Aldana v. Gonzales

MEMORANDUM ** The facts are known to the parties. By its own terms, waiver of inadmissibility under § 212(c) of the Immigration and Nationality Act was available only for “[ajliens lawfully admitted for permanent residence who temporarily proceeded *730 abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years .... ” 8 U.S.C. § 1182 (c) (repealed 1996) (emphasis added). At the time of his no contest plea, Aldana was a temporary resident under the Special Agricultural Workers (“SAW”) program, 8 U.S.C. § 1160 (2000), who had acquired scarcely five months of lawful domicile. Thus, § 212(c) relief was unavailable to Aldana when he entered his plea of no contest. In determining that § 212(c) relief remains available for certain aliens following its repeal, the Supreme Court did not expand the availability of such relief beyond the former section’s strictures. See INS v. St. Cyr, 533 U.S. 289 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001). Rather, the Court explicitly limited the continuing availability of such relief to those aliens who qualified for § 212(c) relief at the time they entered their pleas. See id. at 326 , 121 S.Ct. 2271 (‘We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” (emphasis added)). See also United States v. Leon-Paz, 340 F.3d 1003, 1006-07 (9th Cir.2003) (finding § 212(c) relief remained available to an alien who otherwise qualified for such relief at the time he entered his guilty plea to a nonremovable offense which Congress subsequently reclassified as a removable offense). Accordingly, Aldana’s petition is DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.