Abdul Azim Jaghoori v. Eric Holder, Jr.
772 F.3d 764
4th Cir.2014Background
- Abdul Azim Jaghoori, Afghan national and lawful permanent resident since 1989, pled guilty to credit-card theft in 1995 (90-day suspended sentence) and later to prescription fraud in 2010 (two-year suspended sentence).
- IIRIRA (1996) created the "stop-time rule" (8 U.S.C. § 1229b(d)(1)(B)) that deems continuous-residence to end upon commission of certain offenses; the rule took effect April 1, 1997.
- DHS initiated removal proceedings after Jaghoori’s 2010 conviction and charged removability based on his 1995 and 2010 convictions as crimes involving moral turpitude. Jaghoori conceded removability and applied for cancellation of removal.
- The IJ denied cancellation, finding the 1995 conviction triggered the stop-time rule; the BIA affirmed, reasoning application was permissible because Jaghoori’s later conduct after IIRIRA’s effective date led to removal.
- Jaghoori petitioned for review arguing the stop-time rule cannot be applied retroactively to his pre-IIRIRA 1995 guilty plea because it would attach new legal consequences to pre-enactment conduct. The Fourth Circuit granted review on retroactivity grounds.
Issues
| Issue | Jaghoori (Plaintiff) Argument | Government (Defendant) Argument | Held |
|---|---|---|---|
| Whether § 1229b(d)(1)(B) (stop-time rule) may be applied to a crime and guilty plea that occurred before IIRIRA’s effective date | Applying the stop-time rule to Jaghoori’s 1995 conviction is retroactive because it attaches new legal consequences to conduct completed before IIRIRA and destroys a settled expectation of eligibility for discretionary relief | The rule is not impermissibly retroactive: Jaghoori became subject to the rule only after he committed a post-IIRIRA offense (2010); his later choice, not the 1995 plea alone, produced removal consequences | Court: The stop-time rule cannot be applied to Jaghoori’s pre-IIRIRA 1995 conviction; grant petition and remand (majority) |
| Whether Congress clearly expressed that the stop-time rule applies retroactively (Landgraf step one) | Congress did not clearly and unambiguously prescribe retroactive reach | Argues legislative purpose supports application to prior offenses that factor into later removal | Court: No clear congressional directive found; proceed to Landgraf step two |
| Whether application would have an impermissible retroactive effect under Landgraf step two | Retroactive application would attach new disability by foreclosing relief that was realistically available pre-IIRIRA and interfering with expectations and reliance (esp. for guilty pleas) | Any adverse effect stems from post-enactment conduct; an alien can avoid consequences by not committing later offenses; reliance is not required | Court: Applying § 1229b(d)(1)(B) to Jaghoori’s 1995 plea would impose new legal consequences and is impermissibly retroactive; presumption against retroactivity governs |
| Whether subsequent conduct (the 2010 conviction) defeats the retroactivity claim | Jaghoori’s later criminal act does not cure the retroactive imposition of a new disability stemming from the 1995 conviction | Jaghoori’s 2010 act made him removable and therefore properly subjects him to the new regime | Court: Post-enactment conduct does not eliminate the retroactive effect of applying the stop-time rule to a pre-enactment conviction; the rule still may not be used to add consequences for pre-IIRIRA conduct without clear congressional intent |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (2001) (presumption against retroactive application of statutes that impair rights arising under prior law; reliance considerations important)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (two-step test for retroactivity inquiry: congressional intent and impermissible retroactive effect)
- Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (post-enactment voluntary conduct can subject an alien to less generous regime; distinguished by majority)
- Vartelas v. Holder, 132 S. Ct. 1479 (2012) (retroactive application can attach new disability when past conviction is the wrongful activity targeted)
- Jeudy v. Holder, 768 F.3d 595 (7th Cir. 2014) (applied Landgraf to hold stop-time rule impermissibly retroactive for pre-IIRIRA conviction like petitioner’s)
- Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. 2004) (Fourth Circuit precedent applying traditional presumption against retroactivity)
- Sinotes-Cruz v. Gonzales, 468 F.3d 1190 (9th Cir. 2006) (pre-IIRIRA convictions that did not render alien immediately deportable could not be punched by stop-time rule)
- Martinez v. INS, 523 F.3d 365 (2d Cir. 2008) (distinguished: pre-IIRIRA crime rendered alien immediately deportable and alien had not yet accrued seven years when IIRIRA took effect)