Petition for review by alien of a decision of the Board of Immigration Appeals denying her motion to reopen deportation proceeding in order to seek discretionary relief pursuant to § 212(c) of the Immigration and Naturalization Act.
The opinion of the court was delivered by: Feinberg, Circuit Judge
Before: FEINBERG, POOLER, and WESLEY, Circuit Judges.
Petitioner Norma Cristina Drummond de Johnson challenges a decision of the Board of Immigration Appeals ("BIA") denying her motion to reopen a deportation proceeding against her. We are bound by the decision of an earlier panel of this Court in this very case, and we therefore deny Johnson's petition.
Johnson is a native and citizen of Panama. She entered the United States in 1975 as a lawful permanent resident following her marriage to a United States citizen. In 1995, following the death of her husband, Johnson was convicted by a federal jury in the Middle District of Tennessee of possession and conspiracy to possess a controlled substance with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.*fn2 In August 1995, she was sentenced to 188 months in prison.
In December 1996, the Immigration and Naturalization Service notified Johnson that it would seek to deport her pursuant to Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Naturalization Act (INA). Deportation proceedings began in January 1997 and in October 1997, the immigration judge (IJ) ordered Johnson deported to Panama.
Shortly thereafter, Johnson appealed the IJ's decision to the Board of Immigration Appeals (BIA). After a procedural remand, the BIA eventually denied Johnson relief.
In 2005, with the help of new counsel, Johnson moved to reopen her case before the BIA on the ground that she was eligible for a discretionary waiver of deportation pursuant to § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996) (hereafter "§ 212(c)").
Until 1996, § 212(c) provided discretionary relief from deportation for aliens who 1) were lawful permanent residents, 2) had resided in the United States for at least seven years, and 3) had not served five or more years imprisonment on an aggravated felony. See Walcott v. Chertoff, 517 F.3d 149, 151 (2d Cir. 2008). An application for § 212(c) relief could either be made affirmatively, before the initiation of deportation proceedings, or defensively, once proceedings were underway. See 8 C.F.R. § 212.3(b). The equitable factors determining whether discretionary relief should be granted included duration of residency in the United States, proof of rehabilitation, and the recency of the criminal conviction. See Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004). As a result, aliens "would be motivated to wait as long as possible to file a 212(c) application in the hope that [they] could build a better case for relief," because an application grew stronger with the passage of time. Id.
In 1996, Congress enacted two laws restricting the availability of this relief. The first, § 440 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), partially repealed § 212(c) relief for aliens who had been convicted of an aggravated felony. Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996). The second, § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), repealed § 212(c) in its entirety. Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996). The two repealing statutes also differed in that AEDPA took effect immediately upon enactment, while IIRIRA's effective date followed its enactment by six months. Johnson's deportation proceeding began after the AEDPA repeal, but before the IIRIRA repeal took effect, so her case is governed only by AEDPA.
The application of AEDPA and IIRIRA to petitioners, including Johnson, whose criminal convictions occurred before the repeals took effect has been the subject of a number of opinions in this Court and in the United States Supreme Court. In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that application of the IIRIRA repeal to aliens who pled guilty to deportable offenses prior to the repeal would be impermissibly retroactive. The Court reasoned that the decision to plead guilty and accept a sentence that would leave the alien eligible for § 212(c) relief was likely to have been made in reliance on the continuing availability of § 212(c). Id. at 323. Because the IIRIRA repeal upset the expectation underlying the decision to plead guilty, the Court concluded, it "clearly attaches a new disability, in respect to transactions or considerations already past." Id. at 321 (internal quotation marks omitted). Thus, the repeal had "an obvious and severe retroactive effect" because aliens who pled guilty "almost certainly relied upon [the availability of § 212(c)] in deciding whether to forgo their right to ...