Francisco Cardenas-Delgado v. Eric Holder, Jr.

Filing

FILED OPINION (PROCTER R. HUG, JEROME FARRIS and EDWARD LEAVY) GRANTED; VACATED; REMANDED. Judge: PRH Authoring, FILED AND ENTERED JUDGMENT. [8681903]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FRANCISCO CARDENAS-DELGADO ,
Petitioner,

No. 11-72057

v.

Agency No.
A036-224-865

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 29, 2012*
San Francisco, California
Filed June 26, 2013
Before: Proctor Hug, Jr., Jerome Farris,
and Edward Leavy, Circuit Judges.
Opinion by Judge Hug

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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SUMMARY**

Immigration
The panel granted Francisco Cardenas-Delgado’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for former INA § 212(c) relief because
his conviction for an aggravated felony was the result of a
trial.
The panel reasoned that in Vartelas v. Holder, 132 S. Ct.
1479 (2012), the Supreme Court made it clear that the
essential inquiry of retroactivity analysis is to determine
whether the new law attaches new legal consequences to
completed conduct, and that reliance is not required to prove
impermissible retroactivity. The panel held that Vartelas is
irreconcilable with this court’s previous cases holding that a
petitioner must prove detrimental reliance. Applying
Vartelas, the panel held that the repeal of § 212(c) relief
impermissibly attaches new legal consequences to the trial
convictions of aliens like Cardenas-Delgado by rendering
them ineligible for relief as a result of convictions that predated the repeal of § 212(c).

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Stephen Coghlan, San Francisco, California, for Petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Richard
M. Evans, Assistant Director, and Andrew Oliveira, Trial
Attorney, United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondent.

OPINION
HUG, Circuit Judge:
Francisco Cardenas-Delgado, a legal permanent resident
of the United States since 1976, appeals from the Board of
Immigration Appeals’ (“BIA”) decision affirming an
immigration judge’s (“IJ”) decision that he is ineligible for
relief from removal under former Immigration and
Naturalization Act § 212(c), 8 U.S.C. § 1182(c) (1988),
because his conviction for an aggravated felony was the result
of a trial. Cardenas-Delgado argues that this was error
because it is impermissibly retroactive to apply the repeal of
§ 212(c) relief to him. We grant Cardenas-Delgado’s petition
for review.
The Supreme Court’s recent decision in Vartelas v.
Holder, 132 S. Ct. 1479 (2012), makes it clear that the
essential inquiry of retroactivity analysis is to determine
whether the new law attaches new legal consequences to
completed conduct and that evidence regarding reliance is not
required to prove that a new law is impermissibly retroactive.
The repeal of § 212(c) relief impermissibly attaches new legal
consequences to the trial convictions of aliens like Cardenas-

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Delgado by rendering these aliens ineligible for relief as a
result of convictions that pre-dated the repeal of § 212(c).
BACKGROUND
Cardenas-Delgado is a native and citizen of Mexico who
was admitted to the United States in 1976 as a lawful
permanent resident. He is married and has three children.
In February 1991, Cardenas-Delgado was convicted, as a
result of a jury trial, of sale of cocaine, in violation of
California Health and Safety Code § 11352. He was
sentenced to three years in prison for that conviction.1
As a result of this conviction, over fifteen years later, on
June 6, 2006, Cardenas-Delgado was charged in a Notice to
Appear with being removable under § 237(a)(2)(A)(iii)
of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(2)(A)(iii), based on a conviction for illicit
trafficking in a controlled substance, which is an aggravated
felony under 8 U.S.C. § 1101(a)(43)(B). At a hearing on
September 7, 2006, Cardenas-Delgado admitted the factual
allegations and conceded that he was removable, but said that
he would seek a § 212(c) waiver.
On September 7, 2006, Cardenas-Delgado submitted an
application for a § 212(c) waiver. The IJ ordered that
Cardenas-Delgado’s application for § 212(c) relief be
pretermitted on the grounds that he was ineligible for § 212(c)
relief because his conviction for the sale of cocaine was the

1

The record does not show how much time Cardenas-Delgado actually
served for this conviction, but it clearly was less than five years and the
government does not contend that it was five years or more.

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result of a jury trial. The IJ therefore ordered the removal of
Cardenas-Delgado.
On appeal to the BIA, Cardenas-Delgado argued that he
was eligible for relief under § 212(c) at the time of his trial
conviction and that it was impermissibly retroactive to deny
him eligibility for such relief after the repeal of § 212(c). On
June 23, 2011, the BIA affirmed the IJ’s decision without an
opinion.
STANDARD OF REVIEW
Where, as here, the BIA affirms the IJ’s decision without
opinion, we review the decision of the IJ as if it were that of
the BIA. See Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.
2004). “We review de novo, and without Chevron deference
to the BIA, whether a change to an immigration law is
impermissibly retroactive.” Camins v. Gonzales, 500 F.3d
872, 880 (9th Cir. 2007).
DISCUSSION
Cardenas-Delgado contends that, at the time of his trial
for the aggravated felony, he would have been eligible for
discretionary relief under § 212(c) because he served less
than five years in prison, and he argues that the IJ and BIA
erred by retroactively applying the 1996 repeal of § 212(c) to
him. The key issue is whether electing to go to trial instead
of pleading guilty precludes the defendant from establishing
that the denial of § 212(c) relief was retroactively applied to
him. In order to fully understand these issues, it is first
important to understand the history of § 212(c) and the
fundamental legal principles governing retroactivity analysis
for civil statutes.

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I. The Statutory Framework and History of § 212(c)
Section 212 of the Immigration and Nationality Act of
1952 excluded from the United States several classes of
aliens, including those convicted of offenses involving moral
turpitude or the illicit traffic in narcotics. 66 Stat. 182-87;
INS v. St. Cyr, 533 U.S. 289, 294 (2001). However, § 212(c)
contained a provision granting the Attorney General broad
discretion to admit excludable aliens. It stated: “Aliens
lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of
deportation, and who are returning to a lawful unrelinquished
domicile of seven consecutive years, may be admitted in the
discretion of the Attorney General.” 8 U.S.C. § 1182(c)
(1988) (repealed).
In 1988, Congress expanded the pool of aliens who were
deportable, establishing that an alien would be deportable
upon conviction for any aggravated felony. See Anti–Drug
Abuse Act of 1988, 102 Stat. 4469–4470, 8 U.S.C.
§ 1227(a)(2)(A)(iii). Congress subsequently enacted three
statutes that reduced the size of the class of aliens eligible for
discretionary relief from deportation.
First, in 1990, Congress amended § 212(c) to prohibit
discretionary relief for anyone convicted of an aggravated
felony who had served a term of imprisonment of at least five
years. § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)).
It is significant that, at that time, even an alien deportable
because he had been convicted of an aggravated felony was
eligible for discretionary relief if he served a term of
imprisonment of less than five years. See 8 U.S.C. § 1182(c).
Cardenas-Delgado was convicted of his aggravated felony the

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following year, 1991, and served less than five years in
prison.
Second, in 1996 Congress adopted § 440(d) of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (codified in relevant part
at 8 U.S.C. § 1182 (1996)). This act rendered all aliens
convicted of aggravated felonies ineligible for discretionary
relief from deportation under § 212(c). See 110 Stat. 1277
(amending 8 U.S.C. § 1182(c)).
Third, also in 1996, Congress passed the Illegal
8Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546. This
act repealed § 212(c) entirely, see § 304(b), 110 Stat.
3009–597, and replaced it with “cancellation of removal,”
which is not available to any alien convicted of an aggravated
felony regardless of the term of imprisonment imposed or
served. See 8 U.S.C. § 1229b (1996).
II. Retroactivity Jurisprudence Established by the
Supreme Court in Landgraf and St. Cyr
In Landgraf v. USI Film Products, 511 U.S. 244 (1994),
a landmark retroactivity case, the Supreme Court recognized
that a “presumption against retroactive legislation is deeply
rooted in our jurisprudence, and embodies a legal doctrine
centuries older than our Republic.” Landgraf, 511 U.S. at
265. The Court noted that the “presumption against statutory
retroactivity has consistently been explained by reference to
the unfairness of imposing new burdens on persons after the
fact.” Id. at 270. The Court further noted that, “[s]ince the
early days of this Court, we have declined to give retroactive

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effect to statutes burdening private rights unless Congress had
made clear its intent.” Id.
The Court therefore established a two-step procedure for
determining whether a civil statute may apply retroactively.
First, when a statute is enacted after the events at issue in a
suit, the court must determine whether Congress expressly
provided that the statute should apply retroactively.
Landgraf, 511 U.S. at 280. If the answer is yes, then the
inquiry is complete and the statute applies retroactively. Id.
If the answer is no, then the court must proceed to the second
step and determine whether the statute would have a
retroactive effect. Id. If the statute would operate
retroactively, then the court must apply the traditional
presumption against retroactivity and prohibit retroactive
application of the statute. Id.
The Landgraf Court also explained that a determination
of whether a statute operates retroactively turns on “whether
the new provision attaches new legal consequences to events
completed before its enactment.” Id. at 269–70. This
assessment “comes at the end of a process of judgment
concerning the nature and extent of the change in the law and
the degree of connection between the operation of the new
rule and a relevant past event.” Id. at 270. The Court also
highlighted Justice Story’s classic explication of when
legislation is retroactive: “‘every statute, which takes away or
impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already

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past, must be deemed retrospective.’”2 Id. at 269 (quoting
Society for Propagation of the Gospel v. Wheeler, 22 F. Cas.
756 (No. 13,156) (C.C.N.H. 1814)). The Court noted that, in
hard cases, “familiar considerations of fair notice, reasonable
reliance, and settled expectations offer sound guidance” in
applying the test for retroactivity. Id. at 270.
In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court
applied Landgraf in the context of an immigration case when
considering the statutory elimination of § 212(c) relief. Id.
St. Cyr, a lawful permanent resident, pleaded guilty on
March 8, 1996 to a charge of selling a controlled substance.
Id. at 293. That conviction made him deportable. Id. Under
the law applicable at the time of his conviction, however, St.
Cyr would have been eligible for a § 212(c) waiver. Id.
Nevertheless, removal proceedings against him were initiated
after both AEDPA and IIRIRA became effective, and the
government asserted that St. Cyr no longer was eligible for a
waiver. Id.
The Supreme Court held that the repeal of § 212(c) would
not apply to St. Cyr. St. Cyr, 533 U.S. at 326. It reached this
conclusion by applying the two-step analysis outlined in
Landgraf. Applying the first step of Landgraf’s retroactivity
analysis, the Court first asked whether Congress had clearly
expressed an intention to make IIRIRA § 304(b) retroactive,
and concluded that it had not. St. Cyr, 533 U.S. at 315–20.

2

The Supreme Court has made it clear that this language by Justice
Story does not define the outer limits of impermissible retroactivity, but
instead describes several sufficient conditions, rather than necessary
conditions, for determining that legislation is retroactive. See INS v. St.
Cyr, 533 U.S. 289, 321 n.46 (2001); Hughes Aircraft Co. v. United States
ex rel. Schumer, 520 U.S. 939, 947 (1997).

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The Supreme Court therefore proceeded to the second
step of the Landgraf framework and began by explaining that
“[t]he inquiry into whether a statute operates retroactively
demands a commonsense, functional judgment about whether
the new provision attaches new legal consequences to events
completed before its enactment.” Id. at 321 (internal
quotation marks omitted). The Court held that “IIRIRA’s
elimination 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 already
past.” Id. (internal quotation marks and citations omitted).
The Court noted that “[p]lea agreements involve a quid
pro quo between a criminal defendant and the government,”
resulting in defendants waiving constitutional rights in
exchange for government benefits such as prompt punishment
and the preservation of prosecutorial resources. Id. at
321–22. “Given the frequency with which § 212(c) relief was
granted in the years leading up to AEDPA and IIRIRA,” the
Court reasoned that “preserving the possibility of such relief
would have been one of the principal benefits sought by
defendants deciding whether to accept a plea offer or instead
to proceed to trial.” Id. at 323. The Court recognized that
“[r]elying upon settled practice, the advice of counsel, and
perhaps even assurances in open court that the entry of the
plea would not foreclose § 212(c) relief, a great number of
defendants in . . . St. Cyr’s position agreed to plead guilty.”
Id. at 323. Therefore, the Court concluded that “it would
surely be contrary to ‘familiar considerations of fair notice,
reasonable reliance, and settled expectations’ . . . to hold that
IIRIRA’s subsequent restrictions deprive them of any
possibility of such relief.” Id. at 323–24 (quoting Landgraf,
511 U.S. at 270).

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III.

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Is the Repeal of § 212(c) Relief Impermissibly
Retroactive as Applied to Cardenas-Delgado?

In the case currently before us, it is undisputed that
Congress did not express an intent to make the repeal of
§ 212(c) relief retroactive. We therefore focus on the second
part of the Landgraf framework. Cardenas-Delgado argues
that reliance is not a requirement for proving that the repeal
of § 212(c) relief is impermissibly retroactive, and that he
should be able to contend that the denial of § 212(c) relief is
retroactive even though he elected to go to trial.
In the wake of St. Cyr, courts have disagreed about
whether some kind of reliance on prior law is required in
order to successfully bring a retroactivity challenge to a new
immigration law. Relying on a Third Circuit case, Atkinson
v. Att’y Gen., 479 F.3d 222 (3d Cir. 2007), Cardenas-Delgado
argues that reliance is not required and the change in legal
consequences for events completed before the repeal of
§ 212(c) constitutes an impermissible retroactive effect. In
Atkinson, the petitioner had not been offered a plea agreement
and had been convicted by a jury of an aggravated felony in
1991. Id. at 224, 229. He received a sentence of less than
five years, leaving him eligible at that time for § 212(c) relief.
Id. at 224, 229–30. The BIA held that he was not eligible for
§ 212(c) relief because St. Cyr applied only to aliens who had
entered into plea agreements and not to aliens who, like
Atkinson, had been tried and found guilty. Id. at 224–25.
The Third Circuit disagreed and granted the petition for
review. Id. at 231. The court rejected the proposition that St.
Cyr supported the conclusion that there must be reliance on
the prior state of the law in order to hold that the elimination
of § 212(c) relief is impermissibly retroactive. Id. at 228–29.

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The court reasoned that the Supreme Court had never held
that reliance on the prior law is a requirement to determine
that a law is impermissibly retroactive. Id. at 227–29.
The Atkinson court therefore held that even aliens who
had not been offered plea bargains and had been convicted of
aggravated felonies following a trial would be eligible for
§ 212(c) relief if the alien was convicted at a time when that
conviction would not have rendered him ineligible for
§ 212(c) relief. Id. at 229–30. The court reasoned that
eliminating the availability of relief would be impermissibly
retroactive because it would attach new consequences (the
certainty of deportation rather than the possibility of
deportation) to events (the conviction) completed before the
repeal of § 212(c). Id. at 230.
Similarly, based on its interpretation of Landgraf,
Hughes, and St. Cyr, the Fourth Circuit held in an IIRIRA
case that “reliance (whether subjective or objective) is not a
requirement of impermissible retroactivity.” See Olatunji v.
Ashcroft, 387 F.3d 383, 388 (4th Cir. 2004). Instead, the
Fourth Circuit concluded, the standard is “‘whether the new
provision attaches new legal consequences to events
completed before its enactment’” Id. at 395 (quoting
Landgraf, 511 U.S. at 269).
However, in contrast to the Third and Fourth Circuits, we
have held on more than one occasion, either implicitly or
explicitly, that a petitioner must prove some kind of
detrimental reliance on pre-existing law to succeed in a
retroactivity challenge to a new immigration law. For
example, in Armendariz-Montoya v. Sonchik, 291 F.3d 1116,
1121–22 (9th Cir. 2002), without explicitly stating that
reliance was a requirement to prove impermissible

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retroactivity, we denied the petition for review when we
determined that the petitioner could not establish reliance on
the prior availability of the § 212(c) waiver.
In Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1133–34
(9th Cir. 2007), where the petitioner had sought § 212(c)
relief, we concluded that the alien had failed to show the
required reliance on prior law and that an alien could not
establish impermissible retroactivity by showing that a
change in the law attached new legal consequences to past
conduct. Similarly, in Hernandez de Anderson v. Gonzales,
497 F.3d 927 (9th Cir. 2007), we recognized that there was a
split in authority regarding the proper interpretation of St. Cyr
and stated: “Expressly disapproving the conclusion of the
Third and Fourth Circuits, this court has held that aliens
claiming that IIRIRA’s repeal of relief from deportation is
impermissibly retroactive as applied to them must
demonstrate reasonable reliance on pre-IIRIRA law.” Id. at
939.
However, after the development of this split in authority,
the Supreme Court recently decided a case that undercuts
Ninth Circuit law and demonstrates that no form of reliance
is required in order to successfully challenge the denial of
§ 212(c) relief on grounds that the repeal of such relief is
retroactive. Subsequent to the BIA’s decision in CardenasDelgado’s case and the filing of his brief in this appeal, the
Supreme Court decided Vartelas v. Holder, 132 S. Ct. 1479
(2012). In Vartelas, the Supreme Court held that it was
impermissible to retroactively apply another IIRIRA
provision, 8 U.S.C. § 1101(a)(13)(C)(ii), to a lawful
permanent resident whose conviction was obtained prior to
the enactment of IIRIRA. Id. at 1483–84. When Vartelas
pleaded guilty to a crime involving moral turpitude in 1994,

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an alien in his situation was permitted to travel abroad for
brief periods without jeopardizing his lawful permanent
resident status. Id. at 1483. However, Congress subsequently
enacted IIRIRA, which rendered lawful permanent residents
who had a conviction like Vartelas’s removable if they
traveled abroad and returned to the United States. Id. at 1483.
Vartelas traveled to Greece in 2003 to visit his parents. Id.
Upon his return to the United States, he was treated as
inadmissible under IIRIRA and placed in removal
proceedings. Id.
Relying on both Landgraf and St. Cyr, the Supreme Court
held that the new provision of IIRIRA was impermissibly
retroactive because it “attached a new disability (denial of
reentry) in respect to past events (Vartelas’ pre-IIRIRA
offense, plea, and conviction).” Id. at 1483–84, 1487–88. In
the course of its opinion, the Supreme Court made it clear that
neither actual reliance nor reasonable reliance was required
to show that a statute was impermissibly retroactive. Id. at
1490–91. The Court emphasized that even the government
acknowledged that the Supreme Court had not required a
party challenging the retroactive application of a statute to
show he relied on prior law in structuring his conduct. Id. at
1490. In addition, the Court noted that, in some of its prior
cases, it had held that it was impermissible to apply a new
law retroactively, even though detrimental reliance was not
apparent in those cases. Id. at 1490–91 & n.8. Citing to
Landgraf and a Third Circuit case, the Court went on to state:
The operative presumption, after all, is that
Congress intends its laws to govern
prospectively only . . . . “It is a strange
‘presumption,’” the Third Circuit commented,
“that arises only on . . . a showing [of] actual

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reliance.” Ponnapula v. Ashcroft, 373 F.3d
480, 491 (2004). The essential inquiry, as
stated in Landgraf, 511 U.S., at 269–270,
114 S. Ct. 1483, is “whether the new
provision attaches new legal consequences to
events completed before its enactment.” That
is just what occurred here.
Id. at 1491 (emphasis added). The Court explicitly stated that
the likelihood of reliance on prior law is not a necessary
predicate for proving retroactivity. Id.
Thus, after Vartelas, it is clear that someone seeking to
show that a civil statute is impermissibly retroactive is not
required to prove any type of reliance and that the essential
inquiry is whether the new statute attaches new legal
consequences to events completed before the enactment of
the statute. Vartelas dictates our decision in the case before
us. The Fifth Circuit recently considered Vartelas when
deciding a case very similar to the instant case. See
Carranza-De Salinas v. Holder, 700 F.3d 768 (5th Cir. 2012).
In 1993, prior to the repeal of § 212(c), Carranza had been
convicted at trial of possession of marijuana with intent to
distribute and had served a sentence of less than five years.
Id. at 769–70. The Fifth Circuit changed its previous law and
rejected the government’s argument that Carranza was
required to show reliance. Id. at 772–75. The court held that
the repeal of § 212(c) relief impermissibly attached new legal
consequences to Carranza’s conviction. Id. at 774–75.
In light of Vartelas, we conclude that the court in
Carranza-De Salinas was correct in its conclusion that
an alien need not prove any type of reliance in order to show
that the repeal of § 212 relief is impermissibly retroactive and

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need only show that the repeal is impermissibly retroactive
because it attaches new consequences to a trial conviction for
an aggravated felony. Just as IIRIRA’s repeal of § 212(c)
relief attached new legal consequences to the trial
conviction in Carranza-De Salinas, the repeal attached new
consequences to Cardenas-Delgado’s trial conviction. The
record indicates that, before the passage of IIRIRA,
Cardenas-Delgado was eligible for § 212(c) relief, but
afterwards he was not.
The government, however, contends that we are bound by
our prior law establishing that an alien who chose to go to
trial and was convicted prior to IIRIRA’s effective date is
ineligible for § 212(c) relief because he cannot establish
reasonable reliance on pre-IIRIRA law. We disagree.
We have held that, although a three-judge panel generally
may not overrule a prior decision of this court, that rule does
not take into account situations in which the prior decision
has been “undercut by higher authority to such an extent that
it has been effectively overruled by such higher authority and
hence is no longer binding on district judges and three-judge
panels of this court.” Miller v. Gammie, 335 F.3d 889, 899
(9th Cir. 2003) (en banc). In this case the ruling was undercut
by the Supreme Court. In Miller, we reasoned that the goal
of preserving the consistency of circuit law “must not be
pursued at the expense of creating an inconsistency between
our circuit decisions and the reasoning of state or federal
authority embodied in a decision of a court of last resort.” Id.
at 900. When a three-judge panel is deciding whether prior
case law has been overruled, “the issues decided by the
higher court need not be identical in order to be controlling.
Rather, the relevant court of last resort must have undercut

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the theory or reasoning underlying the prior circuit precedent
in such a way that the cases are clearly irreconcilable.”
According to the government, Vartelas has not undercut
the theory or reasoning of this court’s precedent in a way that
renders the cases clearly irreconcilable with Vartelas. The
government argues that the statutory provision at issue in
Vartelas was a different statutory provision that did not
involve a petitioner’s eligibility for § 212(c) relief and further
argues that Vartelas is a narrow decision focused on a
discrete issue. These arguments are unpersuasive for two
reasons.
First, nowhere in the Vartelas Court’s discussion of
retroactivity did the Supreme Court suggest that it was
limiting its decision that there was no reliance requirement to
the particular statute at issue in that case. See Vartelas,
132 S. Ct. at 1490–91. In fact, the Supreme Court used very
broad language to state that it “has not required a party
challenging the application of a statute to show [he relied on
prior law]” and that the “presumption against retroactive
application of statutes does not require a showing of
detrimental reliance.” Id. at 1490 (internal quotation marks
omitted). Moreover, when stating that the essential inquiry
is whether the new provision attaches new legal consequences
to events completed before its enactment, the Vartelas Court
quoted Landgraf, id. at 1490, a case that not only addressed
a different statute than the one at issue in Vartelas, but
established the principles that generally apply when assessing
the retroactivity of civil statutes. See Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 38 n.6 (2006). Moreover, in
Landgraf, the Supreme Court recognized that the presumption
that a statute should not operate retroactively applied to a
broad range of civil cases. Landgraf, 511 U.S. at 271–72.

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Second, in the course of holding that there is not a
reliance requirement for proving that a statute is
impermissibly retroactive, the Supreme Court cited to
Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. 2004), a case
that, like the one currently before us, concerned whether the
repeal of § 212(c) relief was impermissibly retroactive for a
petitioner who had been convicted at trial of an aggravated
felony. See Vartelas, 132 S. Ct. at 1491. Thus, it is
unreasonable to conclude that the Supreme Court did not
intend for the principles it articulated in Vartelas to apply in
the context of determining whether the repeal of § 212(c)
relief may be applied retroactively to an aggravated felon
such as Cardenas-Delgado. The Fifth Circuit recognized this
when it changed its own law in response to Vartelas. See
Carranza-De Salinas, 700 F.3d at 770–72.
The government maintains that the Supreme Court
concluded in St. Cyr that reliance is the significant factor
when evaluating the retroactive effect of the loss of 212(c)
eligibility.
This argument mischaracterizes St. Cyr.
Although much of the retroactivity discussion in St. Cyr
involved reliance, nowhere in St. Cyr did the Supreme Court
state that reliance is the significant factor when evaluating
the retroactive effect of the repeal of § 212(c) eligibility in
general or even in the guilty plea context. Moreover, in
St. Cyr, the Supreme Court reiterated Justice Story’s
pronouncement that a statute operates retroactively when it
attaches a new disability and it reaffirmed the principle that
the determination regarding whether a new statute operates
retroactively is based on whether the new statute attaches new
legal consequences to acts completed before its enactment.
St. Cyr, 533 U.S. at 321.

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The government does not identify a logical reason for
why retroactivity law should be different in cases involving
§ 212(c) relief. The government contends that there is no
unfairness in retroactively applying the repeal of § 212(c)
because the petitioner is merely losing the potential for
§ 212(c) relief. However, the Supreme Court held in St. Cyr
that “the fact that § 212(c) relief is discretionary does not
affect the propriety of our conclusion. There is a clear
difference, for the purposes of retroactivity analysis, between
facing possible deportation and facing certain deportation.”
St. Cyr, 533 U.S. at 325. There can be no doubt that
eliminating the possibility of discretionary relief would
impose a serious new disability on Cardenas-Delgado. Like
the petitioner in Vartelas, if Cardenas-Delgado is removed,
his ability to be with his family will be severely restricted.
His wife and three children are in the United States and he not
only would be forced to leave them, but also would be forced
to leave the country that has been his home for over thirtyfive years. These facts, along with the fact that it appears that
Cardenas-Delgado has not committed a crime in over twenty
years, make it significantly more likely that he would, in fact,
receive relief from removal if he is eligible for such relief.
The criteria for determining whether to grant § 212(c) relief
include the seriousness of the offense, evidence of either
rehabilitation or recidivism, the duration of the alien’s
residence, the impact of deportation on the family, and the
number of citizens in the family. St. Cyr, 533 U.S. at 296 n.5.
Section 212(c) relief thus is designed to turn on the criminal
history and rehabilitation of the alien and the consequences
of removal to the alien and his family.
We hold that Vartelas is irreconcilable with our previous
precedent and that the law does permit Cardenas-Delgado to
present evidence in order to prove that the repeal of § 212(c)

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eligibility is impermissibly retroactive as applied to him even
though he went to trial because the repeal attaches new legal
consequences to his conviction.
Cardenas-Delgado contends that even though he went to
trial he should have been given the opportunity to make a
reliance argument to show that the denial of eligibility for
§ 212(c) relief was impermissibly retroactive. However, with
our holding that it is unnecessary to show reliance to establish
that the denial of § 212(c) relief is retroactive, there is no
point in discussing whether Cardenas-Delgado could rely on
prior law even though he went to trial. It would simply be
dicta in this case.
CONCLUSION
We GRANT the petition for review, VACATE the BIA’s
order, and REMAND the case for further proceedings
consistent with this opinion.

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