CA9 on Deportation Hearing Due Process: USA v. Guzman-Ibarez

"When the proceedings against Guzman commenced, consideration for waiver of deportation pursuant to 8 U.S.C. § 1182(c) (1995) (INA § 212(c)) was available.  However, the AEDPA was enacted a few months later and under its provisions § 1182(c) was amended to entirely eliminate the phrase “served for such felony . . . a term of imprisonment of at least 5 years.” AEDPA § 440(d). However, as we have previously held, the § 440(d) provision was not effective as to proceedings which had commenced prior to the date of its enactment. See Magana-Pizano v. INS, 200 F.3d 603, 611 (9th Cir. 1999). In other words, when Guzman pled guilty to first degree robbery, the protections previously offered by § 1182(c) remained in full force and effect.  By the time Guzman pled guilty, IIRIRA had also been enacted and it eliminated relief under § 1182(c) (INA § 212(c)). IIRIRA § 304(b). However, that provision did not apply to aliens, like Guzman, whose proceedings had commenced before the enactment of IIRIRA. See Pascua v. Holder, 641 F.3d 316, 321 (9th Cir. 2011). In other words, at the time Guzman pled guilty, for him the § 1182(c) relief provision was “in full bloom, [and] the amending and repealing statutes did not retroactively take away that provision.” United States v. Leon-Paz, 340 F.3d 1003, 1006 (9th Cir. 2003). In short, the IJ erred when she failed to tell Guzman of the possibility that § 1182(c) (INA § 212(c)) relief was available; that violated his due process rights. Moreover, “the district court erred when it held to the contrary.” Leon-Paz, 340 F.3d at 1007." - USA v. Guzman-Ibarez, July 6, 2015.  [Hats off to the L.A. Federal Defenders!]