Opinion
No. 04-16038.
Argued and Submitted April 11, 2005 San Francisco, California.
May 5, 2008.
Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding D.C. No. CV-00-02253-VRW.
Before: FERGUSON, NOONAN, and RYMER, Circuit Judges.
Before: FERGUSON, NOONAN, and RYMER, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Maria Socorro Agasino, a native of the Philippines, appeals the district court's judgment denying her habeas corpus petition pursuant to 28 U.S.C. § 2241. We construe her habeas petition as if it were a timely-filed petition for review with this court. Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 (9th Cir. 2005). So construed, we deny the petition.
Agasino challenges her removal on the footing that retroactive application of IIRIRA's aggravated felony definition violates due process, and that IIRIRA's repeal of the discretionary relief from deportation previously available under INA § 212(c) is impermissibly retroactive when applied to crimes committed before the Act's effective date. She cites no relevant authority for the first proposition. In any event, it runs counter to long-standing recognition that Congress has power to legislate retroactively with respect to laws regarding deportation and discretionary relief from deportation. See, e.g., Galvan v. Press, 347 U.S. 522, 529-32 (1954); see also Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1108-09 (9th Cir. 2003); Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir. 2000); Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999); United States v. Yacoubian, 24 F.3d 1, 8 (9th Cir. 1994). Her second argument is foreclosed by United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).
The Illegal Immigration Reform and Immigrant Responsibility Act, Pub. Law No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996).
PETITION DENIED.
ORDER
The panel has unanimously voted to grant the petition for rehearing. The petition for rehearing is GRANTED.
The Memorandum Disposition filed August 24, 2005, is WITHDRAWN. A new memorandum disposition is filed simultaneously with this order.
I dissent because I believe that we reached the correct result in our initial disposition of this case, which the majority withdraws today. Agasino v. County of Santa Clara, No. 04-16038, 2008 WL ______. In our initial decision, we granted Agasino's petition for review based on the equal protection rationale that served as the foundation of our grant of relief in Cordes v. Gonzales, 421 F.3d 889 (9th Cir. 2005). Agasino v. Chertoff, No. 04-16038, 2005 WL 2033330 (9th Cir. Aug. 24, 2005). Cordes was subsequently vacated on jurisdictional grounds, see Cordes v. Mukasey, 517 F.3d 1094, 1095 (9th Cir. 2008), and the majority here chooses to abandon its reasoning. I continue to believe that denying Agasino the opportunity to apply for relief from removal while allowing similarly situated individuals that opportunity violates her equal protection rights. Accordingly, I would grant her petition for review.
Agasino, a native of the Phillippines, has been a lawful permanent resident ("LPR") of the United States since 1970. She entered a nolo contendere plea to grand theft embezzlement on March 10, 1997. At the time of her plea her crime was not considered an aggravated felony, and did not render her deportable.
Agasino entered her plea during the period between the effective dates of AEDPA and IIRIRA. Section 440(d) of AEDPA made LPRs who commit aggravated felonies ineligible for discretionary relief from removal under INA § 212(c). This change in itself had no effect on Agasino, as her crime was not an aggravated felony. Shortly after her plea, however, her crime was retroactively reclassified as an aggravated felony by IIRIRA, which took effect on April 1, 1997. See 8 U.S.C. § 1101(a)(43)(G). IIRIRA also replaced § 212(c) relief with cancellation of removal, a more restrictive form of relief unavailable to people with convictions for aggravated felonies. See 8 U.S.C. § 1229b(a)(3). With these changes in the law, Agasino was rendered both deportable and ineligible for relief, whereas at the time of her plea she had been neither.
The Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-32, 110 Stat. 1214 (April 24, 1996).
In INS v. St. Cyr, 533 U.S. 289, 326 (2001), the Supreme Court held that AEDPA's repeal of § 212(c) could not be retroactively applied to non-citizens who pled guilty to deportable offenses before the passage of AEDPA and were eligible at the time of their pleas for § 212(c) relief. Id. at 293. The Court held that applying the repeal of § 212(c) retroactively in such cases would be "contrary to familiar considerations of fair notice, reasonable reliance, and settled expectations." Id. at 323-24. In United States v. Velasco-Medina, this Court determined that St. Cyr's holding was inapplicable to LPRs like Agasino, who pled guilty to non-deportable offenses after AEDPA but before IIRIRA, and whose crime IIRIRA retroactively transformed into a deportable offense. 305 F.3d 839, 850 (9th Cir. 2002).
The combined effect of St. Cyr and Velasco-Medina produces a bizarre result. Had Agasino pled guilty to a crime that rendered her deportable at the time of her plea — one that was more severe, or that followed a prior conviction — she would have been eligible for § 212(c) relief under St. Cyr. Instead, because her crime was considered too minor at the time of her plea to carry any immigration consequences, she is ineligible for relief from removal today. LPRs with more serious or extensive criminal records, on the other hand, are able to apply for § 212(c) relief.
It is "wholly irrational" and a violation of the guarantee of equal protection to extend § 212(c) relief to LPRs who pled to deportable offenses but to withhold it from LPRs, like Agasino, who did not. See Mathews v. Diaz, 426 U.S. 67, 83 (1976). These two groups of LPRs facing deportation are similarly situated. The only difference between them is that one group pled to crimes that rendered them deportable at the time of the plea, while the other group became deportable retroactively. This distinction, however, is "irrelevant and fortuitous," as both are now subject to removal. See Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976) ("Fundamental fairness dictates that permanent resident aliens who are in like circumstances, but for irrelevant and fortuitous factors, be treated in a like manner.").
This Court's case law requires that similarly situated LPRs receive similar treatment under § 212(c). See Servin-Espinoza v. Ashcroft, 309 F.3d 1193, 1198 (9th Cir. 2002); Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981). There is no rational basis for denying § 212(c) relief to non-citizens who pled guilty to crimes that carried no immigration consequences, while making relief available to those non-citizens who committed more, or worse, crimes.
Finally, I note that Congress's aim in expanding the definition of aggravated felony and making that expansion retroactive was to increase the rate of removal of non-citizens who commit crimes, and reduce the availability of relief from removal. See H.R. Rep. No. 104-879, at 107-09 (1997). The combined effect of St. Cyr and Velasco-Medina is to increase only the number of less dangerous non-citizens subject to removal, while permitting more dangerous non-citizens to apply for relief.
Rather than upholding an irrational classification, as the majority does, I would grant Agasino's petition for review. Accordingly, I dissent.