Cardenas-Delgado v. Holder

Immigration Nationality Act § 212(c) does not apply retroactively to waiver applications for convictions prior to the statute’s repeal.

Francisco Cardenas–Delgado, native of Mexico, was admitted to the United States as a lawful permanent resident in 1976. In 1991, he was convicted by a jury for selling cocaine and was sentenced to three years in prison. As a result of the conviction, Cardenas–Delgado was charged with Notice to Appear for removal proceedings under the Immigration Nationality Act (“INA”) for trafficking a controlled substance, which is considered an aggravated felony. At the hearing, Cardenas–Delgado admitted the allegations but said he would seek an INA § 212(c) waiver. The Immigration Judge pretermitted his application because the current laws prevented waivers for convictions of aggravated felonies, and the conviction was the result of a jury trial. Cardenas–Delgado appealed to the Board of Immigration Appeals (“BIA”), arguing that he was eligible for relief under § 212(c) at the time of his conviction and that denying him eligibility now is impermissibly retroactive. The BIA affirmed without an opinion. The Ninth Circuit reviewed de novo and without Chevron deference. The panel held that Cardenas–Delgado was still eligible for § 212(c) relief because according to the two-part test under Landgraf v. USI Film Products: (1) Congress did not express intent to make the repeal of then-existing § 212(c) relief retroactive; and (2) the statue had retroactive effects, which courts must apply traditional presumptions against retroactivity. The panel followed the Supreme Court’s decision in Vartelas v. Holder, which said retroactivity analysis looks to whether the new law attaches new legal consequences to completed conduct, and evidence regarding reliance is not required. As such, the panel held that Cardenas–Delgado should be allowed to apply for § 212(c) relief. PETITION GRANTED; VACATED and REMANDED.