Jean Jeudy v. Eric Holder, Jr. , 768 F.3d 595 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3174
JEAN JOSEPH ODYL JEUDY,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
On Petition for Review of a Final Order of
the Board of Immigration Appeals.
No. A026-740-736.
____________________
ARGUED MAY 21, 2014 — DECIDED SEPTEMBER 15, 2014
____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Jean Jeudy petitions for review
of an order of removal issued by the Board of Immigration
Appeals (BIA). The BIA found that Jeudy was removable
based on a 1995 drug offense and a 2000 voting offense. It
also determined that he had not accrued the seven years of
continuous residence in the United States required for a per-
son in Jeudy’s situation to request discretionary cancellation
2 No. 13-3174
of removal under 8 U.S.C. § 1229b(a). 1 Jeudy has been a law-
ful permanent resident since 1989, and he reached seven
years of continuous residence in 1996. The BIA, however,
applied the “stop-time rule” of § 1229b(d)(1), which took ef-
fect in 1997 as part of the Illegal Immigration Reform and
Immigrant Responsibility Act. The new stop-time rule was
applied to cut off Jeudy’s period of continuous presence as of
the time of his 1995 drug offense. Jeudy’s petition for review
challenges only this application of the stop-time rule to deny
his eligibility to request cancellation of removal.
The BIA has determined that the stop-time rule applies
retroactively to reach offenses that were committed before
the rule’s effective date. See In re Robles-Urrea, 24 I. & N. Dec.
22, 27 (BIA 2006); In re Perez, 22 I. & N. Dec. 689, 692–93 (BIA
1999) (en banc). Jeudy counters that (a) the stop-time rule
cannot be applied retroactively because Congress did not
provide any clear statement of intent to that effect, as re-
quired by Landgraf v. USI Film Products, 511 U.S. 244 (1994),
and INS v. St. Cyr, 533 U.S. 289 (2001), and (b) applying the
rule here would have an impermissible retroactive effect.
This issue, which our court has not yet addressed, has divid-
ed our colleagues in other circuits. See, e.g., Sinotes-Cruz v.
Gonzales, 468 F.3d 1190, 1200–01 (9th Cir. 2006) (stop-time
rule for offenses may not be applied retroactively); Peralta v.
Gonzales, 441 F.3d 23, 29–31 (1st Cir. 2006) (opposing view).
We grant Jeudy’s petition. The statutory stop-time rule
does not convey a clear intent on the part of Congress to
govern retroactively, and the stop-time rule would have an
1 Where possible, we cite the United States Code rather than the corre-
sponding section of the Immigration and Nationality Act.
No. 13-3174 3
impermissible retroactive effect if it were applied to Jeudy’s
1995 drug offense to render him ineligible for discretionary
relief after he had already accumulated the seven years of
continuous residence needed to be eligible.
I. Factual and Procedural Background
The relevant facts are not disputed. Because this case re-
quires us to decide whether a particular provision of a fed-
eral statute applies retroactively, we weave in relevant legal
developments.
A. Petitioner’s Offense and Changing Federal Immigration
Law
Petitioner Jean Jeudy immigrated to the United States
from Haiti in 1980. He initially entered without inspection,
but his status was adjusted to lawful permanent resident on
November 24, 1989. Twenty years later, in 2009, the govern-
ment issued to Jeudy a notice to appear charging him as re-
movable based on three offenses. Only one conviction is rel-
evant to the issue here.
On April 7, 1995, Jeudy pled guilty to attempted posses-
sion of crack cocaine. Under then-applicable law, this con-
trolled-substance offense rendered Jeudy deportable. See
8 U.S.C. § 1251(a)(2)(B)(i) (1994) (repealed 1996). But an alien
found to be deportable at that time could be eligible to re-
quest discretionary relief from the Attorney General to re-
main in the United States. Among other requirements, an
alien had to accrue a certain period of continuous presence
or residence in the United States. While Jeudy’s 1995 drug
conviction rendered him deportable, he continued to accrue
time toward a period of continuous residence. Thus, on No-
vember 24, 1996, he reached the seven years required to
4 No. 13-3174
make him eligible to request discretionary waiver of inad-
missibility if the government initiated deportation proceed-
ings. See 8 U.S.C. § 1182(c) (1994). 2
In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act, known to the cognoscenti
as IIRIRA, a complex statute that changed immigration law
in many ways. The new law took effect, with some transi-
tional exceptions, on April 1, 1997, several months after
Jeudy became eligible for discretionary relief. The new law
added a significant new limit on discretionary relief from
removal: the “stop-time rule.” Although a lawful permanent
resident still needs seven years of continuous residence or
presence to request discretionary relief under IIRIRA, the
stop-time rule cuts off the accrual of time toward those years
of continuous residence if and when a lawful permanent res-
ident is served with a notice to appear or commits certain
offenses. See 8 U.S.C. § 1229b(d)(1).
Jeudy concedes he was immediately removable under
IIRIRA based on the 1995 drug conviction. See 8 U.S.C.
§ 1227(a)(2)(B)(i). But Jeudy—who has been in the United
States since 1980, has no family in Haiti, and has three chil-
dren who are American citizens—wants to request discre-
tionary cancellation of removal under § 1229b(a). The issue
in this case is whether the stop-time rule applies retroactive-
ly to cut off Jeudy’s continuous residence as of the date of the
drug conviction. 3
2 The cited version of § 1182(c) was repealed in 1996, but with only pro-
spective effect. See St. Cyr, 533 U.S. 289.
3 To be precise, the stop-time rule operates based on the date the offense
is committed. The date of a resulting conviction (or even the existence of
No. 13-3174 5
B. The Administrative Proceedings
At the removal hearing, the immigration judge found
that Jeudy’s drug conviction rendered him removable. The
judge also found that the stop-time rule applied retroactively
to the drug conviction to cut off Jeudy’s period of continuous
residence in 1995, before he reached the seven years needed
to request cancellation of removal. Jeudy appealed to the
Board of Immigration Appeals, which affirmed the immigra-
tion judge’s decision in all respects. Jeudy then filed a peti-
tion for review with this court. We have jurisdiction pursu-
ant to 8 U.S.C. § 1252.
II. Retroactivity of the Stop-Time Rule
Jeudy wants to seek discretionary cancellation of remov-
al. The eligibility requirements for that relief for permanent
residents are codified as follows:
The Attorney General may cancel removal in the case
of an alien who is inadmissible or deportable from the
United States if the alien—
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for 7
years after having been admitted in any status, and
a conviction) does not matter. See 8 U.S.C. § 1229b(d)(1); Baraket v. Holder,
632 F.3d 56, 59 (2d Cir. 2011). The record here does not indicate when
Jeudy committed his drug offense, though, so we refer instead to the
date of conviction. Whether Jeudy actually committed his offense in 1994
or 1995 would not change the result. The critical facts are that the offense
occurred (1) after Jeudy became a lawful permanent resident, (2) before
he accrued seven years of continuous residence, and (3) before IIRIRA
took effect.
6 No. 13-3174
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a). Jeudy had been lawfully admitted for
more than five years and has never been convicted of an ag-
gravated felony, so only the second requirement—seven
years of continuous residence—is at issue.
By November 1996, before IIRIRA took effect, Jeudy had re-
sided continuously in the United States for more than seven
years after becoming a lawful permanent resident. The BIA
found, however, that Jeudy had not accumulated seven years
of continuous residence because of IIRIRA’s 1997 addition of
the statutory stop-time rule, codified as follows:
For purposes of this section, any period of continuous
residence or continuous physical presence in the
United States shall be deemed to end (A) except in the
case of [a battered spouse or child], when the alien is
served a notice to appear under section 1229(a) of this
title, or (B) when the alien has committed an offense
referred to in section 1182(a)(2) of this title that ren-
ders the alien inadmissible … or removable … .
8 U.S.C. § 1229b(d)(1) (effective April 1, 1997). Jeudy’s period
of continuous residence began with his admission as a law-
ful permanent resident in 1989. But Jeudy’s drug offense
rendered him inadmissible under § 1182(a)(2) and thus
would count as an “offense” if the stop-time rule reached
offenses committed before IIRIRA took effect. The decisive
issue is one of statutory interpretation: whether the stop-
time rule applies retroactively to attach this new conse-
quence to pre-IIRIRA offenses.
“[T]he ‘principle that the legal effect of conduct should
ordinarily be assessed under the law that existed when the
No. 13-3174 7
conduct took place has timeless and universal appeal.’”
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), quot-
ing Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S.
827, 855 (1990) (Scalia, J., concurring). A law operates retro-
actively when it “attaches new legal consequences to events
completed before its enactment.” Id. at 270. Because retroac-
tive application inherently raises issues of fairness, courts
have long applied a presumption against statutory retroac-
tivity, reserving for Congress the “fundamental policy judg-
ments concerning the proper temporal reach of statutes.” Id.
at 270–73. The statutory language must convey a clear intent
to authorize retroactivity, assuring the courts that “Congress
itself has affirmatively considered the potential unfairness of
retroactive application and determined that it is an accepta-
ble price to pay for the countervailing benefits.” Id. at 272–
73; see also INS v. St. Cyr, 533 U.S. 289, 318 (2001) (IIRIRA’s
repeal of the waiver of inadmissibility lacked the requisite
“unmistakable clarity” to authorize retroactive application of
change in law based on alien’s criminal history).
Despite this strong presumption against retroactive ap-
plication of statutes, the BIA has applied the stop-time rule
to offenses committed before IIRIRA took effect without
finding an impermissible retroactive effect. See In re Robles-
Urrea, 24 I. & N. Dec. 22, 27 (BIA 2006); In re Perez, 22 I. & N.
Dec. 689, 692–93 (BIA 1999) (en banc). As a general rule, of
course, the BIA’s precedential interpretations of the Immigra-
tion and Nationality Act are subject to Chevron deference,
meaning that where the statute is ambiguous, courts will de-
fer to the responsible agency’s interpretation. See Chevron,
USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984); INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999);
Velásquez-García v. Holder, No. 13-2610, 2014 WL 3611591, at
8 No. 13-3174
*3, ___ F.3d ___ ___ (7th Cir. July 23, 2014). There are excep-
tions to the Chevron rule, however, “for the simple reason
that some questions of law do not depend on agency exper-
tise for their resolution.” Zivkovic v. Holder, 724 F.3d 894, 897
(7th Cir. 2013).
As the Supreme Court explained in St. Cyr, this case falls
into such an exception: “Because a statute that is ambiguous
with respect to retroactive application is construed under
our precedent to be unambiguously prospective, there is, for
Chevron purposes, no ambiguity in such a statute for an
agency to resolve.” 533 U.S. at 320 n.45, citing Landgraf,
511 U.S. at 264; accord, Zivkovic, 724 F.3d at 900 (“whether
and to what extent certain amendments to the immigration
laws apply retroactively” is a question of law “that this court
must review de novo, without the use of Chevron deference”);
Martinez v. INS, 523 F.3d 365, 372 (2d Cir. 2008) (same). In the
immigration context, moreover, “the reluctance to impose
rules retroactively is ‘buttressed by the longstanding princi-
ple of construing any lingering ambiguities in deportation
statutes in favor of the alien.’” Velásquez-García, 2014 WL
3611591, at *6, ___ F.3d at ___ , quoting St. Cyr, 533 U.S. at
320 (citation and some internal quotation marks omitted).
The retroactivity inquiry from Landgraf is often described
as having two steps: first, whether Congress expressed clear
intent for retroactive application, and then whether the stat-
ute would have an impermissible retroactive effect in the
given case. See, e.g., Martinez, 523 F.3d at 370. “In other
words, silence or ambiguity in the statutory text and history
requires the court to move on to step two, not to declare a
victory for the opponent of retroactivity.” Id. at 372, citing St.
Cyr, 533 U.S. at 320. We proceed in that order.
No. 13-3174 9
A. Step One Under Landgraf
Step one asks whether there is a clear statement from
Congress that it intended for the stop-time rule to apply ret-
roactively. Under the rule, time stops accruing upon issuance
of a notice to appear or commission of certain criminal of-
fenses. See 8 U.S.C. § 1229b(d)(1). As the government notes,
the text of the stop-time rule does not include any temporal
language. Because the text of § 1229b(d)(1) lacks this lan-
guage, the government must look elsewhere for a clear
statement of congressional intent to rebut the presumption
against retroactivity.
One possible source is the definition of “offense” in
§ 1182(a)(2)(A)(i):
Except as provided in clause (ii), any alien convicted
of, or who admits having committed, or who admits
committing acts which constitute the essential ele-
ments of—
(I) a crime involving moral turpitude (other
than a purely political offense) or an attempt or
conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to
violate) any law or regulation of a State, the
United States, or a foreign country relating to a
controlled substance (as defined in section 802
of Title 21),
is inadmissible.
If this definition is applied retroactively, Jeudy’s 1995
drug conviction is clearly an “offense.” But like the stop-time
rule itself, the definition of an offense contains no temporal
10 No. 13-3174
language that could rebut the presumption against retroac-
tivity.
In fact, another closely-related definition—of “aggravat-
ed felony”—enacted in the same section of IIRIRA as the
stop-time rule shows a clear indication of retroactive appli-
cation. An alien may be rendered ineligible for cancellation
of removal by conviction of any aggravated felony. 8 U.S.C.
§ 1229b(a)(3). The IIRIRA definition for aggravated felony
states: “Notwithstanding any other provision of law (includ-
ing any effective date), the term applies regardless of wheth-
er the conviction was entered before, on, or after September
30, 1996.” Id. § 1101(a)(43). We have applied this language to
hold that an aggravated felony committed before IIRIRA’s
effective date renders the person ineligible for cancellation of
removal. See Zivkovic, 724 F.3d at 906–07.
The absence of similar language in the definition of an
“offense” for purposes of the stop-time rule for purposes of
cancellation of removal under § 1229b(d)(1) is a powerful ar-
gument against retroactivity. See, e.g., St. Cyr, 533 U.S. at
318–19 (“Another reason for declining to accept the INS’ invi-
tation to read § 309(c)(1) as dictating the temporal reach of
IIRIRA § 304(b) is provided by Congress’ willingness, in oth-
er sections of IIRIRA, to indicate unambiguously its inten-
tion to apply specific provisions retroactively.”).
To avoid that conclusion, the government directs us to a
different provision: the transition rule from IIRIRA
§ 309(c)(5). As enacted in IIRIRA, it stated:
TRANSITIONAL RULE WITH REGARD TO
SUSPENSION OF DEPORTATION.—
No. 13-3174 11
Paragraphs (1) and (2) of section 240A(d) of the
Immigration and Nationality Act (relating to continu-
ous residence or physical presence) shall apply to no-
tices to appear issued before, on, or after the date of
the enactment of this Act.
IIRIRA, Pub. L. No. 104–208, § 309(c)(5), 110 Stat. 3009, 3009–
627 (1996). This reference to “notices to appear” was a mis-
take. Notices to appear were first created by IIRIRA, so there
were no notices to appear issued before IIRIRA took effect.
The pre-IIRIRA equivalents were called orders to show
cause. Once the problem was recognized, the transitional
rule was amended to apply to “orders to show cause … is-
sued before, on, or after the date of the enactment of this
Act.” Nicaraguan Adjustment and Central American Relief
Act (NACARA), Pub. L. No. 105–100, § 203(a), 111 Stat. 2160,
2196 (1997). In the following discussion, we refer below to
“notices to appear” and “orders to show cause” inter-
changeably as “immigration documents.”
The government correctly notes that the temporal lan-
guage of the transitional rule is clear: “before, on, or after”
unmistakably indicates retroactivity. But that does not settle
the matter because the question is the scope of the transi-
tional rule’s retroactivity. The rule itself says that INA
§ 240A(d) paragraph (1) (the stop-time rule) and paragraph
(2) (the “90/180 rule”) 4 “shall apply to orders to show cause.”
NACARA § 203(a). The issuance of an immigration docu-
4 See 8 U.S.C. § 1229b(d)(2) (“An 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.”).
12 No. 13-3174
ment, however, is only one of three different events that cut
off the accrual of time for purposes of cancellation of remov-
al. In fact, there are three distinct triggering events that stop
the accrual of an alien’s continuous presence: (1) issuance of
immigration documents (Paragraph (1), subpart (A)); (2)
commission of certain offenses (Paragraph (1), subpart (B));
and (3) violation of the 90/180 rule (Paragraph (2)). Thus, the
issue is whether the transitional rule of IIRIRA § 309(c)(5), as
amended by NACARA § 203(a), gives retroactive effect to all
three triggering events.
There is no question about the first triggering event. Un-
der the plain text of the transitional rule, the stop-time rule
applies retroactively to the issuance of immigration docu-
ments. See IIRIRA § 309(c)(5) (“shall apply to notices to ap-
pear”); NACARA § 203(a) (“shall apply to orders to show
cause”). So the question becomes whether the transitional
rule gives retroactive effect to the other two triggering
events, particularly the commission of a covered offense.
Some courts have held that the transitional rule gives ret-
roactive effect to all three triggering events. The First Cir-
cuit’s approach in Peralta v. Gonzales, 441 F.3d 23 (1st Cir.
2006), is illustrative. Relying on the cross-references to Para-
graphs (1) and (2) of INA § 240A(d), the Peralta court rea-
soned that because the transitional rule refers to both Para-
graph (1) and Paragraph (2), and because Paragraph (2) does
not mention the issuance of immigration documents, the
provision must be interpreted to give retroactive effect not
just to the issuance of immigration documents but also to the
90/180 rule and the commission of certain offenses. See id. at
31. If it did not, the cross-reference to Paragraph (2) would
be mere surplusage, since Paragraph (2) does not mention
No. 13-3174 13
immigration documents. Peralta therefore equated issuance
of the immigration documents with any proceeding initiated
by an immigration document. As the court put it, “the
phrases ‘notices to appear’ and ‘orders to show cause’ func-
tion … as a shorthand for ‘cases’” initiated by those docu-
ments. Id. It then concluded that the stop-time rule and the
90/180 rule “are fully applicable, regardless of when an al-
ien’s proceedings commenced.” Id. The Fifth Circuit fol-
lowed this approach, concluding that reading the transition-
al rule as applying only to the first triggering event (the is-
suance of immigration documents) would “render[] the ref-
erence to paragraph (2) … meaningless.” Heaven v. Gonzales,
473 F.3d 167, 176 (5th Cir. 2006), citing Peralta, 441 F.3d at 31. 5
There is a problem with this interpretation, however.
Neither version of the transitional rule actually says this. The
operative clause of the original transitional rule stated: “Par-
agraphs (1) and (2) of section 240A(d) of the Immigration
and Nationality Act (relating to continuous residence or
physical presence) shall apply to notices to appear issued
before, on, or after the date of the enactment of this Act.”
IIRIRA § 309(c)(5). And the amended transitional rule merely
substituted “orders to show cause” for “notices to appear,”
without making any substantive change. See NACARA
5 The Heaven court noted that Peralta was potentially distinguishable on
the ground that Peralta was a case brought directly under the transitional
rules. The Heaven court concluded, however, that this distinction did not
make a difference. See 473 F.3d at 176 (“The First Circuit dismissed such
an argument in Peralta, which is a case brought under the transitional
rules of the IIRIRA but is nonetheless correct in its analysis of this is-
sue.”).
14 No. 13-3174
§ 203(a). Neither version mentions “cases” or “the proceed-
ings initiated by” the immigration documents.
Recognizing this ambiguity, the Second and Ninth Cir-
cuits have held that the transitional rule simply does not
provide the requisite clarity from which to infer that the
permanent stop-time rule of 8 U.S.C. § 1229b(d)(1)(B) should
be applied retroactively. See Martinez v. INS, 523 F.3d 365,
371 (2d Cir. 2008) (“Assuming that it would be ‘incongruous’
for the stop-time rule to apply retroactively in transitional
cases but not permanent-rule cases, that fact does not give us
license to artificially stretch the transitional rules to cover
this case.”); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1200 (9th
Cir. 2006) (“[W]e conclude that the transitional rule does not
clearly indicate that it is to be applied retroactively to part B
of § 1229b(d)(1) in all circumstances.”).
At any rate, these arguments for interpreting an impre-
cise statute do not reach the heart of the retroactivity inquiry.
Courts must avoid retroactive application “‘unless com-
pelled to do so by language so clear and positive as to leave
no room to doubt that such was the intention of the legisla-
ture.’” Landgraf, 511 U.S. at 272, quoting Chew Heong v. Unit-
ed States, 112 U.S. 536, 559 (1884). The government’s argu-
ment based on the awkward transitional rule is at best the
legal equivalent of a double bank-shot. It fails to show that
Congress came to grips with the potential unfairness of ret-
roactive application of the permanent stop-time rule to deny
eligibility for discretionary relief. That is the political-process
foundation of the presumption against retroactivity set forth
in Landgraf and St. Cyr. That presumption simply cannot be
overcome by such an indirect argument.
No. 13-3174 15
By its terms, the transitional rule of IIRIRA § 309(c)(5), as
amended by NACARA § 203(a), applies only to the issuance
of immigration documents. It indicates that Congress con-
sidered the potential unfairness of stopping time retroactive-
ly for the issuance of immigration documents, a conclusion
that is reflected in the legislative history showing that Con-
gress wanted to prevent aliens from satisfying the continu-
ous residence rule by stalling in their pending immigration
proceedings. See Angel-Ramos v. Reno, 227 F.3d 942, 947 (7th
Cir. 2000) (noting that Congress intended to codify the ma-
jority decision in In re N-J-B-, 21 I. & N. Dec. 812, 820 (BIA
1997)); accord, In re N-J-B-, 21 I. & N. Dec. at 820 (“[T]he im-
migration reforms in question were motivated by a desire to
remove the incentive for aliens to prolong their cases by end-
ing the accrual of time in residence for suspension of depor-
tation when deportation proceedings were commenced[.]”),
vacated by Att’y Gen. Order No. 2093–97 (July 10, 1997).
There is no similar indication that Congress considered the
additional unfairness of retroactive application to the com-
mission of certain offenses and travel that violates the 90/180
rule. And the concern identified in the legislative history—
stalling during pending immigration proceedings—does not
apply in the context of a criminal offense or travel, since
these events do not automatically trigger immigration pro-
ceedings.
The event that potentially stopped Jeudy’s continuous
presence clock in 1995 was an offense, not the issuance of
immigration documents. The transitional rule does not men-
tion offenses. Against the backdrop of the presumption
against retroactivity, a cross-reference in the ambiguous
transitional rule does not meet the high standard of “unmis-
takable clarity” required to authorize retroactivity. See St.
16 No. 13-3174
Cyr, 533 U.S. at 318. We therefore adhere to a reading author-
izing retroactivity only to orders to show cause, a result con-
sistent with our decision in Angel-Ramos, the text of the tran-
sitional rule, and the presumption against retroactivity.
B. Step Two Under Landgraf
We now turn to step two of the Landgraf analysis: wheth-
er, in the absence of clear language authorizing retroactivity,
application of the stop-time rule to Jeudy’s 1995 drug convic-
tion would have an impermissible retroactive effect. We hold
that it would.
Jeudy’s drug offense and conviction did not disqualify
him from discretionary relief when they occurred, and Jeudy
was actually eligible for discretionary relief before IIRIRA
took effect. As a result, applying the stop-time rule would
attach a new and serious consequence to Jeudy’s criminal
conduct that was completed before IIRIRA took effect. See
Landgraf, 511 U.S. at 269–70. Jeudy need not show that he ac-
tually relied on the future availability of discretionary relief
when committing the offense because detrimental reliance is
not required. See Vartelas v. Holder, 132 S. Ct. 1479, 1491
(2012); Zivkovic, 724 F.3d at 902–03 (“Where a finding of ret-
roactivity would saddle the petitioner with new conse-
quences from an old conviction, the affected person need not
also demonstrate that he relied on the absence of those new
consequences.”).
The government, following the reasoning of the BIA, ar-
gues that the stop-time rule has no impermissible retroactive
effect in this case because Jeudy seeks cancellation of remov-
al, which was “created” by IIRIRA just as the stop-time rule
was. The government reasons that any rule affecting cancel-
No. 13-3174 17
lation of removal therefore cannot affect legal rights predat-
ing IIRIRA. See In re Robles-Urrea, 24 I. & N. Dec. 22, 27 (BIA
2006) (“Section 240A [providing for cancellation of removal]
was not in existence … at the time the respondent committed
his offense … . It is therefore difficult to understand how he
might have relied on the future availability of such relief as
undergirding a retroactivity claim.”).
This argument is not persuasive. Cancellation of removal
is merely a new name for essentially unchanged discretion-
ary relief from immigration sanctions. That relief has been a
fixture of immigration law in different forms since 1917. See
St. Cyr, 533 U.S. at 293–96. And while cancellation of remov-
al itself is “discretionary and prospective in nature,” In re Pe-
rez, 22 I. & N. Dec. 689, 691 (BIA 1999) (en banc), the issue
here is eligibility to request the relief at all. “[A] determina-
tion about a break in physical presence is a ‘non-
discretionary question of statutory interpretation.’” Cuellar
Lopez v. Gonzales, 427 F.3d 492, 495 (7th Cir. 2005), quoting
Morales-Morales v. Ashcroft, 384 F.3d 418, 423 (7th Cir. 2004).
The change in statutory terms does not avoid the unfairness
of retroactive application of the stop-time rule to Jeudy’s eli-
gibility for discretionary relief, which he had acquired before
IIRIRA and its stop-time rule took effect. See Sinotes-Cruz,
468 F.3d at 1202–03; Henry v. Ashcroft, 175 F. Supp. 2d 688,
695–96 (S.D.N.Y. 2001).
Some other courts have decided this question against pe-
titioners situated similarly to Jeudy. See Martinez v. INS,
523 F.3d 365, 376 (2d Cir. 2008); see also Valencia-Alvarez v.
Gonzales, 469 F.3d 1319, 1327–28 (9th Cir. 2006) (petitioner,
unlike Jeudy or Sinotes-Cruz, did not reach seven-year mark
before IIRIRA took effect). Those decisions required a show-
18 No. 13-3174
ing of subjective reliance, which is particularly challenging
when the decisive event for the stop-time rule is the commis-
sion of a crime rather than a quid pro quo plea bargain. See
Martinez, 523 F.3d at 376; but see Gallegos-Vasquez v. Holder,
636 F.3d 1181, 1189 (9th Cir. 2011) (pre-Vartelas case finding
impermissible retroactive effect where alien had a “settled
expectation” that he could later request discretionary relief).
Indeed, we noted years ago: “It would border on the absurd
to argue that these aliens might have decided not to commit
drug crimes, or might have resisted conviction more vigor-
ously, had they known that if they were not only imprisoned
but also, when their prison term ended, ordered deported,
they could not ask for a discretionary waiver of deporta-
tion.” LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998).
The Supreme Court settled this question in Vartelas, how-
ever, by making clear that the presumption against retroac-
tivity is supported by Congress’s expectations, not the sub-
jective expectations of the petitioner. 132 S. Ct. at 1491 (“The
operative presumption, after all, is that Congress intends its
laws to govern prospectively only.”). We therefore conclude,
consistent with the Second Circuit’s reasoning in United
States v. Gill, that the stop-time rule would attach a new dis-
ability to Jeudy’s past conduct, rendering its application im-
permissibly retroactive. See 748 F.3d 491, 501–02 (2d Cir.
2014) (finding impermissible retroactivity in applying the
aggravated felony bar to discretionary relief under old
§ 1182(c) for a pre-IIRIRA conviction although alien could
not show subjective reliance).
Applying § 1229b(d)(1)(B) in this case would impose a
new disability on pre-IIRIRA conduct without a clear state-
ment from Congress indicating its intent to impose that dis-
No. 13-3174 19
ability. We therefore hold that Jeudy’s 1995 drug conviction
did not “stop time” for his continuous residence in the Unit-
ed States. His period of continuous residence for purposes of
discretionary relief began with his admission as a lawful
permanent resident in 1989, and he accrued the required
seven years in 1996, before IIRIRA’s stop-time rule took ef-
fect. He is eligible to request cancellation of removal under
§ 1229b(a).
We need not reach Jeudy’s second argument, raised for
the first time with his petition for judicial review, that he be-
gan a new period of continuous presence after illegally vot-
ing in 2000, allowing him to accrue another period of seven
years as of 2007. Compare Briseno-Flores v. Attorney General,
492 F.3d 226, 231 (3d Cir. 2007) (BIA’s interpretation barring
new period of continuous presence is reasonable and enti-
tled to Chevron deference), with Okeke v. Gonzales, 407 F.3d
585, 593–94 (3d Cir. 2005) (Ambro, J., concurring) (statutory
phrase “any period” implies there can be more than one pe-
riod; BIA’s contrary interpretation does not deserve Chevron
deference).
Accordingly, Jeudy is eligible to request cancellation of
removal. The petition for review is GRANTED and the case
is REMANDED for further administrative proceedings con-
sistent with this opinion.