                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2007

Atkinson v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-1099




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Atkinson v. Atty Gen USA" (2007). 2007 Decisions. Paper 1392.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1392


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                   PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 05-1099


                CLAUDIUS ATKINSON,

                                    Appellant.

                              v.

  *ATTORNEY GENERAL OF THE UNITED STATES

      *(Amended in accordance with Clerk's Order dated
                       3/16/06)



     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
            (District Court No. 01-cv-05462)
     District Judge: Honorable Lawrence F. Stengel


                 Argued on July 13, 2006

     Before: SMITH, WEIS and ROTH, Circuit Judges

              (Opinion filed: March 8, 2007)

Steven A. Morely, Esquire (ARGUED)
Morley, Surin & Griffin, P. C.
325 Chestnut Street
Suite 1305-P
Philadelphia, PA 19106

                  Counsel for Appellant
Patrick L. Meehan, Esquire
United States Attorney
Robert A. Zauzmer, Esquire
Assistant United States Attorney
Susan R. Becker, Esquire (ARGUED)
Assistant United States Attorney
Chief of Appeals
Paul Mansfield, Esquire
Assistant United States Attorney
Virginia A. Gibson, Esquire
Assistant United States Attorney
Chief, Civil Division
615 Chestnut Street
Suite 12350
Philadelphia, PA 19106

                     Counsels for Appellee




                         OPINION


ROTH, Circuit Judge

       If the Supreme Court has determined that the repeal of a
law has an impermissible retroactive effect on a particular
group, does that determination render the law impermissibly
retroactive in its application to other groups affected by the
repeal? That is the question before us in this appeal.

I. Factual Background and Procedural History

        Claudius Atkinson is a citizen of Jamaica who entered the
United States as a non-immigrant visitor in January 1983. He
adjusted his status to that of lawful permanent resident two years
later on January 25, 1985. On December 16, 1991, following a
jury trial in the Court of Common Pleas for Philadelphia
County, Atkinson was convicted of criminal conspiracy and
possession with intent to distribute a controlled substance.

                                2
Atkinson was sentenced to not less than six or more than twelve
months imprisonment to run concurrently with a sentence of not
less than eleven or more than twenty-three months of work
release. In addition, he was given three years of probation.

       Atkinson finished serving his sentence and, according to
the record, lived an uneventful existence with his family in
Philadelphia until June 2, 1997, when he received a Notice to
Appear, initiating removal proceedings, from the              the
Immigration and Naturalization Service (INS).1 According to
the Notice, Atkinson was removable from the United States
pursuant to sections 237(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the
Immigration and Nationality Act (INA) because he was an alien
convicted of a controlled substance offense and because he was
an alien convicted of an aggravated felony.

       In March 1998, an Immigration Judge (IJ) held that
Atkinson was removable and ineligible to apply for a waiver of
deportation under former section 212(c) of the INA, 8 U.S.C. §
1182(c) (repealed 1996), which permitted deportable aliens, who
had accrued seven years of lawful permanent residence in the
United States, to request discretionary relief from deportation if
the equities weighed in favor of their remaining in the country.
The IJ ruled that the repeal of section 212(c) applied
retroactively. In 1991, however, when Atkinson was convicted,
even aliens who had been convicted of an aggravated felony
were eligible to seek such relief provided that they had served
a sentence of less than five years imprisonment. See 8 U.S.C.
§ 1227(a)(2)(A)(iii); 8 U.S.C. § 1182(c).




   1
     In March 2003, the INS was folded into the Department
of Homeland Security, and the action commenced against
Atkinson by the former INS is now being carried on by the
Bureau of Immigration and Customs Enforcement.
Consistent with our previous practice, we will continue to
refer to the INS because it was the agency involved in the
initial action against Atkinson. Ponnapula v. Ashcroft, 373
F.3d 480, 482 n.1 (3d Cir. 2004).

                                3
        Atkinson appealed the decision to the Board of
Immigration Appeals (BIA), which, on June 25, 2001, affirmed
the IJ’s decision without a written opinion. Less than one month
later, Atkinson filed a motion to reconsider with the BIA, based
on the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289
(2001). The Court held in St. Cyr that the provisions of AEDPA
and IIRIRA, eliminating the possibility of discretionary relief
under former section 212(c), could not be applied retroactively
to a lawful permanent resident alien who had pled guilty to an
aggravated felony charge.2

       While Atkinson’s motion for reconsideration was
pending, he was detained by the INS on October 18, 2001. On
October 29, Atkinson filed a petition for a writ of habeas corpus
and a stay of removal. The stay of removal was granted, and, on
the same day, Atkinson was released from custody pending the
resolution of his habeas petition. On July 12, 2002, the BIA
issued a short opinion denying Atkinson’s motion for
reconsideration on the ground that St. Cyr applied only to aliens
who had entered into plea agreements and not to aliens who, like
Atkinson, had been tried and found guilty.

       The District Court referred Atkinson’s petition to a
Magistrate Judge who, on April 29, 2004, issued a Report and
Recommendation, advising the District Court to grant the habeas
petition. The Magistrate Judge reasoned that, with respect to the
retroactive elimination of section 212(c) relief, there was no
principled distinction between aliens who had pled guilty and
aliens who had gone to trial. After the Magistrate Judge issued
her Report and Recommendation, but before the matter was
considered by the District Court, we decided Ponnapula v.
Ashcroft , 373 F.3d 480 (3d Cir. 2004). In Ponnapula, we held
that it was impermissible to apply AEDPA and IIRIRA
retroactively to aliens who had been offered pleas but had
rejected them. The District Court interpreted our decision as
creating a requirement that, in order to render a statute
impermissibly retroactive, aliens must show that they had


   2
   It appears that St. Cyr was issued the same day as the
BIA’s initial decision in Atkinson’s case.

                               4
reasonably relied on the pre-existing state of the law. In
Ponnapula, the defendant/alien had been offered a plea
agreement. Atkinson was not offered an agreement. Moreover,
in Ponnapula, we stated in dictum that we doubted that aliens in
Atkinson’s situation could show sufficient reliance on the then-
state of the law to render IIRIRA’s repeal of section 212(c)
impermissibly retroactive.       Id. at 494.     Based on its
understanding of Ponnapula, the District Court denied
Atkinson’s petition for a writ of habeas corpus. Atkinson filed
a timely notice of appeal.

II. Jurisdiction and Standard of Review

        Atkinson’s petition for a writ of habeas corpus was
denied on December 20, 2004. Subsequently, Congress passed
the REAL ID Act, which became effective in May 2005. Pub.
L. No. 109-13, 119 Stat. 231. Section 106(a) of the Act
eliminated the district courts’ habeas jurisdiction over final
orders of removal in nearly all cases. 8 U.S.C. § 1252(a)(2);
Francois v. Gonzales, 448 F.3d 645, 647 (3d Cir. 2006). Where,
as here, we are faced with an appeal from a district court’s pre-
REAL ID Act decision on a habeas petition, we vacate the
district court’s opinion and review de novo constitutional claims
and questions of law in the habeas petition as if they had been
filed with us in the first instance as a petition for review of an
immigration decision. 8 U.S.C. § 1252(a)(1).

       This petition for review presents us with a question of
law: the BIA’s legal conclusion that Atkinson was ineligible to
apply for relief under former section 212©.

III. Discussion

       A. Statutory Framework

       Because the statutory schema in place prior to AEDPA
       and IIRIRA bears on




                                5
retroactivity, a brief history is helpful.3

       Section 212 of the INA excluded from the United States
several classes of aliens, including aliens convicted of offenses
involving moral turpitude or illegal trafficking in drugs.
However, the Attorney General was given discretion to admit
otherwise excludable aliens.4 Although section 212(c) by its
terms applied only to exclusion proceedings, it was interpreted
by the BIA also to permit a permanent resident alien with a
lawful unrelinquished domicile of seven consecutive years to
apply for a discretionary waiver of deportation. St. Cyr, 533
U.S. at 295 (citing Matter of Silva, 16 I. & N. Dec. 26, 30, 1976
WL 32326 (1976); Francis v. INS, 532 F.3d 268 (2d Cir. 1976)).
Because of the large class of convictions that triggered
removability, section 212(c) was frequently called upon to
enable permanent resident aliens to remain in the country.5

       The first significant change in section 212(c) occurred in
1990, when Congress amended it to preclude aliens convicted of
aggravated felonies, who had served a term of imprisonment of
five years or greater, from applying for a waiver of deportation.
104 Stat. 5052 (amending 8 U.S.C. § 1182(c)). Then, when
Congress enacted section 440(d) of AEDPA in 1996, it set forth
certain offenses for which convictions would preclude resort to

   3
    A more thorough review of the interwoven statutory
framework is available in St. Cyr, 533 U.S. at 293-298.
   4
    Section 212(c), 8 U.S.C. § 1182(c) (1994) (repealed
1996), provided: “Aliens lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive years,
may be admitted in the discretion of the Attorney General . .
..”
   5
    Roughly 50% of applications for 212(c) relief were
granted. St. Cyr, 533 U.S. at 296 n.5 (citing Rannik, The
Anti-Terrorism and Effective Death Penalty Act of 1996: A
Death Sentence for the 212(c) Waiver, 28 U. Miami Inter-
Am. L. Rev. 123, 150 n.80).

                                 6
212(c) regardless of sentence length. 110 Stat. 1277 (amending
8 U.S.C. 1182(c)). That same year, Congress passed section
304(b) of IIRIRA, which repealed section 212(c) and replaced
it with a provision that grants the Attorney General the ability to
cancel removal for a narrow class of inadmissible or deportable
aliens. St. Cyr, 533 U.S. at 297. That narrow class does not
include those who, like Atkinson, were previously convicted of
an aggravated felony. Id. (citing 8 U.S.C. § 1229b(a)(3) (1994
ed., Supp. V)).

       B. Retroactivity Analysis

        We begin our retroactivity analysis with the Supreme
Court’s decisions in Landgraf v. USI Film Prods., 511 U.S. 244
(1994), which sets out the procedure for assessing whether a
civil statute should apply retroactively. The first question is
whether Congress has expressly provided that the statute should
be retroactive. Landgraf, 511 U.S. at 280. If the answer is yes,
our inquiry is over. Mathews v. Kidder, Peabody & Co., 161
F.3d 156, 160 (3d Cir. 1998). If the statute lacks such an
express statement, we ask whether the normal rules of statutory
construction unequivocally remove the possibility of
retroactivity.6 Mathews, 161 F.3d at 160. If Congress did not
expressly provide for retroactivity and if a court applying
normal rules of statutory construction would not find an intent
to apply the statute only prospectively, then we must determine
whether applying the statute to events that antedated its
enactment would have a retroactive effect. Id. at 160-61. If we
find a retroactive effect, “we employ the strong presumption”
against applying such a statute retroactively. Id. at 161.



   6
    In Lindh v. Murphy, 521 U.S. 320 (1997), for example,
the Court relied on a negative inference to conclude that
Congress did not intend to retroactively apply certain sections
of AEDPA, stating “if a congressional intent to not apply a
statute retrospectively can be discerned, then the courts are to
follow that intent, without regard to whether the statute has
‘retroactive effect.’” 521 U.S. at 326-27 Mathews, 161 F.3d at
161.

                                7
        Resolving whether a statute has a retroactive effect
“demands a commonsense, functional judgment about ‘whether
the new provision attaches new legal consequences to events
completed before its enactment.’” St. Cyr, 533 U.S. at 321
(quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (quoting
Landgraf, 511 U.S. at 270)). “A statute has retroactive effect
when it ‘“takes away or impairs vested rights acquired under
existing laws, or creates a new obligation, imposes a new duty,
or attaches a new disability, in respect to transactions or
considerations already past . . ..”’” Id. (quoting Landgraf, 511
U.S. at 269 (quoting Soc’y for Propagation of the Gospel v.
Wheller, 22 F. Cas. 756, 767, No. 13,156 (C.C.D.H.N.H.
(1814)))). The judgment whether a statute has retroactive effect
is “informed and guided by ‘familiar considerations of fair
notice, reasonable reliance, and settled expectations.’” Id.
(quoting Martin, 527 U.S. at 358 (quoting Landgraf, 511 U.S. at
270.)).

       The retroactivity of the repeal of section 212(c) was
considered by the Supreme Court in St. Cyr. Applying the
Landgraf analysis, the Court concluded that Congress did not
expressly provide for the temporal reach of the repeal. The
Court then moved on to the issue of whether the repeal produced
an impermissible retroactive effect on aliens like St.Cyr who
had pled guilty in reliance on a plea agreement. St. Cyr, 533
U.S. at 320. The Court held that IIRIRA’s removal of
discretionary relief could not be applied to an alien who had
negotiated a plea to an aggravated felony charge during the time
when section 212(c) relief was available. 533 U.S. at 321. The
Court focused on the quid pro quo nature of a plea agreement
and stressed that an alien who had pled guilty to aggravated
felony with the expectation that he would be eligible for section
212(c) relief would suffer a “new disability” if that relief were
subsequently eliminated. Id. at 321-23.

      The Court did not clarify whether it understood reliance
by the person affected to be the condition of finding
impermissible retroactivity or merely the factor, in the context
of that case before the Court, that demonstrated an
impermissible retroactive effect. Nor did the Court consider
whether, beyond the reliance factor, there were other indicia that

                                8
the repeal of section 212(c) attached new legal consequences to
completed events. However, since the Court’s decision in St.
Cyr, courts of appeals in other circuits have understood the
Court’s discussion of reliance and quid pro quo as requiring that
there be reliance on the prior state of the law in order to make a
finding that the elimination of section 212(c) relief is
impermissibly retroactive. See, e.g., Rankine v. Reno, 319 F.3d
93, 99-102 (2d Cir. 2003) (focusing on lack of reliance in
rejecting alien’s claim that IIRIRA’s repeal of section 212(c)
was impermissibly retroactive as to aliens who went to trial and
were convicted of aggravated felonies); Chambers, 307 F.3d at
284 (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002)
(same); Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th
Cir. 2002) (same).

       Such a reading of St. Cyr, however, runs contrary to our
understanding of prior Supreme Court law. As we noted above,
Landgraf teaches that, in determining if a statute applies
retroactively, a court must begin with the statute. If the statute
is ambiguous as to its temporal reach, the question is whether it
attaches new legal consequences to past events. 511 U.S. at
282-84. If the court determines that the statute has retroactive
effect because of such consequences, that determination is
applied across the board.

        The Court has never held that reliance on the prior law is
an element required to make the determination that a statute
may be applied retroactively. See Ponapulla, 373 F.3d at 489
(noting that “the Supreme Court has never required actual
reliance in any case in the Landgraf line.”). In Landgraf, for
instance, the plaintiff, Barbara Landgraf accused her employer
of violating Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. After a bench trial, the District Court found that
plaintiff had been sexually harassed, causing her to suffer
mental anguish. Landgraf had, however, resigned from her
employment for reasons that the District Court found to be
unrelated to the sexual harassment. For that reason, the District
Court dismissed her complaint because she was no longer
entitled to equitable relief and Title VII did not then authorize
any other form of relief. Landgraf, 511 U.S. 248-49.


                                9
       While Landgraf’s appeal was pending, Title VII was
amended to permit recovery of compensatory and punitive
damages for certain violations and to provide for a jury trial if
such damages were sought. See Rev. Stat. § 1977A(a), 42
U.S.C. § 1981a(a) (1988 ed. Supp IV) as added by § 102 of the
1991 Act, Pub. L. 102-166, 105 Stat. 1972. The Supreme Court
granted certiorari to decide whether the amendments applied to
a Title VII case which was pending when the statute was
amended. Id. at 247.

       In determining that the amendment did not apply to
pending cases, the Court did not base its decision on the specific
conduct of Landgraf’s employer or on any reliance that either
Landgraf or her employer may have had on the state of the law
when discriminatory conduct occurred. Instead, the Court made
a general analysis of the impact of the amendment, finding
retroactivity improper because the amendment instituted a legal
change that attached a new legal burden to the proscribed
conduct. Id. at 282-84; see also Ponnapula, 373 F.3d at 491.
Since the Court found the impermissible impact, the amendment
has been applied prospectively by the courts of appeals without
the need for any reexamination of the basis for denying
retroactivity – except a passing citation to Landgraf. See, e.g.,
Jonasson v. Lutheran Child & Family Services, 115 F.3d 436,
438 fn. 1, (7th Cir. 1997).

       Similarly, in Hughes Aircraft Co. v. Schumer, 520 U.S.
939 (1997), the False Claims Act (FCA) had been amended in
1986 to partially remove the bar to suits based on information
which was already in the government’s possession. The former
Division Contracts Manager for Hughes’ B-2 Division brought
an action in 1989 based on alleged mischarges made by Hughes
against Northrup, and ultimately against the government.
Hughes moved to dismiss, contending that the 1986 amendment
was not retroactive and that the action against it was precluded
by the pre-1986 FCA because the information upon which the
action was based was already in the possession of the
government. The District Court denied the motion. Hughes
then moved for summary judgment on the merits. The District
Court granted this motion and the plaintiff appealed. Hughes
cross-appealed the denial of its motion to dismiss. The Ninth

                               10
Circuit Court of Appeals rejected the cross-appeal, finding the
1986 amendment should be applied retroactively in suits based
on pre-1986 conduct. 520 U.S. 943-45.

       The Supreme Court granted certiorari to consider, among
other issues, whether the 1986 amendment was applicable to
pre-1986 conduct. The Court held that the 1986 amendment
should not have been applied retroactively. Id. at 945. In doing
so the Court concluded that by eliminating a defense to an FCA
action, the 1986 amendment attached a new disability to
transactions already past. Id. at 948. There is, however, no
consideration in Hughes of whether Hughes Aircraft, in
particular, or any defendant, in general, in an FCA action might
have relied on the former law in conducting business with the
government. See Ponapulla, 373 F.3d at 491; Olatunji v.
Ashcroft, 387 F.3d 383, 391 (4th Cir. 2004). It was the new legal
burden imposed on events past, rather than the reliance on the
former law by the person affected, which was the basis for
holding that the 1986 amendment would not be applied
retroactively.

        Again, in Hadix, the question of retroactivity was the
issue. Here, the Prison Litigation Reform Act of 1995 (PLRA),
110 Stat. 1321-72, 42 U.S.C. § 1997e(d)(3) (1994 ed., Supp. III)
had placed a limit on the fees that might be awarded to attorneys
who litigate prisoner lawsuits. The Supreme Court was asked
to decide whether the limit on fees applied to post-judgment
monitoring of defendants’ compliance with the remedial decrees
that had been performed before the PLRA became effective.
The District Court had ruled that plaintiffs were entitled to fees
at the prevailing rate, which had been set by the court at $150
per hour. Under the PLRA, fees would be limited to $112.50
per hour. 527 U.S. at 348-50.

        The Supreme Court determined that the limitation on fees
would apply to post-judgment monitoring performed after the
effective date of the PLRA but not to services performed prior
to that date. 527 U.S. at 347. In coming to this conclusion, the
Court noted that the attorneys had worked in reasonable reliance
on the fee schedule and that, before the effective date of the
PLRA, they reasonably expected to receive compensation

                               11
according to this schedule. Id. at 358-60. A reduction in the
rate of compensation would attach new legal consequences to
completed conduct. Id. (citing Landgraf, 511 U.S. at 270).

        In Hadix, this reliance on a set fee was the expectation
which convinced the Court that a new legal burden had been
imposed on past events. Nevertheless, reliance on pre-
amendment law has not been interpreted by our sister courts of
appeals as an element in determining across the board that the
PLRA amendment is not retroactive. See Cody v. Gomez, 304
F. 3d 767, 776-77 (8th Cir. 2002) (holding that in an action to
determine the propriety of awarding fees for monitoring [but not
the amount of the fee], the PLRA did not apply retrospectively
to fee requests for services performed prior to its effective date,
citing Hadix); Madrid v. Gomez, 190 F.3d 990, 994-95 (9th Cir.
1999) (holding that where fees for monitoring were awarded by
motion after services were performed, not by a pre-fixed
schedule as in Hadix, the PLRA did not apply retroactively,
citing Hadix).

       Thus, we see that the “reliance” factor is an element to
consider in determining whether the enactment of a new law has
created a “new disability.” Nevertheless, in Landgraf, Hughes,
and Hadix, whether the party before the court actually relied on
the prior state of the law is not the conclusive factor in
determining whether the amendment as a whole is to be applied
retroactively or prospectively. Impermissible retroactivity, as
defined in Landgraf, does not require that those affected by the
change in law have relied on the prior state of the law. Id.

        We, therefore, turn to the situation of aliens who, like
Atkinson, had not been offered pleas and who had been
convicted of aggravated felonies following a jury trial at a time
when that conviction would not have rendered them ineligible
for section 212(c) relief. Does applying IIRIRA to eliminate the
availability of discretionary relief under former section 212(c)
attach new legal consequences to events completed before the




                                12
repeal? We conclude that it does and that Atkinson cannot be
precluded from applying for 212(c) relief.7

        Atkinson’s case presents a straightforward application of
the retroactive effect test. IIRIRA has plainly attached new
legal consequences to Atkinson’s conviction. See Olatunji, 387
F.3d at 396. Prior to IIRIRA’s enactment, Atkinson remained
free to apply for a waiver under section 212(c) despite his
conviction of an aggravated felony. After IIRIRA, he lost that
right; applying basic principles of retroactivity, IIRIRA attached
a new legal consequence to Atkinson’s conviction: the certainty
– rather than the possibility – of deportation. Such a change in
legal consequences based on events completed before IIRIRA’s
enactment constitutes an impermissible retroactive effect. See
St. Cyr, 533 U.S. at 325; Landgraf, 511 U.S. at 283; Hughes,
520 U.S. at 942.

       We emphasize that the important “event” to which
IIRIRA attached a new legal consequence was the conviction.
The fact that Atkinson was not offered a plea and did not engage


   7
    The government argues that Atkinson is barred from
obtaining a discretionary waiver under former section 212(c)
because he failed to establish seven-years of unrelinquished,
lawful permanent residence in the United States. The
government makes its argument on the basis of the “stop-
time” provisions enacted as part of IIRIRA, which, the
government contests, interrupt the accrual of time toward the
seven years of unrelinquished residence upon conviction of an
aggravated felony. Because of the date of enactment of
IIRIRA stop-time provisions, we are inclined to believe that
they apply only to cancellation of removal, 8 U.S.C. §
1229b(d)(1), and not to aliens seeking a discretionary waiver
under former section 212(c). See Sandoval v. Reno, 166 F.3d
225 (3d Cir. 1999). We do not explicitly so hold, however,
because neither the IJ nor the BIA relied on the stop-time
provisions in rejecting Atkinson’s attempt to seek a waiver
under former section 212(c). Accordingly, the government
remains free to raise this argument in response to Atkinson’s
application for 212(c) relief.

                               13
in a quid pro quo exchange is not the event which triggered his
inability to seek relief. Applying IIRIRA’s repeal of 212(c)
retroactively affected aliens because of the conviction for an
aggravated felony. This is clear because, regardless of whether
the conviction resulted from trial or plea, IIRIRA’s repeal of
section 212(c) had the same impact – the repeal did not attach
any different legal consequences to a conviction based on a
bargained plea than it did to a conviction following trial.

        A significant characteristic of the “event” here is that it
occurred in the past and cannot be changed. That fact
distinguishes Atkinson’s situation from that of an alien felon
who has returned to the country illegally. In Fernandez-Vargas,
the Supreme Court held that IIRIRA’s provision for
reinstatement of removal orders against aliens illegally
reentering the United States could be applied retroactively to
aliens who reentered prior to IIRIRA’s enactment. 126 S. Ct.
2422 (2006). The Court found that applying IIRIRA to such
aliens did not attach new legal consequences to past events
because “it is the conduct of remaining in the country after entry
that is the predicate action; the statute applies to stop an
indefinitely continuing violation that the alien himself could end
at any time by voluntarily leaving the country.” Id. The Court
specifically distinguished the situation in St. Cyr because in that
case the alien’s plea and agreement for a quid pro quo were
entirely in the past, “and there was no question of undoing
them.” Id. at 2432. Here, Atkinson’s trial and conviction are
entirely in the past, and there is no possibility of undoing them.
See also St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) (“it is
the conviction, not the underlying criminal act, that triggers the
disqualification from § 212(c) relief.”) (internal citations and
quotations omitted); Thom v. Ashcroft, 369 F.3d 158, 168 (2d
Cir. 2004) (Underhill, District Judge, dissenting) (noting that the
conviction was the relevant past event because it was the trigger
for whether IIRIRA attached new legal consequences); contra
Chambers v. Reno, 307 F.3d 284, 293 (4th Cir. 2002) (stating
that the relevant past conduct was the alien’s decision to go to




                                14
trial).8

       For the above reasons, we conclude that reliance is but
one consideration in assessing whether a statute attaches new
legal consequences to past events. See Landgraf, 511 U.S. at
270. In applying its commonsense, functional judgment as to
whether a statute attaches new legal consequences, a court can
certainly be guided by considerations of fair notice, reasonable
reliance, and settled expectations. Hadix, 527 U.S. at 357-58.
Nowhere in the Supreme Court’s jurisprudence, however, has
reliance (or any other guidepost) become the sine qua non of the
retroactive effects inquiry. Olatunji, 393-94. Moreover, nothing
in the Landgraf line of cases supports the theory that the limits
of permissible retroactivity are different for one group – those
who accept (or consider) a plea agreement – than they are for
another – those who exercise their constitutional right to a trial.


        It is for this reason that we are not troubled by our dictum
in Ponnapula casting doubt on whether an alien in Atkinson’s
situation could demonstrate a reasonable reliance interest
necessary to demonstrate a retroactive effect. 373 F.3d at 494.
Specifically, we stated that “aliens [who went to trial because
they were not offered a plea agreement] had no opportunity to
alter their course in the criminal justice system in reliance on the
availability of § 212(c) relief, [and] we highly doubt (though do
not explicitly hold, for the issue is not before us) that such aliens
have a reliance interest that renders IIRIRA’s repeal of former
§ 212(c) impermissibly retroactive as to them.” Id. We agree
that aliens who were not offered plea bargains did not rely on


    8
    The dissent in Chambers described the relevant past
conduct to be the alien’s crime of conviction. Id. at 293-94.
The dissent noted that it was the underlying criminal conduct,
not the decision to plead, that rendered the alien subject to
deportation and in need of the ability to apply for a section
212(c) waiver. Id. at 295. The dissent was on the proper
track but we consider the relevant past event to be the
conviction – absent a legal determination of guilt, the alien is
not subject to deportation or in need of section 212(c) relief.

                                 15
the existence of section 212(c) relief in deciding to go to trial.
This does not cause us pause, however, because the relevant
question is whether IIRIRA attached new legal consequences to
those aliens’ convictions and resulting sentences. The answer,
as we have described, is yes.

IV. Conclusion

        We hold that the BIA cannot preclude Atkinson from
applying for a discretionary waiver under former section 212(c)
because IIRIRA’s repeal of that section cannot be applied
retroactively. Treating Atkinson’s appeal from the District
Court’s denial of his habeas petition as a petition for review,
Francois, 448 F.3d at 647, we will grant the petition and remand
this case to the BIA for further proceedings consistent with this
opinion.




                               16
