Safe Havens

(E)  Due Process Precludes Application of Yanez Retroactively to Pleas Entered in Reasonable Reliance on Prior Rule.  A strong argument exists that the new rule of Yanez-Garcia[528] cannot be applied to a conviction that predated that decision, if the defendant entered the plea in reliance on the state of the law at the time of the plea.  Unlike Matter of Yanez, in which the Board found retroactivity concerns inapplicable and applied a new interpretation to the case at bar, applying the Yanez rule to convictions predating it would be arbitrary and capricious, upsetting settled expectations in a manner that violates the respondent’s right to due process.

            Application of the Yanez rule to such a respondent would be arbitrary and capricious in that, pursuant to the analysis in INS v. St. Cyr,[529] the respondent is presumed to have detrimentally relied on his apparent eligibility for a waiver of deportability when s/he entered the plea.  Under Matter of LG,[530] the case governing this issue at the time of the entry of the plea, the respondent’s felony plea to simple possession of a controlled substance was not an aggravated felony. The Supreme Court has held that a change in interpretation made through adjudication may be inappropriate where “some new liability” results from “past actions which were taken in good-faith reliance on Board pronouncements.”[531]  Under Ninth Circuit law, the Board should follow a 5-factor test before applying a new rule (here, that announced in Yanez) to past conduct.[532]

            The five-factor test examines (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the burden that a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.  The immigration courts erred in failing to apply that test.  Proper application of the test to this situation would lead to a conclusion that the respondent is not deportable for an aggravated felony conviction under the second part of the drug trafficking category.

            Application of the five-part test regarding prospective application of new agency interpretations favors the respondent in this situation.  In Yanez, the test disfavored the respondent because he could not have reasonably relied on Matter of LG,[533] which held that a state felony conviction for simple possession was not an aggravated felony for immigration purposes because it would only be a misdemeanor under federal law.  That decision did not resolve the issue of whether a second conviction for simple possession is an aggravated felony for immigration purposes.[534]  Thus, the third factor of the test disfavored the respondent in Yanez but favors the respondent here.

            All other factors of the test favor the respondent here as well.  Yanez, in 2002, announced a 180-degree change in interpretation from that set forth in Matter of LG.  In addition, the burden of a retroactive application of the new rule on respondents such as this one, who reasonably relied on Matter of LG, is tremendous.  Because, under Ninth Circuit law, it is arbitrary and capricious to apply the Yanez interpretation to cases governed at the time of the plea by Matter of LG, the court should not apply the Yanez to pleas entered in reasonable reliance on the former rule.[535]

            This argument has been adopted by lower federal courts.[536]

[528] Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (BIA 2002).  See Yanez-Garcia v. Ashcroft, 388 F.3d 280 (7th Cir. Nov. 2, 2004) (dismissing for lack of jurisdiction a petition for review seeking to reverse Board of Immigration Appeals’ decision that single possession offense can qualify as aggravated felony drug trafficking crime).

[529] INS v. St. Cyr, 533 U.S. 289 (2001).

[530] Matter of LG, 21 3 I. & N. Dec. 262 (1994).

[531] NLRB v. Bell Aerospace Co., 416 U.S. 267, 295 (1974).

[532] See Montgomery Ward & Co. v. Federal Trade Commission, 691 F. 2d 1322, 1333 (9th Cir. 1982), adopting and applying the test set forth in Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F. 2d 380, 390 (D.C. Cir. 1972).

[533] Matter of Yanez-Garcia, 23 I. & N. Dec. 390, at 399 (BIA 2002).

[534] Ibid.

[535] Thanks to Lynn Marcus for this analysis.

[536] Gonzalez-Gonzalez v. Weber, Case No. 03-RB-0678 (MJW) (D. Colo. May 22, 2003) (unpublished) (petition for writ of habeas corpus granted holding that a possession conviction could not be considered an aggravated felony, under Yanez, where the defendant relied upon existing law that it was not an aggravated felony at the time of the plea).  Petitioner was represented by Jim Salvator of Lafayette, Colorado.