NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FRANCISCO ALDANA-CANO, AKA No. 17-71092 Rafael Aldana, AKA Francisco Cano, AKA Jose Francisco Lopez, AKA Perro Silva, Agency No. A029-159-490 Petitioner, MEMORANDUM* v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 8, 2020 Pasadena, California Before: M. SMITH and LEE, Circuit Judges, and CARDONE,** District Judge. Petitioner asks this court to reverse a Board of Immigration Appeals (BIA) final removal order and remand for further proceedings. The parties are familiar with the facts, so we do not recite them here, except as necessary to provide context to our ruling. We have jurisdiction under 8 U.S.C. § 1252. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 1. Petitioner first argues that the BIA erred in affirming an Immigration Judge’s (IJ) decision to reopen and cancel his asylum. Here, Petitioner contends that the IJ and BIA improperly used his 1993 California conviction for sexual abuse of a minor as grounds to retroactively apply the Illegal Immigration Reform and Immigration Responsibility Act of 1996’s (IIRIRA) asylum termination provisions to such status conferred in 1989. IIRIRA’s “definitional statute,” codified as 8 U.S.C. § 1101(a)(43), which makes sexual abuse of minors an aggravated felony, is retroactive. Ledezma-Galicia v. Holder, 636 F.3d 1059, 1079 (9th Cir. 2006). However, the “effective date” clause in IIRIRA’s definitional statute does not control IIRIRA’s substantive immigration consequences, even if those consequences turn on an aggravated felony conviction. Id. Rather, cancellation of asylum due to an aggravated felony conviction involves another part of IIRIRA, codified as 8 U.S.C. §§ 1158(b)(2)(B)(i) and 1158(c)(2)(B). See Pechenkov v. Holder, 705 F.3d 444, 449 (9th Cir. 2011). These provisions do not contain language permitting their retroactive application. See Ixcot v. Holder, 646 F.3d 1202, 1207–08 (9th Cir. 2011). They only pertain to asylum requested on or after April 1, 1997. See 8 C.F.R. § 208.24(a)(2) (2013). In addition, a contrary reading would attach new legal consequences to pre-IIRIRA crimes. See Ixcot, 646 F.3d at 1208–09. Thus, IIRIRA cannot be used to retroactively terminate asylum applied for on or before March 31, 1997. See id. at 1207–09. 2 In adjudicating Petitioner’s immigration case, the IJ rejected the government’s IIRIRA-centric arguments for canceling asylum granted in 1989. This decision to set IIRIRA aside was correct as Petitioner obtained asylum before IIRIRA took effect on April 1, 1997. Instead, the IJ applied regulations governing termination of asylum applied for on or before March 31, 1997. See 8 C.F.R. § 208.24(a)(3) (2013); 8 C.F.R. § 208.14(c)(1) (1993); 8 C.F.R. § 208.8(f)(iv) (1989). These regulations authorize IJs to cancel asylum if the alien committed an act that would have justified denial ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals