Criminal Procedure – plea withdrawal

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure – plea withdrawal

Where a defendant who pleaded guilty to illegal reentry was not deprived of judicial review of his removal proceedings, his motion to withdraw his plea was properly denied.

“There are two problems with Zambrano’s position. First, Zambrano’s first point is similar to the one we rejected in United States v. Roque-Espinoza, where we explained that, despite the uncertainty regarding the availability of habeas corpus relief at the time of his removal, ‘[n]othing prevented [Roque-Espinoza] from playing the role of St. Cyr’ and at least attempting to petition for review of his purported ineligibility for Section 212(c) relief. 338 F.3d 724, 729 (7th Cir. 2003). ‘The fact that [the defendant] chose not to make the attempt does not mean that he was deprived of all avenues of judicial review of his removal order.’ Id. Second, and more importantly, Zambrano misapprehends the state of the law in this circuit at the time of his removal. On August 23, 2000, five weeks before the Board issued its decision in Zambrano’s removal proceedings, we held that Section 440(d) of AEDPA, which eliminated aggravated felons’ eligibility for Section 212(c) relief, ‘cannot be applied retroactively to bar [an] alien from receiving a discretionary waiver under INA § 212(c)’ where the alien ‘pled guilty to an aggravated felony before the enactment of AEDPA and relied, at least in part, on the availability of § 212(c) relief in making his decision to so plead.’ Jideonwo v. I.N.S., 224 F.3d 692, 700 (7th Cir. 2000). The Supreme Court cited this opinion approvingly eleven months later when it decided St. Cyr, 533 U.S. at 323 (‘The potential for unfairness in the retroactive application of IIRIRA § 304(b) to people like Jideonwo and St. Cyr is significant and manifest.’).”

Affirmed.

12-1524 U.S. v. Zambrano-Reyes

Appeal from the United States District Court for the Northern District of Illinois, Reinhard, J., Wood, J.