07-4629-ag Johnson v. Holder
1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 ------------- 6 7 August Term 2008 8 9 Argued: October 22, 2008 Decided: April 15, 2009 10 11 Docket No. 07-4629-ag 12 13 --------------------------------------------------X 14 15 NORMA CHRISTINA DRUMMOND DE JOHNSON, 16 17 Petitioner, 18 19 - against - 20 21 ERIC H. HOLDER JR.1, 22 23 Respondent. 24 25 --------------------------------------------------X 26 27 Before: FEINBERG, POOLER, and WESLEY, Circuit Judges. 28 29 Petition for review by alien of a decision of the Board of 30 Immigration Appeals denying her motion to reopen deportation 31 proceeding in order to seek discretionary relief pursuant to § 32 212(c) of the Immigration and Naturalization Act. Denied. 33 34 MARCUS P. SMITH, Law Student Intern, supervised 35 by Brett Dignam, Jerome N. Frank Legal 36 Services Organization, Yale Law School, New 37 Haven, CT. 38 39 CHARLES CANTER, Office of Immigration Litigation, 40 Civil Division, United States Department of 41 Justice, Washington, D.C. (Gregory G. 42 Katsas, Acting Assistant Attorney General,
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for Michael B. Mukasey as respondent in this case. 1 Civil Division; Blair O’Connor, Senior 2 Litigation Counsel; Cindy S. Ferrier, Senior 3 Litigation Counsel, Office of Immigration 4 Litigation, Civil Division, Unites States 5 Department of Justice; on the brief), for 6 Respondent. 7 8 9 FEINBERG, Circuit Judge:
10 Petitioner Norma Cristina Drummond de Johnson challenges a
11 decision of the Board of Immigration Appeals (“BIA”) denying
12 her motion to reopen a deportation proceeding against her. We
13 are bound by the decision of an earlier panel of this Court in
14 this very case, and we therefore deny Johnson’s petition.
16 I. BACKGROUND
17 Johnson is a native and citizen of Panama. She entered the
18 United States in 1975 as a lawful permanent resident following
19 her marriage to a United States citizen. In 1995, following the
20 death of her husband, Johnson was convicted by a federal jury
21 in the Middle District of Tennessee of possession and
22 conspiracy to possess a controlled substance with the intent to
23 distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.2 In
24 August 1995, she was sentenced to 188 months in prison.
2 In 1994, police in Clarksville, Tennessee found 8.5 kg of cocaine and 1.8 kg of marijuana hidden in the panels of a van driven by Johnson. According to police, Johnson admitted she had knowingly driven the drugs from California to Tennessee for a co-conspirator and that she had made approximately seven previous trips for the same purpose.
-2- 1 In December 1996, the Immigration and Naturalization
2 Service notified Johnson that it would seek to deport her
3 pursuant to Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of
4 the Immigration and Naturalization Act (INA). Deportation
5 proceedings began in January 1997 and in October 1997, the
6 immigration judge (IJ) ordered Johnson deported to Panama.
7 Shortly thereafter, Johnson appealed the IJ’s decision to
8 the Board of Immigration Appeals (BIA). After a procedural
9 remand, the BIA eventually denied Johnson relief.
10 In 2005, with the help of new counsel, Johnson moved to
11 reopen her case before the BIA on the ground that she was
12 eligible for a discretionary waiver of deportation pursuant to
13 § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996)
14 (hereafter “§ 212(c)”).
15 Until 1996, § 212(c) provided discretionary relief from
16 deportation for aliens who 1) were lawful permanent residents,
17 2) had resided in the United States for at least seven years,
18 and 3) had not served five or more years imprisonment on an
19 aggravated felony. See Walcott v. Chertoff, 517 F.3d 149, 151
20 (2d Cir. 2008). An application for § 212(c) relief could either
21 be made affirmatively, before the initiation of deportation
22 proceedings, or defensively, once proceedings were underway.
23 See 8 C.F.R. § 212.3(b). The equitable factors determining
24 whether discretionary relief should be granted included
-3- 1 duration of residency in the United States, proof of
2 rehabilitation, and the recency of the criminal conviction. See
3 Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004). As a
4 result, aliens “would be motivated to wait as long as possible
5 to file a 212(c) application in the hope that [they] could
6 build a better case for relief,” because an application grew
7 stronger with the passage of time. Id.
8 In 1996, Congress enacted two laws restricting the
9 availability of this relief. The first, § 440 of the
10 Antiterrorism and Effective Death Penalty Act (“AEDPA”),
11 partially repealed § 212(c) relief for aliens who had been
12 convicted of an aggravated felony. Pub.L. No. 104-132, 110
13 Stat. 1214, 1277 (Apr. 24, 1996). The second, § 304(b) of the
14 Illegal Immigration Reform and Immigrant Responsibility Act
15 (“IIRIRA”), repealed § 212(c) in its entirety. Pub.L. No. 104-
16 208, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996). The two
17 repealing statutes also differed in that AEDPA took effect
18 immediately upon enactment, while IIRIRA’s effective date
19 followed its enactment by six months. Johnson’s deportation
20 proceeding began after the AEDPA repeal, but before the IIRIRA
21 repeal took effect, so her case is governed only by AEDPA.
22 The application of AEDPA and IIRIRA to petitioners,
23 including Johnson, whose criminal convictions occurred before
24 the repeals took effect has been the subject of a number of
-4- 1 opinions in this Court and in the United States Supreme Court.
2 In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held
3 that application of the IIRIRA repeal to aliens who pled guilty
4 to deportable offenses prior to the repeal would be
5 impermissibly retroactive. The Court reasoned that the decision
6 to plead guilty and accept a sentence that would leave the
7 alien eligible for § 212(c) relief was likely to have been made
8 in reliance on the continuing availability of § 212(c). Id. at
9 323. Because the IIRIRA repeal upset the expectation underlying
10 the decision to plead guilty, the Court concluded, it “clearly
11 attaches a new disability, in respect to transactions or
12 considerations already past.” Id. at 321 (internal quotation
13 marks omitted). Thus, the repeal had “an obvious and severe
14 retroactive effect” because aliens who pled guilty “almost
15 certainly relied upon [the availability of § 212(c)] in
16 deciding whether to forgo their right to a trial.” Id. at 325.
17 Consequently, the Court found the IIRIRA repeal did not bar the
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07-4629-ag Johnson v. Holder
1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 ------------- 6 7 August Term 2008 8 9 Argued: October 22, 2008 Decided: April 15, 2009 10 11 Docket No. 07-4629-ag 12 13 --------------------------------------------------X 14 15 NORMA CHRISTINA DRUMMOND DE JOHNSON, 16 17 Petitioner, 18 19 - against - 20 21 ERIC H. HOLDER JR.1, 22 23 Respondent. 24 25 --------------------------------------------------X 26 27 Before: FEINBERG, POOLER, and WESLEY, Circuit Judges. 28 29 Petition for review by alien of a decision of the Board of 30 Immigration Appeals denying her motion to reopen deportation 31 proceeding in order to seek discretionary relief pursuant to § 32 212(c) of the Immigration and Naturalization Act. Denied. 33 34 MARCUS P. SMITH, Law Student Intern, supervised 35 by Brett Dignam, Jerome N. Frank Legal 36 Services Organization, Yale Law School, New 37 Haven, CT. 38 39 CHARLES CANTER, Office of Immigration Litigation, 40 Civil Division, United States Department of 41 Justice, Washington, D.C. (Gregory G. 42 Katsas, Acting Assistant Attorney General,
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for Michael B. Mukasey as respondent in this case. 1 Civil Division; Blair O’Connor, Senior 2 Litigation Counsel; Cindy S. Ferrier, Senior 3 Litigation Counsel, Office of Immigration 4 Litigation, Civil Division, Unites States 5 Department of Justice; on the brief), for 6 Respondent. 7 8 9 FEINBERG, Circuit Judge:
10 Petitioner Norma Cristina Drummond de Johnson challenges a
11 decision of the Board of Immigration Appeals (“BIA”) denying
12 her motion to reopen a deportation proceeding against her. We
13 are bound by the decision of an earlier panel of this Court in
14 this very case, and we therefore deny Johnson’s petition.
16 I. BACKGROUND
17 Johnson is a native and citizen of Panama. She entered the
18 United States in 1975 as a lawful permanent resident following
19 her marriage to a United States citizen. In 1995, following the
20 death of her husband, Johnson was convicted by a federal jury
21 in the Middle District of Tennessee of possession and
22 conspiracy to possess a controlled substance with the intent to
23 distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.2 In
24 August 1995, she was sentenced to 188 months in prison.
2 In 1994, police in Clarksville, Tennessee found 8.5 kg of cocaine and 1.8 kg of marijuana hidden in the panels of a van driven by Johnson. According to police, Johnson admitted she had knowingly driven the drugs from California to Tennessee for a co-conspirator and that she had made approximately seven previous trips for the same purpose.
-2- 1 In December 1996, the Immigration and Naturalization
2 Service notified Johnson that it would seek to deport her
3 pursuant to Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of
4 the Immigration and Naturalization Act (INA). Deportation
5 proceedings began in January 1997 and in October 1997, the
6 immigration judge (IJ) ordered Johnson deported to Panama.
7 Shortly thereafter, Johnson appealed the IJ’s decision to
8 the Board of Immigration Appeals (BIA). After a procedural
9 remand, the BIA eventually denied Johnson relief.
10 In 2005, with the help of new counsel, Johnson moved to
11 reopen her case before the BIA on the ground that she was
12 eligible for a discretionary waiver of deportation pursuant to
13 § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996)
14 (hereafter “§ 212(c)”).
15 Until 1996, § 212(c) provided discretionary relief from
16 deportation for aliens who 1) were lawful permanent residents,
17 2) had resided in the United States for at least seven years,
18 and 3) had not served five or more years imprisonment on an
19 aggravated felony. See Walcott v. Chertoff, 517 F.3d 149, 151
20 (2d Cir. 2008). An application for § 212(c) relief could either
21 be made affirmatively, before the initiation of deportation
22 proceedings, or defensively, once proceedings were underway.
23 See 8 C.F.R. § 212.3(b). The equitable factors determining
24 whether discretionary relief should be granted included
-3- 1 duration of residency in the United States, proof of
2 rehabilitation, and the recency of the criminal conviction. See
3 Restrepo v. McElroy, 369 F.3d 627, 634 (2d Cir. 2004). As a
4 result, aliens “would be motivated to wait as long as possible
5 to file a 212(c) application in the hope that [they] could
6 build a better case for relief,” because an application grew
7 stronger with the passage of time. Id.
8 In 1996, Congress enacted two laws restricting the
9 availability of this relief. The first, § 440 of the
10 Antiterrorism and Effective Death Penalty Act (“AEDPA”),
11 partially repealed § 212(c) relief for aliens who had been
12 convicted of an aggravated felony. Pub.L. No. 104-132, 110
13 Stat. 1214, 1277 (Apr. 24, 1996). The second, § 304(b) of the
14 Illegal Immigration Reform and Immigrant Responsibility Act
15 (“IIRIRA”), repealed § 212(c) in its entirety. Pub.L. No. 104-
16 208, 110 Stat. 3009-546, 3009-597 (Sept. 30, 1996). The two
17 repealing statutes also differed in that AEDPA took effect
18 immediately upon enactment, while IIRIRA’s effective date
19 followed its enactment by six months. Johnson’s deportation
20 proceeding began after the AEDPA repeal, but before the IIRIRA
21 repeal took effect, so her case is governed only by AEDPA.
22 The application of AEDPA and IIRIRA to petitioners,
23 including Johnson, whose criminal convictions occurred before
24 the repeals took effect has been the subject of a number of
-4- 1 opinions in this Court and in the United States Supreme Court.
2 In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held
3 that application of the IIRIRA repeal to aliens who pled guilty
4 to deportable offenses prior to the repeal would be
5 impermissibly retroactive. The Court reasoned that the decision
6 to plead guilty and accept a sentence that would leave the
7 alien eligible for § 212(c) relief was likely to have been made
8 in reliance on the continuing availability of § 212(c). Id. at
9 323. Because the IIRIRA repeal upset the expectation underlying
10 the decision to plead guilty, the Court concluded, it “clearly
11 attaches a new disability, in respect to transactions or
12 considerations already past.” Id. at 321 (internal quotation
13 marks omitted). Thus, the repeal had “an obvious and severe
14 retroactive effect” because aliens who pled guilty “almost
15 certainly relied upon [the availability of § 212(c)] in
16 deciding whether to forgo their right to a trial.” Id. at 325.
17 Consequently, the Court found the IIRIRA repeal did not bar the
18 petitioner in St. Cyr from seeking § 212(c) relief, because
19 “[a] statute may not be applied retroactively . . . absent a
20 clear indication from Congress that it intended such a result.”
21 Id. at 316.
22 While St. Cyr settled that § 212(c) relief remained
23 available to aliens who pled guilty, this Court has since
24 repeatedly grappled with the question of when such relief
-5- 1 remains available to aliens convicted at trial. We have held
2 that while the decision to go to trial, unlike the decision to
3 plead guilty, does not make application of the repeals
4 retroactive, see Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.
5 2003), an alien who was convicted at trial may nonetheless
6 demonstrate retroactivity if she decided against making an
7 immediate application for § 212(c) relief in reliance on its
8 continuing availability, see Restrepo, 369 F.3d at 637.
9 Restrepo left open, however, whether there should be a
10 categorical presumption (as in St. Cyr.) that an alien who was
11 eligible to make an affirmative application prior to the
12 repeals but did not do so relied on the continuing availability
13 of § 212(c), or whether she should be required to make an
14 individualized showing of reliance. See Restrepo, 369 F.3d at
15 640.
16 Such was the state of the law in this circuit when Johnson
17 filed her 2005 motion to reopen her case. The BIA denied the
18 motion in a July 2005 order, concluding that Johnson had not
19 made out a Restrepo claim because she failed to make an
20 individualized showing of reliance. Johnson then filed her
21 first petition for review in this Court. A panel of this Court,
22 which for purposes of clarity we call the “Johnson I panel,”
23 heard oral argument in August 2006.
-6- 1 In December 2006, while Johnson’s petition remained
2 pending, another panel of this Court decided Wilson v.
3 Gonzales, 471 F.3d 111 (2d Cir. 2006). Wilson held that in
4 order to succeed in a Restrepo claim, an immigrant subject to
5 the IIRIRA repeal had to show individualized reliance on the
6 continuing availability of § 212(c). Wilson, 471 F.3d at 117.
7 Four days later, the government filed a letter with the Johnson
8 I panel pursuant to FRAP 28(j) (the “28(j) letter”). In the
9 letter, the government argued that Wilson had decided the
10 question left open by Restrepo and had rejected Johnson’s
11 argument that she need not make an individualized showing of
12 reliance. Johnson filed no response. In February 2007, the
13 Johnson I panel issued a summary order remanding Johnson’s case
14 to the BIA to determine whether she could make the “requisite
15 showing of individualized reliance.” Johnson v. Gonzales, 218
16 F. App’x 40, 41 (2d Cir. 2007)(“Johnson I”).3
17 On remand before the BIA, Johnson argued that Wilson did
18 not control. The BIA, noting the specific instructions of this
19 Court to apply Wilson, in a September 2007 order rejected the
20 argument and again denied Johnson’s motion to reopen. Johnson
3 Johnson petitioned for panel rehearing and rehearing en banc, pressing essentially the same argument she now makes. These petitions were denied.
-7- 1 now petitions this Court for review of the BIA decision, and
2 she does so before still another panel.
4 II. Discussion
5 Johnson argues that the Wilson individualized reliance
6 standard should not be applied to her case, because while the
7 petitioner in Wilson was subject to the IIRIRA repeal, Johnson
8 was subject only to the earlier AEDPA repeal. This is
9 important, she contends, because while IIRIRA gave affected
10 aliens six months notice that a repeal of § 212(c) was coming,
11 AEDPA took effect immediately upon its enactment. She argues
12 that the absence of a notice period in which to make an
13 affirmative application makes it more likely that an AEDPA
14 petitioner was delaying her application in reliance on the
15 continuing availability of § 212(c). Johnson claims that this
16 justifies a categorical presumption of reliance. We do not
17 reach the merits of Johnson’s argument because the law of the
18 case doctrine compels us to follow our earlier ruling in
19 Johnson I that she must make an individualized showing of
20 reliance.
21 The law of the case doctrine commands that “when a court
22 has ruled on an issue, that decision should generally be
23 adhered to by that court in subsequent stages in the same case”
24 unless “cogent and compelling reasons militate otherwise.”
-8- 1 United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)
2 (internal quotation marks omitted). Johnson argues that the law
3 of the case is not implicated because Wilson was decided after
4 briefing and oral argument in Johnson I. She contends that her
5 claim that Wilson does not govern AEDPA petitioners “has not
6 been addressed” by this Court. Therefore, she argues, the
7 court’s order in Johnson I applying Wilson does not constitute
8 the law of the case.
9 This argument mischaracterizes the law of the case
10 doctrine as it is understood in this circuit. Where “an issue
11 was ripe for review at the time of an initial appeal but was
12 nonetheless foregone, it is considered waived and the law of
13 the case doctrine bars . . . an appellate court in a subsequent
14 appeal from reopening such issues.” Quintieri, 306 F.3d at 1229
15 (internal quotation marks omitted). Johnson had ample
16 opportunity to make her current argument to the Johnson I panel
17 after it received the government’s 28(j) letter in December
18 2006. Indeed, that panel waited more than two months after
19 Wilson was decided before issuing its summary order. The
20 28(j)letter put Johnson on notice that Wilson arguably governed
21 her petition. In light of this, the issue of whether Wilson
22 applied to Johnson’s case was certainly “ripe for review”
23 before the earlier panel issued its order. As we have observed,
24 “it would be absurd that a party who has chosen not to argue a
-9- 1 point on a first appeal should stand better as regards the law
2 of the case than one who had argued and lost.” Id. (internal
3 quotation marks omitted).
4 We are mindful that the law of the case doctrine “does not
5 rigidly bind a court to its former decisions, but is only
6 addressed to its good sense.” Higgins v. Cal. Prune & Apricot
7 Grower, Inc., 3 F.2d 896 (2d Cir. 1924)(L. Hand, J.). We may
8 depart from the law of the case for “cogent” or “compelling”
9 reasons including an intervening change in law, availability of
10 new evidence, or “the need to correct a clear error or prevent
11 manifest injustice.” Quintieri, 306 F.3d at 1230. Johnson does
12 not point to either a change in controlling law or new
13 evidence, and we cannot say that manifest injustice will result
14 from adhering to our earlier order. Thus, we may depart from
15 our earlier ruling only if it constitutes “clear error.”
16 We conclude that we cannot justify describing as clearly
17 erroneous this Court’s decision in Johnson I. While it is
18 perhaps true that precedent did not require that panel at that
19 time to apply the individualized reliance standard to Johnson’s
20 case, this alone does not amount to “clear error.” Neither this
21 Court nor the Supreme Court has previously indicated that
22 retroactivity analysis is to be substantially different for
23 AEDPA’s repeal of § 212(c) than for IIRIRA’s. Indeed, during
24 the pendency of Johnson’s latest petition this Court has
-10- 1 explicitly applied the Wilson individualized showing of
2 reliance standard to another AEDPA petitioner. See Walcott, 517
3 at 151.4 While we do not reach the merits of Johnson’s
4 argument, it is not of such a character as to obviously compel
5 a result contrary to the one reached by the Johnson I panel.
7 III. Conclusion
8 The law of the case doctrine compels us to follow this
9 Court’s decision in Johnson I and to reject Johnson’s argument
10 that she need not make an individualized showing of reliance.
11 Therefore, Johnson’s petition is DENIED and our order of
12 February 25, 2009 staying Johnson’s removal is VACATED.
4 The government argues that our decision in Walcott controls this case. Johnson contends that Walcott is distinguishable because it did not confront the precise issue she now raises. It is not necessary for us to decide the precedential significance of Walcott, so we leave that question for another day.
-11-