almost every foreign country has a lower crime rate than the United States. This argument is not persuasive as our review is limited to whether Congress acted with a rational basis and it need not involve an analysis of the efficacy of foreign law. And if older foreign convictions were treated the same as domestic convictions for purposes of removability, Canto would still be removable. Further, the Supreme Court has already expressed hesitation in giving credence to the law of foreign nations in the manner that Canto suggests. See Small v. United States, 544 U.S. 385, 399, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005). In any event, there very well might be a variety of other reasons for Congress's decision, but the two we list are rational, and enough for us to conclude that 8 U.S.C. § 1101(a)(43) does not violate the equal protection component of the Due Process Clause.

B. Retroactivity of the Repeal of Section 212(c)

Under former section 212(c) of the Immigration and Nationality Act, 8 U.S.C § 1182(c) (repealed 1996), deportable aliens who had accrued seven years of lawful permanent residence in the United States could request discretionary relief from deportation by arguing that the equities weighed in favor of allowing them to remain in the United States. Even an alien deportable because he had been convicted of an aggravated felony (such as Canto), see 8 U.S.C. § 1227(a)(2)(A)(iii) (1994), was eligible for such discretionary relief if he served a term of imprisonment less than five years. 8 U.S.C. § 1182(c). Section 212(c) was repealed in September 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). Section 304(b) of IIRIRA repealed § 212(c) relief entirely, replacing it with a procedure called "cancellation of removal," see 8 U.S.C. § 1229b (1996), and providing that cancellation of removal is not available to an alien convicted of any aggravated felony. This provision was consistent with section 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted shortly before IIRIRA, which rendered aliens convicted of aggravated felonies, regardless of the length of their sentence, ineligible for discretionary relief from deportation under former section 212(c). See 8 U.S.C. § 1182(h).

Had section 212(c) not been repealed, Canto would be eligible to apply to the Attorney General for equitable relief, and, statistically, he would have approximately a fifty percent chance of success. See Hem v. Maurer, 458 F.3d 1185, 1188 (10th Cir.2006). Canto argues that the repeal of section 212(c) should not be allowed to apply retroactively to him. The Supreme Court has already addressed the retroactive application of this repeal in the context of a deportable alien who pled guilty to a crime of moral turpitude pursuant to a plea agreement that specified that he would receive less than five years' imprisonment. In I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that discretionary relief under former section 212(c) "remains available for aliens . . . whose convictions were obtained through plea agreements and who . . . would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." In reaching this conclusion, the Court applied the Landgraf formula, which requires a court to first see if Congress unambiguously intended the legislation to apply retroactively, and, if not, to examine whether it attaches new legal consequences to prior events because its application "would impair rights a party...