Garrido-Morato v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
April 24, 2007
Charles R. Fulbruge III
Clerk
REVISED May 4, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 05-60555
_____________________
MIRIAM GARRIDO-MORATO,
Petitioner,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Miriam Garrido-Morato (“Garrido”) petitions for review of a
decision of the Board of Immigration Appeals (“BIA”). The BIA
held that she was ineligible for discretionary hardship relief from
deportation because in 1996 she was convicted by her plea of guilty
for harboring aliens. The primary issues she raises relate to the
retroactivity of the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”) amendments that made harboring aliens
an aggravated felony. Garrido contends that these amendments are
impermissibly retroactive as applied to her and that she is
entitled to the benefits of the law as it existed when she entered
her plea of guilty, that is, notwithstanding her conviction, she is

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2
eligible for discretionary relief. We conclude otherwise and deny
the petition for review.
I
Garrido entered this country in 1986 from her native Mexico,
traveling as a minor with her mother. She was admitted as a non-
immigrant visitor with permission to remain for 72 hours, but has
remained in the United States without apparent interruption. In
the expanse of time, Garrido married, had three children and is now
divorced.
On March 13, 1996, the authorities decided it was time for her
to go home. The former Immigration and Nationalization Service
(“INS”) filed an order to show cause charging that Garrido had
stayed longer than she was authorized.
On June 11, Garrido pled guilty in federal court in the
Southern District of Texas to one count of harboring aliens.
On July 2, an Immigration Judge (“IJ”) held a hearing
concerning Garrido’s case, at which Garrido conceded deportability.
She was not immediately ordered deported, however, and instead was
granted the opportunity to apply for suspension of deportation.
On August 23, a judgment in her criminal case for harboring
aliens was entered and Garrido was sentenced to three years of
probation.
On September 10, she applied for suspension of deportation
under § 244 of the Immigration and Nationality Act, formerly
codified at 8 U.S.C. § 1254(a)(2) (1994), contending that her

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3
deportation would result in an undue hardship because her family is
settled in the United States. Under § 244 the Attorney General had
discretion to adjust the status of a deportable alien who
has been physically present in the United
States for a continuous period of not less
than ten years immediately following the
commission of an act, or the assumption of a
status, constituting a ground for deportation,
and proves that during all of such period he
has been and is a person of good moral
character; and is a person whose deportation
would, in the opinion of the Attorney General,
result in exceptional and extremely unusual
hardship to the alien or to his spouse,
parent, or child, who is a citizen of the
United States or an alien lawfully admitted
for permanent residence.
8 U.S.C. § 1254(a)(2) (1994).
On September 30, Congress passed IIRIRA, making two relevant
changes affecting Garrido’s situation. First, the new law repealed
§ 1254(a) and replaced it with § 1229b, which added a new
requirement for discretionary relief -- that the alien seeking such
relief have no conviction for an aggravated felony. Second,
Congress modified the definition of “aggravated felony” and, for
the first time, specifically included the crime of harboring aliens
within that definition.
In March 1997, the IJ held hearings to consider Garrido’s
request for relief. On March 27, the IJ, rejecting her arguments
that the new IIRIRA amendments were not applicable to her
situation, found that she was ineligible for relief. It was not
until February 2002 that the BIA rejected Garrido’s appeal. She

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1 Garrido also argues that a conviction for harboring aliens
should not bar her from discretionary relief because it does not
“relate to alien smuggling” and thus does not fit the definition of
“aggravated felony” at issue here. This contention is foreclosed
by our decision in United States v. Monjaras-Castaneda, 190 F.3d
326, 329-31 (5th Cir. 1999), in which we held that the
parenthetical “related to alien smuggling” in 8 U.S.C. §
1101(a)(43)(N) is descriptive and not limiting.
Garrido’s argument that the effective elimination of hardship
relief violates international law also fails, as we recently
rejected this precise argument. See Martinez-Lopez v. Gonzales,
454 F.3d 500, 502-03 (5th Cir. 2006).
Finally, Garrido contends that her constitutional rights have
been violated by the retroactive application of IIRIRA to her. Her
due process rights are not at issue here because we have
consistently held that discretionary relief from removal is not a
liberty or property interest afforded such protection. See Assaad
v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). We reject her
equal protection argument because, under rational basis scrutiny,
Congress could have rationally decided to make discretionary relief
unavailable with immediate effect. Garrido’s ex post facto clause
argument fails because its protections do not extend to “acts of
Congress governing deportation.” Marcello v. Ahrens, 212 F.2d 830,
838-39 (5th Cir. 1954). We deem Garrido’s Takings Clause argument
4
did not appeal. Instead, Garrido later became a plaintiff in a
class action in the district court for the Southern District of
Texas, seeking habeas relief. Upon the passage of the REAL ID Act,
see Pub. L. No. 109-13, 119 Stat. 231, 311, § 106(c), the habeas
petition was transferred to this court and converted into this
petition for review.
II
A
Garrido argues that the determination that she is ineligible
for relief arises from an impermissibly retroactive application of
the amended definition of “aggravated felony” in IIRIRA § 321.1

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abandoned as it does not extend beyond the conclusory assertion
that there was a taking of the filing fee she paid with her
application for suspension of deportation. See Dardar v. Lafourche
Realty Co., 985 F.2d 824, 831 (5th Cir. 1993).
2 The definition was amended by both the Anti-Terrorism and
Effective Death Penalty Act, P.L. 104-132, and IIRIRA.
5
Relying on INS v. St. Cyr, 533 U.S. 289 (2001), she argues that
applying the amended definition of aggravated felony attaches new
consequences to the bargain that she had made with the government,
i.e., her plea of guilty; that is, after she agreed to plead guilty
and was convicted on her plea, the government changed the
definition to make her crime an aggravated felony so as to render
her ineligible for relief that earlier had been available to her.
Specifically, the new definition of aggravated felony codified
at 8 U.S.C. § 1101(a)(43)(N), includes “an offense described in [8
U.S.C. § 1324(a)(1)(A) or (2)] ... (relating to alien smuggling)
except” in cases that the parties agree do not apply here. See
P.L. 104-132, § 440(e)(3); P.L. 104-208, § 321(a) at 110 Stat.
3009-627.2 To say it clearly, this new definition of aggravated
felony includes Garrido’s crime of conviction, harboring aliens.
Whether the statute has retroactive application is an argument
based on statutory interpretation, see Falek v. Gonzales, 475 F.3d
285, 290-91 (5th Cir. 2007), and thus a pure question of law. We
review the BIA’s conclusions of law de novo. Hernandez-Castillo v.
Moore, 436 F.3d 516, 519 (5th Cir. 2006).

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6
Determining whether a statute is impermissibly retroactive
requires an analysis of one, or two, steps:
First, a statute must be given retroactive
effect if Congress has communicated, with
clarity, its intent that the law be applied
retroactively [citation omitted]. Second,
where a clear statement from Congress is
lacking, there is an impermissible retroactive
effect where the application of the statute
‘attaches new legal consequences to events
completed before the statute’s enactment.’
Id. (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270
(1994)). The dispositive question before us is whether Congress
has expressed its clear intent that the IIRIRA definition of
aggravated felony apply to the petitioner’s crime of conviction.
The standard for finding a statute expressly retroactive is
demanding. St. Cyr, 533 U.S. at 316. The Supreme Court has
suggested that retroactivity has only been found in “statutory
language that was so clear that it could sustain only one
interpretation.” Id. (quoting Lindh v. Murphy, 521 U.S. 320, 328
n.4 (1997)).
B
Whether the statute at issue expresses a clear intent that the
new definition of aggravated felony apply to all previous
convictions for harboring aliens requires a careful examination of
IIRIRA § 321(b) and (c). The statute provides:
(b) EFFECTIVE DATE OF DEFINITION.--Section
101(a)(43) (8 U.S.C. 1101(a)(43)) is amended
by adding at the end the following new
sentence: "Notwithstanding any other provision
of law (including any effective date), the

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3 Indeed, this provision was cited by the Supreme Court in St.
Cyr as an example of a statute that was clearly retroactive. See
533 U.S. at 319.
7
term [i.e., aggravated felony] applies [to,
inter alia, crimes relating to alien
smuggling] regardless of whether the
conviction was entered before, on, or after
the date of enactment of this paragraph.".
(c) EFFECTIVE DATE.--The amendments made by
this section shall apply to actions taken on
or after the date of the enactment of this
Act, regardless of when the conviction
occurred ....
P.L. 104-208, 110 Stat. 3009-628.
It is unmistakable but that § 321(b) clearly expresses
Congress’s intent to apply the new definition of “aggravated
felony” to all covered felonies, no matter when the convictions
occurred.
Because she must concede that the terms of § 321(b) express an
intent of retroactivity as to the definition of aggravated felony
under the statute,3 Garrido relies on § 321(c) to argue that it is
unclear whether the statute itself applies to her claim for relief.
The most favorable argument to be made is that § 321(c) is the
effective date provision for the entire section: § 321(c) states
to what and when the statute itself (not merely its definitions) is
to be applied; the statute is to be applied to (1) “actions” that
are “taken” (2) on and after the date of enactment. Thus, she
asks, to what “actions” is the statute referring. On that point,
she contends, the words of the statute are ambiguous, and thus

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8
undermine any argument that Congress has made a clear statement of
retroactivity.
“Actions taken,” she argues, is not defined anywhere in IIRIRA
and it is thus unclear what actions are contemplated by the
statute, and who must take them. She proposes that “actions taken”
arguably are actions that relate to, or are done by, her, including
her guilty plea, the commencement of deportation proceedings
against her, and her application for hardship relief -- all
occurring before September 30, 1996, the date of IIRIRA’s
effectiveness. Thus, the uncertainty of the meaning of “actions
taken” indicates that there is no clear statement of retroactive
intent that IIRIRA applies to her undue hardship claim.
The government’s position is that § 321(b) expresses a clear
retroactive intent and that § 321(c) further expresses the intent
that the statute encompasses all convictions for harboring aliens
irrespective of when they occurred. The government argues that the
language “actions taken” refers to actions by the representatives
of the Attorney General (such as an IJ or the BIA) to effectuate
and adjudicate deportation orders against a particular alien.
Thus, since the IJ “took action” by ruling on Garrido’s undue
hardship claim in March 1997, nearly six months after IIRIRA’s
effective date, § 321(c) required him to apply the new, retroactive
definition of aggravated felony, “regardless of when the conviction
occurred.”

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4 See Choeum v. INS, 129 F.3d 29, 37 (1st Cir. 1997); Ortiz v.
INS, 179 F.3d 1148, 1155 (9th Cir. 1999); Xiong v. INS, 173 F.3d
601, 607 (7th Cir. 1999); Kuhali v. Reno, 266 F.3d 93, 110-11 (2d
Cir. 2001); Tran v. Gonzales, 447 F.3d 937, 941 (6th Cir. 2006).
But see Mendez-Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997)
(holding, without full explanation, that that court’s consideration
of the matter was also an “action taken” that required the use of
the amended definition).
9
Garrido replies that “actions taken” is necessarily a broader
category than the government argues, because elsewhere in IIRIRA
the phrase “decision or action of the Attorney General” encompasses
exactly the government’s proposed definition of “actions taken.”
Had Congress meant the same thing it would have used the same
phrase. Therefore, “actions taken” might also include her action
of pleading guilty and applying for relief.
The meaning of the phrase “actions taken” is a question of
first impression in this circuit. Five of six other circuit courts
to consider this meaning in a variety of contexts agree with the
government that “actions taken” are decisions of the Attorney
General’s representatives with regard to a particular alien.4 No
circuit court has accepted Garrido’s position that her decision to
plead guilty constitutes an “action taken” that would affect the
statute’s retroactivity. See cases cited in note 4.
Although “actions taken” may be more inclusive, we fully agree
that the term includes “actions and decisions of the Attorney
General acting through an immigration judge or the BIA.” Xiong,
173 F.3d at 607. But it is also clear to us that “actions taken”
are actions taken under the statute. Indeed, “actions taken” must

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5 We note that Garrido did not present any argument to this
court that, because of the timing of her proceedings before the IJ,
she should have instead been subject to IIRIRA’s “transitional
rules.” See IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, 626.
10
refer only to such actions taken under the statute because § 321(c)
is an effective date provision for § 321 and it thus only speaks to
“actions” that are “taken” under that section, such as determining
the meaning of “aggravated felony” and thus the availability of
discretionary hardship relief to such felons. It does not speak to
“actions” that are not taken pursuant to the statute.
Applying this unmistakable language to Garrido’s situation,
there is no doubt that the IJ’s March 27, 1997 ruling denying her
hardship relief was an “action taken” that caused the expressly
retroactive definition of aggravated felony to apply.5 In other
words, because that ruling, i.e., “action taken,” occurred after
September 30, 1996, § 321(c) compelled the IJ to utilize the
retroactive definition and find Garrido’s conviction to be an
aggravated felony.
In sum, there is no ambiguity in § 321(c) that would cast
doubt on Congress’s intent that the definition of aggravated felony
is to be applied retroactively with respect to any action taken
that implicates § 321. Because both subsections (b) and (c) make
clear in express words that the new definition of aggravated felony
applies to all convictions without regard to the date of
occurrence, IIRIRA § 321 meets the high bar, delineated in St. Cyr,
for a statute to be found to express Congress’s intent that it be

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applied retroactively. We therefore reject Garrido’s claim that
the application of the statute to her crime and conviction is
impermissibly retroactive.
III
Garrido’s petition for review and motion for stay of removal
are hereby
D E N I E D.

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