Ferguson v. U.S. Atty. Gen.

563 F.3d 1254

Sandra FERGUSON, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 08-10806.

United States Court of Appeals, Eleventh Circuit.

March 31, 2009.

H. Glenn Fogle, Jr., Leslie A. Diaz, The Fogle Law Firm, LLC, Atlanta, GA, for Ferguson.

Joseph D. Hardy, David V. Bernal, Jeffery R. Leist, Luis E. Perez, Blair T. O'Connor, U.S. Dept. of Justice, Civ.Div., OIL, Washington, DC, for Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before BIRCH, HULL and FAY, Circuit Judges.

HULL, Circuit Judge:

This petition requires us to address a question that has divided the other circuits and presents an issue of first impression in ours. Does IIRIRA's¹ repeal of the INA's § 212(c) waiver provision² have an impermissible retroactive effect on aliens, like Sandra Ferguson, who were convicted of deportable criminal offenses before IIRIRA's effective date?

Until April 1, 1997 (the effective date of IIRIRA's repeal of § 212(c)), Ferguson was eligible to apply for a § 212(c) deportation waiver. But the INS initiated removal proceedings in 1998-over a year after § 212(c) was repealed. Despite its repeal, Ferguson maintains that IIRIRA has an impermissible retroactive effect and does not bar her from applying for § 212(c) relief. The question in Ferguson's petition is whether she can take advantage of the now-repealed § 212(c).

The Supreme Court has addressed this question before. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). It said that because a plea agreement "involves a quid pro quo between a criminal defendant and the government," id. at 321, 121 S.Ct. 2271, aliens who pled guilty to a deportable offense "almost certainly relied" on the availability of § 212(c) relief in deciding to plead guilty and forgo their right to trial, id. at 325, 121 S.Ct. 2271. Therefore, the repeal of § 212(c) has an impermissible retroactive effect on such aliens, and they remain eligible for § 212(c) relief. Id.

But Ferguson did not plead guilty. She was convicted by a jury. And therein lies her dilemma.

After determining that we have jurisdiction to hear the petition, we conclude that IIRIRA's repeal of § 212(c) does not have an impermissible retroactive effect on Ferguson.

I. Factual Background

Petitioner Sandra Ferguson emigrated from Jamaica to the United States, and on August 4, 1977, she was admitted as a lawful permanent resident. Although her residence was lawful, her subsequent behavior was not. On November 20, 1985, the State's Attorney of Cook County, Illinois charged her with possessing and intending to distribute 30 grams of cocaine. See Ill.Rev.Stat. Ch. 56.5 § 1401-A(2) (1983).³

On July 7, 1986, following a trial in the Circuit Court of Cook County, the jury convicted Ferguson. On September 9, 1986, the circuit court sentenced Ferguson to six years in prison. But she served only two years and nine months.

About ten years later, on July 5, 1998, the INS⁴ served Ferguson with a Notice to Appear charging her with removability under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for committing a controlled substances offense. On May 18, 1999, before the Immigration Judge ("IJ"), Ferguson admitted this charge in the Notice to Appear.⁵ But she denied that she was removable.

The IJ found Ferguson removable, pursuant to INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), based on her admissions and the evidence of her felony drug conviction. The IJ found that "the nature of her conviction" made her ineligible for cancellation of removal under INA § 240(a), 8 U.S.C. § 1229b.⁶ The IJ ordered her removed to Jamaica.

Ferguson appealed to the Board of Immigration Appeals ("BIA"). Ferguson argued that she was eligible for cancellation of removal under § 240(a) because, at the time of her conviction in 1986, her crime was not considered an "aggravated felony" under immigration law. The BIA rejected her § 240(a) argument. But it remanded, in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), to determine whether Ferguson might be eligible for discretionary relief from the Attorney General under INA § 240(a)'s predecessor — the now-repealed INA § 212(c), 8 U.S.C. § 1182(c).

Because the record was ambiguous as to whether Ferguson was convicted at trial or pled guilty, the BIA remanded to the IJ to figure it out. At an evidentiary hearing before the IJ, Ferguson admitted that she was convicted at trial. But she argued that she was still eligible for a deportation waiver because, at the time Congress repealed § 212(c) in 1996, she was still eligible to apply for such relief. In other words, she argued that the repeal of § 212(c) does not apply retroactively to those who were eligible to apply for such relief before the date of repeal.⁷

The IJ found that she was convicted at trial. Therefore, the IJ again determined that she was ineligible for a § 212(c) waiver and reinstated the removal order. Ferguson again appealed to the BIA and challenged the IJ's ruling on § 212(c) availability. Her appeal raised the same arguments that she made before the IJ.

The BIA affirmed the IJ's decision "in its entirety." The BIA rejected Ferguson's § 212(c) argument. It determined that a federal regulation made Ferguson ineligible. The BIA pointed to 8 C.F.R. § 1212.3(f)(4) as support for its conclusion that only individuals who pled guilty prior to the change in the law are eligible for § 212(c) relief.⁸ The BIA based its ruling on the "clear language" of the federal regulation and the absence of any Eleventh Circuit authority extending St. Cyr to trial-based convictions as opposed to guilty pleas.

Ferguson filed a petition for review with this Court. The petition requires us to answer two questions. First, do we have jurisdiction to hear Ferguson's challenge to the BIA's pretermition of her application for a § 212(c) deportation waiver? Second, does IIRIRA's repeal of § 212(c) relief have an impermissible retroactive effect on aliens, like Ferguson, who were convicted of deportable criminal offenses by a jury prior to IIRIRA's effective date?

II. Jurisdiction

This Court's jurisdiction to review Ferguson's removal order is limited. Congress has divested courts of "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed," among other things, a controlled substances offense. See INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title.").⁹ And Ferguson does not contest that she is removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(A)(iii). But we retain jurisdiction to review "constitutional claims or questions of law raised upon a petition for review." INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); see Alvarez Acosta v. U.S. Att'y Gen., 524 F.3d 1191, 1195-96 (11th Cir.2008); Alexandre v. U.S. Att'y Gen., 452 F.3d 1204, 1206 (11th Cir.2006) (exercising jurisdiction under § 1252(a)(2)(D) to review petitioner's legal argument as to eligibility for relief under § 212(c)); Balogun v. U.S. Att'y Gen., 425 F.3d 1356, 1360 (11th Cir.2005) (discussing legislative history of § 1252(a)(2)(D)).

Here, Ferguson raises a pure question of law. That is, she argues that IIRIRA's repeal of § 212(c) has an impermissible retroactive effect on aliens like herself. She asks us to extend the holding of INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), to aliens convicted after a trial. Id. (holding "that § 212(c) relief remains available to aliens ... whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect").

This is not the first time that we have been presented with a similar legal issue. But the last time we were, a jurisdictional bar stood in our way. In Brooks v. Ashcroft, 283 F.3d 1268, 1274-75 (11th Cir. 2002), this Court concluded that we lacked jurisdiction to review "the purely statutory question" of whether AEDPA¹⁰ and IIRIRA applied retroactively to bar the petitioner's eligibility for § 212(c) relief. Subsequently, Congress enacted 8 U.S.C. § 1252(a)(2)(D), which removes that jurisdictional bar and supersedes the jurisdictional part of Brooks. See the Real ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005) (authorizing judicial review of "questions of law"). Furthermore, Ferguson's petition does not question the IJ or the BIA's exercise of discretion. Rather, she challenges the BIA's interpretation of St. Cyr. We therefore have jurisdiction to address the pure question of law raised by Ferguson's petition.

III. St. Cyr and Impermissible Retroactivity

The outcome of this case turns largely on our interpretation of the Supreme Court's decision in St. Cyr. Therefore, we begin by recounting St. Cyr. Because the circuit courts are divided on this issue, we examine their approaches as well. We then examine what we have said, albeit in dicta, about St. Cyr. Lastly, we apply the law to Ferguson.

A. INS v. St. Cyr

INS v. St. Cyr addressed the way that two statutory amendments to the INA — namely, AEDPA and IIRIRA — impacted § 212(c), 8 U.S.C. § 1182(c).¹¹ Before AEDPA and IIRIRA, § 212(c) authorized the Attorney General, in her discretion, to waive an alien's deportation if the alien was a lawful permanent resident who had lived in the United States continuously for seven years. INA § 212(c), 8 U.S.C. § 1182(c).¹² Congress first began tinkering with § 212(c) relief with the Immigration Act of 1990. See Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (IMMACT-90). That Act "amended § 212(c) to preclude from discretionary relief anyone convicted of an aggravated felony who had served a term of...