On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A022 209 179
The opinion of the court was delivered by: Brewster, Senior District Judge:
Argued and Submitted November 18, 2011-San Francisco, California
Before: M. Margaret McKeown and Milan D. Smith, Jr., Circuit Judges, and Rudi M. Brewster, District Judge.*fn1
Opinion by Judge Brewster
Jacqueline Tyson, a native of Australia, appeals the Board of Immigration Appeals' ("BIA") order of removal as an alien convicted of a controlled substance offense.*fn2 Tyson argues that the BIA erred when it decided that she is not eligible to seek § 212(c) discretionary relief from removal pursuant to the former Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), which was repealed in 1996 as to aliens with certain criminal convictions. We agree with Tyson that the stipulated facts trial in this case is substantially equal to a guilty plea for the purpose of § 212(c) relief. We hold that applying the repeal of § 212(c) relief would produce an impermissible retroactive effect on Tyson, who was convicted pursuant to a stipulated facts agreement based on a reasonable expectation that it would not negatively affect her immigration status. INS v. St. Cyr, 533 U.S. 289, 319 (2001); Land-graf v. USI Film Prods., 511 U.S. 244, 269-70 (1994). Because the BIA erred in its legal analysis of the effect of this stipulated facts trial, we reverse and remand with instructions to consider Tyson's § 212(c) application on the merits.
Tyson was born in Australia in 1952. She entered the United States in 1973. She married an American citizen and, in 1977, obtained lawful permanent resident status.
When Tyson's marriage failed in 1980, she traveled to Australia, Hong Kong, and Thailand. In Thailand, she had an unexpected medical condition that required surgery. To ease her pain and depression, Tyson turned to heroin. She returned to the United States with 64.5 grams of heroin and was arrested at the airport. The two-count indictment charged importation of a controlled substance in violation of 21 U.S.C. § 952, and possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Tyson entered into a stipulation with the government. It stated that Tyson, "after having discussed the matter with counsel and having been satisfied with the advice received, hereby agrees to submit the question of her guilt or innocence of the counts in the above-entitled indictment to the Court on the basis of the following set of stipulated facts and testimony." The stipulation set out the constitutional rights that Tyson waived; the weight and purity of the heroin; an expert opinion that the heroin's street value was over $100,000; and that Tyson, who paid $350 for the heroin, intended to use it exclusively for herself. After hearing argument, the district court held that the facts established beyond a reasonable doubt that Tyson was guilty of importing heroin; however, because there was insufficient evidence that she intended to distribute the drug the court found Tyson not guilty on count two. The court imposed a term of three years probation.
At the time of Tyson's 1980 conviction, the INA excluded admission to the United States of any alien who had been con- victed of "a violation of . . . any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana." 8 U.S.C. § 1182(a)(23) (1976). Section 212(c) of the INA further stated, however, that aliens who had been "lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily . . . and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General" despite the conviction. 8 U.S.C. § 1182(c) (1976) (repealed 1996).
Twenty-four years later, Tyson departed the United States, and then sought re-entry in 2005. The Department of Home-land Security ("DHS") denied the request based on her 1980 conviction. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Tyson applied for a waiver of inadmissibility pursuant to former § 212(c). She relied upon St. Cyr, 533 U.S. at 294, 321-22, in which the Supreme Court held that § 212(c) relief remained available to an alien who had entered a plea bargain with the expectation that she would remain eligible for a waiver. DHS moved to pretermit her § 212(c) application. Citing ArmendarizMontoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir. 2002), DHS argued that ...