Munoz-Sigala v. Moore, et al

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-50102
______________
JOSE GUADALUPE MUNOZ-SIGALA,
Petitioner-Appellant,
VERSUS
MARC J. MOORE,
AS FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL
FOR THE BUREAU OF 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,
UNITED STATES ATTORNEY GENERAL,
Respondents-Appellees.
* * * * * * * * * * * * * * *
United States Court of Appeals
Fifth Circuit
F I L E D
September 7, 2006
Charles R. Fulbruge III
Clerk

-- 1 of 5 --

2
_______________
m 05-60522
______________
JOSE GUADALUPE MUNOZ-SIGALA,
Petitioner,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petitions for Review of Orders of
the Board of Immigration Appeals
m A37 437 097
_________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
In these consolidated cases, Jose Munoz-
Sigala petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) affirm-
ing a removal order by an immigration judge
(“IJ”) and the subsequent denial by the BIA of
a motion to reopen his case, and he appeals an
order of the district court dismissing his
petition for writ of habeas corpus. The appeal
has been converted into a petition for review.
For the reasons stated, we deny both petitions
for review.
I.
Munoz-Sigala, a citizen of Mexico, became
a lawful permanent resident of the United
States in 1982. In 1992 he was indicted for
aggravated delivery of a controlled substance,
namely over 400 grams of cocaine; on April
29, 1996, he pleaded guilty and was given a
suspended sentence. The former Immigration
and Naturalization Service (“INS”) placed him
in removal proceedings in 1999, charging that
he was removable as an alien convicted of an
aggravated felony and as an alien having an il-
legal drug conviction. The IJ sustained the
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 2 of 5 --

3
charges and ordered him removed to Mexico.
Munoz-Sigala appealed to the BIA, which
affirmed. A subsequent petition for writ of ha-
beas corpus, based on 28 U.S.C. § 2241, was
denied by the district court in 2000 for lack of
jurisdiction. The court based its decision on
Max-George v. Reno, 205 F.3d 194 (5th Cir.
2000), in which this court held that the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) had
deprived the district courts of jurisdiction to
issue writs of habeas corpus under § 2241 to
certain criminal aliens. The Supreme Court,
however, effectivelyoverruled Max-George in
INS v. St. Cyr, 533 U.S. 289, 314 (2001),
holding, inter alia, that such jurisdiction had
not been repealed by IIRIRA.
In light of St. Cyr, Munoz-Sigala filed an-
other § 2241 habeas petition, asserting that he
had been unlawfully denied the ability to seek
a discretionary waiver of his removal order un-
der INA § 212(c). Although acknowledging
that the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) had denied § 212(c)
relief to aliens convicted of aggravated felon-
ies, he argued that the effective date of
AEDPA was uncertain at the time of his con-
viction and that, under St. Cyr, § 212(c) relief
remained available to aliens, such as him, who
were eligible for relief before the enactment of
AEDPA and IIRIRA. The district court dis-
missed the petition for lack of jurisdiction
without reaching the merits, finding that the
“in custody” requirement of § 2241 had not
been met. Munoz-Sigala appealed that deci-
sion.
Munoz-Sigala then filed a motion with the
BIA seeking to reopen his case, making argu-
ments similar to those he had raised in his sec-
ond § 2241 petition in the district court. The
BIA held that the motion to reopen was un-
timely. Further, it held that AEDPA took ef-
fect on April 24, 1996, five days before Mun-
oz-Sigala pleaded guilty on April 29, 1996.
Thus, Munoz-Sigala’s reliance on St. Cyr was
misplaced because his expectations at the time
of the guilty plea were not upset by a change
in the law that had occurred before he entered
his plea.
After the BIA denied his motion to reopen
Munoz filed a third § 2241 habeas petition on
May 6, 2005. The district court transferred
the case to this court as required by the REAL
ID Act, Pub. L. No. 109-13, 119 Stat. 231
(May 11, 2005). We granted a motion to
consolidate these two matters. Munoz-Sigala
challenges the BIA’s decision affirming the
IJ’s removal order and the BIA’s denial of the
motion to reopen.
II.
Initially we deal with the effect of the
REAL-ID Act on Munoz-Sigala’s appeal of
the district court’s dismissal of his habeas pe-
tition for lack of jurisdiction because he was
not “in custody.”2 Section 106 of the Act di-
vested district courts of jurisdiction over chal-
lenges to removal orders in § 2241 proceed-
ings and designated the courts of appeals as
the sole fora for such challenges via petitions
for review. Pub. L. No. 109-13, 119 Stat.
231, 310; Rosales v. Bureau of Immigration &
Customs Enforcement, 426 F.3d 733, 735-36
(5th Cir. 2005), cert. denied, 126 S. Ct. 1055
(2006). This section applies “to cases in which
the final administrative order of removal,
2 The REAL-ID Act is one part of the Emer-
gency Supplemental Appropriations Act for De-
fense, the Global War on Terror, and Tsunami Re-
lief, 2005, Pub. L. No. 109-13, 119 Stat. 231
(May 11, 2005).

-- 3 of 5 --

4
deportation, or exclusion was issued before,
on, or after the date of enactment of this
provision.” Pub. L. No. 109-13, 119 Stat.
231, 311, § 106(b). Further, habeas petitions,
such as Munoz-Sigala’s, that are challenging
removal orders on appeal as of May 11, 2005,
are converted into petitions for review. Rosal-
es, 426 F.3d at 736. Thus, Munoz-Sigala’s
habeas petition challenging his removal is con-
verted into a petition for review of the BIA’s
decision to affirm his removal order, and the
district court’s conclusion that it lacked habeas
jurisdiction is moot and thus vacated.
We review the BIA’s rulings of law de
novo, but we defer to the BIA’s interpretation
of immigration regulations if the interpretation
is reasonable. Lopez-Gomez v. Ashcroft, 263
F.3d 442, 444 (5th Cir. 2001). A denial by the
BIA of a motion to reopen is reviewed for
abuse of discretion. Panjawani v. Gonzales,
401 F.3d 626, 632 (5th Cir. 2005). The “tenor
of the Attorney General’s regulations . . .
plainly disfavor[s] motions to reopen.” INS v.
Abudu, 485 U.S. 94, 110 (1988).
Under the former INA § 212(c), 8 U.S.C.
§ 1182(c), an alien was permitted to seek a
discretionary waiver of deportation if he had
been a lawful permanent resident with an un-
relinquished domicile of seven years. Ashby v.
INS, 961 F.2d 555, 557 (5th Cir. 1992). In
1996, in § 440(d) of AEDPA, Congress pre-
cluded such relief for aliens convicted of, inter
alia, an aggravated felony or drug offense.
Pub. L. No. 104-132, 110 Stat. 1214, 1277;
St. Cyr, 533 U.S. at 297. Later that year Con-
gress enacted IIRIRA, which repealed
§ 212(c). St. Cyr, 533 U.S. at 297. In St. Cyr,
however, the Court held that the repeal of
§ 212(c) cannot be applied retroactively to de-
prive relief to aliens “whose convictions were
obtained through plea agreements and who,
notwithstanding those convictions, would have
been eligible for § 212(c) relief at the time of
their plea under the law then in effect.” Id. at
326.
The BIA concluded that St. Cyr is inappli-
cable to Munoz-Sigala because he pleaded
guilty five days after the passage of AEDPA
and thus was ineligible for § 212(c) relief at
the time of his plea. In Alvarez-Hernandez v.
Acosta, 401 F.3d 327, 334 (5th Cir. 2005), we
held that where there is a plea agreement, the
St. Cyr analysis is triggered by the date of the
guilty plea, not the date judgment is entered.
The defendant in Alvarez-Hernandez pleaded
guilty approximately two years before the pas-
sage of AEDPA and IIRIRA, but the final
judgment was not entered until after both laws
had become effective. We held that because
§ 212(c) was in effect at the time of the plea,
the defendant had acquired an “important reli-
ance interest entitled to protection” and that
this interest came into being on “the date of
the plea.” Id. at 334. Thus, if the plea was
made before the effective date of AEDPA, the
retroactivity analysis of St. Cyr was triggered.
Munoz-Sigala’s guiltyplea and judgment of
conviction were entered on the same day, Ap-
ril 29, 1996. Because this was five days after
AEDPA became effective, under Alvarez-
Hernandez the retroactivity concerns of St.
Cyr do not apply.
Munoz further contends that the determina-
tive date for the St. Cyr analysis should be the
date the plea agreement was reached, not the
date on which he actually pleaded guilty. He
does not state on what date his plea agreement
was reached, but only that because of the four
years that elapsed between the commission of
his crime and his guilty plea it is likely that the
plea agreement was reached before April 24,

-- 4 of 5 --

5
1996, the date AEDPA became effective.
We need not decide, in this case, whether
the St. Cyr analysis is triggered by the date the
plea agreement was reached or the date the
agreement was accepted by the court. Even if
we were to hold that the determinative date is
the one on which the defendant and prosecutor
reached a plea agreement, Munoz-Sigala
would have the burden of establishing that
date.
“The alien has the burden of establishing el-
igibility for relief, including the date on which
the alien and the prosecution agreed on the
plea of guilt or nolo contendere.” 8 C.F.R.
§ 1003.44(b). The explanation of this rule ar-
ticulates the rationale behind it: “The nature
of the comment . . . underscores the need to
make clear that the alien seeking section
212(c) relief has the burden of establishing the
plea agreement date, and the alien is in the best
position to do so because the alien was present
(not the DHS or the immigration judge) and is
most likelyto possess the documents reflecting
the plea agreement.” Section 212(c) Relief for
Aliens with Certain Criminal Convictions
Before April 1, 1997, 69 Fed. Reg. 57,826,
57,830 (Sept. 28, 2004).
Munoz-Sigala claims that, even given that
the date of his guilty plea was five days after
the effective date of AEDPA, he was eligible
for § 212(c) relief because at the time of his
plea the effective date of § 440(d) of AEDPA
was uncertain. He claims that the BIA clari-
fied the effective date in Matter of Soriano, 21
I.&N. Dec. 516 (BIA June 27, 1996), and that
before that decision it was not known for sure
when AEDPA had become effective. Munoz-
Sigala asserts that at the time of his plea,
which was entered before Soriano was decid-
ed, he was uncertain whether AEDPA was in
effect, so he relied to his detriment on the
availability of § 212(c) relief.
This argument is unavailing. Soriano dealt
with an alien who had applied for § 212(c) re-
lief before the passage of § 440(d) of AEDPA.
The BIA held that AEDPA became effective
on the day it was passed, April 24, 1996, but
the bar did not retroactively apply to proceed-
ings that were already pending. Soriano, 21
I.&N. Dec. at 519-21. Because Munoz-Sigala
did not seek § 212(c) relief before AEDPA
was enacted, the exception does not apply to
him.
Further, the BIA did not find that the effec-
tive date of AEDPA was ambiguous, but rath-
er that the language of AEDPA, in accord with
generalprinciples of statutoryconstruction, in-
dicates that the law became effective on the
date of its passage. Id. On that date AEDPA
precluded § 212(c) relief for aliens with aggra-
vated felony convictions, and thus Munoz-
Sigala’s contention that he detrimentally relied
on the availability of such relief after that date
is unpersuasive.
For the reasons explained, the petitions for
review are DENIED.

-- 5 of 5 --