       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2    Thaqi v. Jenifer, et al.                    No. 03-1587
   ELECTRONIC CITATION: 2004 FED App. 0238P (6th Cir.)
               File Name: 04a0238p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ON BRIEF: David K. Wenger, DAVID K. WENGER &
              FOR THE SIXTH CIRCUIT                      ASSOCIATES, Detroit, Michigan, for Appellant. Nancy B.
                _________________                        Pridgen, ASSISTANT UNITED STATES ATTORNEY,
                                                         Detroit, Michigan, for Appellee.
ENGJULL THAQI,                  X
                                                                             _________________
          Petitioner-Appellant, -
                                 -
                                                                                 OPINION
                                 -    No. 03-1587
           v.                                                                _________________
                                 -
                                  >
                                 ,                         ALAN E. NORRIS, Circuit Judge. Petitioner Engjull
CAROL JENIFER, District          -                       Thaqi appeals from the district court’s denial of his petition
Director, United States          -                       for a writ of habeas corpus. Thaqi contends that the district
Immigration and                  -                       court erred in refusing to disturb a determination by the Board
Naturalization Service, JAMES -                          of Immigration Appeals (“BIA”) that he was not a candidate
ZIEGLER, Commissioner,           -                       for a discretionary waiver of deportation because a provision
                                 -                       of the Antiterrorism and Effective Death Penalty Act of 1996,
Immigration and
                                 -                       Pub. L. 104-132, 110 Stat. 1214 (“AEDPA”) applied
Naturalization Service, and      -                       retroactively to strip him of eligibility. Because the district
JOHN ASHCROFT , United           -                       court incorrectly concluded that the rationale of the Supreme
States Attorney General,         -                       Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), did
       Respondents-Appellees. -                          not apply to Thaqi’s circumstances, we reverse its judgment.
                                N
                                                                                         I.
                                                           Thaqi is a legal permanent resident of the United States and
     Appeal from the United States District Court        a citizen of Yugoslavia. He was convicted of felonious
    for the Eastern District of Michigan at Detroit.     assault in Michigan state court following a jury trial on July
   No. 02-74876—Patrick J. Duggan, District Judge.       26, 1994. On December 31, 1995, he pleaded guilty in state
                                                         court to larceny. On March 10, 1997, the Immigration and
               Submitted: June 18, 2004                  Naturalization Service (“INS”) commenced deportation
                                                         proceedings against Thaqi, charging him with being
           Decided and Filed: July 23, 2004              deportable for the commission of two unconnected crimes of
                                                         moral turpitude under § 241(a)(2)(A)(ii) of the Immigration
Before: NORRIS, COLE, and ROGERS, Circuit Judges.        and Nationality Act, 66 Stat. 163, as amended (“INA”). See

                            1
No. 03-1587                         Thaqi v. Jenifer, et al.   3   4       Thaqi v. Jenifer, et al.                           No. 03-1587

8 U.S.C. § 1227(a)(2)(A)(ii). Thaqi conceded deportability            By the time that deportation proceedings were initiated
but requested alternative relief, including consideration for a    against Thaqi on March 10, 1997, however, the standards
discretionary waiver of deportation under § 212(c) of the          governing eligibility for a waiver under § 212(c) had changed.
INA. See 8 U.S.C. § 1182(c) (1994). The Immigration Judge          By that date, AEDPA had become effective, and had amended
conducting Thaqi’s hearing denied the § 212(c) waiver              INA § 212(c) to cancel eligibility for waivers for aliens who,
without explanation, and the BIA summarily affirmed. The           like Thaqi, had been convicted of two unconnected crimes of
BIA then denied Thaqi’s motion for reconsideration, basing         moral turpitude. See 8 U.S.C. § 1182(c) (1996). It was this
its decision on the conclusion that he was ineligible for a        provision upon which the BIA relied to determine that Thaqi
§ 212(c) waiver under AEDPA because one of his convictions         was ineligible for relief under § 212(c). In his petition, Thaqi
resulted from a jury verdict.                                      protests the application of a later-enacted law to increase the
                                                                   immigration consequences of his convictions.
  Following the BIA’s decision, Thaqi filed a petition for a
writ of habeas corpus in district court, in which he sought          Whether it was appropriate for the BIA to rely upon
declaratory and injunctive relief solely on the ground that the    AEDPA to strip Thaqi of eligibility for the waiver based upon
BIA erred in determining that he was ineligible for a              crimes he had committed prior to AEDPA’s effective date is
discretionary waiver of deportability. The district court          governed by the Supreme Court’s decision in INS v. St. Cyr,
denied Thaqi’s petition, reasoning that the BIA correctly          533 U.S. 289 (2001). In that case, the Court had to determine
concluded that, because Thaqi had once been convicted              whether a provision of the Illegal Immigration Reform and
following a jury trial, the Supreme Court’s decision in St. Cyr    Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div.
did not require a determination that he remained eligible for      C, 110 Stat. 3009-546 (“IIRIRA”), which repealed § 212(c)
§ 212(c) relief.                                                   entirely, could be applied retroactively.1 St. Cyr was an alien
                                                                   who had become deportable after pleading guilty to a drug
                              II.                                  crime under Connecticut law. At the time of his conviction
                                                                   on March 8, 1996, he would have been a candidate for a
  An alien’s eligibility for a discretionary waiver of             § 212(c) waiver. The INS, however, only initiated
deportation has changed over time. Thaqi became deportable         proceedings against St. Cyr on April 10, 1997, ten days after
under the immigration laws on December 31, 1995, the date          IIRIRA became effective, and it sought to use his drug
on which his guilty plea resulted in his second criminal           conviction as grounds for deportation. St. Cyr requested
conviction. See 8 U.S.C. § 1227(a)(2)(A)(ii). At that time,        § 212(c) relief, but the INS ruled that IIRIRA rendered him
Thaqi would have been eligible for consideration for a             ineligible because IIRIRA repealed § 212(c). St. Cyr objected
discretionary waiver of deportation under § 212(c) of the          to the INS’s retroactive application of IIRIRA. St. Cyr, 533
INA. Only an alien who had “been convicted of one or more          U.S. at 293.
aggravated felonies and ha[d] served for such felony or
felonies a term of imprisonment of at least 5 years” would
have been ineligible for the waiver. 8 U.S.C. § 1182(c)
(1994). Neither of Thaqi’s convictions were for aggravated
felonies.                                                              1
                                                                         This provision of IIRIRA took effect after AEDPA had already
                                                                   become effective and after the INS had b egun proceed ings aga inst Th aqi,
                                                                   and is therefore not applicable to Thaqi’s case.
No. 03-1587                       Thaqi v. Jenifer, et al.      5   6      Thaqi v. Jenifer, et al.                      No. 03-1587

  The Court applied a two-step test to determine whether the            immigration consequences of the convictions. Given the
provision repealing § 212(c) could be applied retroactively.            frequency with which § 212(c) relief was granted in the
“[T]he first step in determining whether a statute has an               years leading up to AEDPA and IIRIRA, preserving the
impermissible retroactive effect is to ascertain whether                possibility of such relief would have been one of the
Congress has directed with the requisite clarity that the law be        principal benefits sought by defendants deciding whether
applied retrospectively.” Id. at 316 (citations omitted).               to accept a plea offer or instead proceed to trial.
Having determined that Congress had not clearly stated an
intent regarding retroactive application, the Court then turned            The case of Charles Jideonwo, a petitioner in a parallel
to the second step, asking whether retroactively applying               litigation in the Seventh Circuit, is instructive. Charged
IIRIRA “produces an impermissible retroactive effect[:]”                in 1994 with violating federal narcotics law, Jideonwo
                                                                        entered into extensive plea negotiations with the
     The inquiry into whether a statute operates                        Government, the sole purpose of which was to ensure
  retroactively demands a commonsense, functional                       that he got less than five years to avoid what would have
  judgment about whether the new provision attaches new                 been a statutory bar on 212(c) relief. The potential for
  legal consequences to events completed before its                     unfairness in the retroactive application of IIRIRA’s
  enactment. A statute has retroactive effect when it takes             § 304(b) [which repealed INA § 212(c)] to people like
  away or impairs vested rights acquired under existing                 Jideonwo and St. Cyr is significant and manifest.
  laws, or creates a new obligation, imposes a new duty, or             Relying upon settled practice, the advice of counsel, and
  attaches a new disability, in respect to transactions or              perhaps even assurances in open court that the entry of
  considerations already past. As we have repeatedly                    the plea would not foreclose § 212(c) relief, a great
  counseled, the judgment whether a particular statute acts             number of defendants in Jideonwo’s and St. Cyr’s
  retroactively should be informed and guided by familiar               position agreed to plead guilty. Now that prosecutors
  considerations of fair notice, reasonable reliance, and               have received the benefit of these plea agreements,
  settled expectations.                                                 agreements that were likely facilitated by the aliens’
                                                                        belief in their continued eligibility for § 212(c) relief, it
     IIRIRA’s elimination of any possibility of § 212(c)                would surely be contrary to familiar considerations of
  relief for people who entered into plea agreements with               fair notice, reasonable reliance, and settled expectations
  the expectation that they would be eligible for such relief           to hold that IIRIRA’s subsequent restrictions deprive
  clearly attaches a new disability, in respect to                      them of any possibility of such relief.
  transactions or considerations already past. Plea
  agreements involve a quid pro quo between a criminal              Id. at 320-24 (citations, quotations marks and footnotes
  defendant and the government. In exchange for some                omitted). In deciding Thaqi’s case, we must apply the
  perceived benefit, defendants waive several of their              reasoning of St. Cyr to determine first whether the language
  constitutional rights (including the right to a trial) and        of the statute in question reveals Congress’s intent regarding
  grant the government numerous tangible benefits, such as          retroactivity, and second, whether enforcing the statute
  promptly imposed punishment without the expenditure               against Thaqi would result in an impermissible retroactive
  of prosecutorial resources. There can be little doubt that,       effect.
  as a general matter, alien defendants considering whether
  to enter into plea agreements are acutely aware of the
No. 03-1587                             Thaqi v. Jenifer, et al.         7    8    Thaqi v. Jenifer, et al.                     No. 03-1587

  On the first question, we agree with the parties that the                   however, do not apply to Thaqi’s circumstances. Although
language of AEDPA reveals nothing regarding Congress’s                        Thaqi’s first conviction resulted from a jury trial, his second,
intent. Moving to the second part of the inquiry and applying                 the one which would render him ineligible for § 212(c) relief
the reasoning of St. Cyr to Thaqi’s case, we conclude that                    under AEDPA, resulted from a guilty plea.
enforcing AEDPA against Thaqi would have an
impermissible retroactive effect.                                                                             III.

  In St. Cyr, the conviction that rendered the petitioner                        For the foregoing reasons, the judgment of the district court
ineligible for § 212(c) relief was the result of a guilty plea; in            is reversed and the case is remanded to the district court for
the opinion of the Supreme Court, St. Cyr might well have                     further proceedings consistent with this opinion.
chosen to contest the charge had he known that, under later
legislation, his conviction would render him ineligible for an
avenue of relief from deportation. In Thaqi’s case, the crime
that rendered him ineligible for § 212(c) relief was also the
result of a guilty plea—it was his second conviction, in which
he pleaded guilty to larceny, that made him guilty of two
unconnected crimes of moral turpitude. Accordingly, under
the logic of St. Cyr, had he known that later legislation would
deprive him of § 212(c) eligibility, Thaqi would likely have
decided to contest the larceny charge. Accordingly, applying
AEDPA retroactively to bar Thaqi from eligibility for a
discretionary waiver of deportation would have an
impermissible retroactive effect.2
   The government cites various cases in which courts of
appeals have concluded that where petitioners had been
convicted following jury trials, the retroactive application of
a statute eliminating their eligibility for § 212(c) relief would
not have had impermissible retroactive effects. See Rankine
v. Reno, 319 F.3d 93, 100-02 (2d Cir. 2003); Dias v. INS, 311
F.3d 456, 458 (1st Cir. 2002); Chambers v. Reno, 307 F.3d
284, 290-93 (4th Cir. 2002); Armendariz-Montoya v. Sonchik,
291 F.3d 1116, 1121-22 (9th Cir. 2002). These cases,

    2
      W e note that, under St. Cyr, the petitioner ne ed no t demonstrate
actual reliance upon the immigration laws in order to demonstrate an
impe rmissible retroactive effect; he need only be among a class of aliens
whose guilty pleas “were likely facilitated” by their continued eligibility
for § 2 12(c) relief. St. Cyr, 533 U.S. at 323 .
