Margarita Garcia-Ramirez v. Alberto R. Gonzales, Attorney General

with whom D.W. NELSON, Senior Circuit Judge, joins, concurring:

Although we hold that Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004), compels us to affirm application of the 90/180-day rule to Garcia-Ramirez, we do so reluctantly because we remain unconvinced that Ram v. INS, 243 F.3d 510 (9th Cir.2001), required the result reached in Mendiola-Sanchez , and because we believe that Gareia-Ramirez would have prevailed under the second step of the retro-activity test articulated in Landgraf v. USI Film Products, 511 U.S. 244 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994).

The Mendiolctr-Sanchez panel articulated its own regret in holding that the 90/180-day rule must apply retroactively to the Mendiolas:

Mendiola-Sanchez, 381 F.3d at 941 . Nonetheless, the panel concluded that the “core of the reasoning in Ram applie[d] to the 90/180 day rule” and that it was “very unlikely that Congress intended to apply only the stop-time rule retroactively, and not the 90/180 day rule.” Id. at 940^41. Accordingly, the panel held that Ram controlled and denied the Mendiolas’ petition for relief.

We do not think that Ram required the result in Mendiola-Sanchez . Section 309(c)(5)(A) of…

Concurrence by Judge FISHER; Concurrence by Judge GOULD.

Petitioner Margarita Garcia-Ramirez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), affirming without opinion an Immigration Judge (“IJ”) decision denying her application for cancellation of removal because of her failure to establish 10 years of continuous physical presence in the United States. Garcia-Ramirez asserts that the BIA and IJ im-permissibly applied the continuous presence requirement of 8 U.S.C. § 1229b(d)(2) (the “90/180-day rule”) 1 retroactively to *937 find her automatically ineligible for cancellation of removal because she departed the United States for five months between April and September 1989. Our prior decisions governing similar claims under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, § 309 (c), compel us to reject her claim.

I.

Garcia-Ramirez entered the United States illegally in May 1988 and has, but for one absence, lived in the country continuously since then. In April 1989, Garcia-Ramirez left the United States to visit family in Mexico. She…

concurring:

Judge Fisher, in his separate concurrence, states that he “reluctantly” agrees that our precedent governing similar claims under the transitional rules of IIRI-RA requires that Garcia-Ramirez’s petition be denied. See Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004) and Ram v. INS, 243 F.3d 510 (9th Cir.2001). My able colleague writes separately to explain his further view that, were he reviewing Garcia-Ramirez’s petition “on a blank slate,” he would proceed to the second step of the Landgraf retroactivity analysis 1 and conclude that the petition should be granted. I write separately, in turn, with my responsive views, as I conclude differently that, if we were called upon to apply Land-grafts second step, the application of the 90/180-day rule to Gareia-Ramirez would not result in an impermissibly retroactive effect under the Supreme Court’s precedent.

I

A new statute does not produce an im-permissibly retroactive effect “merely because it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Landgraf, 511 U.S. at 269, 114 S.Ct. 1483 (internal citation omitted). Rather, the question of…

423 F.3d 935 Margarita GARCIA-RAMIREZ, Petitioner, v. Alberto R. GONZALES, Attorney General, * Respondent. No. 02-73546. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 9, 2004. Filed August 26, 2005. Manuel F. Rios, Rios Cantor, P.S., Seattle, WA, for the petitioner. Anthony P. Nicastro, Office of Immigration Counsel, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aqi-slb-pec. Before: D.W. NELSON, FISHER and GOULD, Circuit Judges. Concurrence by Judge FISHER; Concurrence by Judge GOULD. PER CURIAM: 1 Petitioner Margarita Garcia-Ramirez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals ("BIA"), affirming without opinion an Immigration Judge ("IJ") decision denying her application for cancellation of removal because of her failure to establish 10 years of continuous physical presence in the United States. Garcia-Ramirez asserts that the BIA and IJ impermissibly applied the continuous presence requirement of 8 U.S.C. § 1229b(d)(2) (the "90/180-day rule") 1 retroactively to find her automatically ineligible for cancellation…