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Click here for the full text of this decision FACTS:Petitioner Dervin Venion Heaven was born in Jamaica in 1966 and admitted to the United States as an immigrant on March 14, 1986, but never became a U.S. citizen. On Feb. 11, 1998, Heaven pleaded guilty, pursuant to a plea agreement, to the criminal sale of marijuana in the fourth degree in violation of New York Penal Law �221.40. Following his conviction, the Immigration and Naturalization Service (INS) took Heaven into custody and initiated proceedings to remove him from the United States. The INS filed a Notice to Appear in immigration court and served it on Heaven on Dec. 4, 2000. In the notice, the INS charged that Heaven was subject to removal under �237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. �1227(a)(2)(B)(I) (2000), which authorizes the deportation of any alien who has been convicted of a violation of any law or regulation of a state relating to a controlled substance. Over the next several years, the immigration judge twice found Heaven subject to removal and ineligible for cancellation of removal, only to have the case reversed and remanded by the BIA for reasons not relevant to the instant petition. On March 24, 2003, Heaven submitted an application for cancellation of removal pursuant to 8 U.S.C. �1229b, which permits the Attorney General to cancel the removal of a deportable alien in certain circumstances. The DHS (formerly INS) then asserted that between Aug. 28, 1991, and Sept. 13, 1992, Heaven had been convicted of misdemeanor drug offenses in New York on five occasions. Heaven denied these allegations and the DHS withdrew its claim regarding one of the convictions. On Sept. 3, 2003, the immigration judge found that the DHS proved that Heaven was convicted of three of the offenses. The immigration judge then determined that Heaven was ineligible for cancellation of removal because, under the stop-time rule, Heaven’s 1991 and 1992 convictions prevented him from having the seven years of continuous residence in the United States necessary for cancellation of removal. Heaven appealed to the BIA, contending that application of the stop-time rule was impermissibly retroactive, as the rule was not enacted until 1996, after Heaven had received his convictions. On Jan. 21, 2004, the BIA dismissed Heaven’s appeal, holding that the stop-time rule should be applied retroactively to Heaven’s pre-1996 convictions. Heaven then filed a petition for habeas corpus in the United States District Court for the Eastern District of New York on April 7, 2004, seeking review of the BIA’s order. On October 28, 2005, the district court transferred the habeas petition to this court pursuant to the REAL ID Act of 2005, 8 U.S.C. �1252(a)(5). HOLDING:The 5th U.S. Circuit Court of Appeals denied the petition for a writ of habeas corpus in part and dismissed it in part. The court cited a two-part test to determine when it is permissible to apply a statute retroactively. The first step, the court stated, is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. If the statute contains no express command from Congress that it be applied retroactively, the court stated that it would then examine whether application of the new statute attaches new legal consequences to events completed before its enactment. In conducting the first step of the analysis, the court found that Congress stated that the stop-time rule, codified at 8 U.S.C. �1229b(a), should be retroactively applied to cases pending at the time the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546 (IIRIRA) became effective. Because Congress spoke directly to the question at issue by passing IIRIRA, the court stated that it did not need to complete the second prong on the analysis. It therefore held that �309(c)(5) of the IIRIRA requires the retroactive application of 8 U.S.C. �1229b(a) in removal proceedings commenced after the effective date of the IIRIRA. The court then addressed Heaven’s argument that retroactive application of the law violated his due process rights, citing its previous holding that retroactive application of the stop-time rule to proceedings that were pending when the IIRIRA was enacted does not violate the due process clause. There is no reason to treat the due process analysis any differently, the court stated, simply because Heaven’s removal proceedings did not begin until after the IIRIRA was enacted. Therefore, the court held that the BIA was correct in determining that Heaven was ineligible for cancellation of removal because he lacked the requisite seven years of continuous residence. In addition, the court found that Heaven did not exhaust his administrative remedies with respect to his �212(c) claim, so the court lacked jurisdiction to entertain it on appeal. That statute permits the Attorney General to waive deportation for an alien. Similarly, the court found that Heaven did not raise his arguments regarding res judicata and collateral estoppel before the BIA. Therefore, pursuant to 8 U.S.C. � 1252(d)(1), the court stated it lacked jurisdiction to consider those arguments. OPINION:Prado, J.; Smith, Benavides and Prado, J.J.

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