In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3243

Charles Jideonwo,

Petitioner,

v.

Immigration and Naturalization Service,

Respondent.



Petition for Review of an Order of the
Board of Immigration Appeals.
No. A23-147-139.


Argued May 19, 2000--Decided August 23, 2000



      Before Flaum, Chief Judge, and Manion and Williams,
Circuit Judges.

      Flaum, Chief Judge. Charles Jideonwo appeals the
Board of Immigration Appeals’ ("BIA") affirmance
of an Immigration Judge’s ("IJ") determination
that Jideonwo is ineligible to receive
discretionary relief under former sec. 212(c) of
the Immigration and Naturalization Act ("INA"),
8 U.S.C. sec. 1182(c) (1994). For the reasons
stated herein, we reverse the BIA’s decision and
remand this case to the IJ for further
proceedings.

I.   BACKGROUND

      In 1980, Charles Jideonwo, a native and citizen
of Nigeria, was admitted to the United States on
a non-immigrant student visa. On November 18,
1981, he became a lawful permanent resident of
the United States based on his marriage to a
United States citizen, to whom he is still
married and with whom he has a daughter.

      On December 16, 1994, Jideonwo pled guilty to
one count of conspiracy to possess with intent to
distribute heroin in violation of 21 U.S.C. sec.
846. Jideonwo’s sentence was the subject of
considerable negotiation between the government
and Jideonwo’s attorney. During the negotiations,
Jideonwo expressed his concern that he receive a
sentence of less than five years in prison so
that he would remain eligible for a discretionary
waiver of deportation under sec. 212(c) of the
INA. In the end, Jideonwo received a sentence of
four years and eleven months, which is a
considerable downward departure from the
sentencing range for the crime to which he pled
guilty. To fulfill the terms of his plea
agreement, Jideonwo provided his assistance and
that of his family in a federal drug
investigation.

      On April 24, 1996, the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA" or
the "Act"), Pub. L. No. 104-132, 110 Stat. 1214,
went into effect. Section 440(d) of that Act
precludes eligibility for sec. 212(c) waivers to
individuals who have been convicted of aggravated
felonies. The drug charge to which Jideonwo pled
guilty is defined as an aggravated felony for
purposes of this provision. See 8 U.S.C. sec.
1101(a)(43)(B) (1994); Turkhan v. Perryman, 188
F.3d 814, 817-18 (7th Cir. 1999)./1

      On August 6, 1996, the Immigration and
Naturalization Service ("INS") issued an Order to
Show Cause ("OSC") against Jideonwo, requesting
that he provide a reason why he should not be
deported under sec. 241(a)(2)(A)(iii) of the INA,
8 U.S.C. sec. 1252(a)(2)(A) (1996), which
requires the deportation of persons convicted of
crimes such as Jideonwo’s drug conviction.
Pursuant to the OSC, Jideonwo was brought before
an IJ, where he conceded deportability but argued
that he should receive a waiver of deportation
under sec. 212(c) of the INA. The IJ concluded
that AEDPA’s sec. 440(d) applied retroactively to
Jideonwo so that his drug conviction rendered him
ineligible to receive a sec. 212(c) waiver. On
October 7, 1998, the IJ ordered Jideonwo
deported, and on August 5, 1999, the BIA
summarily affirmed the IJ’s decision. Jideonwo
now appeals.

II.   DISCUSSION

      At the time of Jideonwo’s guilty plea in 1994,
sec. 212(c) of the INA conferred upon the
Attorney General the authority to grant
discretionary waivers of deportation for
equitable reasons to resident aliens who had
lawfully resided in the United States for at
least seven years. See 8 U.S.C. sec. 1182(c)
(1994); Reyes-Hernandez v. INS, 89 F.3d 490, 491
(7th Cir. 1996). In 1996, Congress passed AEDPA,
and sec. 440(d) of that Act amended sec. 212(c)
of the INA to make criminal aliens who had been
convicted of aggravated felonies, such as the
drug felony to which Jideonwo pled guilty,
ineligible to receive a discretionary waiver. See
Turkhan, 188 F.3d at 824. Jideonwo argues that
because he pled guilty partially in reliance on
his eligibility to receive a sec. 212(c) waiver,
retroactively applying the provisions of AEDPA’s
sec. 440(d) in his case violates his rights under
the Due Process Clause./2



      A.   Jurisdiction

      The government contends that sec. 309(c)(4)(G)
of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA") limits our
jurisdiction over appeals from BIA decisions such
that we do not have jurisdiction to consider
Jideonwo’s claim./3 It is uncontested that we at
least have jurisdiction over Jideonwo’s claim to
determine whether we have jurisdiction to
consider and resolve it. See Xiong v. INS, 173
F.3d 601, 604 (7th Cir. 1999); Yang v. INS, 109
F.3d 1185, 1192 (7th Cir. 1997) ("[A] court has
jurisdiction to determine whether it has
jurisdiction."), disapproved on other grounds by
Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999). In making this
determination, we do not defer to the INS’s
interpretation of IIRIRA or its conclusions on
this issue. See INS v. Cardoza-Fonseca, 480 U.S.
421, 446 (1987); Yang, 109 F.3d at 1192
("[A]pplication of a review-preclusion statute
does not depend on the agency’s findings.").

      In LaGuerre v. Reno, we concluded that the
review-limiting provision contained in sec.
440(a) of AEDPA,/4 which is substantially
similar to the IIRIRA provision at issue here,
see Musto v. Perryman, 193 F.3d 888, 891 (7th
Cir. 1999), left open the opportunity for
deportees to bring constitutional issues directly
before the courts of appeals. 164 F.3d 1035, 1040
(7th Cir. 1998). We based this conclusion on our
determination that "[a]dministrative agencies,
although they may consider constitutional claims,
lack the authority to deal with them
dispositively; the final say on constitutional
matters rests with the courts." Singh v. Reno,
182 F.3d 504, 510 (7th Cir. 1999); see also
Turkhan, 188 F.3d at 823. We determined that
leaving the "safety valve" of direct appellate
review open effectuates Congress’s intent to
curtail judicial review of final deportation
orders of convicted felons while enabling
"judicial correction of bizarre miscarriages of
justice." LaGuerre, 164 F.3d at 1040. In Singh,
we applied this conclusion to the jurisdiction-
limiting provisions contained in sec.
309(c)(4)(G) of IIRIRA. See Singh, 182 F.3d at
508 n.3 & 510.

      The government contends that Jideonwo’s claim
that sec. 440(d) should not be applied
retroactively in his case presents only an issue
of statutory interpretation, and not a question
of constitutional dimensions, so that we do not
have jurisdiction to hear it. However, as a
permanent resident alien, Jideonwo has the right
to receive due process of law before he may be
removed or deported from the United States. See
Yang, 109 F.3d at 1196 ("[A]liens who have
lawfully entered the United States are entitled
to due process of law before they may be deported
or removed.") (citing Landon v. Plasencia, 459
U.S. 21, 32-33 (1982)); Batanic v. INS, 12 F.3d
662, 666 (7th Cir. 1993). Therefore, if
Jideonwo’s claim is cognizable under the Due
Process Clause, we have jurisdiction to hear it
under our holdings in LaGuerre and Singh.

      The Supreme Court has held that applying a law
retroactively such that it results in "manifest
injustice" violates the Due Process Clause. See
Bradley v. School Bd. of City of Richmond, 416
U.S. 696, 716 (1974). Manifest injustice may
occur where a new law changes existing rights or
imposes unanticipated obligations on a party
without providing appropriate notice. See id. at
720; see also Landgraf v. USI Film Prods., 511
U.S. 244, 266 (1994) ("The Due Process Clause
also protects the interests in fair notice and
repose that may be compromised by retroactive
legislation."). Retrospective changes in INS
procedure have been found to violate the due
process rights of affected aliens. For example,
in Accardi v. Shaughnessy, the Supreme Court held
that retroactively changing a procedure for
granting relief from deportation from one of
discretion to one of predetermined results
violated the Due Process Clause where it took
away a procedure to which the alien-petitioner
previously had a right prescribed by statute. 347
U.S. 260, 266-68 (1954); see also Tasios v. Reno,
204 F.3d 544, 552 (4th Cir. 2000). Similarly, in
Reyes-Hernandez, we held that retroactive
application of sec. 440(d) to an alien who had
conceded a colorable defense to deportability in
reliance on being considered for sec. 212(c)
relief violated the alien’s due process rights.
89 F.3d at 493; see Musto, 193 F.3d at 891.

      In this case, Jideonwo’s assertion that applying
sec. 440(d) retroactively to him would violate
his due process rights by taking away a procedure
to which he previously had a right granted by
statute is a cognizable claim under the Due
Process Clause. See Brownell v. We Shung, 352
U.S. 180, 182 n.1 (1956) ("[D]ue process has been
held in cases similar in facts to the
[immigration case] here involved to include a
fair hearing as well as conformity to statutory
grounds."); Torres v. INS, 144 F.3d 472, 474
(1998) (noting that an alien has an interest in
the immigration procedures that Congress has
chosen to provide that is protected by the Due
Process Clause); see also Kopec v. City of
Elmhurst, 193 F.3d 894, 904 n.7 (7th Cir. 1999)
(noting that the "judicial default" rules
employed when determining whether a statute
should be applied retroactively include the
"manifest injustice" test of constitutionality
under the Due Process Clause). Therefore, under
the holdings of LaGuerre, 164 F.3d at 1040, and
Singh, 182 F.3d at 509, we have jurisdiction to
consider Jideonwo’s constitutional due process
claim./5


      B. Retroactive Application of Section 212(c) to
Plea Bargains

      Because "[e]lementary considerations of fairness
dictate that individuals should have an
opportunity to know what the law is and to
conform their conduct accordingly," there is a
presumption against retroactive application of
new laws absent a clear congressional intent that
the law should be applied to past conduct.
Landgraf, 511 U.S. at 265; see also LaGuerre, 164
F.3d at 1041; Reyes-Hernandez, 89 F.3d at 492. A
statute has a retroactive effect where "it would
impair rights a party possessed when he acted,
increase a party’s liability for past conduct, or
impose new duties with respect to transactions
already completed." Landgraf, 511 U.S. at 280. To
determine whether a statute should be applied
retroactively, we look first to the statute’s
language and context to determine whether
Congress has prescribed the statute’s temporal
scope. Where Congress "has affirmatively
considered the potential unfairness of
retroactive application and determined that it is
an acceptable price to pay for the countervailing
benefits," we will not ordinarily disturb the
conclusion it has reached. Id. at 272-73; see
Deck v. Peter Romein’s Sons, Inc., 109 F.3d 383,
387 (7th Cir. 1997) (noting that even where
Congress has clearly expressed its intent that a
statute apply retroactively, the statute must
still satisfy the requirements of the Due Process
Clause). However, when congressional intent is
unclear, we consider whether the statute
"attaches new legal consequences to events
completed before its enactment." Landgraf, 511
U.S. at 269-70. If we determine that the statute
prescribes new consequences, we will not apply
the statute retroactively. See id. Mere
procedural changes that effect only secondary
rather than primary conduct are generally
considered not to have retroactive effect. See
Landgraf, 511 U.S. at 275; Reyes-Hernandez, 89
F.3d at 492. However, when a procedural change
does "disturb reasonable expectations," the
presumption against retroactive application of
the new procedures applies. See LaGuerre, 164
F.3d at 1041; see also Chew Heong v. United
States, 112 U.S. 536, 559-60 (1884) (declining to
give retroactive effect to a new immigration
procedure requiring certification before a
Chinese alien who had left the country could
return where the petitioner had left the country
before the passage of the act).

      Since AEDPA became effective on April 24, 1996,
there has been considerable debate concerning the
retroactive application of its provisions. See,
e.g., Lindh v. Murphy, 521 U.S. 320 (1997);
LaGuerre, 164 F.3d 1035; Henderson v. INS, 157
F.3d 106 (2d Cir. 1998); Scheidemann v. INS, 83
F.3d 1517 (3d Cir. 1996); Campos v. INS, 16 F.3d
118 (6th Cir. 1994). Some sections of AEDPA
contain explicit statements that they are to
apply either prospectively, see, e.g., sec.sec.
421(b), 435(b), 440(f), or retroactively, see
sec.sec. 401(f), 413(g). However, sec. 440(d)
contains no such explicit language. In LaGuerre,
we concluded that Congress’s intent with regard
to the retroactive application of this section is
ambiguous. 164 F.3d at 1040-41; see also Turkhan,
188 F.3d at 825-26. As a result, we have found
that "AEDPA sec. 440(d) could operate in either
fashion depending on the particular circumstances
of the case." Turkhan, 188 F.3d at 826.
Therefore, we examine the specific circumstances
in which the section is being applied to
determine whether, in that instance, the section
attaches new legal consequences to past conduct.

      In Reyes-Hernandez, we concluded that sec.
440(d) would have a retroactive effect if it were
used to bar eligibility for discretionary relief
to aliens who had a colorable defense to
deportation but who conceded deportability in
reliance on the possibility of receiving sec.
212(c) discretionary relief. 89 F.3d at 492-93.
Absent express language calling for retroactive
application, we declined to ascribe the "ignoble
intention" to Congress of "mousetrapping" aliens
into conceding deportability in reliance on being
eligible for a discretionary waiver and then
removing this type of relief after the concession
had been made. Id. Thus, we held that sec. 440(d)
did not apply retroactively in this situation.
Id. We reached a similar conclusion in Burris v.
Parke, where we held that application of AEDPA’s
rule precluding successive habeas petitions did
not apply retroactively because it would attach
new legal consequences to the filing of two
separate petitions, thereby "mousetrapping" a
defendant who had relied on the less stringent
"abuse of the writ" standard when making his
deliberate strategic decision to file two habeas
petitions rather than one. 95 F.3d 465, 468-69
(7th Cir. 1996). However, in LaGuerre, we
concluded that sec. 440(d) does apply
retroactively to aliens convicted of crimes that
were committed before AEDPA’s date of enactment.
164 F.3d at 1041. We based this conclusion on the
rationale that "[i]t would border on the absurd
to argue that these aliens might have decided not
to commit drug crimes" had they known they would
become ineligible to receive discretionary relief
from deportation. Id. Therefore, we determined
that removing eligibility for discretionary
relief in this circumstance would not attach a
new legal consequence to the decision to engage
in past conduct.

      In this case, there is evidence that Jideonwo
reached a plea agreement with the government at
least in part relying on the availability of
relief from deportation under sec. 212(c). The
length of Jideonwo’s sentence--four years and
eleven months--is virtually the longest sentence
he could have received while retaining his
eligibility for a discretionary waiver. In
addition, this sentence is a considerable
downward departure from the typical sentencing
range for the crime to which Jideonwo pled
guilty. Furthermore, there were lengthy
negotiations between Jideonwo and the government
and the IJ found that "the whole point of the
plea negotiations in [Jideonwo’s] criminal case
[was] that he got less than five years to avoid
what would have been a statutory bar on 212(c)
relief." See Admin. Rec. (Matter of Jideonwo No.
A23 147 139) at 61. Jideonwo argues that since he
relied on the availability of sec. 212(c) relief
in making his decision to plead guilty, AEDPA’s
sec. 440(d) should not be applied retroactively
to him because it would alter the legal
consequences of his plea. Three of our sister
circuits agree with this position, see Mattis v.
Reno, 212 F.3d 31, 38-40 (1st Cir. 2000); Tasios
v. Reno, 204 F.3d 544, 549 (4th Cir. 2000);
Magana-Pizano v. INS, 200 F.3d 603, 613 (9th Cir.
1999),/6 and we now consider its merits.

      A guilty plea involves the waiver of several
substantial constitutional rights. See Boykin v.
Alabama, 395 U.S. 238, 243 (1969) (noting that
when a defendant pleads guilty he waives rights
guaranteed by the Fifth, Sixth and Fourteenth
Amendments); United States v. Fernandez, 205 F.3d
1020, 1024 (7th Cir. 2000). As a result, courts
must use the "utmost solicitude" to ensure that
the accused "has a full understanding of what the
plea connotes and of its consequence." Boykin,
395 U.S. at 243-44. A statute enacted after a
plea bargain has been reached that changes the
consequences of that bargain may have an
impermissible retroactive effect if it attaches
new legal consequences to the accused’s decision
to plead guilty. Cf. Lynce v. Mathis, 519 U.S.
433, 440 (1997) ("In both the civil and criminal
context, the Constitution places limits on the
sovereign’s ability to use its lawmaking power to
modify bargains it has made with its subjects.").

      The decision to plead guilty may involve
considerations other than the accused’s
consciousness of guilt for the crime charged. See
North Carolina v. Alford, 400 U.S. 25, 33 (1970)
(holding that a guilty plea is not inconsistent
with a claim of innocence because "reasons other
than the fact that he is guilty may induce a
defendant to so plead") (quotation and citations
omitted); see also Politte v. United States, 852
F.2d 924, 930-31 (7th Cir. 1988) (holding that a
"calculated" plea bargain that includes a benefit
for a third party is voluntary and
constitutional). While we have previously stated
that a person’s decision to commit a crime is
unlikely to be influenced by the consequences of
his criminal act on the availability of a
discretionary waiver of deportation, see
LaGuerre, 164 F.3d at 1041, decisions made during
the plea bargaining process may be affected by
the immigration consequences of the plea, see
Magana-Pizano, 200 F.3d at 612 ("That an alien
charged with a crime involving controlled
substances would factor the immigration
consequences of conviction in deciding whether to
plead or proceed to trial is well-documented.").
In recognition of this fact, many states have
found that it is a breach of professional
responsibility for a defense attorney to fail to
discuss the immigration consequences of a plea
agreement with a criminal defendant. See, e.g.,
Williams v. Indiana, 641 N.E.2d 44, 48-49
(Ind.App. 1994); People v. Mehmedoski, 565 N.E.2d
735, 738 (Ill. App. 1990); see also Wis. Stat.
971.08(1)(c) (requiring that state trial courts
inform criminal defendants of the federal
immigration consequences of a guilty plea).
Furthermore, while sec. 212(c) relief is
discretionary, waivers of deportation are granted
with sufficient frequency that it would not
"border on the absurd" for an alien accused of a
crime that carries a lengthy sentence to enter
into a plea agreement that would preserve his
eligibility for this form of relief. See Tasios,
204 F.3d at 551 (noting that in the years
preceding the enactment of AEDPA, immigration
judges and the BIA granted over half of the sec.
212(c) applications they considered); Reyes-
Hernandez, 89 F.3d at 492 (noting that this Court
has "on a nontrivial number of occasions vacated
the Board’s denial of section 212(c) relief and
remanded for further proceedings"). Thus, the
"mousetrapping" concerns we expressed in Reyes-
Hernandez are also present in a situation where
a defendant pleads guilty in reliance on
retaining sec. 212(c) eligibility. As in that
case, we will not ascribe to Congress the
"ignoble" intention of changing the immigration
consequences of a plea bargain after an agreement
has been reached absent evidence that Congress
intended that its statute be applied
retroactively./7 We, therefore, conclude that
where specific facts demonstrate that an alien
pled guilty to an aggravated felony before the
enactment of AEDPA and relied, at least in part,
on the availability of sec. 212(c) relief in
making his decision to so plead, AEDPA’s sec.
440(d) cannot be applied retroactively to bar
that alien from receiving a discretionary waiver
under INA sec. 212(c)./8

      In this case, there is significant evidence
that the availability of a sec. 212(c) waiver
influenced Jideonwo’s decision to plead guilty
and provide a substantial amount of assistance to
the government in order to receive a sentence
that would preserve his eligibility for that
relief. We conclude that the BIA and the IJ erred
in finding that Jideonwo was ineligible to
receive a sec. 212(c) waiver and remand this case
to the IJ to determine in the first instance
whether such a wavier should be granted.

III.   CONCLUSION

      For the foregoing reasons, the BIA’s decision
determining that Jideonwo is ineligible for
relief under sec. 212(c) is Reversed, and this case
is Remanded to the Immigration Judge for further
proceedings consistent with this opinion.



/1 Section 212(c) has since been repealed and
replaced by a new form of relief entitled
"cancellation of removal," codified under the
current sec. 240A(b) of the INA, 8 U.S.C. sec.
1229b. See Turkhan, 188 F.3d at 819 n.4. Like the
former sec. 212(c), this section vests the
Attorney General with discretion to grant waivers
of removal but declares aliens who have been
convicted of aggravated felonies ineligible to
receive this discretionary relief. See 8 U.S.C.
sec. 1229b(a)(3) and (b)(1)(C). This change does
not affect our resolution of Jideonwo’s appeal.

/2 Because we resolve this appeal on Jideonwo’s due
process argument, we do not address his second
claim that sec. 212(c) relief should be available
to him in conjunction with his request for an
adjustment of status.

/3 Section 309(c)(4)(G) provides in relevant part:
"there shall be no appeal permitted in the case
of an alien who is inadmissible or deportable by
reason of having committed a criminal offense
[categorized as an aggravated felony] without
regard to [the] date of commission."

      Jideonwo is covered by the transitional rules
provided by IIRIRA, rather than the similar
jurisdiction-limiting provision in sec. 440(a) of
AEDPA, because he was placed in deportation
proceedings prior to April 1, 1997 and his
deportation order was issued after October 30,
1996. See IIRIRA sec. 309(c)(1) and (4).

/4 Section 440(a) of AEDPA amended sec. 106 of the
INA as follows: "Any final order of deportation
against an alien who is deportable by reason of
having committed a criminal offense [classified
as an aggravated felony], shall not be subject to
review by any court."

/5 Even if the retroactive application of sec.
440(d) were purely an issue of statutory
interpretation, we have expressed our doubts that
Congress intended for sec. 440(a), or IIRIRA’s
similar sec. 309(c) (4)(G), to apply to questions
that are exclusively legal in nature. See
LaGuerre, 164 F.3d at 1041 ("It seems unlikely
that Congress would have wanted the Board to have
the final word on so pure and fundamental a
question of law as when the statute went into
effect.").

/6 The Third and Tenth Circuits have taken a
contrary approach, finding that sec. 212(c)
relief has been eliminated for all deportable
aliens identified in AEDPA’s sec. 440(d) where
deportation proceedings commenced after the
passage of AEDPA. See De Sousa v. Reno, 190 F.3d
175, 187 (3d Cir. 1999); Jurado-Gutierrez v.
Greene, 190 F.3d 1135, 1150 (10th Cir. 1999).

/7 In addition, we are mindful of our obligation to
presume that Congress intended to act consistent
with the dictates of the Constitution. See
Crowell v. Benson, 285 U.S. 22, 62 (1932) ("When
the validity of an act of the Congress is drawn
in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal
principle that this Court will first ascertain
whether a construction of the statute is fairly
possible by which the question may be avoided.").
As noted above, where retroactive application of
a statute disturbs settled expectations based on
the state of the law upon which a party relied at
the time an action was taken such that "manifest
injustice" would result, the Due Process Clause
prohibits retroactive application of the law. See
Bradley, 416 U.S. at 720-21. Absent express
language to the contrary, we will not construe
Congress’s intent such that it raises doubts
about the constitutionality of this statute. See
Landgraf, 511 U.S. at 267 n.21 (noting that "[i]n
some cases, . . . the interest in avoiding the
adjudication of constitutional questions will
counsel against a retroactive application").

/8 In Reyes-Hernandez, we held that only aliens who
had a "colorable defense to deportation" and
relied on the availability of sec. 212(c) relief
in conceding deportability could escape
retroactive application of AEDPA’s sec. 440(d).
89 F.3d at 493. We do not impose a similar
requirement that an alien have a colorable
defense to the crime charged where he pled guilty
in reliance on the availability of sec. 212(c)
relief. Unlike in the deportation context,
criminal cases involving a guilty plea do not
often have a record that is sufficiently
developed for a reviewing court to determine the
strength of an accused’s defense had he exercised
his right to go to trial and put the government
to its burden of proof beyond a reasonable doubt.
Cf. Fernandez, 205 F.3d at 1024 (stating that
harmless error analysis involving a guilty plea
focuses only on whether the error was likely to
affect the defendant’s decision to plead guilty);
United States v. Cannon, 553 F.2d 1052, 1057 n.7
(7th Cir. 1977) (stating that a court reviewing
the validity of a guilty plea does not consider
the weight of the evidence against the defendant
but only the constitutionality of the plea
itself).
