224 F.3d 692 (7th Cir. 2000)
Charles Jideonwo, Petitioner,v.Immigration and Naturalization Service, Respondent.
No. 99-3243
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 19, 2000Decided August 23, 2000

Petition for Review of an Order of the  Board of Immigration Appeals.  No. Aid-bnq-foh.[Copyrighted Material Omitted]
Before Flaum, Chief Judge, and Manion and Williams,  Circuit Judges.
Flaum, Chief Judge.


1
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

2
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.


3
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.


4
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


5
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

6
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

7
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.").


8
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.


9
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.


10
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.


11
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


12
B. Retroactive Application of Section 212(c) to  Plea Bargains


13
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).


14
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.


15
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.


16
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.  Ahv-wkx-cxx) 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.


17
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.").


18
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


19
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

20
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.



Notes:


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).


