Hernandez-Castillo v. Moore, et al

United States Court of Appeals
Fifth Circuit
F I L E D
January 13, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50543
Summary Calendar
_______________
ENRIQUE HERNANDEZ-CASTILLO,
Petitioner-Appellant,
VERSUS
MARC J. MOORE,
AS FIELD DIRECTOR FOR DETENTION AND REMOVAL
FOR THE IMMIGRATION AND CUSTOMS ENFORCEMENT;
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
DEPARTMENT OF HOMELAND SECURITY,
AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
MICHAEL CHERTOFF,
SECRETARY, DEPARTMENT OF HOMELAND SECURITY;
ALBERTO R. GONZALES,
U.S. ATTORNEY GENERAL,
Respondents-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________

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Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Enrique Hernandez-Castillo, a removed ali-
en, challenges the ruling of an immigration
(“IJ”) that he is not eligible for a waiver of
removal under now-repealed § 212(c) of the
Immigration and Nationality Act (“INA”).
Treating this action as a petition for review,
and agreeing with the ruling of the IJ, we va-
cate the finding of habeas jurisdiction and deny
the petition for review.
I.
Hernandez-Castillo, a native and citizen of
Mexico, was admitted into the United States
as a lawful permanent resident in 1985. In
1989 he was tried to a jury and convicted of
felony indecency with a child. The Immigra-
tion and Naturalization Service (“INS”)1 initi-
ated removal proceedings against Hernandez-
Castillo in 2001, asserting that (1) he was re-
movable pursuant to 8 U.S.C. § 1227(a)(2)-
(A)(iii) on the ground that he had been con-
victed of an “aggravated felony,” which is de-
fined by 8 U.S.C. § 1101(a)(43)(A) to include
sexual abuse of a minor, and (2) he was re-
movable pursuant to 8 U.S.C. § 1227(a)-
(2)(A)(i) because he had been convicted of a
crime of moral turpitude, for which a sentence
of one year or longer could have been im-
posed, within five years after his admission
into the United States.
Hernandez-Castillo conceded that he was
removable as charged, but requested a waiver
of removal under § 212(c), a provision that
was formerly codified at 8 U.S.C. § 1182(c)
but had been repealed by the Illegal Immigra-
tion Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), Pub. L. No. 104-208,
110 Stat. 3009-597. The repeal was effective
immediately upon its enactment.
Hernandez-Castillo argued that despite the
repealer, he is entitled to pursue relief under
that provision pursuant to INS v. St. Cyr, 533
U.S. 289, 326 (2001), in which the Court stat-
ed that Ҥ 212(c) relief remains available for
aliens . . . whose convictions were obtained
through plea agreements and who, notwith-
standing those convictions, would have been
eligible for § 212(c) relief at the time of their
plea under the law then in effect.”
The IJ found that Hernandez-Castillo was
ineligible for § 212(c) relief, St. Cyr notwith-
standing, because he had been convicted of a
removable offense following a jury trial rather
than through a guilty plea. In November 2002
the IJ ordered that Hernandez-Castillo be re-
moved to Mexico. Hernandez-Castillo filed a
timely appeal to the BIA, which affirmed the
removal order without opinion in March
2004.
On August 9, 2004 (the same day on which
he had been ordered to report to the San
Antonio office of the Department of Homeland
Security for removal), Hernandez-Castillo filed
a petition for writ of habeas corpus challenging
the removal order on the ground that he had
been unlawfully denied the right to seek a
waiver of the order. He also requested a tem-
porary restraining order and preliminary in-
junctive relief to prevent the immigration au-
thorities from removing him before the district
court ruled on the habeas petition. But, be-
1 The INS ceased to exist on March 1, 2003.
Its enforcement functions have been assumed by
the Bureau of Immigration and Customs Enforce-
ment (“BICE”), an agency within the Department
of Homeland Security. Because many of the events
in this case took place before the reorganization of
immigration enforcement duties, we continue to
refer to the agency as the INS.

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cause the removal had been scheduled to take
place on that very day, Hernandez-Castillo was
removed to Mexico before the district court
could rule on the request for a temporary
restraining order.
On August 20, 2004, the government filed
a motion to dismiss the habeas petition, which
the district court granted in March 2005, after
first finding that it had jurisdiction to entertain
the petition. The court held that Hernandez-
Castillo was ineligible for § 212(c) relief. Her-
nandez-Castillo appealed that order on March
29, 2005.
II.
After Hernandez-Castillo filed his appeal,
Congress on May 11, 2005, enacted the REAL
ID Act, Pub. L. No. 109-13, 119 Stat. 231.
The Act explicitly forecloses habeas review of
removal orders and provides that a petition for
review is the sole and exclusive means of ju-
dicial review for all removal orders except
those issued pursuant to 8 U.S.C. § 1225-
(b)(1). See Pub. L. No. 109-13, 119 Stat. 231,
310, § 106(a)(1)(B). The Act specifies that a
habeas petition pending before a district court
as of the REAL ID Act’s effective date is to be
transferred to the appropriate court of appeals
and converted into a petition for review. See
Pub. L. No. 109-13, 119 Stat. 231, 311,
§ 106(c). Congress did not, however, dictate
what was to be done with habeas petitions,
such as Hernandez-Castillo’s, that were al-
ready on appeal as of the REAL ID Act’s ef-
fective date.
Nevertheless, we recently held in Rosales v.
BICE, 426 F.3d 733, 736 (5th Cir. 2005) (per
curiam), cert. denied, 2006 U.S. LEXIS 619
(U.S. Jan. 9, 2006), that “despite Congress’s
silence on this issue, habeas petitions on appeal
as of May 11, 2005, . . . are properly con-
verted into petitions for review.”2 Pursuant to
the REAL ID Act, we therefore vacate the
district court’s finding of habeas jurisdiction
and convert the habeas petition into a petition
for review of the removal order.
III.
We must now determine whether we have
jurisdiction to entertain this petition for review
under the REAL ID Act. The Act amends 8
U.S.C. § 1252(a)(2)(C) to preclude all judicial
review, habeas or otherwise, where a removal
order is based on, inter alia, the alien’s com-
mission of an aggravated felony. See Pub. L.
No. 109-13, 119 Stat. 231, 310,
§ 106(a)(1)(A)(ii). The Act also altered the
INA to provide that
[n]othing in subparagraph (B) or (C), or
in any other provision of this chapter
(other than this section) which limits or
eliminates judicial review, shall be con-
strued as precluding review of constitu-
tional claims or questions of law raised
upon a petition for review filed with an
appropriate court of appeals in accor-
dance with this section.
8 U.S.C. § 1252(a)(2)(D). Because Hernan-
dez-Castillo’s claim that the IJ erred in apply-
ing the repeal of § 212(c) to his case presents
a question of law, we have jurisdiction to con-
sider the petition.
IV.
We review the BIA’s conclusions of law de
novo, although we defer to the BIA’s interpre-
2 The Third and Ninth Circuits have reached the
same conclusion. See Alvarez-Barajas v. Gon-
zales, 418 F.3d 1050, 1052-53 (9th Cir. 2005);
Bonhometre v. Gonzales, 414 F.3d 442, 446 (3d
Cir. 2005).

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tation of immigration regulations if that inter-
pretation is reasonable. See Lopez-Gomez v.
Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
Although we generally have authority to re-
view only the order of the BIA, where, as in
this case, the BIA summarily affirms the ruling
of the IJ without an opinion, we review the
IJ’s order. See Mikhael v. INS, 115 F.3d 299,
302 (5th Cir. 1997). In this case, no deference
is owed to the IJ’s conclusion of law regarding
the availability of § 212(c) relief because that
conclusion was based on principles of retroac-
tivity rather than the content of the immigra-
tion regulations.
There is a two-step process for determining
whether a statute (or the repeal thereof) has an
impermissible retroactive effect. First, a stat-
ute must be given retroactive effect if Con-
gress has communicated, with clarity, its intent
that the law be applied retroactively. See St.
Cyr, 533 U.S. at 316 (citing Martin v. Hadix,
527 U.S. 343, 352 (1999)). 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.” Landgraf v. USI Film
Prods., 511 U.S. 244, 270 (1994).
In St. Cyr, the Court held that in repealing
§ 212(c), Congress did not give a clear indica-
tion of its intent retroactively to strip the avail-
ability of § 212(c) relief away from aliens con-
victed of removable offenses before the enact-
ment of IIRIRA. St. Cyr, 533 U.S. at 320. In
addition, the Court held that “IIRIRA’s elimi-
nation of any possibility of § 212(c) relief for
people who entered into plea agreements with
the expectation that they would be eligible for
such relief clearly attaches a new disability, in
respect to transactions or considerations al-
ready past.” 533 U.S. at 321 (internal cita-
tions and quotations omitted). Therefore, the
Court concluded that the repeal of § 212(c)
cannot apply retroactively to pre-enactment
convictions of a removable offense pursuant to
a guilty plea.
The Court did not address whether the ap-
plication of IIRIRA to pre-enactment convic-
tions following a jury trial, rather than pursu-
ant to a guilty plea, yields an impermissible
retroactive effect. In the wake of St. Cyr, at
least two circuits have concluded that there is
no impermissible retroactive effect where the
conviction was not the result of a plea. See
Chambers v. Reno, 307 F.3d 284 (4th Cir.
2002); Rankine v. Reno, 319 F.3d 93 (2nd Cir.
2003). The Rankine court stated that
aliens who chose to go to trial are in a dif-
ferent position with respect to IIRIRA than
aliens like St. Cyr who chose to plead guil-
ty. . . . First, none of these petitioners de-
trimentally changed his position in reliance
on continued eligibility for § 212(c) relief
. . . . Second, the petitioners have pointed
to no conduct on their part that reflects an
intention to preserve their eligibility for re-
lief under § 212(c) by going to trial. If they
had pled guilty, petitioners would have
participated in the quid pro quo relation-
ship, in which a greater expectation of relief
is provided in exchange for forgoing a trial,
that gave rise to the reliance interest em-
phasized by the Supreme Court in St. Cyr.
As the Court made clear, it was that reli-
ance, and the consequent change of im-
migration status, that produced the imper-
missible retroactive effect of IIRIRA. St.
Cyr, 533 U.S. at 325 . . . . Here, petition-
ers neither did anything nor surrendered
any rights that would give rise to a compa-
rable reliance interest.
Rankine, 319 F.3d at 99-100. We adopt this
reasoning and conclude that the application of

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IIRIRA’s repeal of § 212(c) to Hernandez-
Castillo does not create an impermissible re-
troactive effect. Accordingly, we agree with
the IJ’s order declaring Hernandez-Castillo in-
eligible for § 212(c) relief.3
In summary, we VACATE the district
court’s finding of habeas jurisdiction, convert
the habeas petition into a petition for review,
and DENY the petition for review.
3 Hernandez-Castillo contends that he should
now be given an opportunity to present evidence
that he had been offered a plea agreement before
his trial for felony indecency with a child and chose
instead to take his chances with a jury because §
212(c) relief might be available to him if he were
convicted at trial. He equates the refusal to take a
plea agreement with detrimental reliance on §
212(c). As the Rankine court makes clear, how-
ever, Hernandez-Castillo’s argument is nonsensi-
cal:
Unlike aliens who entered pleas, the petitioners
made no decision to abandon any rights and
admit guilt--thereby immediately rendering
themselves deportable--in reliance on the avail-
ability of the relief offered prior to IIRIRA.
The petitioners decided instead to go to trial, a
decision that, standing alone, had no impact on
their immigration status. Unless and until they
were convicted of their underlying crimes, the
petitioners could not be deported. The claim
that they relied on the availability of § 212(c)
relief in making the decision to go to trial is
therefore somewhat hollow . . . .”
Rankine, 319 F.3d at 99.

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