                                                                                                                           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Precedential or Non-Precedential: Precedential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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"Ponnapula v. Atty Gen USA" (2004). 2004 Decisions. Paper 533.
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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.
  3
   Section 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 456
government 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

                                              19
    Finally, 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
