Garcia v. Pasquarell

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
November 30, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50907
OLGA LIDIA GARCIA,
Petitioner-Appellant,
versus
KENNETH PASQUARELL, District Director,
Immigration and Naturalization Service,
Respondent-Appellee.
Appeal from the United States District Court for
the Western District of Texas
(USDC No. A-03-CV-92-JN)
_______________________________________________________
Before REAVLEY, JONES and DENNIS, Circuit Judges.
REAVLEY, Circuit Judge:*
Olga Garcia appeals the district court judgment denying habeas corpus relief. We
affirm.

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Garcia was ordered deported by an immigration judge and that order was affirmed
by the Board of Immigration Appeals (BIA). Garcia argues that she would have been
eligible for discretionary relief from removal but for the BIA’s ruling that she was
ineligible for such relief because she committed an aggravated felony. See 8 U.S.C. §
1229b(a)(3).
In 2000, Garcia pleaded guilty to felony possession of a controlled substance in
state court. The BIA correctly ruled that a state court drug possession felony was an
aggravated felony. Under the Immigration and Nationality Act, an aggravated felony
includes “a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. §
1101(a)(43)(B). In United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), we
held that, for purposes of the immigration laws, an aggravated felony includes a state
court drug possession felony if the state offense is also punishable under the federal
Controlled Substances Act (CSA). Notwithstanding Garcia’s arguments to the contrary,
this holding is not dicta and Hernandez-Avalos is directly on point.
Garcia argues that Hernandez-Avalos should not be applied retroactively. She
points out that, at the time she pleaded guilty, the BIA was still following its own
administrative precedents holding that a state drug felony is not an aggravated felony
unless that crime is also a felony under the CSA. As we understand Garcia’s position, it
is premised on her arguments that (1) Hernandez-Avalos announced a new rule of law,
(2) she had relied on earlier, contrary law in pleading guilty, and (3) applying Hernandez-
Avalos retroactively in these circumstances would amount to a denial of due process or

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otherwise lead to a fundamentally unfair result. We find none of these arguments well
taken.
First, Hernandez-Avalos did not announce a new rule in this circuit. We had
previously held, years before Garcia pleaded guilty, that a state drug felony is a “drug
trafficking crime” under 18 U.S.C. § 924(c). United States v. Hinojosa-Lopez, 130 F.3d
691, 693-94 (5th Cir. 1997). While Hinojosa-Lopez arose under the Sentencing
Guidelines rather than the immigration laws, it involved the same question of whether a
“drug trafficking crime” described in § 924(c) includes a state felony punishable under
the CSA. As we stated in Hernandez-Avalos, the inquiry “involves the same words of the
same phrase from the same statute that is being interpreted in each instance.” 251 F.3d at
509. We held “that the statutory language is clear—and is the same—whether applied in
sentencing or immigration cases.” Id. at 510. Whether or not the BIA had taken a
contrary position, the Fifth Circuit’s view on this question of law prevails over the views
of the BIA in this circuit. Id. at 508 n.2. Furthermore, we had held, in March 2000,
before Garcia pleaded guilty, that the definitions of “aggravated felony” under the
immigration laws and the Sentencing Guidelines are the same. Ruiz-Romero v. Reno,
205 F.3d 837, 839-40 (5th Cir. 2000). Ruiz-Romero concerned whether a certain alien
smuggling offense was an aggravated felony.
Even if Hernandez-Avalos announced a new rule, retroactive application of
judicial decisions is “overwhelmingly the norm,” and any exceptions to this rule that
might still exist are limited to the “extremely unusual and unforeseeable case.” Hulin v.

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Fibreboard Corp., 178 F.3d 316, 330 n.7 & 333 (5th Cir. 1999) (quoting James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529, 535 (1991)). Hernandez-Avalos cannot be
described as extremely unusual and unforeseeable. If it announced a new rule at all, that
rule was an entirely predictable extension of Hinojosa-Lopez.
Further, reliance alone on existing precedent does not foreclose retroactive
application of a new rule of law announced by judicial decision. Hulin, 178 F.3d at 333
(quoting Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758 (U.S. 1995)). Garcia fails
to persuade us of any circumstances in addition to her alleged reliance that compel us to
stray from the general rule that judicial decisions are applied retroactively. “The general
principle that statutes operate prospectively and judicial decisions apply retroactively
ha[s] been followed by the common law and the Supreme Court’s decisions ‘for near a
thousand years.’” Hulin, 178 F.3d at 329 (quoting Kuhn v. Fairmont Coal Co., 215 U.S.
349, 372 (1910) (Holmes, J., dissenting)).
Moreover, even if reliance on existing precedents could work an exception to the
general rule of retroactivity, Garcia failed to demonstrate that she in fact relied on the
contrary administrative decisions. An affidavit from Garcia states that she relied on
counsel in pleading guilty, but does not state that she discussed with her lawyer the effect
of her guilty plea on her immigration status. Her criminal lawyer told her lawyer in the
pending proceeding that “he thought Ms. Garcia might be eligible for some form of relief
in deportation proceedings and that this affected his decision to recommend that she
accept a sentence of ten years probation.” This amorphous “thought” that Garcia “might”

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be eligible “for some form” of relief from deportation strikes us as wholly inadequate to
support habeas corpus relief. There is no evidence in the record that Garcia or her
counsel had the vaguest familiarity with the administrative decisions on which she now
relies and the contrary decision of the Fifth Circuit in Hinojosa-Lopez.
In INS v. St. Cyr, 533 U.S. 289 (U.S. 2001), the Court held, in a habeas
proceeding, that a statutory repeal of discretionary relief from deportation did not apply
retroactively. We do not view St. Cyr as applicable to the pending case involving judicial
retroactivity. Even if the reasoning of St. Cyr should inform the due process question in
the pending case, the Court in St. Cyr stated that it was guided by considerations of
“reasonable reliance” and “settled expectations.” Id. at 321 (citations and internal
quotation marks omitted). If Garcia had established reliance on the administrative
decisions, which she did not, that reliance cannot be described as reasonable or consistent
with settled expectations, since at the time she pleaded guilty the Fifth Circuit had held in
Hinojosa-Lopez that a state drug possession felony was an aggravated felony under §
924(c).
AFFIRMED.

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