Margarita GARCIA-RAMIREZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 423 F.3d 935

Concurrence by Judge FISHER; Concurrence by Judge GOULD. PER CURIAM: Petitioner Margarita Garcia-Ramirez, a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“BIA”), affirming without opinion an Immigration Judge (“IJ”) decision denying her application for cancellation of removal because of her failure to establish 10 years of continuous physical presence in the United States.

Garcia-Ramirez asserts that the BIA and IJ im-permissibly applied the continuous presence requirement of 8 U.S.C. § 1229b(d)(2) (the “90/180-day rule”) retroactively to find her automatically ineligible for cancellation of removal because she departed the United States for five months between April and September 1989. Our prior decisions governing similar claims under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, § 309(c), compel us to reject her claim. I.

Garcia-Ramirez entered the United States illegally in May 1988 and has, but for one absence, lived in the country continuously since then. In April 1989, Garcia-Ramirez left the United States to visit family in Mexico. She returned to the United States in September 1989. It is the effect of this five-month absence on her accrual of time of continuous presence in the United States that is the crux of this appeal. On April 10, 1997, the Immigration and Naturalization Service (“INS”) initiated removal proceedings against Garcia-Ramirez as an alien present in the United States without being admitted or paroled.

The parties agree that Garcia-Ramirez’s accrual of physical presence time ended on October 7,1998, when she was served with a notice to appear before an IJ. On March 1. 1999, Garcia-Ramirez appeared in immigration court, admitted to the allegations in the notice to appear and requested that the IJ grant her cancellation of removal relief under § 1229b(b)(

l) or, in the alternative, voluntary departure. The IJ found Garcia-Ramirez removable as charged and denied her request for cancellation of removal. In order to be eligible for cancellation of removal, Garcia-Ramirez had to demonstrate continuous physical presence in the United States of not less than 10 years. § 1229b(b)(l)(A). Applying the 90/180-day rule of § 1229b(d)(2), the IJ found that Garcia-Ramirez’s five-month absence in 1989 had interrupted her otherwise continuous presence between May 1988 and the service of her notice to appear in October 1998.

Because Garcia-Ramirez’s trip lasted more than 90 days, and less than 10 years had elapsed between her reentry in September 1989 and service of the notice to appear, the IJ determined that Garcia-Ramirez was ineligible for cancellation of removal. The IJ granted Garcia-Ramirez’s alternative request for voluntary departure. Garcia-Ramirez appealed to the BIA, which affirmed the IJ’s decision without an opinion. Garcia-Ramirez thereafter filed her petition for review with our court. We have jurisdiction under § 1252(

a) and deny the petition for review. II. Garcia-Ramirez asserts that the 90/180-day rule in § 1229b(d)(2) cannot be applied to her because that provision did not become law until 1997, and she left and reentered the United States in 1989. She maintains that because she would have remained eligible for cancellation of removal under the law in effect at the time of her departure and reentry, § 1229b(d)(2) retroactively eliminates her preexisting right to relief from removal and thereby offends due process.

We first address the government’s argument that we do not have jurisdiction to review the petition and then turn to the merits of Garcia-Ramirez’s claim. A. Jurisdiction The government challenges our jurisdiction to review Garcia-Ramirez’s petition, asserting that she failed to exhaust administrative remedies because she did not present her retroactivity claim to the BIA. Under § 1252(d)(1) we “may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right.” Bagues-Valles v.

INS, 779 F.2d 483, 484 (9th Cir.1985); see also id. (“As a general rule, issues not raised before an administrative tribunal cannot be raised on appeal from that tribunal.”). Because the BIA does not have jurisdiction to resolve constitutional challenges, however, due process claims — other than those alleging only “procedural errors” within the BIA’s power to redress — are exempt from this administrative exhaustion requirement. Vargas v. U.S. Dept. of Immigration and Naturalization, 831 F.2d 906, 908 (9th Cir.1987).

Garcia-Ramirez’s claim is properly viewed as an assertion that application of the 90/180-day rule of § 1229b(d)(2) to her violates due process because of impermissible retroactivity. See INS v. St. Cyr, 533 U.S. 289, 316, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (recognizing that Congress has the power to enact retroactive legislation, but confirming that there are constitutional limits on retroactivity). Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the BIA cannot give relief on such claims.

See Bagues-Valles, 779 F.2d at 484. Accordingly, we have jurisdiction to review Garcia-Ramirez’s retroactivity claim even though it was not raised before the BIA. B. Retroactivity We turn to the merits of Garcia-Ramirez’s claim that the IJ should not have applied the 90/180-day rule of § 1229b(d)(2) to find that her five-month absence in 1989 terminated continuous physical presence.

Section 1229b(d)(2) provides a bright-line rule that an alien “shall be considered to have failed to maintain continuous physical presence in the United States” if the alien “has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” Garcia-Ramirez does not contest that if § 1229b(d)(2) applies retroactively, her five-month absence in 1989 would violate the 90/180-day rule.

From 1986 until IIRIRA’s effective date in April 1997, however, the relevant statute provided that a departure from the United States did not break continuous presence if it was “brief, casual, and innocent and did not meaningfully interrupt the [alien’s] continuous physical presence” in the United States. § 1254(b)(2) (1995). “The evident statutory purpose [of this standard was] to recognize that a person who lives for [the requisite number of years] in the United States does not destroy [her] eligibility by actions that do not affect [her] commitment to living in this country.” Castrejon-Garcia v.

INS, 60 F.3d 1359, 1362 (9th Cir.1995). Under this pre-IIRIRA rule, “[f]or purposes of evaluating whether an absence is brief, single absences in excess of 90 days ... will be evaluated on a case-by-case basis.” 8 C.F.R. § 240.64(b)(1); 8 C.F.R. § 1240.64(b)(1). Garcia-Ramirez contends that the more flexible § 1254 standard must be used to evaluate her continuous presence because applying § 1229b(d)(2) would be impermissibly retroactive. 1. In its landmark decision in Landgraf v.

USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court set forth the principles we must consider in determining whether a statute should be applied retroactively. Noting that “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic,” the Court stated in plain terms that, [ejlementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.

For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.” Id. at 265, 114 S.Ct. 1483 (quoting Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (Scalia, J., concurring)); see INS v. St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. In light of these principles,, the Court articulated a two-step approach for evaluating when the normal presumption against retroactivity should not apply.

Our “first task” under Landgraf is to “determine whether Congress has expressly prescribed the statute’s proper reach.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If Congress has clearly expressed that a law should be applied to conduct occurring before its enactment, our inquiry ends and we must defer to Congress’ command.

Otherwise, we proceed to Landgraf s second step and ask “whether the new statute would have retroactive effect, ie., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. If the new law would have such a retroactive effect, the “traditional presumption teaches that [the new statute] does not govern....” Id. 2. The first step of Landgraf requires us to “ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively.” St.

Cyr, 533 U.S. at 316, 121 S.Ct. 2271. The Supreme Court has cautioned that “[t]he standard for finding such unambiguous direction is a demanding one.” Id. “[C]ases where [the Supreme] Court has found truly ‘retroactive’ effect adequately authorized by a statute have involved statutory language that was so clear that it could sustain only one

interpretation.” Lindh v. Murphy, 521 U.S. 320, 328 n. 4, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Garcia-Ramirez argues that under this exacting standard, congressional intent to apply the 90/180-day rule retroactively cannot be found because § 1229b(d)(2) contains no statement as to its intended temporal reach. Prior circuit law compels us to reject her argument.

We have held, in a series of related cases, that IIRIRA’s “transitional rules,” which govern application of IIRI-RA’s permanent provisions to eases that were pending on IIRIRA’s effective date, contain unambiguous congressional intent that the Act’s stop-time and 90/180-day rules apply retroactively. Although the transitional rules do not directly govern Garcia-Ramirez’s case, it would be incongruous to hold that Congress intended to apply the 90/180-day rule to petitioners governed by those rules, but not to Garcia-Ramirez.

When Congress enacted IIRIRA, it included in the statute a set of “transitional rules” specifying that particular provisions of the permanent statute should apply to petitioners against whom the INS had already initiated proceedings before the statute’s effective date. See IIRIRA § 309(c). These transitional rules expressly provide that two of IIRIRA’s provisions relating to continuous presence — the stop-time rule and the 90/180-day rule — “shall apply to orders to show cause ... issued before, on, or after the date of the enactment of this Act.” IIRIRA § 309(c)(5)(A) (emphasis added).

We first addressed this “before, on, or after” language in Ram v. INS, 243 F.3d 510 (9th Cir.2001). Ram argued that the stop-time rule — which specifies that an alien’s period of continuous physical presence ends when deportation proceedings begin — could not be applied to his petition because the INS had initiated proceedings against him before IIRIRA took effect and application of the rule to him would have an impermissible retroactive effect. We disagreed.

We found unambiguous the statute’s instruction that the stop-time rule be applied to petitioners who fall under the transitional rules whose orders to show cause were “issued before, on, or after the date of enactment [of IIRIRA],” and also relied on IIRIRA’s legislative history, which suggested that Congress intended the transitional rules to apply the stop-time rule retroactively. See Ram, 243 F.3d at 515-18 (quoting IIRIRA § 309(c)(5)(A)). We later followed Ram in Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004), to hold that § 309(c)(5)(

A) requires retroactive application of the 90/180-day rule as well. The Mendiolas, whose case was governed by the transitional rules, argued that a five-month trip they took in 1993 should not bar their eligibility for suspension of deportation because the pre-IIRIRA “brief, casual, and innocent” standard rather than IIRIRA’s 90/180-day rule should apply to their petition. We rejected their claim, reasoning that “it is very unlikely that Congress intended to apply only the stop-time rule retroactively, and not the 90/180-day rule. IIRIRA § 309(c)(5)(

A) states that both provisions apply to aliens whose deportation proceedings were pending on the date of IIRIRA’s enactment and there is no indication that the two provisions should be applied differently.” Id. at 941. These cases compel us to reach the same conclusion here.

Garcia-Ramirez correctly argues that § 1229b(d)(2) does not reflect an express congressional intent that it should be applied retroactively, and we agree with her that use of the past present tense — “an alien shall be considered to have failed to maintain continuous presence” if the alien “has departed” from the United States for more than 90 days — is an insufficient ground from which to infer such intent under the Landgraf standard. Mendiola-Sanchez, however, holds that the broader IIRIRA statute, specifically § 309(c)(5)(

A) of the transitional rules, does contain unambiguous congressional intent that the 90/180-day rule be applied retroactively. Although the INS did not initiate proceedings against Garcia-Ramirez until after IIRIRA’s effective date, and thus the transitional rules do not govern her petition, § 309(c)(5)(

A) is part of the IIRIRA statute and stands as persuasive evidence, as construed by Mendiolctr-Sanchez, that Congress intended to apply the 90/180-day rule to non-citizens who, like the Mendiolas and Gareia-Ramirez, left the country for periods of more than 90 days before IIRIRA’s passage. Declining to apply the 90/180-day rule here would therefore produce an incongruous result. Garcia-Ramirez’s circumstances closely resemble those of the Men-diolas, whose claims were arguably even more compelling than those of Garcia-Ramirez.

She entered the country illegally in May 1988 and has lived in the country continuously since that date with the exception of her five-month trip in 1989 to visit family in Mexico. The Mendiolas, however, had continuously resided in the United States for even longer, since 1983. After accumulating 10 years of continuous presence in the United States, Mendiola took a six-month trip to Mexico in 1993 to care for his parents and was joined by his son for five months of that trip.

Although Mendiola’s wife and daughter, who had not traveled to Mexico, received relief from deportation, we upheld the BIA’s application of the 90/180-day rule to Mr. Mendio-la and his son. The legal distinction between these two cases derives solely from the fortuity that the INS initiated proceedings against the Mendiolas one day before IIRIRA’s effective date but did not place Gareia-Ramirez in removal proceedings until after the statute became effective. The transitional rules thus controlled the Mendiolas’ case, whereas the permanent provisions apply to Gareia-Ramirez.

Neither Gareia-Ramirez nor the Mendiolas could have known when they took their trips to Mexico that the “brief, casual, and innocent” standard would be abrogated and replaced with IIR-IRA’s 90-day bright line rule, and the Mendiolas, who received their orders to show cause before IIRIRA’s effective date, seemingly have the more compelling argument that IIRIRA’s new provisions should not apply to them.

Because we have already held that IIRI-RA’s transitional rules contain express congressional intent to apply the 90/180-day rule to petitioners who left the country for more than 90 days before IIRIRA’s passage, we conclude that we are required to apply the rule to all such petitioners, whether their cases are governed by the transitional rules or IIRIRA’s permanent provisions. Petition DENIED. . The 90/180-day rule provides that ''[a]n alien shall be considered to have failed to maintain continuous physical presence in the United States under subsections (b)(1) and (b)(2) of this

section if the alien has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2). All statutory citations hereinafter are to 8 U.S.C. unless otherwise indicated. . On March 1, 2003, the INS was abolished as an agency within the Department of Justice and its functions were transferred to the newly created Department of Homeland Security. . Under IIRIRA, an alien’s accrual of physical presence time ends when removal proceedings are commenced against the alien through service of a notice to appear before an IJ. § 1229b(d)(l).

The INS initially served Garcia-Ramirez with a notice to appear on April 10, 1997. However, this notice failed to specify the date or location of Garcia-Ramirez’s immigration hearing. Garcia-Ramirez was not served with a proper hearing notice until October 7, 1998. Under § 1229(a), service of this second notice to appear ended Garcia-Ramirez's accrual of physical presence. . The ''stop-time” rule provides that “any period of continuous residence or continuous physical presence in the United States shall be deemed to end (

A) except in the case of an alien who-applies for cancellation of removal under subsection (b)(2) of this section, when the alien is served a notice to appear under § 1229(

a) of this title, or (

B) when the alien has committed [certain criminal offenses], whichever is earliest.” § 1229b(d)(l).