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CERVANTES-GONZALES V INS
Case Number: Date Filed:
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS FELIPE CERVANTES-GONZALES, No. 99-70403
IMMIGRATION AND NATURALIZATION ORDER AND
Petition to Review a Decision of the
Board of Immigration Appeals
Submitted October 5, 20001
San Francisco, California
Filed November 14, 2000
Amended April 4, 2001
Before: Stephen Reinhardt, Melvin Brunetti, and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Brunetti
1 The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a) (2).
James M. Byrne, Elhaam Hashemi, and Susanna I. Bogue,
Byrne, Bogue & Byrne, San Francisco, California, for the
Susan Houser, U. S. Department of Justice, Washington,
D.C., for the respondent.
The opinion filed November 14, 2000, is amended to delete
the last paragraph starting on page 14493 and carrying over
to page 14494 ("Likewise, "the extreme hardship" clause
. . . .) of the slip opinion and replacing it with the following
Like the discretionary relief at issue in Samaniego-
Meraz, S 212(i) provides immigration judges with
discretion to waive a bar to admissibility. "In gen-
eral, denying eligibility for discretionary relief from
deportation . . . does not constitute an impermissible
retroactive application of a statute." Magana-Pizano
v. INS, 200 F.3d 603, 612 (9th Cir. 1999). Unlike a
defendant who pleads guilty in reliance on the avail-
ability of discretionary relief, id. at 614, in this case,
Cervantes could not seriously claim that his conduct
would have been different had he known that Con-
gress would amend S 212(i) as it did in IIRIRA.
As explained, supra, IIRIRA amended S 212(i) by
changing the standard for the exercise of discretion
from a balancing of the equities to a showing of "ex-
treme hardship," and it eliminated judicial review of
denials of S 212(i) relief. These changes did not "se-
verely disturb . . . settled expectations." Id. at 613.
Samaniego-Meraz and Magana-Pizano make clear
that applying the changes to S 212(i) to Cervantes is
not a retroactive application of IIRIRA. As such,
under S 212(i)(2), we are without jurisdiction to
review the BIA's decision regarding discretionary
waivers. See Larita-Martinez v. INS, 220 F.3d 1092,
1095 (9th Cir. 2000).
BRUNETTI, Circuit Judge:
In this petition, we consider: (1) whether the petitioner is
inadmissable under the Immigration and Nationality Act
(INA) S 212(a)(6)(C)(i), 8 U.S.C. S 1182(a)(6)(C)(i)
(1994)(amended 1996), and (2) whether the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA) S 349, Pub. L. No. 104-208, 110 Stat. 3009-639,
INA S 212(i), 8 U.S.C. S 1182(i) (1996), applies to cases that
were pending at the time IIRIRA was enacted.
Cervantes-Gonzales is a citizen of Mexico who entered the
United States without inspection in 1989. In 1991, he pur-
chased a false Texas birth certificate from a street vendor so
that he could obtain employment. He later used the false birth
certificate to procure an actual social security card, also to
enable him to work. In 1994, Cervantes-Gonzales used these
documents to apply for a United States passport. His fraudu-
lent efforts to obtain a false passport lead to his arrest and
conviction, under 18 U.S.C. S 1028(a)(4), for possession of
false identification documents. While under arrest, on Decem-
ber 13, 1994, the INS initiated deportation proceedings.
While the proceedings were still pending, Cervantes-
Gonzales married Araceli Serna Cervantes, who he had begun
dating a year earlier. Mrs. Cervantes was a lawful permanent
resident at the time, and became a United States citizen in
August 1996. Also while the deportation proceedings were
still pending, and based on an approved relative immigrant
visa petition filed by Mrs. Cervantes, Cervantes-Gonzales
applied for an adjustment of status under INA S 245(i), 8
U.S.C. S 1255(i) (1994)(amended 1996). This section autho-
rizes adjustment of status for aliens who entered the United
States without inspection, are the beneficiaries of approved
immigrant visa petitions, and are not otherwise inadmissible.
On January 21, 1997, after enactment of IIRIRA, the immi-
gration judge determined that Cervantes-Gonzales was inad-
missible pursuant to S 212(a)(6)(C)(i). Furthermore, applying
S 212(i), as amended by IIRIRA, the immigration judge
denied Cervantes-Gonzales's request for a discretionary
waiver of inadmissibility. As a result, Cervantes-Gonzales
was ineligible for an adjustment of status underS 245(i).
Cervantes-Gonzales appealed the immigration judge's rul-
ing to the Board of Immigration Appeals (BIA). The BIA
likewise found Cervantes-Gonzales inadmissible, as well as
determined that S 212(i), as amended by IIRIRA, applied to
this matter even though deportation proceedings had been
pending at the time IIRIRA was enacted. Cervantes-Gonzales
now seeks review of the BIA ruling. We have jurisdiction
pursuant to INA S 106(a), 8 U.S.C. S 1105(a)
(1994)(amended 1996), and we deny the petition.
 The BIA determined that Cervantes-Gonzales is inad-
missible under S 212(a)(6)(C)(i) because he procured false
documents with which he sought to obtain a passport. We
review an agency's application of a statute de novo. See
Braun v. INS, 992 F.2d 1016, 1018 (9th Cir. 1993).
Section 212(a)(6)(C)(i) provides:
Any alien who, by fraud or willfully misrepresent-
ing a material fact, seeks to procure (or has sought
to procure or has procured) a visa, other documenta-
tion, or admission into the United States or other
benefit provided under this chapter is inadmissible.
Through the use of a fraudulently obtained Texas birth certifi-
cate and social security card, Cervantes-Gonzales attempted
to obtain a passport so that he could enter the United States
after traveling abroad. Although Cervantes-Gonzales contends
that he sought to procure a passport simply to make it easier
for him to obtain employment, the record shows that he was
the member of a band that traveled internationally and would
need the passport to gain entry back into the United States.
Using fraudulent documents to obtain a passport is conduct
that is clearly covered under the Act, thus rendering
 In order to obtain an adjustment of status under
S 245(i), Cervantes-Gonzales applied for a discretionary
waiver of inadmissibility under S 212(i). Before the IIRIRA
amendment, S 212(i) stated that the Attorney General may, in
her discretion, waive application of S 212 (a)(6)(C)(i) "in the
case of an immigrant who is the spouse, parent, or son or
daughter of a United States citizen or of an immigrant law-
fully admitted for permanent residence."
However, IIRIRA S 349 amended S 212(i) to read:
(1) The Attorney General may, in the discretion of
the Attorney General, waive the application of clause
(i) of subsection (a)(6)(C) in the case of an immi-
grant who is the spouse, son, or daughter of a United
States citizen or of an alien lawfully admitted for
permanent residence if it is established to the satis-
faction of the Attorney General that the refusal of
admission to the United States of such immigrant
alien would result in extreme hardship to the citizen
or lawfully resident spouse or parent of such an
(2) No court shall have jurisdiction to review a
decision or action of the Attorney General regarding
a waiver under paragraph (1).
Both the immigration judge and the BIA applied S 212(i),
as amended by IIRIRA, in denying Cervantes-Gonzales's
request. The BIA's determination of purely legal questions is
reviewed de novo. See Milne v. Hillblom, 165 F.3d 733, 735
(9th Cir. 1999) (reviewing de novo jurisdictional limitations
 IIRIRA altered S 212(i) in two ways that are relevant to
the present case. First, it changed the standard for obtaining
a waiver of inadmissibility by requiring a showing of extreme
hardship. Second, it introduced a jurisdictional bar to review
the Attorney General's discretionary decisions. IfS 212(i), as
amended, applies, then we are without jurisdiction to review
the BIA's denial of waiver of inadmissibility.
 However, we retain jurisdiction to review whether the
BIA applied the correct discretionary waiver standard in the
first instance. See Aragon-Ayon v. INS, 206 F.3d 847, 849
(9th Cir. 1999). The Supreme Court has articulated a two step
process for determining whether a new section of a statute
applies to proceedings that were already pending when the act
was passed. We must first determine whether the statutory
text "manifests an intent that [it] should be applied to cases
that arose" before its enactment. See Landgraf v. USI Film
Products, 511 U.S. 244, 257 (1994). If such intent is clear,
then this is the end of the analysis. See id. at 263. If the intent
cannot be ascertained, then the second step requires us to
determine if the statute acts retroactively by assessing whether
it "takes away or impairs vested rights,""creates a new obli-
gation," "imposes a new duty," or "attaches a new disability"
in respect to transactions or considerations already past. See
id. at 269 (internal citation omitted).
 Section 212(i), as amended by IIRIRA, is silent as to
whether the statute should apply to cases pending when the
Act was amended. Congress did not specify an effective date,
and no generally applicable effective date provision applies.
Furthermore, the legislative history provides little insight into
Congress's intent. See Lindh v. Murphy, 521 U.S. 320, 326
(1997) (rules of statutory construction may apply to remove
even the possibility of retroactivity). Indeed, when IIRIRA
was initially passed by the House, what ultimately became
amended, INA S 212(i), was placed under IIRIRA Subtitle A
of Title III. H.R. 2202, 104th Cong. (passed by House Mar.
21, 1996). Section 309 of Subtitle A generally prohibited any
provision within that subtitle from being applied to pending
cases. See id. In the final bill passed into law, S 212(i) was
deliberately moved and put from S 301 in Subtitle A to S 349
in Subtitle C. See IIRIRA S 349. Some subsections within
Subtitle C specifically provide for prospective application,
others to pending cases, and still others, includingS 212(i),
are completely silent as to the effective date. 2 Under these cir-
cumstances, no inference can be drawn as to the lack of an
effective date in IIRIRA S 349.
The motive behind moving amended S 212(i) to Subtitle C
is itself ambiguous. Perhaps Congress moved the provision so
that it would no longer fall under Subtitle A's general effec-
tive date clause prohibiting it from applying to pending cases.
2 Subtitle C of Title III contains sections 341 to 353. Sections 341 and
350 apply prospectively after the day of enactment. Sections 344 and 352
apply prospectively on or after the date of enactment. Section 342 is effec-
tive on the date of enactment, but applies to an act of incitement "regard-
less of when it occurs." Section 346 becomes effective 60 days after the
date of enactment. Sections 347, 348 and 351 generally apply to pending
matters, as well as prospectively. Sections 343, 345, 349 and 353 are silent
as to the effective date.
Or perhaps Congress inadvertently forgot to attach an effec-
tive date clause after the provision was moved. We refuse to
speculate. Since neither the express wording of the statute nor
the legislative history shed light on Congress's intent, we
must determine whether the statute has retroactive effect.
 In determining whether amendedS 212(i) has retroac-
tive effect, we are guided by this Court's reasoning in
Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 1995). There,
the BIA refused to consider Samaniego-Meraz's petition for
waiver of deportation under INA S 212(c) because he had
been convicted of aggravating felonies resulting in at least
five years imprisonment. See id. at 255. Samaniego-Meraz
argued that the bar based on aggravated felony convictions
does not apply to him because his convictions pre-dated the
enactment of the act providing the bar. See id. In finding that
the act did not impose retroactive application of the statute,
we held that "Congressional repeal of a discretionary power
to relieve an alien from deportation does not attach any new
legal consequence to the pre-enactment events." See id. at
 Like the discretionary relief at issue in Samaniego-
Meraz, S 212(i) provides immigration judges with discretion
to waive a bar to admissibility. "In general, denying eligibility
for discretionary relief from deportation . . . does not consti-
tute an impermissible retroactive application of a statute."
Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999).
Unlike a defendant who pleads guilty in reliance on the avail-
ability of discretionary relief, id. at 614, in this case, Cervan-
tes could not seriously claim that his conduct would have
been different had he known that Congress would amend
S 212(i) as it did in IIRIRA.
 As explained, supra, IIRIRA amended S 212(i) by
changing the standard for the exercise of discretion from a
balancing of the equities to a showing of "extreme hardship,"
and it eliminated judicial review of denials ofS 212(i) relief.
These changes did not "severely disturb . . . settled expecta-
tions." Id. at 613. Samaniego-Meraz and Magana-Pizano
make clear that applying the changes to S 212(i) to Cervantes
is not a retroactive application of IIRIRA. As such, under
S 212(i)(2), we are without jurisdiction to review the BIA's
decision regarding discretionary waivers. See Larita-Martinez
v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000).
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