Perriello v. Napolitano, No. 05-2868 (2d Cir. 2009)

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05-2868-ag Perriello v. Napolitano 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: June 2, 2009 Decided: September 1, 2009) Docket No. 05-2868-ag - - - - - - - - - - - - - - - - - - - - - -x SAVARIO PERRIELLO, Petitioner, -v.- 05-2868-ag JANET NAPOLITANO; JOHN T. MORTON, Asst. Secretary, United States Immigration and Customs Enforcement; CHRISTOPHER SHANAHAN, Field Office Director of New York City, U.S. Immigration and Customs Enforcement, Department of Homeland Security; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, * Respondents. - - - - - - - - - - - - - - - - - - - - - -x 31 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary Janet Napolitano of the Department of Homeland Security is automatically substituted for former Secretary Tom Ridge; Assistant Secretary John T. Morton of the Department of Homeland Security is automatically substituted for former Assistant Secretary Michael J. Garcia; and Field Office Director Christopher Shanahan is automatically substituted for former Field Office Director John P. Carbone as respondents in this case. 1 2 3 4 Before: JACOBS, Chief Judge, KEARSE and SACK, Circuit Judges. Petitioner Savario Perriello seeks review of a December 5 17, 2004 decision of the Board of Immigration Appeals 6 finding him ineligible for relief from removal. 7 argues for termination of his removal proceedings pursuant 8 to 8 C.F.R. § 1239.2(f) and a waiver of inadmissibility 9 pursuant to former Immigration and Nationality Act § 212(c) . 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Perriello The petition is denied. MATTHEW L. GUADAGNO (Ruchi Thaker, Jules E. Coven, Kerry W. Bretz on the brief), Bretz & Coven LLP, New York, New York, for Petitioner . NATASHA OELTJEN, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney on the brief) for Lev L. Dassin, Acting United States Attorney for the Southern District of New York, New York, New York , for Respondents. DENNIS JACOBS, Chief Judge: Petitioner Savario Perriello, a native and citizen of 29 Italy and a lawful permanent resident of the United States, 30 seeks review of a December 17, 2004 order of the Board of 31 Immigration Appeals ( BIA ) affirming the August 30, 2002 32 decision of Immigration Judge ( IJ ) Robert D. Weisel 2 1 finding Perriello inadmissible and ordering him removed to 2 Italy. 3 Dec. 17, 2004), aff g No. A 12 363 855 (Immig. Ct. N.Y. City 4 Aug. 30, 2002). 5 removal proceedings pursuant to 8 C.F.R. § 1239.2(f) 1 and a 6 waiver of inadmissibility pursuant to former Immigration and 7 Nationality Act ( INA ) § 212(c) . 8 9 In re Savario Perriello, No. A 12 363 855 (B.I.A. Perriello argues for termination of his We acknowledge the significant hardship that Perriello and his family will face as a result of the unaccountable 10 delay in the decision to seek his removal decades after his 11 conviction, and notwithstanding his evidently lawful and 12 productive life in the interval. 13 that [i] Perriello is not entitled to relief under 14 § 1239.2(f) (which has been rendered vestigial by revisions 15 to the INA), because he has not established prima facie 16 eligibility for naturalization, and [ii] that he is barred 17 from relief under INA § 212(c) by virtue of § 511(a) of the 18 Immigration Act of 1990 ( IMMACT ), Pub. L. No. 101-649, 19 § 511(a), 104 Stat. 4978, 5052. 20 is denied. Nonetheless, we conclude Accordingly, the petition 21 1 Unless otherwise noted, all citations to statutes and regulations refer to the current versions as of the filing of this opinion. 3 1 2 I Perriello first entered the United States on December 3 27, 1961, when he was thirteen years old. 4 1977, Perriello was convicted by a jury of Arson in the 5 Second Degree in violation of New York Penal Law § 150.15 6 and eight counts of Criminal Mischief in the Second Degree 7 in violation of New York Penal Law § 145.10. 8 sentenced to a term of seven to twenty-five years in prison, 9 and he served seven years before his release on parole in 10 11 On December 28, Perriello was 1984. After his release from prison, Perriello started a 12 business and contributed to his community. 13 married a United States citizen in 1991, and he has four 14 United States citizen children. 15 operate a restaurant in Haverstraw, New York. 16 Perriello Perriello and his wife On November 28, 2000, Perriello was detained at Newark 17 Airport on his return from a brief trip to Italy. 18 Immigration and Naturalization Service ( INS ),2 having 19 discovered Perriello s 1977 conviction, paroled him into the 2 The Effective March 1, 2003, the INS ceased to exist. The Department of Homeland Security has assumed responsibility for the immigration functions formerly performed by INS. See Ali v. Mukasey, 529 F.3d 478, 482 n.4 (2d Cir. 2008). 4 1 country pending a determination of his admissibility. 2 February 13, 2001, the INS issued a Notice to Appear and 3 placed Perriello in removal proceedings based on his 1977 4 conviction for a crime involving moral turpitude. 5 On Perriello admitted the allegations contained in the 6 Notice to Appear, but sought to avoid removal by filing an 7 application for naturalization and moving for termination of 8 his removal proceedings pursuant to 8 C.F.R. § 1239.2(f), 9 which permits an IJ to terminate removal proceedings while 10 an application for naturalization is pending. 11 declined to terminate the removal proceedings and ordered 12 Perriello removed on August 30, 2002. 13 December 17, 2004. 14 The IJ The BIA affirmed on On February 22, 2005, Perriello challenged the BIA s 15 decision in a habeas corpus petition filed in the Southern 16 District of New York . 17 Congress enacted section 106(a)(1) of the Real ID Act of 18 2005 ( Real ID Act ), Pub. L. No. 109-13, Div. B, 19 § 106(a)(1)(B), 119 Stat. 231, 310, which provides that a 20 petition for review filed with an appropriate court of 21 appeals . . . shall be the sole and exclusive means for 22 judicial review of an order of removal. While the petition was pending, 5 The district court 1 transferred Perriello s habeas petition to this Court 2 pursuant to Real ID Act § 106(c), which requires that any 3 habeas petition [i] challenging an order of removal, and 4 [ii] pending in district court on the date of the Act s 5 enactment, be transferred to the appropriate court of 6 appeals. 7 8 9 II By virtue of 8 C.F.R. § 1239.2(f), 3 an IJ may terminate 10 removal proceedings to permit an alien who has established 11 prima facie eligibility for naturalization to proceed to a 12 final hearing on a pending naturalization application. 13 The BIA has held, however, that an IJ may not terminate 3 The current text of the regulation is: An immigration judge may terminate removal proceedings to permit the alien to proceed to a final hearing on a pending application or petition for naturalization when the alien has established prima facie eligibility for naturalization and the matter involves exceptionally appealing or humanitarian factors; in every other case, the removal hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any state of the proceedings. 8 U.S.C. § 1239.2(f). 6 1 removal proceedings unless the alien has obtained an 2 affirmative communication from the Department of Homeland 3 Security ( DHS ) stating that the alien is prima facie 4 eligible for naturalization. See In re Hidalgo, 24 I. & N. 5 Dec. 103, 106 (B.I.A. 2007) . But nothing seems to compel 6 DHS to make such a determination, let alone to issue such a 7 communication. 8 one), DHS is prohibited by statute from considering a 9 naturalization application (a prerequisite to determining Moreover, in many cases (including this 10 prima facie eligibility) while removal proceedings are 11 pending. 12 The law, in effect, seems to be chasing its tail. We review de novo Perriello s claim that the IJ and BIA 13 erred as a matter of law in denying relief from removal. 14 See, e.g., Ibragimov v. Gonzales, 476 F.3d 125, 132 (2d Cir. 15 2007). 16 its own regulations, and the BIA s interpretation will be 17 controlling unless plainly erroneous or inconsistent with 18 the regulation. 19 (internal quotation marks omitted); see also Bah v. Mukasey, 20 529 F.3d 99, 110-11 (2d Cir. 2008). 21 22 But we owe deference to the BIA s interpretation of Auer v. Robbins, 519 U.S. 452, 461 (1997) In order to analyze Perriello s arguments and to appreciate the anomaly that complicates the analysis, it is 7 1 necessary to describe the evolution of the statutes and 2 regulations relevant to this appeal. 3 A. 4 Naturalization and Removal Law Before 1990 From 1906 until 1990, an application for naturalization 5 was reviewed in two stages. 6 379, 385 (4th Cir. 2007); Admin. Naturalization, 56 Fed. 7 Reg. 50475, 50476 (Oct. 7, 1991). 8 General considered the application and made a recommendation 9 to the naturalization court as to the alien s prima facie See Etape v. Chertoff, 497 F.3d First, the Attorney 10 eligibility for naturalization. 11 (1988). 12 open court before a judge or judges. 13 (1988). 14 [e]xclusive jurisdiction to naturalize persons as citizens 15 of the United States. 4 See 8 U.S.C. § 1446(a)-(d) The second stage was a final hearing held in 8 U.S.C. § 1447(a) Under this system, courts were vested with 8 U.S.C. § 1421(a) (1988). 16 Until 1990, naturalization authority and removal 17 authority were vested in different branches of government, 18 with naturalization being the province of the courts and 4 Courts with authority to naturalize aliens included United States district courts and also all courts of record in any State or Territory . . . having a seal, a clerk, and jurisdiction in actions at law or equity, or law and equity, in which the amount in controversy is unlimited. 8 U.S.C. § 1421(a) (1988). 8 1 removal the province of the executive acting through the 2 Attorney General. 3 (2d Cir. 2008). 4 deportation and naturalization processes . . . proceed[ing] 5 along together until either petitioner s deportation or 6 naturalization ipso facto terminated the possibility of the 7 other occurring. 8 543 (1955). 9 Ajlani v. Chertoff, 545 F.3d 229, 235 Prior to 1950, this led to both the Shomberg v. United States, 348 U.S. 540, In 1950, Congress put an end to this race between the 10 alien to gain citizenship and the Attorney General to deport 11 him, id. at 544, by enacting section 27 of the Internal 12 Security Act of 1950, Pub. L. No. 81-831, § 27, 64 Stat. 13 987, 1015, reenacted without significant change by 14 Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 15 § 318, 66 Stat. 163, 244 (codified as amended at 8 U.S.C. 16 § 1429). 17 proceedings, Ajlani, 545 F.3d at 239, and prohibited 18 naturalization or the holding of final hearings on 19 naturalization petitions where deportation proceedings were 20 instituted, Shomberg, 540 U.S. at 544. 21 who had successfully navigated the first stage of the 22 naturalization process, and were thus prima facie eligible That statute afforded [priority to] removal 9 As a result, aliens 1 for naturalization, were in limbo because courts were 2 prohibited from conducting final hearings on their 3 applications. 4 BIA held, in Matter of B-, 6 I. & N. Dec. 713, 720 (B.I.A. 5 1955), that there exists inherent authority in the Attorney 6 General to terminate deportation proceedings for the limited 7 purpose of permitting the alien to file a petition for 8 naturalization and to be heard thereon by a naturalization 9 court. 10 To provide such aliens access to court, the In 1974, the BIA s decision in Matter of B- was adopted 11 in the regulation now found at § 1239.2(f). 12 provided, in relevant part: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 The regulation A[n immigration judge] may, in his discretion, terminate deportation proceedings to permit respondent to proceed to a final hearing on a pending application or petition for naturalization when the respondent has established prima facie eligibility for naturalization and the case involves exceptionally appealing or humanitarian factors; in every other case, the deportation hearing shall be completed as promptly as possible notwithstanding the pendency of an application for naturalization during any stage of the proceedings. 8 CFR § 242.7 (1974). Soon after, in Matter of Cruz, 15 I. & N. Dec. 236 10 1 (B.I.A. 1975), the BIA considered the regulation s 2 requirement that an alien ha[ve] established prima facie 3 eligibility for naturalization. 4 held that neither [it] nor immigration judges have 5 authority with respect to the naturalization of aliens, and 6 concluded therefore that the alien must establish prima 7 facie eligibility by adducing an affirmative communication 8 from the [INS] or . . . a declaration of a court that the 9 alien would be eligible for naturalization but for the Id. at 236-38. The BIA 10 pendency of the deportation proceedings or the existence of 11 an outstanding order of deportation. 12 B. 13 Id. at 237. Naturalization and Removal Law After 1990 With the passage of IMMACT in 1990, Congress 14 substantially reformed the naturalization process. Two 15 features of that reform are relevant to this case. First, 16 IMMACT eliminated final hearing[s] . . . in open court, 17 IMMACT § 407(d)(14), 104 Stat. at 5044, and established that 18 [t]he sole authority to naturalize persons as citizens of 19 the United States is conferred upon the Attorney General, 20 id. § 401(a), 104 Stat. at 5038 (codified at 8 U.S.C. 11 1 § 1421(a)).5 2 streamlined the naturalization process and provided for 3 comprehensive review of applications by immigration officers 4 empowered to grant or deny naturalization. 5 § 407(d)(13)(E), 104 Stat. at 5043 (codified at 8 U.S.C. 6 § 1446(d)); see also Etape, 497 F.3d at 385-86. 7 To implement this shift in authority, IMMACT Id. Second, IMMACT froze the processing of naturalization 8 applications while removal proceedings are pending. 9 IMMACT, the Attorney General had an unrestricted ability to Before 10 review naturalization applications notwithstanding the 11 pendency of removal proceedings: only courts were prohibited 12 from conducting final hearings. 13 § 1429 to provide that no person shall be naturalized 14 against whom there is outstanding a final finding of 15 deportability . . . and no application for naturalization 16 shall be considered by the Attorney General if there is 5 IMMACT, however, amended IMMACT preserved a role for federal courts in the naturalization process: after exhausting administrative remedies, [an alien] may petition for de novo review in the district court. See Etape, 497 F.3d at 386 (citing 8 U.S.C. § 1421(c)). An alien may also seek relief in district court if DHS fails to act on a naturalization application within 120 days of an alien s examination by an immigration officer. See 8 U.S.C. § 1447(b). Additionally, naturalization courts continue to administer the oath of allegiance to new citizens. See 8 U.S.C. § 1421(b). 12 1 pending against the applicant a [removal] proceeding. 2 IMMACT § 407(d)(3), 104 Stat. at 5041 (codified as amended 3 at 8 U.S.C. § 1429 (Supp. II 1990)) (emphasis added). 4 C. 5 The Application of § 1239.2(f) After IMMACT After IMMACT, courts considered the continued viability 6 of § 1239.2(f), as interpreted by the BIA in Cruz. 7 circuit courts of appeal questioned whether the BIA could 8 continue to rely on courts to issue declarations as to prima 9 facie eligibility for naturalization in light of the 10 language in § 1421(a) granting the Attorney General 11 exclusive jurisdiction over naturalization applications. 12 See, e.g., Saba-Bakare v. Chertoff, 507 F.3d 337, 341 (5th 13 Cir. 2007); De Lara Bellajaro v. Schiltgen, 378 F.3d 1042, 14 1047 (9th Cir. 2004); Zayed v. United States, 368 F.3d 902, 15 907 & n.6 (6th Cir. 2004). 16 questioned whether the Attorney General could consider 17 naturalization applications for the limited, administrative 18 purpose of terminating removal proceedings in light of the 19 bar in § 1429. 20 470, 472 (3d Cir. 2004). 21 22 Several And at least one circuit Apokarina v. Ashcroft, 93 Fed. App x 469, In 2007, the BIA reconsidered Cruz and overruled the decision insofar as it contemplated that aliens would obtain 13 1 declarations from courts as to prima facie eligibility for 2 naturalization. 3 concluded that courts no longer had jurisdiction to provide 4 such declarations, in light of § 1421. 5 Hidalgo, 24 I. & N. Dec. at 105. The BIA Id. Nonetheless, the BIA reaffirmed its instruction that 6 the Board and . . . Immigration Judges . . . require some 7 form of affirmative communication from the DHS prior to 8 terminating proceedings based on [an alien s] pending 9 naturalization application. Id. at 106. In doing so, the 10 BIA did not take into account IMMACT s revisions to § 1429, 11 which limited administrative review of naturalization 12 applications while removal proceedings are pending. 13 Likewise, the Attorney General (and DHS) failed to conform 14 the antiquated language in § 1239.2(f), which has caused 15 inconsistency. 6 In some cases (such as this one), DHS has 6 In 1997, INS made technical changes to the language of the regulation after passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ( IIRIRA ), Pub. L. 104-208, Div. C, 110 Stat. 3009, 3009-546 et seq. Specifically, INS replaced the word deportation with the word removal in two places. Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10367 (March 6, 1997). Although the agency revised the regulation to reflect changes in IIRIRA, it never revised the regulation in response to IMMACT, and the regulation remains inconsistent with that statute. 14 1 adjudicated naturalization applications while aliens have 2 awaited termination of their removal proceedings, 3 notwithstanding the bar in § 1429. 4 507 F.3d at 339; Hidalgo, 24 I. & N. Dec. at 106-07. 5 other cases, IJs have determined prima facie eligibility for 6 naturalization, notwithstanding the BIA s holding in Cruz 7 that they lack jurisdiction to do so. 8 Holmes, 334 F.3d 189, 191-92 (2d Cir. 2003); Fretas v. 9 Hansen, No. 1:06CV1475, 2008 WL 4404276, at *1 (N.D. Ohio See, e.g., Saba-Bakare, In See, e.g., Nolan v. 10 Sep. 23, 2008). 11 prima facie eligibility has been made by anybody, leaving 12 aliens to pursue writs of mandamus in an effort to compel 13 DHS to produce affirmative statement[s] as to prima facie 14 eligibility. 15 No. C 08-2361 RS, 2008 WL 3916030, at *1-2 (N.D. Cal. Aug. 16 25, 2008); Escobar-Garfias v. Gonzales, No. 06-CV-103-BR, 17 2007 WL 281657, at *2 (D. Or. Jan. 26, 2007); Fuks v. 18 Devine, No. 05 C 5666, 2006 WL 2051321, at *2-4 (N.D. Ill. 19 July 20, 2006). 20 And in yet other cases, no determination of See, e.g., Sandoval-Valenzuela v. Gonzalez, One of these cases is edifying, at least to illustrate 21 the prevailing muddle. 22 the Attorney General, ordering him to perform his legal duty A writ of mandamus was sought to 15 1 and prevent different parts of the Department of Justice 2 from adopting conflicting view[s] of Cruz. 3 4404276, at *2. 4 concluded that it lacked jurisdiction over Fretas 5 application because of § 1429, but nonetheless advised that 6 Fretas was not prima facie eligible for naturalization. 7 An IJ had previously ruled that Fretas was prima facie 8 eligible for naturalization, but the BIA reversed, holding 9 that Cruz prohibited the IJ from making that determination. 10 D. The alien sought this relief after DHS Id. Id. at *1. 11 Fretas, 2008 WL Perriello s Motion to Terminate Removal Proceedings 12 In this case, the IJ denied Perriello s motion to 13 terminate the removal proceedings on the ground that he had 14 not obtained an affirmative communication from [INS] 15 regarding [his] naturalization eligibility. 16 could not provide an affirmative communication, because 17 § 1429 prohibited it from considering Perriello s 18 naturalization application while removal proceedings were 19 pending. But the agency 20 The effect of IMMACT is that aliens can no longer do 21 what Perriello did in this case: apply for naturalization 22 after removal proceedings have commenced and then move for 16 1 termination of the removal proceedings. 7 2 proceedings are in progress, DHS is barred by IMMACT from 3 considering an alien s application; so it will be impossible 4 for an alien to establish prima facie eligibility for 5 naturalization. 8 6 Once removal Perriello argues that it is unnecessary for him to 7 obtain a statement from DHS, because IJs and the BIA may 8 make prima facie determinations as to eligibility for 9 naturalization. 10 Perriello is mistaken for two reasons. First, the BIA determined in Hidalgo that it and IJs 11 lack jurisdiction to make prima facie determinations of 12 eligibility for naturalization. 13 consistent with § 1421(a), which states that [t]he sole 14 authority to naturalize persons as citizens of the United 15 States is conferred upon the Attorney General. The BIA s conclusion is We owe 7 In Nolan, 334 F.3d at 193-204, we considered the petitioner s prima facie eligibility for naturalization. In Nolan, neither party raised the question whether IMMACT limited our review, and the question therefore was not considered, let alone decided. Moreover, Nolan involved an application for naturalization under INA § 329, which exempts veterans who have served during periods of military hostilities from the bar in § 1429. See 8 U.S.C. § 1440(b)(1). 8 We need not decide on this appeal whether, and in what circumstances, an alien could benefit from § 1239.2(f) if she has a naturalization application pending at the time removal proceedings commence. 17 1 deference to the BIA s conclusions about the scope of its 2 jurisdiction under the immigration laws, and the BIA s 3 holding is neither plainly erroneous [n]or inconsistent 4 with the regulation. 5 quotation marks omitted). 6 Auer, 519 U.S. at 461 (internal Second, the plain language of § 1429 prohibits the 7 Attorney General from considering naturalization 8 applications while removal proceedings are pending, and we 9 have held that district court authority [under 8 U.S.C. 10 § 1447(b)] to grant naturalization relief while removal 11 proceedings are pending cannot be greater than that of the 12 Attorney General, Ajlani, 545 F.3d at 240. 13 if the Attorney General and district courts were barred from 14 considering naturalization applications while removal 15 proceedings are pending, yet the BIA and IJs--who have no 16 jurisdiction over such applications in any case--were not. 17 Perriello also argues that this Court should not It would be odd 18 interpret the regulation in a way that restricts its benefit 19 to aliens. 20 regulation that now conflicts, at least in part, with the 21 underlying statute. 22 around the country, the failure of DHS to amend § 1239.2(f) But it is not a judicial role to save a As reflected in federal court decisions 18 1 has made for considerable confusion. 2 Congress to reconcile the regulation with the INA. 3 It is for DHS or For the foregoing reasons, we affirm the denial of 4 relief under § 1239.2(f), on the ground that Perriello has 5 not (and cannot) establish prima facie eligibility for 6 naturalization. 9 7 8 9 III Perriello also claims that he is eligible for a waiver 10 of inadmissibility pursuant to former INA § 212(c). 11 section provided that: 12 13 14 15 16 17 18 That Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General 9 Perriello points out that DHS s denial of his naturalization application (while his appeal was pending before the BIA) was without prejudice, and argues that the willingness to leave open the prospect of future proceedings amounts to an affirmative statement that he is prima facie eligible for naturalization. Accordingly, he contends that the BIA should have remanded his motion for termination of the removal proceedings to the IJ for further consideration. But especially considering that DHS was prohibited from ruling on Perriello s naturalization application while removal proceedings were pending, denial without prejudice does not signify a ruling on prima facie eligibility one way or another. 19 1 2 3 4 Buitrago-Cuesta v. I.N.S., 7 F.3d 291, 292 (2d Cir. 1993) 5 (quoting 8 U.S.C. § 1182(c)). 6 without regard to the provisions [setting forth various grounds for exclusion]. However, the class of aliens eligible for relief under 7 § 212(c) was narrowed by IMMACT § 511(a), 104 Stat. at 5052, 8 which precludes an alien who has been convicted of an 9 aggravated felony and has served a term of imprisonment of 10 at least 5 years from relief under § 212(c). 11 Buitrago-Cuesta, we ruled that § 511(a) applies 12 retroactively to aliens convicted of aggravated felonies 13 before the statute was enacted. 14 plain language of the statute indicates a congressional 15 intent that § 511 apply retroactively. 16 7 F.3d at 295. In [T]he Id. Perriello argues that under Restrepo v. McElroy, 369 17 F.3d 627 (2d Cir. 2004), his reliance on the continuing 18 availability of § 212(c) during the period between his 19 release from prison and the enactment of § 511(a) precludes 20 the retroactive application of § 511(a) in his case. 21 Restrepo held that ambiguity in the Antiterrorism and 22 Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 23 110 Stat. 1214--which barred certain aliens, including those 24 convicted of aggravated felonies, from obtaining § 212(c) 20 1 relief--precludes retroactive application of that statute to 2 aliens who delayed proactively seeking § 212(c) relief 3 because they believed such relief would be available in the 4 future. 5 369 F.3d at 638. Restrepo is of no help to Perriello, because we held in 6 Buitrago-Cuesta that § 511(a) unambiguously applies 7 retroactively.10 8 520 F.3d 119, 123 (2d Cir. 2008) (per curiam) (restating 9 Buitrago-Cuesta s holding that the plain language of IMMACT 7 F.3d at 295; see also Singh v. Mukasey, 10 indicates a congressional intent that § 511 apply 11 retroactively (internal quotation marks and brackets 12 omitted)); Thom v. Ashcroft, 369 F.3d 158, 163 n.7 13 (observing that Restrepo had no impact on Buitrago-Cuesta s 14 holding with respect to aliens convicted after trial); Reid 15 v. Holmes, 323 F.3d 187, 188 (2d Cir. 2003) (per curiam) 16 (noting that Buitrago-Cuesta clearly established that 17 § 511(a) of the Immigration Act of 1990 could be applied 18 retroactively to aliens whose criminal convictions pre-dated 10 Restrepo itself did not involve § because [t]he record d[id] not indicate [Restrepo s] term of imprisonment. 369 Also, Restrepo was convicted in 1992 and removal proceedings in 1996, id. at 630, for the agency to rely on § 511(a). 21 511(a), presumably the length of F.3d at 630 n.1. INS initiated which was too soon 1 the statute s enactment ). 2 we are bound by the clear intent of Congress. 3 v. USI Film Prods., 511 U.S. 244, 280 (1994) (holding that 4 courts must defer to express congressional prescriptions in 5 determining the retroactivity of civil statutes). 6 conclude that Restrepo is inapplicable to an alien convicted 7 of an aggravated felony at trial who is barred by § 511(a) 8 from obtaining § 212(c) relief.11 9 When a statute is unambiguous, See Landgraf We For the foregoing reasons, the petition is denied. 11 Because Perriello was convicted after a jury trial, we express no view as to the possible retroactivity of § 511(a) to aliens who were convicted pursuant to plea agreements. See 8 C.F.R. § 1212.3(f)(4)(ii) ( An alien is not ineligible for section 212(c) relief on account of an aggravated felony conviction entered pursuant to a plea agreement that was made before [the enactment of § 511(a)]. ). 22

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