9th Cir: 212(c) relief remains available for guilty pleas even if ineligible when plea entered

The U.S. Court of Appeals for the Ninth Circuit recently held that relief pursuant to former INA § 212(c) remains available to individuals who pled guilty prior to its 1996 repeal. Gallegos-Vasquez v. Holder, No. 05-72412, slip op. (March 1, 2011) (Cudahy, Wardlaw, and Fletcher). Judge Fletcher wrote the panel’s opinion.

This case involves an individual who was convicted of two misdemeanors, receiving known stolen property and hit and run with property damage, in July 1989. Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 2991. He automatically adjusted to LPR status in December 1990 pursuant to the Special Agricultural Worker program. Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 2992 (discussing 8 USC §§ 1160(a)(2), (a)(3), 1161(d)(1)).

The BIA held that there was insufficient evidence to show that Gallegos-Vasquez pled guilty and, even if he did plead guilty, “he did not have a settled expectation of the availability of § 212(c) relief when he entered his pleas.” Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 2296.

The Ninth Circuit disagreed on both grounds. It had little troubling concluding, based on the plea colloquy, “that his misdemeanor convictions were based on guilty pleas.” Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 2997. In a somewhat annoyed tone, the Court explained that the BIA had assumed Gallegos-Vasquez pled guilty in order to have him ordered removed based solely on his attorney’s statements, thus “[t]he government cannot now contend that Gallegos-Vasquez’s statements through counsel about these same convictions should be disregarded.” Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 2998.

The Ninth Circuit then turned to the non-citizen’s reliance on § 212(c) relief at the time he entered his guilty pleas. The Court emphasized that in INS v. St. Cyr, 533 U.S. 289 (2001), in which the Supreme Court held that § 212(c) relief remains available for some individuals who were convicted prior to its 1996 repeal, reliance was evident from the fact that the convictions rendered St. Cyr deportable at the moment of conviction: “When St. Cyr pled guilty, his plea made him immediately deportable. His reliance at the time of his plea on the availability of relief under § 212(c) was therefore evident.” Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 3000.

Even though “[a]t the time of his plea, Gallegos-Vasquez was not immediately eligible for § 212(c) relief,” because he was not an LPR he could anticipate that if he became an LPR via the automatic adjustment provision—which is, in fact, how he became an LPR—“and if he stayed in the United States until 1994, he would become eligible for § 212(c) relief.” Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 3002. This, the Ninth Circuit determined, was sufficient basis upon which to conclude that “Gallegos-Vasquez…had a settled expectation of the availability of § 212(c) relief at the time he plead guilty to hisdeportable offense in  September 1989.” Gallegos-Vasquez v. Holder, No. 05-72412, slip op. at 3003.