Paul Taylor v. Eric Holder, Jr., No. 12-1519 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1519 PAUL IGNATIUS TAYLOR, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent, ---------------------------------------IMMIGRANT DEFENSE PROJECT; NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Amici Supporting Petitioner. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: November 20, 2012 Decided: January 7, 2013 Before KEENAN, WYNN, and DIAZ, Circuit Judges. Petition denied by unpublished per curiam opinion. Dean E. Wanderer, DEAN E. WANDERER & ASSOCIATES, Fairfax, Virginia, for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Daniel E. Goldman, Senior Litigation Counsel, Jem C. Sponzo, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Trina Realmuto, Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, Boston, Massachusetts. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Paul Ignatius Taylor, a native and citizen of Jamaica, petitions for review of the Board of Immigration Appeals ( Board ) order dismissing his appeal of the immigration judge s ( IJ ) order, which granted the Attorney General s motion to pretermit Taylor s application for cancellation of removal, on the basis that Taylor was statutorily ineligible for that relief by operation of the stop-time § 1229b(d)(1)(B) (2006). not err in ruling rule embodied in 8 U.S.C. Because we conclude that the Board did that the permanent stop-time rule is retroactively applicable to Taylor s 1980s-era convictions, we deny the petition for review. Under generally removal 8 lacks of an U.S.C. § 1252(a)(2)(C) jurisdiction alien to convicted review of (2006), the certain this final court order enumerated of crimes, including controlled substance offenses referenced in 8 U.S.C. § 1227(a)(2)(B) (2006). committed a deportable under retains controlled otherwise of does substance law to raised unreviewable review in a not dispute offense, § 1227(a)(2)(B). jurisdiction questions Taylor rendering Nevertheless, constitutional petition deportation for order. that this him court claims review 8 he of or an U.S.C. § 1252(a)(2)(D) (2006); see Turkson v. Holder, 667 F.3d 523, 526-27 (4th Cir. 2012). We 3 review the Board s legal determinations de novo, generally giving deference interpretations of its own governing regulations. F.3d at 527. there is no to its Turkson, 667 Where the statutory text is unambiguous, however, unclarity over which the agency may assert its interpretive prerogative, and deference to its interpretation is therefore unwarranted. Cir. 2011), cert. Salem v. Holder, 647 F.3d 111, 115 (4th denied, 132 S. Ct. 1000 (2012); see also INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001). Taylor primarily challenges the Board s conclusion that the permanent stop-time rule retroactively applies to him. The relevant facts are well-known to the parties. In short, fewer than six years after he entered the United States as a lawful permanent resident, Taylor pled guilty in 1980 and in 1981 to two controlled substance offenses. Although at least his 1980 conviction rendered him deportable, Taylor remained in the United States. controlled substance In 2007, he committed two more deportable offenses. Deportation commenced, and Taylor conceded removability. proceedings were Although Taylor applied for cancellation of removal under 8 U.S.C. § 1229b(a) (2006), the IJ granted the Attorney General s pretermit the application, citing the stop-time rule. motion to According to the IJ, Taylor s period of continuous residence stopped with the commission of his 1980 offense, rendering him bereft of the seven years of continuous residence required under § 1229b(a)(2) 4 for eligibility for cancellation of removal. Board agreed with the IJ s assessments. On appeal, the Taylor then filed this petition for review. Taylor concedes that if the stop-time rule applies to his case, he continuous does not possess residence. the So requisite attempts he seven to years evade of the straightforward application of the stop-time rule by observing that it came into effect only with the introduction of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 a decade and a half after he had pled guilty to the offenses that now trigger the stop-time rule. According to Taylor, the stop-time rule may not be applied retroactively to give his previous convictions an effect that he did not contemplate at the time of his pleas. the Supreme against Court has retroactive prospective in explained, legislation: application instructed retroactivity. unless there is a [C]ourts Congress has As presumption read laws as unambiguously Vartelas v. Holder, 132 S. Ct. 1479, 1486 (2012). The retroactively intent. determination is an whether exercise in a statute deciphering applies Congressional Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). It involves two steps. Congress has First, the court must determine whether expressly prescribed 5 the statute s proper Appiah v. INS, 202 F.3d 704, 708 (4th Cir. 2000) reach. (quoting Landgraf, 511 U.S. at 280). If Congress has done so, this is the end of the analysis and there is no need to resort to judicial default rules. 280). Id. (quoting Landgraf, 511 U.S. at Where, by contrast, the statute does not contain explicit language reflecting determine whether Congressional the statute intent, would the have court must impermissible retroactive effect; that is, if it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. St. Cyr, 533 U.S. at 320, 321 (internal quotation marks omitted). While likelihood of reliance on prior law strengthens the case for reading a newly enacted law prospectively, the presumption against retroactive application does not require a showing of detrimental reliance. Vartelas, 132 S. Ct. at 1491. Instead, [t]he essential inquiry . . . is whether the new provision attaches new legal consequences to events completed before 270). its enactment. If the statute Id. (quoting would Landgraf, operate 511 U.S. retroactively, at our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result. 511 U.S. at 280. 6 Landgraf, In our view, even if the relevant statutory language is silent permanent as to stop-time Congressional rule to intent, * Taylor s application circumstances the would not St. Cyr, 533 U.S. have an impermissible retroactive effect. at 320. of Despite the fact that Taylor claims that he pled guilty to his 1980s-era offenses in reliance on the availability of a waiver under former Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (1976), it is apparent that he cannot have done Cf. St. Cyr, 533 U.S. at 321-26. so. Simply put, he was not eligible for such relief at the time of his guilty pleas. There is no dispute that, at the time of his conviction, his 1980 See 8 controlled substance offense was a deportable offense. U.S.C. § 1251(a)(11) (1976). offense fewer than six And given that he committed his years after arriving in the United States, Taylor was not eligible at the time of his conviction to apply for a § 212(c) waiver, because such a waiver required permanent residents to possess at least seven consecutive years of lawful unrelinquished domicile. * 8 U.S.C. § 1182(c) We take no position as to whether our reasoning in Appiah, 202 F.3d at 708-09, which ruled on the retroactivity of the transitional stop-time rule, controls the result here. See Martinez v. INS, 523 F.3d 365, 371 (2d Cir. 2008) (describing the difference between the permanent and transitional stop-time rules); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1199-200 (9th Cir. 2006); Heaven v. Gonzales, 473 F.3d 167, 174 (5th Cir. 2006). 7 (1976); see also St. Cyr, 533 U.S. at 294-96 (discussing the relief available under § 212(c)). Because Taylor was not eligible for discretionary relief under § 212(c) at the time of his 1980 offense, application legal of it the cannot permanent disability conviction. permanent on be the case stop-time the that rule imposes fact of See Martinez, 523 F.3d at 374. stop-time rule does not retroactive have any new Taylor s Accordingly, the an impermissible See Vartelas, 132 S. retroactive effect when applied to Taylor. Ct. at 1490-92; St. Cyr, 533 U.S. at 321-26. Finally, to the extent that Taylor asserts that his brief exit restarted from his and reentry ability to into accrue the United the States requisite in 1984 period of continuous residency, we decline his invitation to overturn the Board s rejection of his argument. 685 F.3d 318, 323-25 (3d Cir. See Nelson v. Attorney Gen., 2012) (upholding Board s conclusion that reentry did not restart the clock ). Accordingly, dispense with oral we deny argument the petition because the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 8

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