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5 Cir: 212(c) relief available after jury trial if able to show “likelihood of reliance” on its existence rather than actual reliance

The U.S. Court of Appeals for the Fifth Circuit held that Carranza v. Holder, No. 11-60396, slip op. (5th Cir. Nov. 6, 2012) (Davis, Smith, and Dennis, JJ.). Judge Dennis wrote the panel’s decision.

This case involved an LPR convicted after a jury trial in 1993, three years before Congress repealed § 212(c) relief through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). She was convicted of possession of marijuana with intent to distribute. Carranza was automatically pardoned in 1994 because this was her first drug offense; the conviction was expunged in 1999. Carranza, No. 11-60396, slip op. at 2.

First INS then DHS argued that she was removable, and the IJ agreed. The BIA affirmed and, in response to Carranza’s claim for § 212(c) relief, “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, No. 11-60396, slip op. at 3. Relying on an earlier Fifth Circuit decision in Carranza’s case, this panel had no trouble moving past the question of whether her conviction after jury trial renders her ineligible; it doesn’t. As the panel put it, “we concluded in Carranza I [Carranza-De Salinas v. Gonzales, 477 F.3d 200 (5th Cir. 2007)] that, pursuant to Hernandez-Castillo [v. Moore], 436 F.3d 516 (5th Cir. 2006)], 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, No. 11-60396, slip op. at 4.

Given that the IJ concluded that Carranza failed to show actual reliance and the BIA affirmed, this would have been an easy case had it not been for the “game-changer” that the Supreme Court announced in Vartelas v. Holder, 132 S. Ct. 1479 (2012), to borrow the court’s characterization.

According to the Fifth Circuit’s reading of Vartelas, “[t]he Court explained that ‘the essential inquiry’ in determining whether a statute applies retroactively, ‘is whether the new provision attaches new legal consequences to events completed before its enactment.’” Carranza, No. 11-60396, slip op. at 8 (quoting Vartelas, 132 S. Ct. at 1491. Furthermore, “the Vartelas Court emphasized that the Court has never required a showing of reliance to demonstrate that a statute applies retroactively.” Carranza, No. 11-60396, slip op. at 9-10 (discussing Vartelas, 132 S. Ct. at 1490). Instead, “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.’” Carranza, No. 11-60396, slip op. at 9-10 (discussing Vartelas, 132 S. Ct. at 1491).

This is a significant change that benefits noncitizens. Instead of having to show that they actually relied on § 212(c)’s existence to put off seeking relief from removal, as the Fifth Circuit had previously required, Carranza suggests a much lower standard: a “likelihood” that they relied on the existence of § 212(c) relief. Under this standard, Carranza, the court concluded, was entitled to move forward with her request for § 212(c) relief.

Comments

  1. I’m currently working on a Motion to Reopen for an individual denied the opportunity to apply for 212(c) relief right after the law changed in 2001. He was detained, filed his motion to reopen pro se and the IJ in Houston decided that his motion was “untimely.” My client was deported and subsequently re-entered illegally after deportation. The memo clearly says that someone who is deported and reenters and ineligible, but it does not address IJ error.

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