United States v. Isidro Ubaldo-Figueroa

In this appeal, we address a challenge concerning the retroactivity of a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). Specifically, we consider the retroactive reach of IIRIRA § 304, which eliminated the discretionary relief from deportation available under former INA § 212(c).

We AFFIRM in part and REVERSE in part.

FACTUAL AND PROCEDURAL HISTORY

Statutory Scheme

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), and the Antiterrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214 , (“AEDPA”). Together, these acts substantially changed the criteria for removal of Legal Permanent Residents (LPRs) and the availability of possible relief from removal for LPRs. 1 Relevant to this case, IIRIRA brought about two changes that affected petitioner Isidiro Ubaldo-Figueroa.

First, effective April 1, 1997, IIRIRA § 304 repealed Immigration and Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182 (c) (1994 ed.), which provided certain deporta-ble aliens with relief from deportation. Former INA § 212(c) permitted the…

concurring:

Although Judges Reinhardt, Archer, and I agree that Ubaldo Figueroa’s convictions must be reversed based on the fact that he could have sought § 212(c) relief had his underlying removal hearing been constitutionally adequate, I write separately to express my views on Ubaldo-Figueroa’s alternative argument: that the retroactive application of IIRIRA § 321 violated his right to due process and constitutes a plausible legal ground for relief from deportation. I would reverse Ubaldo-Figueroa’s convictions on this ground as well.

A.

The Due Process Clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the “retroactive application [of the statute] is so harsh and oppressive as to transgress the constitutional limitation.” United States v. Carlton, 512 U.S. 26, 30 , 114 S.Ct. 2018 , 129 L.Ed.2d 22 (1994) (quoting Welch v. Henry, 305 U.S. 134, 147 , 59 S.Ct. 121 , 83 L.Ed. 87 (1937)). As Justice Story observed, the Supreme *1052 Court has long disfavored retroactive statutes because “retrospective laws are, indeed generally unjust; and, as has been forcibly said, neither accord with sound legislation nor with the…

364 F.3d 1042 UNITED STATES of America, Plaintiff-Appellee, v. Isidro UBALDO-FIGUEROA, Defendant-Appellant. No. 01-50376. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 12, 2003. Filed April 7, 2004. COPYRIGHT MATERIAL OMITTED Steven F. Hubachek, Federal Defenders of San Diego, Inc., (argument) and Wendy S. Gerboth, San Diego, California (brief), for the defendant-appellant. Carol C. Lam, United States Attorney, Shanna L. Dougherty, Assistant U.S. Attorney (on the brief), Mark R. Rehe, Assistant U.S. Attorney (on petition for rehearing), United States Attorney's Office, San Diego, California, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding, D.C. No. CR-00-02221-J. Before: PREGERSON, REINHARDT, and ARCHER, Jr., * Circuit Judges. PREGERSON, Circuit Judge: 1 In this appeal, we address a challenge concerning the retroactivity of a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Specifically, we consider the retroactive reach of IIRIRA § 304, which eliminated the discretionary relief from…