US v. Gonzalez
No. 03-50414 (12-1-05). Don Henley, in "Boys of Summer', sings "A little voice inside my head said, 'Don't look back. You can never look back'./I thought I knew what love was/What did I know?Those days are gone forever/I should just let them go." In litigating 1326 cases though, looking back is sometimes all that we have left. In this case, defendant argued that 8 USC 1228 deprived him of his ability to seek discretionary relief from deportation under 212(h), and that his waiver of appeal was invalid and prejudicial. Defendant had pled to two robbery counts and received a three year sentence in the CYA. He was subsequently deported twice, and this third time argued that he would have had grounds for discretionary relief if he had been told of it in his waiver. The 9th denied the claim, It distinguished St Cyr, where the findings were that the five year trigger resulted in plea negotiations for a lesser amount and a settled expectation of the possibility of discretionary relief under 212(c). Such an expectation was not present here, because there was no trigger for deportation, and the odds were low for such discretionary relief under 212(h). The 9th applied the bar of 1182 retroactively and found support in Alvarez-Barajas, 418 F.3d 1050 (9th Cir. 2005) that made ineligibility retroactive for agg felons who were LPRs.