                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1801


ABDUL AZIM JAGHOORI,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   September 17, 2014                 Decided:   November 18, 2014


Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.


Petition for review granted and case remanded by published
opinion.   Judge Thacker wrote the majority opinion, in which
Judge Duncan joined. Judge Niemeyer wrote a dissenting opinion.


ARGUED: Tamara L. Jezic, LAW OFFICE OF IVAN YACUB, Woodbridge,
Virginia, for Petitioner.     Lindsay M. Murphy, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.      ON
BRIEF: Ivan Yacub, LAW OFFICE OF IVAN YACUB, Falls Church,
Virginia, for Petitioner.   Stuart F. Delery, Assistant Attorney
General, Civil Division, Song Park, Senior Litigation Counsel,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
THACKER, Circuit Judge:

             An    alien     who    wishes         to   apply       for    cancellation     of

removal must show, among other things, that he has continuously

resided in the United States for seven years after admission to

this country.       See 8 U.S.C. § 1229b(a)(2).                      However, a statutory

provision     known     as      the      stop-time        rule       provides      that     the

commission    of    a   criminal         offense        can    cut    short    the    alien’s

period of continuous residence.                     See id. § 1229b(d)(1)(B).               In

the case before us, the Board of Immigration Appeals (“BIA”) has

deemed Petitioner Abdul Azim Jaghoori (“Petitioner”) ineligible

for cancellation        of    removal         because     of    a    crime    he   committed

within his first seven years of residence in the United States.

Petitioner argues the BIA should not have applied the stop-time

rule in his case because the offense and guilty plea occurred

before Congress promulgated the stop-time rule.

             The   inquiry      into      a    statute’s        retroactive        effect    is

“informed and guided by ‘familiar considerations of fair notice,

reasonable reliance, and settled expectations.’”                                INS v. St.

Cyr, 533 U.S. 289, 321 (2001) (quoting Martin v. Hadix, 527 U.S.

343,   358   (1999))       (internal       quotation          marks       omitted).       These

considerations          militate              against           retroactivity             here.

Accordingly,       we   apply      our    “‘traditional             presumption’      against

retroactivity,” Olatunji v. Ashcroft, 387 F.3d 383, 393 (4th

Cir. 2004) (citation omitted) (quoting Republic of Austria v.

                                               2
Altmann, 541 U.S. 677, 694 (2004)), and grant the petition for

review.

                                              I.
             The prospect of discretionary relief from removal has

long been a fixture of immigration jurisprudence.                           Prior to the

passage      of     the        Illegal      Immigration        Reform     and    Immigrant

Responsibility           Act    of   1996    (“IIRIRA”),       potential    avenues      for

relief    included        a    waiver    of    deportation       pursuant       to   section

212(c)    of       the     Immigration        and    Nationality         Act,    8    U.S.C.

§ 1182(c) (1994) (repealed 1996), and suspension of deportation

pursuant to 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996).                                 To

qualify for relief under either statute, an alien had to meet

certain criteria.

             Section 212(c) provided:

             Aliens   lawfully   admitted  for   permanent
             residence who temporarily proceeded abroad
             voluntarily and not under an order of
             deportation, and who are returning to a
             lawful   unrelinquished  domicile  of   seven
             consecutive years, may be admitted in the
             discretion of the Attorney General without
             regard to the provisions of subsection (a)
             of this section (other than paragraphs (3)
             and (9)(C)). . . . The first sentence of
             this subsection shall not apply to an alien
             who has been convicted of one or more
             aggravated felonies and has served for such
             felony or felonies a term of imprisonment of
             at least 5 years.

8   U.S.C.     §    1182(c).         Although,      by   its    terms,    the    provision

referred only to aliens seeking readmission after a temporary

                                               3
departure,     courts    and    the   BIA    came   to   apply    the    waiver    in

deportation      proceedings       “regardless      of     an    alien’s       travel

history.”      Judulang v. Holder, 132 S. Ct. 476, 480 (2011).                     The

class    of    aliens    qualifying     for     this     form    of     relief    was

“extremely     large,”    and     a   “substantial       percentage”      of     these

aliens succeeded in obtaining a waiver.                   INS v. St. Cyr, 533

U.S. 289, 295-96 (2001).

              Suspension of deportation was harder to obtain.                       To

qualify, an alien had to show that he was a “person of good

moral character,” and that his deportation would cause “extreme

hardship” to him or his family.                8 U.S.C. § 1254(a)(1).              The

statute further limited relief to aliens who, at a minimum, 1 had

been “physically present in the United States for a continuous

period of not less than seven years immediately preceding” the

application     for     relief.       Id.      Satisfying        this    continuous

presence requirement was a simple matter, demanding nothing more

than the passage of time; the clock continued to run even after

deportation proceedings were under way.                See Appiah v. U.S. INS,

202 F.3d 704, 707 (4th Cir. 2000).

     1
       The number of years of continuous physical presence varied
depending on the ground of deportation.    For aliens deportable
on criminal or security grounds, or for falsification of
immigration documents, the statute required ten years of
continuous physical presence.       See 8 U.S.C. § 1254(a)(2)
(repealed 1996).    For other aliens, the requisite period was
seven years. See id. § 1254(a)(1).


                                         4
             The       1996    enactment         of    IIRIRA   eliminated    both   the

section 212(c) waiver and suspension of deportation and replaced

them   with        a    new         form    of       discretionary     relief,   dubbed

“cancellation of removal.”                   IIRIRA, Pub. L. No. 104-208, 110

Stat. 3009-546 (1996).                The new provision, which governs here,

authorizes the Attorney General to:

             cancel removal in the case of an alien who
             is inadmissible or deportable from the
             United States if the alien—

             (1) has been an alien lawfully admitted for
             permanent residence for not less than 5
             years,

             (2)   has  resided   in  the United  States
             continuously for 7 years after having been
             admitted in any status, and

             (3) has not been convicted of any aggravated
             felony.

8 U.S.C. § 1229b(a).            While the second of these requirements has

analogs in the prior statutes, it does not operate the same way.

Under a provision that has come to be known as the stop-time

rule, the period of continuous residence is “deemed to end” upon

the earlier of two events, which are spelled out in subsections

(A) and (B) of the rule.                   Id. § 1229b(d)(1).          Under subsection

(A), the clock stops when the government serves a notice to

appear for removal proceedings.                       Under subsection (B), it stops

when   the     alien          has     committed         an   offense    rendering    him




                                                 5
inadmissible under § 1182(a)(2) or removable under § 1227(a)(2)

or § 1227(a)(4).

          Congress enacted IIRIRA on September 30, 1996.        The

bulk of its provisions, though, including the stop-time rule,

did not take effect until April 1, 1997. 2    See § 309, 110 Stat.

at 3009-625.

                               II.

          Petitioner is an Afghan citizen but has lived in the

United States for most of his life.      He was born in the Ghazni

province in eastern Afghanistan.     The family’s Shia Muslim faith

and Hazara ethnicity placed them within a small minority of the

Afghan population.   In the early 1980s, a time of war in that

country, the family fled to Pakistan.     Subsequently, at age 12,

Petitioner entered the United States as a refugee.     He acquired

lawful permanent resident status on April 25, 1989.

          During his stay in the United States, Petitioner has

had several run-ins with law enforcement.    The first -- and, for

present purposes, most relevant -- of these was a credit card


     2
       For aliens placed in deportation proceedings prior to the
statute’s effective date, there was a special “transitional”
stop-time rule.   See § 309(c)(5), 110 Stat. at 3009-627.   This
rule, as amended, provided that the permanent stop-time rule
“shall apply to orders to show cause . . . issued before, on, or
after the date of the enactment of this Act.”         Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100,
111 Stat. 2193, 2196 (1997).



                                6
theft committed in Virginia on February 27, 1995.                              Petitioner

pled guilty to this offense on July 14, 1995, and received a 90-

day suspended jail sentence.              Importantly, this conviction did

not   render     him    deportable.       See       8    U.S.C.    § 1251(a)(2)(A)(i)

(1994) (authorizing deportation of an alien convicted of a crime

involving moral turpitude (“CIMT”), but only if (1) the crime

occurred within five years after the alien’s date of entry, and

(2)   the   alien      was   sentenced    to    confinement           for   one    year   or

longer).

            Petitioner’s        status    as    a       lawful    permanent       resident

remained    secure      even   after     Congress        enacted      IIRIRA      in   1996.

Though his criminal record grew to include one conviction for

misdemeanor      obstruction     of     justice         and   three    convictions        for

driving under the influence, none of these offenses rendered him

removable.

            In      September     2009,        Petitioner         traveled        back     to

Afghanistan to do some work for his brother, who was in the

construction business.           He stayed for about a month.                     Upon his

return, the Department of Homeland Security (“DHS”) placed him

into removal proceedings on the basis of the 1995 credit card

theft   conviction,          alleging    that       this      offense       was    a     CIMT

rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).




                                           7
DHS later withdrew this charge. 3       Subsequently, in August 2010, a

Virginia grand jury indicted Petitioner for attempting to pass a

fraudulent prescription for OxyContin in violation of section

18.2-258.1 of the Virginia Code.        Petitioner pled guilty to this

charge and received a two-year suspended jail sentence.

          The 2010 prescription fraud conviction prompted DHS to

bring two new charges of removability.         The first charge alleged

that Petitioner’s 1995 credit card theft and 2010 prescription

fraud convictions were CIMTs “not arising out of a single scheme

of   criminal   misconduct,”   thereby       rendering   him   removable

pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).            The second charge

alleged that the prescription fraud conviction, by itself, was

grounds for removal pursuant to § 1227(a)(2)(B)(i). 4

          Petitioner,   through     counsel,     conceded   removability

pursuant to § 1227(a)(2)(A) and proceeded to file an application


     3
       The record does not explain why DHS brought this charge,
only to withdraw it a short time later.     We observe, though,
that Petitioner’s 1995 credit card theft did not occur within
five years of his admission to the United States, as would be
required for removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)
(2006).
     4
       This section provides, in pertinent part, that an alien is
deportable if “at any time after admission [he] has been
convicted     of    a     violation    of . . . any     law    or
regulation . . . relating to a controlled substance (as defined
in section 802 of Title 21), other than a single offense
involving possession for one’s own use of 30 grams or less of
marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i).



                                    8
for asylum, withholding of removal, and cancellation of removal.

The immigration judge (“IJ”) ordered his removal to Afghanistan.

However, in view of Petitioner’s ethnicity and religion and his

many years in the United States, the IJ granted his application

for withholding of removal.          This decision allows Petitioner to

remain in the United States for the time being, but it does not

accord an opportunity to pursue citizenship, nor does it prevent

immigration authorities from removing him to a country other

than Afghanistan.     See 8 C.F.R. § 1208.16(f) (2014); In re Lam,

18 I. & N. Dec. 15, 18 (BIA 1981).

            Cancellation    of    removal       would     preserve   Petitioner’s

opportunity    to   seek   permanent          residence,    but   the   IJ    denied

Petitioner’s application for this form of relief on the ground

that the 1995 credit card theft triggered the stop-time rule, 8

U.S.C. § 1229b(d)(1).        In response, Petitioner filed an appeal

with the BIA, arguing that the stop-time rule was prospective

only and could not apply to the pre-IIRIRA credit card theft.

The BIA dismissed the appeal.                 Applying the stop-time rule to

Petitioner’s    pre-IIRIRA       credit       card   offense,     the   BIA    said,

cannot produce an impermissible retroactive effect here because

Petitioner did not become removable until the 2010 prescription

fraud.     Invoking the Supreme Court’s rationale in Fernandez-

Vargas v. Gonzales, 548 U.S. 30 (2006), the agency reasoned that

it   was   Petitioner’s    “‘choice    to       [engage    in   illegal   conduct]

                                          9
after the effective date of the new law (i.e., the IIRIRA), that

subjects him to the new and less generous legal regime (i.e.,

the      application         of   the      stop-time        rule).’”        A.R.      16-17

(alteration in original) (quoting Fernandez-Vargas, 548 U.S. at

44). 5

                                            III.

                 We   have    jurisdiction           to   review    a   final   order    of

removal pursuant to 8 U.S.C. § 1252(a)(1).                          Our power to review

such         orders   is   limited    by    §    1252(a)(2)(B),         which   restricts

judicial review of decisions denying cancellation of removal,

and by § 1252(a)(2)(C), which restricts judicial review of any

final order against an alien who, like Petitioner, is removable

because of a drug offense covered in § 1227(a)(2)(B).                                 These

restrictions,          however,      are    of       no    moment    here   because     the

permissibility of applying a statute retroactively is a “pure

question of law,” Fox v. Balt. City Police Dep’t, 201 F.3d 526,

531 (4th Cir. 2000), and therefore subject to judicial review.

See § 1252(a)(2)(D).

                 We review legal questions de novo.                     Salem v. Holder,

647 F.3d 111, 115 (4th Cir. 2011).                        Although we generally defer

to agency interpretations of statutes that are ambiguous, “a


         5
       Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.



                                                10
statute    that      is    ambiguous    with       respect       to   retroactive

application is construed . . . to be unambiguously prospective.”

INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001).                   We therefore do

not defer to the BIA’s interpretation of the stop-time rule.

                                       IV.

            Where applicable, subsection (B) of the stop-time rule

cuts off an alien’s period of continuous residence upon either

of the following: (1) the alien commits an offense that renders

him inadmissible under 8 U.S.C. § 1182(a)(2), or (2) the alien

commits     an      offense   that     renders           him   removable     under

§§ 1227(a)(2) or 1227(a)(4).           See § 1229b(d)(1)(B).          The latter

cannot    justify    the   application       of    the    stop-time   rule   here

because Petitioner was not removable within seven years of his

admission to the United States.              Nevertheless, because the BIA

characterized Petitioner’s 1995 credit card theft as a crime

involving moral turpitude, which would render him inadmissible

pursuant   to    § 1182(a)(2)(A)(i)(I), 6         we   must    determine   whether

subsection (B) of the stop-time rule operates against him.

            The retroactivity of the stop-time rule is, at bottom,

a question of congressional intent.                See Olatunji v. Ashcroft,


     6
       This provision states that an alien who commits a crime
involving moral turpitude, other than a purely political
offense, is inadmissible, except as otherwise provided.    See
§ 1182(a)(2)(A)(i)(I).



                                       11
387 F.3d 383, 389 (4th Cir. 2004).                     Under Landgraf v. USI Film

Products,    511    U.S.    244     (1994),      our     analysis    proceeds      in    two

steps.     First, we ask “whether Congress has expressly prescribed

the statute’s proper reach.”              Id. at 280.           “If Congress has made

its intent clear, while acting within the limits of its power,

our inquiry is concluded.”                Tasios v. Reno, 204 F.3d 544, 548

(4th Cir. 2000).           If, conversely, Congress did not speak with

the requisite clarity, we proceed to Landgraf’s second step and

ask “whether the new statute would have retroactive effect.”

Landgraf, 511 U.S. at 280.                Here we assess whether the statute

“attaches new legal consequences to events completed before its

enactment.”       Id. at 269-70.            If so, then “in keeping with our

traditional presumption against retroactivity, we presume that

the statute does not apply to that conduct.”                         Martin v. Hadix,

527 U.S. 343, 352 (1999) (internal quotation marks omitted).

                                            A.
            In     this    case,    the    BIA    took     no   position    on     whether

Congress    clearly       intended    for      the     stop-time     rule   to     operate

retroactively.        Its decision assumed arguendo that the statute

is   “silent”     with     regard    to    congressional         intent.      A.R.       15.

Neither party argues that this was in error.

            The     requirement      of    a     clear    congressional      directive,

necessary     for    disposition          under      Landgraf       step    one,    is     a

“demanding” one.          INS v. St. Cyr, 533 U.S. 289, 316 (2001).                      The

                                            12
prescriptive      language    in      the    statute      must      be     express,

unambiguous, and unequivocal.              See id.; Gordon v. Pete’s Auto

Serv. of Denbigh, Inc., 637 F.3d 454, 459 (4th Cir. 2011).                        We

are satisfied that Congress did not expressly and unambiguously

prescribe   the    proper    reach    of    the    stop-time     rule, 7    and   we

proceed, accordingly, to Landgraf’s second step.

                                       B.

            “A statute does not operate ‘retrospectively’ merely

because it is applied in a case arising from conduct antedating

the   statute’s   enactment.”        Tasios,      204   F.3d   at   550    (quoting

Landgraf, 511 U.S. at 269) (internal quotation marks omitted).

The question, rather, is whether the statute “would attach new

legal consequences to prior events.”              Chambers v. Reno, 307 F.3d

284, 289 (4th Cir. 2002).            In this regard, a statute “must be

deemed retrospective” if, as Justice Story long ago stated, it

“takes away or impairs vested rights acquired under existing


      7
       Three circuits examining the stop-time rule under Landgraf
step one have concluded that Congress did not expressly
prescribe the statute’s reach.    See Jeudy v. Holder, 768 F.3d
595, 600-03 (7th Cir. 2014); Martinez v. INS, 523 F.3d 365, 370-
72 (2d Cir. 2008); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1199
(9th Cir. 2006). But see Heaven v. Gonzales, 473 F.3d 167, 175
(5th Cir. 2006) (reasoning that Congress must have intended for
the permanent stop-time rule to apply retroactively, since it
was clear in stating that the “transitional” stop-time rule,
Pub. L. No. 104-208, § 309(c)(5), 110 Stat. 3009-546, -627
(1996), should have a retroactive effect in exclusion and
deportation proceedings pending when IIRIRA became effective).



                                       13
laws,    or    creates      a   new    obligation,        imposes     a    new    duty,   or

attaches      a     new    disability,        in    respect    to     transactions        or

considerations already past.”                 Soc’y for the Propagation of the

Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814) (No.

13,156).

              This    inquiry         into    a    statute’s     retroactive        effect

“‘demands a commonsense, functional judgment.’”                            St. Cyr, 533

U.S. at 321 (quoting Hadix, 527 U.S. at 357).                               The judgment

“‘should be informed and guided by “familiar considerations of

fair notice, reasonable reliance, and settled expectations.”’”

Id. (quoting Hadix, 527 U.S. at 358).

              The     circumstances           presented       here    are        remarkably

similar to those in Jeudy v. Holder, 768 F.3d 595 (7th Cir.

2014).       As with Petitioner, the alien in Jeudy acquired lawful

permanent resident status in 1989.                       Both men pled guilty to a

crime in 1995.            See 768 F.3d at 597.             By the time IIRIRA took

effect in 1997, both had attained the seven years of continuous

residence required to seek discretionary relief under pre-IIRIRA

law.     See id.           Both, too, continued to reside in the United

States   until       the    government       initiated      removal       proceedings     in

2009,    a    full    20    years     after       they   acquired    lawful       permanent

resident status and more than a decade after they reached seven

years of continuous residence.                See id.



                                              14
             The Jeudy court declared that applying the stop-time

rule to Jeudy’s 1995 offense and conviction “would attach a new

and serious consequence to Jeudy’s criminal conduct that was

completed before IIRIRA took effect.”               768 F.3d at 603-04.        The

effect in Petitioner’s case is the same.                   When Petitioner pled

guilty to credit card theft in 1995, his conviction did not

foreclose his opportunity to qualify for discretionary relief.

Petitioner continued to accrue the seven years of unrelinquished

domicile necessary for a section 212(c) waiver and the seven

years of continuous physical presence necessary for suspension

of deportation.       Indeed, by the time Congress enacted IIRIRA in

September 1996, Petitioner had been living in the United States

long enough to qualify for both forms of relief.                    A retroactive

application    of    the    stop-time      rule    would   not   merely   imperil

Petitioner’s opportunity to seek permanent relief from removal;

it would render such relief an impossibility.                    Absent a clear

congressional directive, we cannot assume that Congress intended

the rule to have this effect.

             The Government notes that both the Second and Tenth

Circuits have identified circumstances in which the retroactive

application     of    the    stop-time       rule     does    not    produce   an

impermissible effect.          See Kleynburg v. Holder, 525 F. App’x

814, 819 (10th Cir. 2013); Martinez v. INS, 523 F.3d 365, 373

(2d   Cir.   2008).        These   cases     are    distinguishable     from   the

                                        15
present case in two critical ways.                      First, in each of these

cases,   the       pre-IIRIRA     crime    rendered          the    alien    immediately

deportable.         Second, the alien had not yet accrued seven years

of continuous residence when IIRIRA took effect.

              These factors were critical to the Second Circuit’s

decision in Martinez.            Under the circumstances in that case, the

court said, there was nothing to prevent the government from

prosecuting        the   alien    and    securing       an    order    of    deportation

before the alien reached seven years of continuous residence.

See Martinez, 523 F.3d at 374.                  But for the “time required to

bring an offender to justice,” the alien would never have become

eligible      for    discretionary        relief,       and    there       would   be   no

expectation for the stop-time rule to unsettle.                       Id.

              In    this   respect,      the    circumstances         of    Petitioner’s

case bear a closer resemblance to Sinotes-Cruz v. Gonzales, 468

F.3d   1190    (9th      Cir.    2006).        There,    the       alien’s    pre-IIRIRA

convictions did not expose him to deportability under pre-IIRIRA

law.     See id. at 1202.               The alien continued to live in the

United States and, like Petitioner, was a seven-year resident

when IIRIRA became law.            See id.       The Ninth Circuit recognized

that the imposition of the stop-time rule would have “serious

adverse consequences” for the alien.                    Id.        It held, therefore,

that the rule must not apply to him.                See id. at 1202-03.



                                           16
             We think it important to note, too, that both here and

in Sinotes-Cruz the government procured the aliens’ pre-IIRIRA

convictions       via    guilty      plea.         The    means   of     conviction     are

relevant to our assessment of retroactive effect because, as the

Supreme Court observed in INS v. St. Cyr, an alien who decides

to   plead   guilty      cannot      help     but    be    “acutely      aware”    of   the

consequences of conviction.                 533 U.S. at 322.             In St. Cyr, an

alien pled guilty to a drug offense prior to the passage of

IIRIRA.       See       id.    at    293.          His    conviction       rendered     him

deportable,       but,    under      the     law    at    that    time,     he    remained

eligible     to   apply       for   a   discretionary         waiver      under   section

§ 212(c).     See id.         IIRIRA’s abolishment of the section 212(c)

waiver took this opportunity away from him.                         The Court, noting

that aliens under pre-IIRIRA law had a “significant likelihood

of   receiving      § 212(c)        relief,”       reasoned      that    aliens   “almost

certainly relied” on this likelihood “in deciding whether to

forgo their right to a trial.”                     Id. at 325.          The interference

with this expectation, the Court concluded, was an impermissible

retroactive effect.           See id.

             Here,      the   Government       argues      that    Petitioner,     unlike

the alien in St. Cyr, had no reason to concern himself with the

availability of discretionary relief at the time of his 1995

guilty plea, since that offense did not render him deportable.

This is a questionable assumption, and in any event irrelevant,

                                             17
as we have emphatically declared that subjective reliance is not

an essential element of retroactive effect.                       See Olatunji, 387

F.3d at 389, 394 (“Whether the particular petitioner did or did

not   subjectively       rely    upon      the   prior     statute     or    scheme   has

nothing whatever to do with Congress’ intent -- the very basis

for the presumption against statutory retroactivity.”).

           There can be no doubt that the right to go to trial is

a valuable one.      A retroactive application of the stop-time rule

would   impose   new     and    unforeseen        consequences       on     Petitioner’s

decision to relinquish this right.                This is impermissible.

                                            C.

           The Government does not deny that the stop-time rule

imposes   new    legal    consequences           on    Petitioner.        It   contends,

though, that Petitioner has no right to complain about those

consequences     because        he   was    not       “helpless   to      avoid”   them.

Resp’t’s Br. 6.        But for his 2010 prescription fraud, it notes,

the effects of our immigration laws -- including the stop-time

rule -- would never have come to bear on him.

           We cannot agree that the retroactive effect of the

stop-time rule is diminished because of actions Petitioner took

after the rule’s enactment.                The question before us is whether

we may presume that a statute enacted in 1996 does not apply

retroactively to events in 1995.                      Petitioner’s conduct in 2010



                                            18
gives us occasion to address this question, but it does not

change the answer.

            Indeed, as Supreme Court precedent and our own case

law make clear, a statute may have an impermissible retroactive

effect on an alien even if the immigration consequences of that

statute were avoidable.            See Vartelas v. Holder, 132 S. Ct.

1479, 1487-88 (2012); Olatunji, 387 F.3d at 392.                     The Supreme

Court was clear on this point in Vartelas v. Holder, a case

involving      another   alien    with   a     criminal   conviction    predating

IIRIRA.     The alien in Vartelas, a Greek immigrant, took a one-

week    trip    abroad    in     2003,   long     after     IIRIRA   effectively

precluded foreign travel by aliens with criminal records like

his.    The Government argued that the statute had no retroactive

effect at all, since it was the post-IIRIRA act of returning to

the    United    States    --     and    not    the   immigrant’s      pre-IIRIRA

conviction -- that triggered the statute.                 The Court deemed this

argument “disingenuous,” stating:

            [The immigrant’s] return to the United
            States occasioned his treatment as a new
            entrant,   but   the   reason    for    the   “new
            disability” imposed on him was not his
            lawful foreign travel.     It was, indeed, his
            conviction,    pre-IIRIRA,    of     an    offense
            qualifying as one of moral turpitude.         That
            past misconduct, in other words, not present
            travel, is the wrongful activity Congress
            targeted in § 1101(a)(13)(C)(v).

132 S. Ct. at 1488-89.


                                         19
            The text of the stop-time rule, similarly, leaves no

doubt about the “wrongful activity” that Congress designed it to

target.     The object of subsection (B) is to ensure that an alien

who commits an enumerated criminal offense within seven years of

admission to the United States does not go on to become eligible

for discretionary relief while immigration proceedings against

him inch slowly toward a resolution.            See Ram v. INS, 243 F.3d

510, 518 (9th Cir. 2001) (explaining that Congress “enacted the

stop-time rule in response to a belief that aliens sought to

delay deportation proceedings in order to meet the continuous

physical presence requirement”).            The rule is unconcerned with

the particular events that give rise to the alien’s removal;

indeed, it operates the same way no matter what brought about

the removal.      The only crimes that come within its scope are

those     committed   before   the     fulfilment    of     the    continuous-

residence    requirement.      In    this   way,   the    rule    reserves   its

effect for aliens who “abuse[] the hospitality of this country”

within a short time of being welcomed here.              In re Perez, 22 I.

& N. Dec. 689, 700 (BIA 1999).

            The Government likens this case to Fernandez-Vargas v.

Gonzales, 548 U.S. 30 (2006), but the comparison is inapt.                   The

alien in that case had ample opportunity to seek an adjustment

of status before IIRIRA took that opportunity away from him.

See id. at 45.        He simply neglected to take advantage of it.

                                      20
See id. at 45-46.    This rationale does not apply to Petitioner.

He did not sleep on his rights.             How could he, when the law that

threatened his ability to seek relief, IIRIRA, was on the books

before his need for that relief had even arisen?

           We do not hold that Petitioner had a right to commit

more crimes.    He does not, and the repercussions of his conduct

have, accordingly, come to bear on him twice to date –- first

when the criminal court convicted him, and second when the IJ

issued an order of removal.        We simply hold that the government

cannot use the stop-time rule to add yet one more repercussion

to that list.     A lawful resident who has lived in the United

States   long   enough    to   merit    consideration     for   relief   from

removal has a settled expectation in his opportunity to request

such relief.     Courts may not disturb that expectation absent

clear evidence that Congress intended that effect.

                                       V.

           For the foregoing reasons, we grant the petition for

review and remand the case to the BIA for proceedings consistent

with this opinion.

                         PETITION FOR REVIEW GRANTED AND CASE REMANDED




                                       21
NIEMEYER, Circuit Judge, dissenting:

      Abdul Jaghoori, a native and citizen of Afghanistan and a

lawful permanent resident of the United States since 1989, was

convicted of at least two crimes involving moral turpitude while

residing in Virginia -- a 1995 conviction for credit card theft

and a 2010 conviction for prescription fraud.                          He concedes that

the   two     convictions          render     him    removable         under    8     U.S.C.

§ 1227(a)(2)(A)(ii).           Jaghoori seeks discretionary relief from

his   order    of    removal       with     his    application       for,     among   other

things, cancellation of removal under 8 U.S.C. § 1229b(a).                              That

section     authorizes       the    Attorney        General     to    cancel    a     lawful

permanent resident’s removal if the resident:

      (1)     has been an alien lawfully admitted for permanent
              residence for not less than 5 years,

      (2)     has resided in the United States continuously for
              7 years after having been admitted in any status,
              and

      (3)     has not been convicted of any aggravated felony.

8 U.S.C. § 1229b(a) (emphasis added).

      The BIA denied Jaghoori’s application for cancellation of

removal      because    he     was        unable     to    show,       as   required      by

§ 1229b(a)(2), that he had resided in the United States as a

lawful permanent resident “continuously for 7 years.”                           Under the

“stop-time     rule”    of     §    1229b(d)(1),          his   1995    conviction       for

credit      card    fraud    cut     off     the     running     of     the    seven-year

residency period short of seven years, because it would have
                                             22
rendered him ineligible for admission into the United States

under 8 U.S.C. § 1182(a)(2)(A)(i)(I).                     Jaghoori noted, however,

that   his    1995   conviction    preceded         the    effective   date    of    the

stop-time rule, which was enacted in 1996 as part of Illegal

Immigration       Reform   and   Immigrant         Responsibility      Act    of    1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified as

amended      in   scattered   sections        of   the     U.S.   Code).      Jaghoori

maintained therefore that applying the rule in his case would

give it impermissible retroactive effect.                    The BIA rejected this

argument, explaining:

       [W]hen     assessing   statutory    eligibility   or
       discretionary merit for a grant of cancellation of
       removal, we . . . necessarily look at a variety of
       antecedent events, including events that are both
       favorable and unfavorable to the alien, and . . . an
       alien’s past criminal conduct may well impact on the
       operation of the statute, but only to the extent of
       defining the authority to grant discretionary relief
       to removable aliens.

                                   *      *        *

       [W]e find that it is the respondent’s choice to engage
       in illegal conduct [underlying his 2010 conviction]
       after the effective date of the new law (i.e., the
       IIRIRA), that subjects him to the new and less
       generous legal regime (i.e., the application of the
       stop-time rule), not a past act that he is helpless to
       undo up to the moment the Government finds him out.

A.R. 16-17 (internal quotation marks omitted).

       On    appeal,    Jaghoori       again       presses    his    argument       that

applying the 1996 stop-time rule of § 1229b(d)(1) (effective

April 1, 1997) to his 1995 conviction in order to deny his 2011

                                         23
application      for   cancellation   of   removal    “attaches    new   legal

consequences to [his] 1995 guilty plea, and, as such, [the rule]

should not be applied retroactively,” citing Landgraf v. USI

Film Products, 511 U.S. 244 (1994).

       Because   the   legal   consequence   on    Jaghoori’s     immigration

status only attached once Jaghoori committed a second crime 13

years after IIRIRA’s enactment, I believe that the BIA got it

right.    Therefore, I would reject Jaghoori’s argument and affirm

the BIA’s ruling.

       In Landgraf, the Supreme Court laid out a two-part test for

determining whether a statute applies retroactively.                First, a

court must “determine whether Congress has expressly prescribed

the statute’s proper [temporal] reach.”              Landgraf, 511 U.S. at

280.     “If so, this is the end of the analysis and there is no

need ‘to resort to judicial default rules.’”            Appiah v. INS, 202

F.3d 704, 708 (4th Cir. 2000) (quoting Landgraf, 511 U.S. at

280).    But if the statute fails to define expressly its temporal

reach, the court must determine whether the statute would have

an “impermissible retroactive effect.”            INS v. St. Cyr, 533 U.S.

289, 320 (2001).       Any retroactive effect is impermissible absent

“clear congressional intent favoring such a result.”                Landgraf,

511 U.S. at 280; see also St. Cyr, 533 U.S. at 316.

       Because I agree with the majority that Congress did not

expressly prescribe the stop-time rule’s temporal reach, I too

                                      24
would       resolve         this        case       under        Landgraf’s          second          step,

determining        whether         the    statute         has     a    retroactive           effect    on

Jaghoori’s 1995 conviction.

       A statute does not operate retroactively “merely because it

is    applied      in       a    case    arising          from        conduct      antedating         the

statute’s enactment,” or because it “upsets expectations based

in prior law.”              Landgraf, 511 U.S. at 269.                        Rather, a statute

has retroactive effect when it “attaches new legal consequences

to events completed before its enactment,” id. at 270, by “[1]

tak[ing]       away      or       impair[ing]            vested       rights       acquired         under

existing laws, or [2] creat[ing] a new obligation, impos[ing] a

new    duty,      or    attach[ing]            a    new     disability,            in    respect       to

transactions           or       considerations            already          past,”       id.    at     269

(emphasis        added)         (quoting       Soc’y      for     the       Propagation        of     the

Gospel v. Wheeler, 22 F. Cas. 756, 761 (C.C.D.N.H. 1814) (No.

13,156)).         Because the Supreme Court made clear in Fernandez-

Vargas      v.     Gonzales,         548       U.S.        30,        44    n.10     (2006),        that

cancellation of removal is not a vested right -- i.e., “a term

that     describes              something       more        substantial             than      inchoate

expectations and unrealized opportunities” -- IIRIRA would only

have    a   retroactive            effect      on    Jaghoori          if    it     created     a     new

obligation or attached a new disability to his prior conduct.

And    this      judgment         must   “be       informed       and       guided      by    familiar

considerations of fair notice, reasonable reliance, and settled

                                                    25
expectations.”        St. Cyr, 533 U.S. at 321 (quoting Martin v.

Hadix,   527   U.S.     343,     358    (1999))      (internal      quotation         marks

omitted).

      The majority asserts that the stop-time rule attached a new

disability to Jaghoori’s 1995 conviction by preventing him from

accruing     additional     years      of   continuous       residence.             But   the

seven-year period of continuous residence is significant only

for one purpose -- obtaining discretionary relief from removal.

In 1995, Jaghoori had no need for this discretionary relief, as

his   1995   conviction     did     not     change    his    status       as    a    lawful

permanent resident or render him deportable.                        Nor did he need

such relief on April 1, 1997, when IIRIRA went into effect,

because, as the majority acknowledges, Jaghoori’s “status as a

lawful permanent resident remained secure even after Congress

enacted IIRIRA in 1996.”               Ante, at 7.           His eligibility for

cancellation of removal and the attendant seven-year residency

requirement        became   relevant        only     after     he     committed           the

prescription-fraud crime in 2010.

      To be sure, IIRIRA did apply more generously to one who had

committed     no    crime   in   the    past.        But    one     who   had       already

committed a crime could nonetheless avoid any future deportation

simply by abiding by the law and not committing a second crime

involving moral turpitude.             See Fernandez-Vargas, 548 U.S. at 44

(noting that “the alien’s choice” after enactment of a “new and

                                            26
less generous legal regime” was the cause of his ineligibility

for   discretionary          relief).          Thus,    while        the   majority     frames

Jaghoori’s disability from the enactment of IIRIRA in terms of

his loss of the accrual of years of continuous residence, the

disability     was,     in       actuality,     Jaghoori’s           inability     to   commit

future crimes while remaining eligible for discretionary relief

in the event that a removal proceeding were to be instituted

against him.

        Properly framed, the inability to commit a future crime

cannot be considered a new disability because Jaghoori was never

entitled to commit crimes in the first place.                              Jaghoori had no

greater right to commit crimes before IIRIRA was enacted than he

did   thereafter.        Nor       did    IIRIRA       impose    any       new   duties    upon

Jaghoori, since he was already required to obey the law.

       The    Supreme        Court       has    so      far     recognized         only        two

circumstances in which application of IIRIRA to past conduct

would     amount   to        a    new    disability:             (1)       where   it     would

effectively ban an alien’s travel outside the United States,

Vartelas v. Holder, 132 S. Ct. 1479, 1487 (2012); and (2) where

it    would   convert    deportation            from    a     mere     possibility      to      an

absolute      certainty,         St.    Cyr,   533     U.S.     at    323.       Even     if    an

alien’s inability to commit future crimes without immigration

consequences could be considered a disability, it would be far

less debilitating than those categories of disability previously

                                               27
recognized    by     the    Supreme    Court       and    therefore      would    not    be

cognizable under Landgraf’s second step.

     The conclusion that § 1229b(d)(1) does not impose a new

disability on Jaghoori’s 1995 conviction is inevitable when one

considers Jaghoori’s reliance interests.                       Although the majority

insists   that      whether    Jaghoori      relied       on    the   availability       of

discretionary       relief    at    the     time    of    his    1995    conviction       is

“irrelevant,” ante, at 17, the Supreme Court has held to the

contrary,     see    Vartelas,        132    S.     Ct.    at     1491    (“While        the

presumption against retroactive application of statutes does not

require a showing of detrimental reliance, reasonable reliance

has been noted among the ‘familiar considerations’ animating the

presumption” (citation omitted) (quoting Landgraf, 511 U.S. at

270)).      Indeed,    as     the   majority       itself       recognizes,      reliance

played a big part in the Court’s reasoning in St. Cyr.                           See 533

U.S. at 325.        And we have expressly held that an alien cannot

“reasonably rely ‘on the availability of a discretionary waiver

of   deportation      when     choosing      to     engage      in    illegal    .   .    .

activity.’”      Tasios v. Reno, 204 F.3d 544, 551 (4th Cir. 2000)

(quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir. 1993));

see also LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)

(“It would border on the absurd to argue that these aliens might

have decided not to commit drug crimes . . . had they known that

if they were not only imprisoned but also, when their prison

                                            28
term     ended,   ordered      deported,        they    could      not   ask     for    a

discretionary waiver of deportation”); St. Cyr v. INS, 229 F.3d

406, 418 (2d Cir. 2000), aff’d, 533 U.S. 289; Jurado-Gutierrez

v. Greene, 190 F.3d 1135, 1150 (10th Cir. 1999).

       Additionally,     when       “fair      notice     .    .   .     and   settled

expectations” are taken into consideration, Landgraf, 511 U.S.

at 270, application of the stop-time rule to Jaghoori would not

be inequitable.        Indeed, the circumstances of the present case

are substantially similar to those in Fernandez-Vargas.                        In that

case, 21 years after Fernandez-Vargas illegally returned to the

United States, the United States sought, in 2003, to reinstate

an earlier deportation order entered against him.                          Fernandez-

Vargas, 548 U.S. at 35-36.               Before IIRIRA’s enactment in 1996,

the    reinstatement    of     a    deportation        order    was    subject    to     a

discretionary waiver.          But IIRIRA changed that, mandating that

all    illegal    reentrants       are   to    have    their    orders    of   removal

reinstated without any possibility of discretionary relief.                            Id.

at 34-35.     Rejecting the claim that IIRIRA had an impermissible

retroactive effect when applied to Fernandez-Vargas, the Supreme

Court stated that it was “the alien’s choice to continue his

illegal presence, after illegal reentry and after the effective

date of the new law, that subject[ed] him to the new and less

generous legal regime, not a past act that he [was] helpless to

undo.”     Id. at 44.    Moreover, the Court noted, in the six-month

                                          29
period     between     IIRIRA’s          passage     and   its    effective        date,

Fernandez-Vargas “had an ample warning that the new law could be

applied    to   him       and    ample     opportunity      to    avoid    that     very

possibility by leaving the country.”                 Id. at 45.

     The    same     can    be    said    about     Jaghoori.      Like    Fernandez-

Vargas, Jaghoori became ineligible for discretionary relief with

IIRIRA’s enactment.              But it was Jaghoori’s choice in 2010 to

commit a second crime involving moral turpitude that rendered

him removable in the first place, thus “subject[ing] him[self]

to the new and less generous legal regime.”                       Fernandez-Vargas,

548 U.S. at 44; see also Olatunji v. Ashcroft, 387 F.3d 383, 398

(4th Cir. 2004) (“[A] statute[] do[es] not have a retroactive

effect when a party has an opportunity to avoid all of its new

consequences”).       And the 13-year period between the enactment of

IIRIRA    and   Jaghoori’s        second    crime     in   2010   gave    him     “ample

warning” of the existence of the stop-time rule and the fact

that it could result in his removal from the United States upon

his commission of another crime.

     Finally,       the    cases     on     which    the    majority      relies     are

inapposite.        In Jeudy v. Holder, 768 F.3d 595, 597 (7th Cir.

2014), the      petitioner’s        pre-IIRIRA      conviction     itself    rendered

him deportable.        Thus, the passage of IIRIRA meant that if the

government ever got around to bringing removal proceedings, the

petitioner was helpless to obtain discretionary relief.                            Here,

                                            30
the    government   had    no     basis        to   remove   Jaghoori       until     he

committed    a    second       crime     involving     moral     turpitude      after

IIRIRA’s passage.       Indeed, the majority purports to distinguish

cases from two other circuits on this exact same ground.                         Ante,

at 16 (“[I]n each of these cases, the pre-IIRIRA crime rendered

the alien immediately deportable”).                 Similarly, in Sinotes-Cruz

v.    Gonzales,   468   F.3d      1190,    1193      (9th    Cir.    2006),     IIRIRA

reclassified the petitioner’s prior crimes as crimes involving

moral turpitude in a provision that Congress explicitly made

retroactive, making the petitioner immediately removable under

§ 1227(a)(2)(A)(i)        upon        IIRIRA’s      effective       date.       Again,

Jaghoori did not become removable until he committed a second

crime.     Had Jaghoori been law abiding, IIRIRA’s enactment would

have produced absolutely no adverse consequences; he would have

retained his lawful permanent residence status to this day.                          And

finally,    in    Vartelas,       the     Court     repeatedly       stressed       that

Vartelas    “engaged      in     no     criminal     activity       after    IIRIRA’s

passage.”    132 S. Ct. at 1489.

      Because IIRIRA’s stop-time rule imposed no new disability

on Jaghoori and thus did not have any retroactive effect, I

would deny his petition for review.




                                          31
