Ponnapula v. Atty Gen USA , 373 F.3d 480 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-28-2004
Ponnapula v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-1255
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PRECEDENTIAL District Judge: Honorable Sylvia H.
Rambo
__________
IN THE UNITED STATES COURT OF Argued February 26, 2004
APPEALS
FOR THE THIRD CIRCUIT Before: RENDELL, BARRY and
_____________ BECKER, Circuit Judges
NO. 03-1255 (Filed June 28, 2004 )
_____________
DARYL F. BLOOM
MURALI KRISHNA PONNAPULA; Office of United States Attorney
Federal Building
v. 228 Walnut Street
P.O. Box 11754
JOHN ASHCROFT, Attorney General of Harrisburg, PA 17108
the
United States of America; JAMES W. WILLIAM C. MINICK (Argued)
ZIGLAS, Commissioner of the United Sates Department of Justice
Immigration and Naturalization Service; Office of Immigration Litigation
EDWARD MCELROY, New York City P.O. Box 878
District Director of the Immigration and Ben Franklin Station
Naturalization Service; Washington, DC 20044
KENNETH ELWOOD, Philadelphia
District Director of the Attorneys for Appellants
Immigration and Naturalization Service;
IMMIGRATION & ALEXANDER E. EISEMANN (Argued)
NATURALIZATION SERVICE; 282 Katonah Ave.
UNITED STATES DEPARTMENT OF Suite 244
JUSTICE, Katonah, NY 10536
Appellants Attorney for Appellee
________
PAUL A. ENGELMAYER
On Appeal from the United States CHRISTOPHER J. MEADE (Argued)
District Court For KATHERINE R. GOLDSTEIN
The Middle District of Pennsylvania Wilmer, Cutler & Pickering
(D.C. No. 02-cv-01214) 399 Park Avenue
New York, NY 10022
JOSHUA L. DRATEL Immigration and Nationality Act (“INA”),
National Association of Criminal 8 U.S.C. § 1182(c) (repealed 1996),
Defense Lawyers deportable aliens who had accrued seven
Joshua L. Dratel, P.C. years of lawful permanent residence in the
14 Wall Street United States could request discretionary
New York, NY 10005 relief from deportation by arguing that the
equities weighed in favor of their
JONATHAN E. GRADESS, Executive remaining in the United States. Even an
Director alien deportable because he had been
MANUEL D. VARGAS, Project convicted of an aggravated felony, see 8
Director U.S.C. § 1227(a)(2)(A)(iii) (1994), was
Immigrant Defense Project eligible for such discretionary relief if he
New York State Defenders Association served a term of imprisonment less than
P.O. Box 20058 five years. See 8 U.S.C. § 1182(c).
West Village Station
Section 212(c) was repealed in
New York, NY 10014
September 1996, when Congress passed
the Illegal Immigration Reform and
Attorneys for Amici Curiae, National
Immigrant Responsibility Act (“IIRIRA”),
Association of Criminal Defense Lawyers
Pub. L. No. 104-208, 110 Stat. 3009-546
and the New York State Defenders
(codified in scattered sections of 8 U.S.C.).
Association in Support of Appellee
Section 304(b) of IIRIRA repealed §
212(c) relief entirely, replacing it with a
________________________
procedu re called “cancellation of
removal,” see 8 U.S.C. § 1229b (1996),
OPINION OF THE COURT
and providing that cancellation of removal
________________________
is not available to an alien convicted of
any aggravated felony. This provision was
BECKER, Circuit Judge. consistent with section 440(d) of the
Antiterrorism and Effective Death Penalty
This appeal centers on the question
Act (“AEDPA”), Pub. L. No. 104-132, 110
w h ether the I m m i g r a ti o n a nd
Stat. 1214 (codified in relevant part at 8
Naturalization Service (“INS”) can apply
U.S.C. § 1182 (1996)), enacted shortly
a new law retroactively in a way that will
alter the immigration consequences of an
immigrant’s decision made under prior
Homeland Security. The activity
law.1 Under former § 212(c) of the
involved in this case is now carried on by
the Bureau of Immigration and Customs
Enforcement. However, since the case
1
Since March 1, 2003, the INS has began as an INS matter, we shall
been part of the Department of continue to refer to the INS.
2
before IIRIRA, which rendered aliens “demands a commonsense, functional
convicted of aggravated felonies, judgment” that “should be informed and
regardless of the length of their sentence, guided by ‘familiar considerations of fair
ineligible for discretionary relief from notice, reasonable reliance, and settled
deportation under former § 212(c). expectations.’” Martin v. Hadix, 527 U.S.
343, 357-58 (1999) (quoting Landgraf,
In INS v. St. Cyr, 533 U.S. 289, 326
511 U.S. at 270).
(2001), the Supreme Court held that
discretionary relief under former § 212(c) In St. Cyr, the Court concluded that the
“remains available for aliens . . . whose retroactive application of IIRIRA section
convictions were obtained through plea 304(b) would have an impermissible
agreements and who . . . would have been retroactive effect on aliens—such as St.
eligible for § 212(c) relief at the time of Cyr—who had pleaded guilty prior to the
their plea under the law then in effect.” In repeal of § 212(c). The Court highlighted
St. Cyr, the Court needed to determine the quid pro quo of the criminal plea
whether IIRIRA section 304(b) applied agreement, and reasoned that because
retroactively. After concluding that aliens like St. Cyr almost certainly relied
Congress did not provide a sufficiently upon the likeliho od of rece iving
clear command with respect to the discretionary relief in deciding whether to
temporal reach of the repeal of former § forgo their right to a trial, the elimination
212(c) by IIRIRA section 304(b), the of any possibility of § 212(c) relief by
Court applied the next step of the familiar IIRIRA has an obvious and severe
principles of Landgraf v. USI Film retroactive effect. This appeal presents the
Products, 511 U.S. 244 (1994), to question whether application of IIRIRA
determine whether the repeal had an section 304(b) would have a similarly
impermissible retroactive effect. Landgraf impermissible retroactive effect on the
cataloged a history of Supreme Court petitioner, Murali Krishna Ponnapula.
precedent establishing a “presumption Ponnapula turned down a misdemeanor
against statutory retroactivity,” id. at 270, plea agreement, went to trial when former
in the absence of a clear command from § 212(c) was still in effect, and was
Congress. A statute will be impermissibly convicted of a felony by the jury; he went
retroactive when it attaches new legal to trial in reliance on the advice of his
consequences to prior events because its counsel that, even if he were found guilty,
application “would impair rights a party he would very likely not receive a sentence
possessed when he acted, increase a that would render him ineligible for §
party’s liability for past conduct, or impose 212(c) relief, because of his very minor
new duties with respect to transactions role in the offense.
already completed.” Id. at 280. The
Rejecting the position of the
question whether a new statute attaches
government that Ponnapula is precluded
new legal consequences to prior conduct
from claiming retroactive effect by reason
3
of the discussion in St. Cyr, we conclude nominal president, and submitted an
that St. Cyr is simply one application of inflated personal net worth statement over
the general principles articulated in his name. The loan was eventually
Landgraf that counsel against interpreting approved. However, the undisputed
statutes to have retroactive effect. Here, evidence established that Prasad and
with respect to an alien who reasonably Dandapani did all of this without
could have relied on the potential Ponn apula’s knowledge, and that
availability of § 212(c) relief, application Dandapani forged Ponnapula’s signature
of the Landgraf principles shows that on both the loan application and the net
I IR I R A s e c t io n 3 0 4 ( b ) h a s a n worth statement.
impe rmis s i b l e r e t ro a c t i v e ef f e c t.
Over the next year, Ponnapula and the
Moreover, on this record, where the
Manhattan District Attorney’s Office
petitioner dem onstrated clear and
engaged in plea negotiations. The District
reasonable actual reliance on the former
Attorney’s Office offered to allow him to
statutory scheme in making the decision to
plead guilty to a misdemeanor with a
go to trial, there is a fortiori an
probationary sentence. Ponnapula
impermissible retroactive effect. We
considered the offer and the immigration
begin with the facts of Ponnapula’s case.
consequences of pleading guilty versus
going to trial. His counsel advised him
that if he was convicted, he would very
I.
likely receive the minimum sentence of
A. only one to three years’ imprisonment,
which is less than the five years necessary
In 1993, a New York state grand jury
to disqualify an alien from § 212(c) relief.
indicted Ponnapula, along with several
Accordingly, Ponnapula reasonably
other defendants, for grand larceny in the
believed that even if he were convicted of
first degree, N.Y. Penal Law § 155.42, and
a felony after trial he would still likely be
falsifying business records in the first
eligible for hardship relief from
degree, N.Y. Penal Law § 175.10.
deportation pursuant to former § 212(c).
Essentially the offense involved a
In reliance on this advice, Ponnapula
fraudulent application submitted to the
decided to turn down the misdemeanor
Bank of India for a loan to generate
offer and proceeded to trial. On December
working capital, secured by a valuable
20, 1994, he was convicted of both counts
parking lot located near LaGuardia Airport
in the indictment. He was sentenced to the
in New York City. The loan application
minimum term of imprisonment— one to
was submitted by a group headed by
three years.
Ponnapula’s brother, Dr. P.S. Prasad.
Prasad and his assistant, Vijay Dandapani, The advice of Ponnapula’s counsel,
prepared a loan application in the name of and his reliance thereon, is easily
a shell company, listed Ponnapula as its understandable, for the evidence at trial
4
barely established criminality. Indeed, while the loan application contained false
Ponnapula’s participation was so limited statements, the bank was well secured, and
that the trial judge set aside the jury’s recovered $1.35 million of the $1.9 million
guilty verdict and dismissed the indictment loan amount when it ultimately sold the
as to Ponnapula, for reasons chronicled in parking lot. However, the order setting
the margin.2 It is also noteworthy that aside the conviction was eventually
reversed on appeal and the conviction
reinstated.
2
According to Judge Carruthers: Upon remand, the trial court imposed
The People presented no the mandatory minimum term of one to
evidence that Murali participated three years imprisonment on this New
in any way in the inclusion of any York State “B” felony, see N.Y. Penal
false statements contained in the Law § 155.42, but the trial judge
loan application, or that Murali recommended to the New York State
knew that the loan documents Corrections Department that it “consider
contained any false [defendant] for an early release program
representations. The People’s that encompasses work releas e .”
most important witness, Ponnapula then filed a petition for habeas
Dandapani, testified that M urali relief in the United States District Court
was not informed of for the Southern District of New York.
misrepresentations that Prasad
ordered Dandapani and Shetty to
include in the loan application and signing. Moreover, there was no
the supporting documents. Murali evidence that Murali signed the
could not have learned from the documents with knowledge that
documents themselves that Prasad Prasad intended to misapply the
was deceiving the bank. The proceeds of the loan . . . .
evidence shows that Murali never . . . . [T]he People’s key
had a chance to examine them. witness, Vijay Dandapani,
Thus, Murali was in no position to testified unequivocally that Murali
detect even the glaring never knew of the
misrepresentations concerning his misrepresentations made to the
finances that were contained in bank in the loan application. The
the loan applications. remainder of the evidence
With respect to the documents presented by the People simply
that Murali signed at the closing, fails to support the contention that
Dandapani and Krasner, the Murali was a knowing participant
bank’s attorney, each testified that in any misrepresentations made by
Murali only glanced at the papers, Prasad or his assistants with
but did not read them before regard to the loan.
5
While concluding that the evidence had 2002, pursuant to 28 U.S.C. § 2241,
been legally sufficient to sustain Ponnapula filed the habeas petition that is
petitioner’s conviction of a larceny the subject of this appeal.
involving more than one million dollars,
B.
and that he was constrained to deny federal
habeas relief, Judge Rakoff observed: In analyzing the petition for hardship
relief, the District Court reasoned that it
[ P ] e t it i o n e r’s counsel h as
was “presented with the very narrow legal
convinced me that his client was,
question of whether . . . to apply IIRIRA
for lack of a better term, the small
retroactively to [Ponnapula].” Ponnapula
fry o r— m a ybe eve n bette r
v. Ashcroft, 235 F. Supp. 2d 397, 402
term — the schnook of this
(M.D. Pa. 2002). However, it decided that
particular group of miscreants.
the exemption-stripping provision in
And though I have no power IIRIRA could not be applied, “[g]iven the
other than the power to comment factual underpinnings of this case,” id.,on what should be done now in and it concluded that Ponnapula was
terms of his incarceration, for what entitled to apply for hardship relief. More
it’s worth, it seems to me it would specifically, the District Court found that
certainly be in the interests of the “[e]limination of any possibility of
justice for him to be released on former § 212(c) relief by IIRIRA has an
work release. obvious and severe retroactive effect on
persons like Petitioner who relied on
After Ponnapula was allowed out on
settled expectations of the immigration
work release, the INS filed a detainer and
laws in place at the time he turned down a
warrant for a removal hearing on October
plea bargain and decided to go to trial.”
2, 2000, and pursuant to New York law
Id. at 403. It also found that “A major
Ponnapula was returned to state custody.
factor in his decision not to accept the
On January 8, 2001, after a hearing, an
offer was the lack of any distinction for the
immigration judge found Ponnapula
purposes of § 212(c) relief between a
removable from the United States. On
misdemeanor and felony conviction.” Id.
appeal, the BIA affirmed, holding that St.
(internal quotation marks omitted).
Cyr could not be extended beyond
Summarizing its position, the District
defendants who had pleaded guilty. On
Court ruled that “[i]n deciding not to
May 7, 2002, after two years of
accept the plea bargain offered, but instead
incarceration on his conviction, the New
to go to trial, Petitioner conformed his
York State Department of Correctional
conduct to the settled expectation that §
Services released Ponnapula. Upon his
212(c) relief would be available.
release, the INS took him into custody and
Accordingly, the court finds that
transferred him to the Pike County,
foreclosing § 212(c) relief to Petitioner
Pennsylvania jail for detention. On May 8,
would have an impermissible retroactive
6
effect.” Id. at 406. to § 212(c), a lawful permanent resident
convicted of a deportable offense was
Because Ponnapula had lived
statutorily eligible to seek from the
continuously in the United States for seven
Attorney General discretionary relief from
years and had been sentenced to less than
d e p o r t a ti o n . S e e 8 U .S.C . §
five years’ imprisonment, he would have
1182(d)(1994). Prior to IIRIRA,
been eligible for § 212(c) relief had it not
immigrants who were deportable on the
been eliminated. Indeed, it would appear
basis of a criminal offense could apply for
from the record that he would likely have
§ 212(c) relief so long as they had lived in
been granted it: Ponnapula’s wife and two
this country continuously for seven years.
children as well as several of his brothers
On ly t ho se w ho had been
are naturalized United States citizens. All
convicted—either by plea or at trial—of a
of them live in this country. Ponnapula’s
crime that fell under the definition of an
fourteen-year-old and twenty-year-old
“aggravated felony,” see 8 U.S.C. §
daughters do not speak Telgu, the native
1101(a)(43) (1994), and who had served a
language of their parents. With the
prison term of at least five years were
exception of the first one and one-half
statutorily ineligible for discretionary
years of the older daughter’s infancy, each
relief. See 8 U.S.C. § 1182(c) (1994).
has spent a total of only six weeks in India
Even a defendant convicted of an
in their entire lives. The youngest
aggravated felony and sentenced to five or
daughter is in the ninth grade, and removal
more years’ imprisonment might have
of her father would lead to her mother
maintained eligibility for § 212(c) relief
leaving the country, and would force the
provided that he had not served five years
daughter to reside in a place where she has
of his sentence by the time of his removal
no ties and does not speak the language.
hearing.
Indeed, Ponnapula had been approved to
become a United States citizen and was There was also a strong likelihood that
planning to take the oath in 1993, but did such relief would be granted: The Attorney
not do so because he was indicted for this General granted it in over half of all cases
offense before the oath could be in which it was sought. See St. Cyr, 533
administered. U.S. at 296 & n.5. Moreover, the relief
was predictably granted where certain
factors were present, including family ties
II. within the United States, residence of long
duration in this country, evidence of
A.
hardship to the immigrant’s family as a
It will be useful to set forth a brief result of deportation, and a stable history
description of the statutory regime in place of employment. See In re Marin, 16 I&N
prior to 1996 and the passage of AEDPA
and IIRIRA. Under that regime, pursuant
7
Dec. 581, 584-85 (BIA 1978). 3 Moreover, if the repeal is applied
retroactively to immigrants such as
With IIRIRA, Congress repealed §
Ponnapula, the practical effect is that it
212(c) relief altogether and replaced it
will convert what was the mere possibility
with a provision that created a new and
of deportation into a certainty.
significantly narrower form of relief called
“cancellation of removal.” This form of B.
relief is now unavailable to any immigrant
Since the principal authority governing
who was convicted of an aggravated
this case is Landgraf, we rescribe its
felony, no matter the length of the
fundamental precepts. There the Supreme
sentence. See 8 U.S.C. § 1229b. The
Court held that, absent a clear command to
definition of “aggravated felony” has been
the contrary from Congress, there is a
retroactively expanded to include dozens
“ p r e s u m p t io n a g a i n s t s ta t u t o ry
more offenses, including misdemeanor and
retroactivity.” 511 U.S. at 270.4 Without
low-level felony offenses. See 8 U.S.C. §
such a clear statement, retroactive
1101(a)(43). Courts have upheld the
application of a statute is impermissible
application of the expanded definition of
when it “would impair rights a party
“aggravated felony” to minor offenses.
possessed when he acted, increase a
See, e.g., United States v. Pacheco, 225
party’s liability for past conduct, or impose
F.3 d 1 4 8, 15 4 (2 d C ir. 2000)
new duties with respect to transactions
(misdemeanor state theft of a video game
already completed.” Id. at 280. In Martin
valued at $10, for which immigrant
v. Hadix, the Court elaborated that the
received one-year suspended sentence, is
an aggravated felony); United States v.
Graham, 169 F.3d 787, 792 (3d Cir. 1999)
4
(misdemeanor crime of petty larceny is an See also Landgraf, 511 U.S. at 265,
aggravated felony). 271, 271 n.25, 272, 273, 275 n.29, 277,
278, 279, 286 (referring, variously, to the
The practical effect of the repeal of §
“presumption against retroactive
212(c) relief, in conjunction with several
legislation,” the “presumption against
other statutory amendments, is that a far
statutory retroactivity,” the
larger number of immigrants are now
“antiretroactivity presumption,” and the
deportable under the new law, while a
“traditional presumption against truly
much smaller number are eligible for any
‘retrospective’ application”); Hughes
form of relief from deportation.
Aircraft Co. v. United States ex rel.
Schumer, 520 U.S. 939, 946, 947, 950,
951, 952 (1997) (same); Hadix, 527 U.S.
3Section 212(c) relief is governed by at 352, 367 (same); St. Cyr, 533 U.S. at
predictable standards, “comparable to 316, 320, 324 (same); Republic of
common-law rules,” St. Cyr, 533 U.S. at Austria v. Altmann, No. 03-13, slip op. at
296 n.5. 14, 17 (U.S. June 7, 2004) (same).
8
question whether a new statute attaches considered whether applying the repeal
new legal consequences to prior conduct retroactively would be impermissible. The
“demands a commonsense, functional Court concluded that applying the repeal to
judgment” that “should be informed and aliens “who entered into plea agreements
guided by ‘familiar considerations of fair with the expectation that they would be
notice, reasonable reliance, and settled eligible for [§ 212(c)] relief” would
expectations.’” 527 U.S. at 357-58 “‘attach[] a new disability, in respect to
(quoting Landgraf, 511 U.S. at 280). Most transactions or considerations already
recently, in Republic of Austria v. past’” and produce a retroactive effect. Id.Altmann, the Supreme Court held that the at 321 (quoting Landgraf, 511 U.S. at
Landgraf line does not apply to the “sui 269). The Court ultimately held something
generis context” of the Foreign Sovereign somewhat more expansive: “We . . . hold
Immunities Act, slip op. at 18, but that § 212(c) relief remains available for
nonetheless both the majority and dissent aliens, like respondent, whose convictions
expressly reaffirmed Landgraf’s “old and were obtained through plea agreements
well-established principle,” slip op. at 3 a nd who, notw i t h s ta n d ing th o se
(Kennedy, J., dissenting); see also slip op. convictions, would have been eligible for
at 13-18 (reaffirming but distinguishing § 212(c) relief at the time of their plea
Landgraf). The Altmann Court explained under the law then in effect.” Id. at 326.
that “the aim of the presumption is to
In reaching this conclusion, the Court
avoid unnecessary post hoc changes to
focused on an alien’s reasonable reliance
legal rules on which parties relied in
on the possibility of discretionary relief
shaping their primary conduct.” Slip op. at
under former § 212(c) as one of the most
17-18.
important factors prompting him to forego
In St. Cyr, the Court applied the trial and enter a plea agreement. “Given
principles of Landgraf in considering the frequency with which § 212(c) relief
whether IIRIRA’s repeal of discretionary was granted in the years leading up to . . .
relief under former § 212(c) would have a IIRIRA,” the Court reasoned, “preserving
retroactive effect if applied to an alien who the possibility of such relief would have
was “convicted pursuant to a plea been one of the principal benefits sought
agreement at a time when [his] plea would by defendants deciding whether to accept
not have rendered [him] ineligible for § a plea offer or instead to proceed to trial.”
212(c) relief.” St. Cyr, 533 U.S. at 320. Id. at 323. Indeed, “[t]here can be little
The Court first examined whether the doubt that, as a general matter, alien
provisions repealing former § 212(c) defendants considering whether to enter
evinced a clear Congressional intent to into a plea agreement are acutely aware of
apply the repeal retroactively. Concluding the immigration consequences of their
that there was no such clear statement, see convictions.” Id. at 322. In support of its
St. Cyr, 533 U.S. at 314-20, the Court next conclusion that aliens who accepted plea
9
agreements prior to IIRIRA had a reliance (4th Cir. 2002).5 Other Courts of Appeals
interest in § 212(c) relief, the Court have also limited St. Cyr’s retroactivity
pointed to the quid pro quo at the heart of holding to the plea-bargain context without
criminal plea agreements. Id. at 321. “In specifically invoking the quid pro quo
exchange for some perceived benefit, language from St. Cyr. See Montenegro v.
defendan ts waive several of their Ashcroft, 355 F.3d 1035 (7th Cir. 2004)
constitutional rights . . . and grant the (per curiam); Dias v. INS, 311 F.3d 456government numerous tangible benefits.” (1st Cir. 2002); Armendariz-Montoya v.
Id. at 322 (internal quotation marks Sonchik, 291 F.3d 1116 (9th Cir. 2002);
omitted). The Court concluded that Brooks v. Ashcroft, 283 F.3d 1268 (11th
“[b]ecause [St. Cyr], and other aliens like Cir. 2002). A related argument advanced
him, almost certainly relied upon [the] by the INS and in these cases is that the
likelihood [of receiving discretionary immigrant has “rolled the dice” by going
relief] in deciding whether to forgo their to trial and thereby forfeited any claim to
right to a trial, the elimination of any certainty. See, e.g., Chambers 307 F.3d at
possibility of § 212(c) relief by IIRIRA 291-92.
has an obvious and severe retroactive
As we will explain, our interpretation
effect.” Id. at 325.
of Landgraf and its progeny differs
C. somewhat from these Courts’. But even
accepting their understanding of Landgraf,
The crux of the government’s argument
we think Ponnapula’s case distinguishable
is that the appeal is controlled by St. Cyr,
from the cases cited above, with the
which it views as resting uniquely on the
existence of the quid pro quo of criminal
plea agreements. The absence of this quid 5
We have also suggested this in two
pro quo here, the INS argues, causes
opinions, Chukwuezi v. Ashcroft, 48 Fed.
Ponnapula’s claim to fail. Of course, the
Appx. 846, 851 (3d Cir. 2002) and
unspoken premise of this argument is that
Uspango v. Ashcroft, 289 F.3d 226, 230
St. Cyr articulated the exclusive conditions
(3d Cir. 2002). Neither is binding on this
for impermissible retroactivity in this
issue on this panel, however, see Third
context.
Circuit IOP 9.1 (“Policy of Avoiding
The Courts of Appeals for the Second Intra-Circuit Conflict of Precedent”):
and Fourth Circuits have confined St. Cyr Chukwuezi is a not-precedential opinion,
to the plea-agreement context on the and the discussion in Uspango of St. Cyr
understanding that a quid pro quo is is dicta because it is not necessary to that
required. See Swaby v. Ashcroft, 357 F.3d opinion’s holding—that a removal
156, 161-62 (2d Cir. 2004); Rankine v. proceeding does not “commence,” for
Reno, 319 F.3d 93, 100 (2d Cir. 2003); purposes of 8 C.F.R. § 3.14 and
Chambers v. Reno, 307 F.3d 284, 290-91 IIRIRA’s effective-date provision, with
an alien’s petition for asylum.
10
possible exception of Swaby (with which, deportable— in reliance on the
at all events, we disagree). We first availability of the relief offered
explain why we believe that other Courts prior to IIRIRA. The petitioners
of Appeals have perhaps misapplied decided instead to go to trial, a
Landgraf in this area, and we then show decision that, standing alone, had
why, even under the constricted and no impact on their immigration
questionable (but nonetheless prevailing) status. Unless and until they were
view, Ponnapula’s somewhat unique convicted of their underlying
situation still demands that he be crimes, the petitioners could not be
considered for § 212(c) relief. deported.
***
III. Second, the petitioners have
pointed to no conduct on their part
A.
that reflects an intention to preserve
Because we disagree with other Courts their eligibility for relief under §
of Appeals’ application of Landgraf to the 212(c) by going to trial. If they had
question in this case, some background on pled guilty, petitioners would have
those Courts’ treatment of Landgraf is participated in the quid pro quo
necessary. We treat the Second Circuit’s relationship, in which a greater
opinion in Rankine as representative. expectation of relief is provided in
There, the Court laid out the Supreme exchange for forgoing a trial, that
Court’s modern retroactivity doctrine with gave rise to the reliance interest
citations to Landgraf, Hadix, and St. Cyr, emphasized by the Supreme Court
see Rankine, 319 F.3d at 98-99, much as in St. Cyr. As the Court made
we have done above, see supra Part II.B. clear, it was that reliance, and the
The Court explained that the Rankine consequent change of immigration
petitioners’ “choice to go to trial puts s t a t u s , t h a t p ro d u c e d t h e
[them] on different footing [from St. Cyr] impermissible retroactive effect of
in two crucial respects.” Rankine, 319 IIRIRA. Here, petitioners neither
F.3d at 99. did anything nor surrendered any
rights that would give rise to a
First, none of these petitioners
comparable reliance interest.
detrimentally changed his position
in reliance on continued eligibility Id. at 99-100 (citation omitted).
for § 212(c) relief. Unlike aliens
Three aspects of this opinion are
who entered pleas, the petitioners
noteworthy. First, neither in the passages
made no decision to abandon any
above, nor anywhere else in the opinion,
rights and admit guilt—thereby
immediately rendering themselves
11
does the word “presumption” appear, 6 yet from Congress that a statute is to be
the presumption against retroactivity is the applied retroactively, and will defer to
essence of the Landgraf line of cases. such a command. See, e.g., Landgraf, 511
Second, the passage above discussing a U.S. at 270. But in the absence of a clear
detrimental change in position appears to command, a consistent line of cases
require actual reliance by the party seeking e s t a b l i s h e s t h a t “‘ c o n g r e ss i o n al
to avoid retroactive application, yet the enactments and administrative rules will
Supreme Court has never required actual not be construed to have retroactive
reliance in any case in the Landgraf line. effect.’” Id. at 272 (quoting Bowen v.
Third, the Court’s objection that Georgetown Univ. Hosp., 488 U.S. 204,
“petitioners have pointed to no conduct on 208 (1988)).
their part” suggests that the party seeking
Landgraf softens this apparently
to avoid retroactive application bears an
categorical stance by recognizing that
evidentiary burden, another requirement
another line of cases holds that “in many
we are unable to locate in the Landgraf
situations, a court should ‘apply the law in
line. In the next section, we discuss in
effect at the time it renders its decision,’
detail our concern that each of these may
even though that law was enacted after the
be unfaithful to Landgraf and its progeny.
events that gave rise to the suit.” 511 U.S.
B. at 273 (quoting Bradley v. Sch. Bd., 416
U.S. 696, 711 (1974)). The Landgraf
The Second Circuit’s lack of emphasis
C o u r t c i t e d as e x a m p l e s la w s
on the presumption against retroactivity is
“authoriz[ing] . . . prospective relief,” id.,in considerable tension with the Supreme
“ s t a tu t e s c o n f e r r in g o r o u s t i n g
C o u r t ’ s c o n sistent trea tmen t o f
jurisdiction,” id. at 274, and “[c]hanges in
retroactivity analysis. See supra note 4
procedural rules,” id. at 275. Harmonizing
(cataloging references to “presumption” in
these two lines, the Court explained:
Landgraf, Hughes Aircraft, Hadix, St. Cyr,
and Altmann). The Supreme Court’s When a case implicates a federal
framework for assessing the retroactivity statute enacted after the events in
of civil laws has been consistently applied: suit, the court’s first task is to
The Court first looks for a clear statement determine whether Congress has
expressly prescribed the statute’s
proper reach. If Congress has done
6 so, of course, there is no need to
This is not strictly accurate: The
resort to judicial default rules.
phrase “presumption against
Whe n, how ever, th e statute
retroactivity” does appear incidentally in
contains no such express command,
an extended quotation of another Court
the court must determine whether
of Appeals’ decision. See Rankine, 319
the new statute would have
F.3d at 102 (quoting Lara-Ruiz v. INS,
retroactive effect, i.e., whether it
241 F.3d 934, 945 (7th Cir. 2001)).
12
would impair rights a party Our disagreement with the courts that
possessed when he acted, increase have held that IIRIRA’s repeal of § 212(c)
a party’s liability for past conduct, relief is not impermissibly retroactive with
or impose new duties with respect respect to aliens who went to trial is that
to transactions already completed. those courts have erected too high a barrier
If the statute would operate to triggering the presumption against
retroac tively, our traditional retroactivity. This has the effect of
presumption teaches that it does not treating Landgraf as establishing a
govern absent clear congressional presumption in favor of retroactive
intent favoring such a result. application, but such a presumption would
be wrong— the Supreme Court explicitly
511 U.S. at 280.
held in Hughes Aircraft that the Court of
Moreover, in Hughes Aircraft, the Appeals had erred by concluding that
Court explained that a “conten[tion] that Landgraf evinced a “strong presumption in
only statutes with one of these effects are favor of retroactivity.” 520 U.S. at 950.
subject to our presumption against
The Second Circuit’s su btle
retroactivity” would “simply misread[] our
heightening of the showing required to
opinion in Landgraf.” 520 U.S. at 947.
t r i g g e r t h e p r e su m p t i o n a g a in s t
The Hughes Aircraft Court held that the
retroactivity is also visible in that Court’s
language quoted above “does not purport
apparent insistence that an alien show
to define the outer limit of impermissible
actual reliance to reap the benefit of the
retroactivity,” but merely describes “a
presumption against retroactivity. It is a
sufficient, rather than a necessary,
strange “presumption,” in our view, that
condition for invoking the presumption
arises only on so heightened a showing as
against retroactivity.” Id. Because the
actual reliance (though as we explain, see
Supreme Court has repeatedly couched its
infra Part IV, Ponnapula actually has made
holdings in this area in terms of a liberal
such a showing). Relatedly, the Second
presumption— albeit one that arises only
Circuit seems to require a quantum of
conditionally, on a finding of retroactive
evidence regarding the subjective intent of
effect—we read Landgraf and its progeny
the party seeking to avoid retroactive
to hold that the presumption against
application; this too strikes us as being in
retroactivity is easily triggered, though not
tension with the language of presumption
automatic.7
in Landgraf and its progeny; furthermore,
7
Parenthetically, we note that the Cyr, 533 U.S. at 325 n.55, that the
holdings and reasoning of Landgraf, retroactive application of an immigration
Hughes Aircraft, and Hadix are not law is analyzed no differently from the
somehow inapplicable to laws about retroactive application of any other civil
deportation; the Court made plain in St. statute.
13
such a requirement incorrectly focuses without reference to Hughes Aircraft’s
attention on the particular facts and conduct or expectations, see Hughes
circumstances of the party before the Aircraft, 520 U.S. at 947-52, and it is
court. again difficult to see how the defendant
could have established its actual reliance
The Supreme Court has never required
on the prior state of the law.
actual reliance or evidence thereof in the
Landgraf line of cases, and has in fact Ha dix c o n c e r n ed Co ngr e s s ’s
assiduously eschewed an actual reliance amendments to the fee provisions
requirement. Landgraf, Hughes Aircraft, applicable to post-judgment monitoring in
Hadix, and St. Cyr all establish this. In prison reform suits. The amendments
Landgraf, the question was whether the capped the hourly fee recoverable on
Civil Rights Act of 1991’s addition of behalf of attorneys performing such
compensatory and punitive damages monitoring. Attorneys for Hadix, one of
remedies to certain Title VII suits could be the named plaintiff prisoners in the suit,
applied retroactively to reach pre- claimed that the amendment was
enactment conduct. The Court concluded impermissibly retroactive because it
that the remedies could not be applied reduced their hourly rate for work
retroactively, but it reached this conclusion performed before the effective date of the
without once referring to the defendant’s amendment (because it had already been
conduct or the defendant’s actual performed) and for work performed after
expectations. In fact, the defendant (USI the effective date of the amendment
Film Products) is not even mentioned in (because the attorneys could not ethically
the pertinent section of the Court’s withdraw from the case until the prison
opinion. See Landgraf, 511 U.S. at 280- reform decree was terminated). The Court
93. Indeed, it is difficult to see how USI agreed with the former position, see
Film Products could have proven its actual Hadix, 527 U.S. at 358-60, but rejected the
reliance on the absence of a punitive latter because the attorneys “provide[d] no
damages provision. support for [their] assumption” about their
ethical duties, id. at 361.
Likewise, in Hughes Aircraft, the
particular situation or expectations of the Important for our purposes is not the
defendant were immaterial to the Court’s result, however, but the Court’s reasoning.
analysis. Hughes Aircraft was brought Hadix differs from Landgraf and Hughes
under an amendment to the False Claims Aircraft in that Hadix does in fact refer to
Act that eliminated a defense to certain qui the particular situation of the party seeking
tam suits. Hughes Aircraft argued that the to avoid retroac tive applicatio n.
elimination of the defense could not be Nonetheless, the Hadix Court’s discussion
applied retroactively, and the Court focuses not on the bona fides of the
agreed. Again, the Court evaluated the
retroactivity question in the abstract,
14
attorneys’ claimed actual reliance,8 but reasonable reliance of this class of aliens,
instead on whether reliance was (or would irrespective of the course of St. Cyr’s own
have been) reasonable. See, e.g., id. at plea negotiations.9
360 (“To impose . . . new standards now,
Moreover, the St. Cyr Court’s language
f o r work perform ed be fore th e
does not require concrete certainty about
[amendments] became effective, would
the exact historical motives and actual
upset the reasonable expectations of the
reliance and expectations of each alien
parties.”); id. (“After [the date of the
who pled guilty. We set out several
amen dmen t], an y expectation of
examples in the margin.10 On the whole,
compensation at the [pre-amendment] rates
was unreasonable.”).
St. Cyr is the most recent case in the 9
Indeed, the presence of a quid pro
Landgraf line. As with Hughes Aircraft quo is excellent support, in an
and Landgraf itself, the analytical focus of evidentiary sense, for the existence of a
the opinion is not on the facts and reliance interest, since a quid pro quo
circumstances of the party before the supplies two archetypal predicates for a
Court. The Court briefly considered the reliance interest: foregoing a right (here,
putative actual reliance of Enrico St. Cyr the right to a trial) and conferring a
and a similarly situated alien, Charles benefit (here, saving the government the
Jideonwo, but did so merely for illustrative costs and uncertainty of prosecution).
purposes. See St. Cyr, 533 U.S. at 323. St.
10
Cyr is principally concerned with the See, e.g., St. Cyr., 533 U.S. at 323
reasonable reliance interests of aliens who (“[P]reserving the possibility of [§
enter into plea agreements as a class. To 212(c)] relief would have been one of the
that end, the discussion of the quid pro quo principal benefits sought by defendants
in criminal plea agreements is directed at deciding whether to accept a plea offer . .
establishing, as a general matter, the . .” (emphasis added)); id. (“Relying
upon settled practice, the advice of
counsel, and perhaps even assurances in
8
For example, the Hadix Court did not open court that the entry of the plea
cite affidavits or other representations would not foreclose § 212(c) relief, a
from the attorneys that they actually great number of defendants in
relied on the higher hourly fee in electing Jideonwo’s and St. Cyr’s position agreed
to perform the monitoring services. For to plead guilty.” (emphasis added)); id.
that matter, it is not inconceivable that (referring to plea agreements “that were
attorneys engaged in such a practice likely facilitated by the alien’s belief in
might have performed their services with their continued eligibility for § 212(c)
or without the marginally greater relief” (emphasis added)); id. at 325
inducement of the higher pre-amendment (“[R]espondent, and other aliens like
fees. him, almost certainly relied upon [the]
15
we think the Supreme Court regarded St. example, it is unlikely that in Landgraf any
Cyr as a clear and straightforward result employer demonstrably relied on the
flowing from Landgraf; to paraphrase absence of a punitive damages remedy for
counsel for the amici curiae at oral Title VII violations, or that in Hughes
argument, St. Cyr was an easy case on the Aircraft any government contractor
retroactivity issue. purposely arranged its billing practices ex
ante to take advantage of a specific
Thus the Supreme Court has avoided
defense under the False Claims Act.
an “actual reliance” formulation in favor
Likewise, in St. Cyr, the Court found it
of a “reasonable reliance” formulation in
sufficient that the plea agreements of
its retroactivity analysis. “Reasonable
deportable aliens were “likely facilitated
reliance” is specifically highlighted in
by the aliens’ belief in their continued
Hadix, 527 U.S. at 357-58 (holding that
eligibility for § 212(c) relief.” 533 U.S. at
retroactivity analysis “should be informed
323 (emphasis added). And indeed the
and guided by ‘familiar considerations of
Court’s holding is not limited to those
fair notice, reasonable reliance, and settled
aliens who actually relied on the
expectations.’”). The likelihood that the
availability of § 212(c) relief: “We . . .
party before the court did or did not in fact
hold that § 212(c) relief remains available
rely on the prior state of the law is not
for aliens, like respondent, whose
germane to the question of retroactivity.
convictions were obtained through plea
Rather, courts are to concentrate on the
agreements and who, notwithstanding
group to whose conduct the statute is
those convictions, would have been
addressed—in Landgraf it was employers
eligible for § 212(c) relief at the time of
subject to Title VII; in Hughes Aircraft it
their plea under the law then in effect.” St.
was government contractors; in Hadix it
Cyr, 533 U.S. at 326.
was attorneys performing prison reform
monitoring services; in St. Cyr it was The holding in St. Cyr then is simply
a l i en s w h o a c cepted a ple a not subject to a qualification that the alien
agreement—with a view to determining seeking the opportunity to pursue § 212(c)
whether reliance was reasonable. relief must have accepted a plea agreement
that necessarily preserved his eligibility for
The Landgraf line also establishes that
§ 212(c) relief (i.e., a plea agreement that
a change in law can be found
provided for release from incarceration in
imperm issibly retroactive w ithout
less than five years’ time). We find this
establishing that some (or all) members of
significant because it further confirms that
the group affected by the change in law
Landgraf’s limitations on the repeal of
relied on the prior state of the law. For
former § 212(c) are construed broadly in
favor of those who had even a partial or
contingent reliance interest in the existing
likelihood [of § 212(c) relief].” state of the law—for example, an alien
(emphasis added)).
16
who accepted a plea agreement with a six- accepted plea agreements had some
year term of imprisonment that, through reliance interest in the potential
good behavior credits and the like, could availability of § 212(c) relief. The Court
be shortened to less than five years’ time.11 concentrated its discussion on the alien’s
decision whether to accept the plea
C.
agreement. This focus is logical because
We have established that the question the reliance interest of an alien who
we must answer is whether the repeal of § accepts a plea agreement arises at the time
212(c) relief is impermissibly retroactive the choice is made to accept the
with respect to aliens who elected to go to agreement. Generally speaking, reliance
trial (or some relevant subset thereof). interests (in the legal sense) arise because
Stated another way, we ask what aliens—if some choice is made evincing reliance.
any—who went to trial and were convicted Cf. Restatement (Second) of Contracts §
did so in reasonable reliance on the 90 (1981) (re quiring “action or
availability of § 212(c) relief. If forbearance” to invoke promissory
Ponnapula is among this group, we must estoppel).
affirm the District Court’s grant of habeas
Accordingly, we focus on the choice
corpus relief. We conclude that he is.
made by aliens who went to trial and were
As noted above, in St. Cyr, the convicted prior to the effective date of
Supreme Court found that all aliens who IIRIRA’s repeal of former § 212(c). 12 We
11 12
Indeed, St. Cyr himself accepted a We acknowledge that our focus here
plea that provided for a ten-year on the decision of the alien to go to trial
sentence, with execution suspended after is somewhat in tension with our holding
five years. See Brief for the Petitioner at in Perez v. Elwood, 294 F.3d 552 (3d
11 n.7, St. Cyr, 533 U.S. 289 (No. 00- Cir. 2002), that an alien whose date of
767), 2001 WL 210189. If he had conviction for an aggravated felony falls
actually served the full five-year after the effective date of IIRIRA is
unsuspended portion of his sentence, St. ineligible for § 212(c) relief on any
Cyr would have been ineligible for theory; it is virtually certain that some
discretionary relief under § 212(c). See aliens chose to go to trial before
INA § 212(c) (depriving the Attorney IIRIRA’s effective date, but were
General of the power to withhold actually convicted after the effective
deportation for “an alien who . . . has date. We cannot, of course, overrule
served . . . a term of imprisonment of at Perez. See Third Circuit IOP 9.1
least 5 years” for certain crimes). Thus, (“Policy of Avoiding Intra-Circuit
even St. Cyr himself did not accept a plea Conflict of Precedent”). The tension
that guaranteed his eligibility for § with Perez need not detain us long,
212(c) relief. however, because the parties stipulated
17
may subdivide this category into (1) aliens buttressed by the Supreme Court’s
who went to trial because they declined a recognition that the availability of
plea agreement that was offered to them, discretionary relief plays a central role in
and (2) aliens who went to trial because many aliens’ decisions regarding whether
they were not offered a plea agreement. to accept a plea agreement. See St. Cyr,
Because aliens in the latter category had 533 U.S. at 322-23. Though St. Cyr
no opportunity to alter their course in the concentrated on the many aliens who
criminal justice system in reliance on the ultimately accepted plea agreements, it is
availability of § 212(c) relief, we highly not reasonable to believe that all aliens
doubt (though do not explicitly hold, for who rejected plea agreements thereby
the issue is not before us) that such aliens disclaimed any interest in § 212(c) relief;
have a reliance interest that renders in fact, quite the contrary is true. There
IIRIRA’s repeal of former § 212(c) are many reasons to proceed to trial—the
impermissibly retroactive as to them. lack of a plea agreement that would ensure
eligibility for § 212(c) relief, the hope of
As for the former category, we hold
an acquittal, or the simple desire to
that aliens such as Ponnapula who
exercise fundamental constitutional
affirm atively turned dow n a plea
rights—but few if any of them are
agreement had a reliance interest in the
inconsistent with preserving a contingent
potential availability of § 212(c) relief.
interest in § 212(c) relief.
For many aliens, the reliance interest is
obvious and significant—P onnapula A case about aliens who accept plea
himself has such a reliance interest agreements (i.e., St. Cyr) is relatively
because the then-existing parameters for straightforward because the availability of
former § 212(c) eligibility would so § 212(c) relief was very likely a dominant
obviously factor into the decision-making factor in their decision. This case may
of someone in his position. (Specifically, seem harder because making the decision
Ponnapula needed to ensure that, however to go to trial is perhaps more complex and
the larceny charge was resolved, he would more nuanced, but we should not let that
serve less than the five years specified in obscure the fact that former § 212(c) was
former § 212(c).) This conclusion is one of a host of factors considered by
aliens who elected that course—and, per
the Court’s discussion in St. Cyr, a
below that Ponnapula’s date of significant factor at that.
conviction for IIRIRA purposes To be sure, there are aliens who would
(December 20, 1994) was prior to the appear to have had a very attenuated
effective date of IIRIRA (April 1, 1997). reliance interest in the availability of §
See Ponnapula, 235 F. Supp. 2d at 399 212(c) relief—for example, aliens charged
n.6. To accommodate Perez we simply with the most serious of crimes, carrying
limit our holding to aliens convicted the longest prison sentences, who turned
before the effective date of IIRIRA.
18
down unattractive plea agreements. Moreover, in St. Cyr itself, as we have
Preserving eligibility for discretionary discussed above, the Court extended its
withholding of deportation was probably holding to all aliens who had accepted plea
not foremost in such aliens’ minds, for agreements; some of these aliens
they had the slimmest of chances to qualify necessarily had attenuated reliance
for § 212(c) relief. But the fact that an interests in the availability of § 212(c)
interest may have been attenuated, relief (for example, consider the
however, has had little salience in the hypothetical alien described above who
Supreme Court’s analysis of other accepted a plea bargain with a six-year
retroactivity questions. For example, ex term of imprisonment, subject to good-
ante it was unlikely that Hughes time credits). The St. Cyr Court’s
Aircraft—or any given government explanation that “the fact that § 212(c)
contractor— would need to avail itself of a relief is discretionary does not affect . . .
specific defense against a qui tam action; our conclusion,” 533 U.S. at 325, is also
or that USI Film Products—or any given consistent with our understanding of how
employer subject to Title VII— would find attenuated interests are to be treated in a
itself accused of discriminatory conduct retroactivity analysis: Attenuation of this
meriting punitive damages. In neither case kind generally does not render reliance
would anyone have claimed, ex ante, that unreasonable.14
the affected companies had anything more
than a highly contingent—and thus
seriously attenuated—interest in the then- reasonable but attenuated reliance
existing state of the law.13 interests.
14
“Attenuation” as we have discussed
13
With respect to monitoring services it in the text refers to the idea of one
already performed, Hadix presents a case present consideration (among many)
at the opposite pole. There, the affected having only a minority influence on an
attorneys necessarily had an interest in actor’s ultimate decision. There is
the statute that set their maximum hourly another sense of “attenuation,”
rate. But this reveals only that Hadix however—one connoting causal
was a relatively easy case—and indeed, remoteness. For example, the Court of
the Supreme Court ruled unanimously in Appeals for the Seventh Circuit has
the attorneys’ favor on the issue of properly noted that “‘it would border on
monitoring services already performed. the absurd’ to argue that an alien would
See Hadix, 527 U.S. 343 (opinion of the refrain from committing crimes or would
Court); id. at 362 (Scalia, J., concurring contest criminal charges more vigorously
in part and concurring in the judgment); if he knew that after he had been
id. at 364 (Ginsburg, J., concurring in imprisoned and deported, a discretionary
part and dissenting in part). Hadix thus waiver of deportation would no longer be
does not speak to the question of available to him.” Lara-Ruiz, 241 F.3d
19Finally, if it was reasonable in St. Cyr IIRIRA’s enactment date.” Id. at 421.15
for an alien to rely on the attenuated Accordingly, Ponnapula is entitled to
availability of § 212(c) relief in accepting apply for discretionary withholding of
a plea agreement, we see no reason why it deportation under former § 212(c).16
would be unreasonable for the same alien
to likewise rely in declining a plea
15
agreement. The reasonable reliance Moreover, on a practical level, the
question turns on the nature of the difference between this holding and a
statutory right and the availability of some more circumscribed one is smaller than it
choice affecting that right, not on the first appears. For some aliens sentenced
particular choice actually made. In sum, to terms of five years or longer
because aliens such as Ponnapula who (following their rejection of plea
affirmatively turned down plea agreements agreements), there is a chance of serving
had a reliance interest in the potential less than five years, and preserving
availability of § 212(c) relief, we hold that statutory eligibility for § 212(c) relief.
IIRIRA’s repeal of § 212(c) is Cf. supra note 11 (noting that St. Cyr
impermissibly retroactive with respect to would not necessarily have been
such aliens. While this statement seems statutorily eligible for § 212(c) relief).
broad, it is faithful to St. Cyr, which But the majority of aliens convicted of
painted with broad strokes: “We . . . hold lengthy sentences will find that this
that § 212(c) relief remains available for opinion removes IIRIRA’s bar to relief
aliens, like respondent, whose convictions only to leave them foundering on the
were obtained through plea agreements shoals of statutory ineligibility under
and who, notwithstanding those former § 212(c) itself.
convictions, would have been eligible for
16
§ 212(c) relief at the time of the plea under We note in passing that, in
the law then in effect.” 533 U.S. at 326. comparison to the holding in St. Cyr, the
This reflected approval of Judge Oakes’s effect of our overall holding is likely to
opinion for the Second Circuit, St. Cyr v. be small. First, the class of aliens
INS, 229 F.3d 406 (2d Cir. 2000), which affected by this ruling is constantly
adopted the same categorical approach: shrinking in size as the effective date of
“[W]e hold that the bar on applying for IIRIRA recedes into the past. Second, as
relief enacted in AEDPA § 440(d) and we note in the preceding footnote, many
IIRIRA § 304 does not apply to an alien aliens who are within the scope of this
who pled guilty or nolo contendere to an holding will nonetheless be statutorily
otherwise qualifying crime prior to ineligible for § 212(c) relief by reason of
having served five years or more in
prison. Third, many times more criminal
defendants enter into plea agreements
at 945 (quoting LaGuerre v. Reno, 164 than go to trial. See St. Cyr 533 U.S. at
F.3d 1035, 1041 (7th Cir. 1998)). 322 n.47. Thus, for the vast majority of
20
*** petitioner’s trial, Assistant District
Attorney David Steiner offered to
In this Part, we have set out our view
allow him to plead guilty to a
of the most faithful application of the
misdemeanor with a probationary
Landgraf line to the case at bar. We
sentence. Petitioner considered
recognize, however, that the other Courts
the offer and the immigration
of Appeals to address cases like
consequences of pleading guilty
Ponnapula’s have taken a rather different
and going to trial. He realized
approach to the retroactivity question.
that even if he were convicted of a
Though we stand on the foregoing
felony after trial he would still be
analysis, we will also analyze Ponnapula’s
eligible for hardship relief from
case under the rubric employed by those
deportation pursuant to section
other Courts.
212(c) of the Immigration and
Nationality Act, see 8 U.S.C. §
1182(c) (1994). Moreover, his
IV.
counsel advised him that, if
A. convicted after trial, he would
likely receive a sentence of less
We have described the background of
than five years’ imprisonment and
facts, all uncontradicted and accepted by
that he would, in all likelihood,
the District Court, which demonstrate
receive a sentence of only one to
that Ponnapula played a minor and
three years’ imprisonment.
essentially unknowing role in the
fraudulent scheme. We incorporate these In reliance on these facts,
facts by reference here. The best petitioner declined the
description of Ponnapula’s pretrial misdemeanor offer and proceeded
posture is supplied by the declaration of to trial.
his trial counsel, Alexander E. Eisemann,
App. 56-57.
Esq., in support of a motion for a
temporary restraining order in the In short, as the District Court noted:
District Court. In pertinent part,
Here, there can be no doubt that
Eisemann’s declaration states as follows:
Petitioner conformed his conduct
At one point prior to to match his settled expectations
of immigration law. Petitioner
was offered an opportunity to
removable criminal aliens, the plead guilty to a misdemeanor
retroactivity of IIRIRA’s repeal of which would have had no
former § 212(c) was settled nearly three immigration consequences, but
years ago by St. Cyr, so the decision we turned down the plea because
announce today affects a much smaller “even if he were convicted of a
group of aliens.
21
felony after trial he would still be his sentence would be less than five
eligible for hardship relief from years.18 Thus Ponnapula’s case seems
deportation pursuant to § 212(c).” distinguishable on its facts, both in that
Ponnapula has demonstrated actual
235 F. Supp. 2d at 405 (quoting
reliance where the aliens in other cases
Eisemann Decl.).
did not, and in that Ponnapula’s offense
We stress that Ponnapula actually was significantly less grave.
relied on the state of the law in rejecting
B.
the misdemeanor plea agreement and
going to trial. Notably, none of the court We must also engage the rationale of
of appeals cases treating St. Cyr as these cases. As will appear, while that
requiring a quid pro quo involved actual rationale will support the result reached
reliance by the immigrant on the then on the facts of those cases, any attempt to
state of the law. Also, in these cases the apply it to deny relief in Ponnapula’s
charges (and the sentences) facing the case falls of its own weight or at least
immigrant were far more serious than cannot survive rigorous scrutiny. We
those facing Ponnapula. For example, to treat Rankine as representative. In
recur to the cases cited supra Part II.C, arriving at its result, the Court relied
Rankine was charged with attempted principally on selected parts of the
murder, his co-petitioner Lawrence, a Supreme Court’s opinion in St. Cyr:
repeat offender, was convicted of a mid-
The [Supreme] Court focused on
level drug offense, and his co-petitioner
the fact that plea agreements are a
Eze was convicted of first degree rape.17
form of quid pro quo where, “[i]n
See Rankine, 319 F.3d at 96-97.
exchange for some perceived
Theodoropoulos was convicted of a high-
benefit, defendants waive several
level drug conspiracy. See
of their constitutional rights
Theodoropoulos v. INS, 313 F.3d 732,
(including the right to a trial) and
734 (2d Cir. 2002). Montenegro was
grant the government numerous
convicted of possession of cocaine with
tangible benefits.” [St. Cyr, 533
intent to distribute, see Montenegro, 355
U.S.] at 322 (internal quotation
F.3d at 1036, as was Armendariz-
omitted). Recognizing that §
Montoya, Armendariz-Montoya, 291
F.3d at 1118. In none of these cases does
the record reflect or even suggest a plea
18
agreement was offered, or that the Swaby was convicted of burglary and
defendant had reasonable assurance that possession of marijuana. See Swaby, 357
F.3d at158. While this case may be
closest to Ponnapula, the Swaby panel
17
Lawrence and Eze were also resident felt itself bound by Rankine and did not
aliens seeking the same relief as consider the matter de novo. See id. at
Rankine. 162.
22
212(c) relief was frequently 270) (internal citation omitted).
granted prior to the enactment of
Rankine, 319 F.3d at 99. The Court
AEDPA and IIRIRA, the Court
conceded that St. Cyr did not directly
found that “preserving the
control the outcome, but then opined
possibility of such relief would
that:
have been one of the principal
benefits sought by defendants We cannot, however, ignore the
deciding whether to accept a plea strong signals sent in those
offer or instead to proceed to opinions that aliens who chose to
trial.” Id. at 323. go to trial are in a different
position with respect to IIRIRA
The Court also highlighted the
than aliens like St. Cyr who chose
“clear difference, for the purposes
to plead guilty.
of retroactivity analysis, between
facing possible deportation and Id. We agree, for it is clear that St. Cyr
facing certain deportation.” Id. at does not control the outcome. But for
325. Because there was a reasons explained above, see supra Part
“significant likelihood” that III, we do not agree that relevant
resident aliens would receive § jurisprudence contains “strong signals”
212(c) relief prior to IIRIRA, the that aliens who go to trial are in a
Court found that aliens “almost different position from those who plead
certainly relied upon that guilty.
likelihood in deciding whether to
The wellspring of Rankine and its
forgo their right to trial,” id., and
companion cases is a concern for actual
instead to plead to sentences that
reliance. Though we have explained why
would preserve their eligibility for
we do not believe that this is the best
such relief. Without the
rendering of Landgraf, we accept that
possibility of relief, these pleas
here as a starting point for the sake of
guaranteed the aliens’ removal;
argument. What becomes critical, then,
the elimination of § 212(c),
is how to prove reliance. We agree that
therefore, changed the legal effect
the kind of quid pro quo inherent in the
of their pleas and unsettled their
acceptance of a plea agreement is one
reliance. The Court concluded
way to prove reliance; as we note above,
that “it would surely be contrary
the action and forbearance implicit in a
to ‘familiar considerations of fair
quid pro quo is strong evidence of
notice, reasonable reliance, and
reliance. But it is surely not the only way
settled expectations’ to hold that
to establish reliance, much less the
IIRIRA’s subsequent restrictions
talisman that the INS makes it out to be.
deprive them of any possibility of
An individual can rely or have settled
such relief.” Id. at 323-24
expectations about a state of affairs
(quoting Landgraf, 511 U.S. at
23
without having to enter into an exchange believing it to confer such a benefit.”
to secure or assure it. 235 F. Supp. 2d at 404.
From our discussion above of the lack We do not gainsay that the existence
of concern in the Landgraf line for actual of a quid pro quo (for a guilty plea)
reliance, it should go without saying that justified the result in St. Cyr. But to the
there is no mention of a quid pro quo or extent that the Court in St. Cyr noted that
surrender of constitutional rights in plea agreements involve a quid pro quo
Landgraf, Hughes Aircraft, or Hadix. between the criminal defendant and the
Neither is there any mention of a quid government and a waiver of several
pro quo in our decision in Mathews v. constitutional rights, see 533 U.S. at 322,
Kidder, Peabody & Co., 161 F.3d 156, these statements do not create an
164 (3d Cir. 1998): additional requirement necessary to
establish retroactive effect. In our view,
In this case, the events in question
these statements only serve to highlight
are the alleged fraudulent acts by
the obvious and severe retroactive effect
the defendants. If the RICO
of applying IIRIRA to aliens who
Amendment is applied to this
pleaded guilty; in other words, the quid
case, it would attach new legal
pro quo notion comfortably fit the case.
consequences to these events.
What Rankine and its companion cases
Before the Amendment, the legal
have done is to convert quid pro quo into
consequences included liability
a rigid baseline test, to ossify the
under the federal securities laws
language of St. Cyr into a test that the
and RICO; after the Amendment,
Supreme Court simply never mandated
the legal consequences included
and we are unwilling to create.
liability only under the securities
laws. In a variation on this theme, the
government argues that “Ponnapula’s
Focusing then on new legal
simple expectation or reliance is not the
consequences to Ponnapula himself, they
same as the heightened expectation of
surely have occurred here. Ponnapula
relief which the St. Cyr aliens brought at
relied on the advice of counsel. It is hard
the price of their constitutional rights and
to imagine that Ponnapula would not
paid for with the immediate certainty of
have accepted the misdemeanor plea
deportation.” The Rankine Court used
offer if he had known about the risk of
similar rhetoric: “The petitioners here
being ineligible for § 212(c) relief. And
assumed no similarly heightened
as the District Court concluded,
expectation from their decision to go to
“[a]defendant who goes to trial believing
trial.” 319 F.3d at 100. We find no basis
that his opportunity to seek § 212(c)
for a “heightened expectation” standard
relief is secure, is as equally disrupted in
in St. Cyr or elsewhere in the Supreme
his reasonable and settled expectations as
Court’s jurisprudence, and we reject it.
is a defendant who accepts a plea
24
We have not here reviewed in detail “rolling the dice.” In Chambers, the
each of the court of appeals cases that Court opined that the petitioner there did
have rejected extending St. Cyr to not possess “a reliance interest
immigrants who were convicted at trial comparable to that which was at the heart
before IIRIRA. Suffice it to say that the of St. Cyr,” 307 F.3d at 290, because “by
holdings in these cases are largely the rolling the dice and going to trial,
result of the courts’ failure to be Chambers actually ensured that his
convinced that immigrants who chose to eligibility for discretionary relief would
go to trial could possibly have relied on remain uncertain,” id. at 291.
the availability of 212(c) relief. As the
We find the “roll the dice” metaphor
Ninth Circuit stated in rejecting this
unhelpful, at least in this case. While
argument: “Unlike aliens who pleaded
Ponnapula may have “rolled the dice” in
guilty, aliens who elected a jury trial
terms of guilt or innocence at trial, he did
cannot plausibly claim that they would
not do so with respect to immigration
have acted any differently if they had
consequences in view of his reasonable
known [that their decision would later
expectation that there would be no
make them ineligible for 212(c) relief].”
adverse immigration consequences of
Armendariz-Montoya, 291 F.3d at
going to trial. We do not generally speak
1121(emphasis added); see also Dias,
of rolling the dice when the odds are
311 F.3d at 458 (“It follows that, having
stacked extremely heavily in one’s favor.
been convicted after a trial where there
Assuming that the metaphor is applicable
was not, and could not have been,
to someone, it does not apply to
reliance by the defendant on the
Ponnapula, because (to extend the
availability of discretionary relief,
metaphor), Ponnapula was (retroactively)
[petitioner] may not argue that the statute
deceived as to what was riding on the roll
has impermissible retroactive effect as to
of the dice. Neither do we find
him.” (emphasis added)). This argument
persuasive the arguments that Ponnapula
may be forceful given the serious charges
gave up “certainty” and should not be
facing the immigrants in those cases, see
rewarded for “guessing wrong.” These
supra Part IV.A, but it withers in
notions are inconsistent with our
Ponnapula’s case where, as we have
explanation of Landgraf.19
explained, the immigrant conformed his
conduct to the settled expectations of
immigration law that there would be no
19
adverse immigration consequences of We feel constrained to note that the
going to trial. notion that Ponnapula should be
penalized so harshly, ipso facto, for
C. going to trial, in the hopes of avoiding
Another notion that appears in the the disgrace and permanent stain of a
other court of appeals cases is that of conviction, seems to run counter to
fundamental principles of the American
25
A related argument pressed by the Courts of Appeals, we conclude that
government is that there can be no Ponnapula is entitled to pursue § 212(c)
reasonable reliance in this case because relief. Accordingly, the judgment of the
there was a risk that Ponnapula might District Court granting Ponnapula’s
have been sentenced to more than five petition for a writ of habeas corpus will
years in prison—and that, thereafter, he be affirmed.20
might have served more than five years
in prison—thereby making him ineligible
for § 212(c) relief. But Ponnapula was in
fact sentenced to a maximum of three
years in prison (and served even less),
and the fact that counsel’s advice proved
to be correct buttresses the conclusion
that it was reasonable for Ponnapula to
rely on his counsel’s advice in making
his immigration decisions. The
government would compare Ponnapula’s
risk of serving more than five years with
the risk to the immigrant in St. Cyr. In
fact, however, as we note above, see
supra note 11, St. Cyr himself faced a
greater term of imprisonment. Thus, the
government is simply incorrect when it
states that the immigrant in St. Cyr
“pursued a litigation strategy that
ensured his eligibility for section 212(c)
relief.”
V.
In sum, approaching the issue in this
case from the first principles of Landgraf
retroactivity analysis, and rejecting the
actual-reliance approach of our sister 20
We will, however, vacate the District
Court’s determination that Ponnapula is
entitled to a bond hearing. The District
constitutional polity, which encourages Court should reevaluate its holding on
citizens to assert their innocence when that issue in light of the intervening
convinced that they are not guilty of an Supreme Court decision in Demore v.
offense, and go to trial. Kim, 538 U.S. 510 (2003).
26
27