In this case, we are called on to determine whether the presumption against retroactive legislation bars the application of an immigration statute. After Petitioner Charles William Centurion committed a drug crime but before Centurion’s crime was adjudicated, Congress passed a statute with immigration consequences for any lawful permanent resident who “has committed” a drug crime. 8 U.S.C. § 1101(a)(13)(C)(v). The question is whether the statute can be given effect with respect to Centurion’s crime, even though Centurion committed the crime before the statute’s passage. We conclude that the presumption against retroactive legislation bars such an application because the plain text of the statute attaches legal consequences at the time a lawful permanent resident commits a crime, rather than at the time of conviction.
Background
Petitioner Charles William Centurion is a native and citizen of Peru. On November 4, 1989, he became a lawful permanent resident of the United States. In 1990, Centurion was arrested and charged in the Criminal District Court for Dallas County, Texas with conspiracy to possess cocaine. Centurion posted bail and fled the state. His Texas criminal case remained unresolved for seventeen years.
During Centurion’s years as a fugitive, Congress took two legislative actions material to his case. To fully describe the import of these actions on Centurion’s case, it is necessary to explain some general principles of immigration law. First, the Attorney General formerly enjoyed the discretion, under certain circumstances, to waive the deportation of aliens under § 212(c) of the Immigration and Nationality Act (“INA”). An alien subject to deportation could apply for such a waiver, which was generally known as “212(c) relief.” See INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The first Congressional action material to Centurion’s case was the repeal of INA § 212(c): in 1996, through the pas
The second Congressional action material to Centurion’s case concerned the Fleuti doctrine. Under Rosenberg v. Fleuti,
Because of these two changes—the elimination of § 212(c) relief and the end of the Fleuti doctrine—Centurion faced a significantly different immigration law landscape when, in 2005, he was arrested in Puerto Rico on an outstanding warrant from his 1990 Texas drug offense. After his release from custody, Centurion went to Texas to resolve his criminal case. On April 10, 2007, he pleaded nolo contendere to conspiracy to possess cocaine in violation of Texas Health and Safety Code § 481.115 and received six months of community supervision. After Centurion complied with the terms of his probation, the proceedings against him in Texas criminal court were dismissed.
On September 25, 2007, the Department of Homeland Security (“DHS”) questioned
On May 19, 2009, an Immigration Judge (“IJ”) pretermitted Centurion’s application for § 212(c) relief and ordered him removed. Specifically, the IJ relied on INS v. St. Cyr,
On October 23, 2014, Centurion filed a motion before the BIA to reopen and terminate his removal proceedings and to stay his removal. Centurion argued that the untimeliness of his motion to reopen should be excused because of an intervening change in the law, namely the Supreme Court’s decision in Vartelas II,
The BIA denied Centurion’s motion to reopen and dismissed his motion to stay as moot. The BIA concluded that the anti-retroactivity holding of Vartelas II did not apply to Centurion’s case because, although he committed his drug offense pri- or to IIRIRA’s passage, the offense was not finally adjudicated until more than a decade after IIRIRA’s passage. In reaching this conclusion, the BIA relied on a footnote in Vartelas II which states that § 1101(a)(13)(C)(v) “appears to advert to a lawful permanent resident who has been convicted of an offense under § 1182(a)(2) (or admits to one).” Id. at 275 n.ll,
Discussion
The question presented by Centurion’s petition is whether the Supreme Court’s holding in Varíelas II that a lawful permanent resident with a conviction predating IIRIRA need not formally seek admission after a brief trip abroad applies when a lawful permanent resident’s criminal conduct occurred prior to IIRIRA’s passage but the offense was not finally adjudicated until after IIRIRA’s passage. Before proceeding to this question, we note the limitations of our jurisdiction.
First, when reviewing a final order of removal against an alien who is inadmissible because of a drug offense, we have jurisdiction to review only constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).
Second, Centurion’s motion to reopen his removal proceedings was untimely because it was filed more than ninety days after the issuance of his final administrative order of removal. See 8 U.S.C. §§ 1101(a)(47)(B), 1229a(c)(7)(C)(i). The motion’s untimeliness was not excused by any regulatory exception. See 8 C.F.R. § 1003.2(c)(3). In such circumstances, Centurion’s “motion to reopen could only be considered upon exercise of the [BIAj’s sua sponte authority.” Mahmood v. Holder,
Because the correct interpretation of Varíelas II is a question of law, we review it de novo. See Chambers v. Office of Chief Counsel,
I.
We begin with the presumption against retroactive legislation. “The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal.” Kaiser Aluminum & Chem. Corp. v. Bonjorno,
In Landgraf, the Supreme Court set out a two-step framework for determining when the presumption against retroactive legislation bars application of a statute. See id. at 280,
We do not write on a blank slate because the Supreme Court concluded in Varíelas II that 8 U.S.C. § 1101(a)(13)(C)(v) does not apply to an alien convicted of a relevant crime before IIRIRA’s enactment. It is clear that § 1101(a)(13)(C)(v) “attaches new legal consequences to events completed before its enactment.” Vartelas II,
To answer this question, we must construe § 1101(a)(13)(C)(v). “Statutory construction begins with the plain text and, if that text is unambiguous, it usually ends there as well.” United States v. Razmilovic,
Our interpretation of § 1101(a)(13)(C)(v) is consistent with our long-standing interpretation of a related statutory provision. Under 8 U.S.C. § 1229b(a), the Attorney General may cancel the removal of aliens who satisfy certain conditions, including that they have resided in the United States continuously for seven years. However, such a “period of continuous residence ... in the United States shall be deemed to end ... when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien inadmissible to the United States.” 8 U.S.C. § 1229b(d)(l). This is known as the “stop-time rule.” We have repeatedly held that “the date of the commission of the offense[,]” not the date of conviction, triggers the stop-time rule. Baraket v. Holder,
We also note that in various statutory-provisions, including § 1229b, Congress has expressly required an alien to have been convicted of an offense for specific consequences to attach. For example, under 8 U.S.C. § 1229b(a)(3), “[t]he Attorney General may cancel removal in the case- of an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of any aggravated felony.” (emphasis added); see also id. § 1229b(b)(l)(C) (“The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien ... has not been convicted of an offense under [certain sections] of this title.... ” (emphasis added)); id. § 1182(h) (“No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.” (emphasis added)). These provisions demonstrate that when Congress intends legal consequences to attach only at the time of adjudication of a crime, Congress will use language to specifically communicate that timing.
The government’s arguments against the plain text of § 1101(a)(13)(C)(v) fall short. First, the government points out that, although the text of § 1101(a)(13)(C)(v) does not specifically mention convictions, the text of 8 U.S.C. § 1182(a)(2), to which § 1101(a)(13)(C)(v) refers, does. 8 U.S.C. § 1182(a)(2)(A)® states in relevant part that “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a violation of ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ... is inadmissible.” Although § 1182(a) does expressly attach legal consequences to a conviction or admission rather than the commission of a crime, the government’s argument overlooks the role of § 1182(a) in § 1101(a)(13)(C)(v). Section 1101(a)(13)(C)(v) forces a lawful permanent resident to seek admission when he “has committed an offense identified in section 1182(a)(2) of this title.” 8 U.S.C. § 1101(a)(13)(C)(v) (emphasis added). The sole purpose of § 1182(a) in § 1101(a)(13)(C)(v) is to identify a category of crimes, including drug offenses, the commission of which triggers certain legal consequences. The mention of convictions in § 1182(a) does not bear directly on § 1182(a)’s identification of crimes and so sheds little light on the question at hand.
Second, the government argues that we must defer to the BIA’s reading of § 1101(a)(13)(C)(v). It is true that “the BIA’s interpretations of ambiguous provisions of the INA are owed substantial deference unless ‘arbitrary, capricious, or manifestly contrary to the statute.’ ” Mardones v. McElroy,
Third, the government argues that, despite what the plain text of § 1101(a)(13)(C)(v) might say, in practice the consequences of § 1101(a)(13)(C)(v) will only attach upon an alien’s conviction of a crime. Specifically, the government observes that an official at the border will ordinarily have no way of knowing whether a lawful permanent resident has committed a crime unless he has been convicted of one. As the Supreme Court memorably put it: “Ordinarily, to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s records for a conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.” Vartelas II,
Because § 1101(a)(13)(C)(v) attaches legal consequences to the commission of drug offenses and Centurion committed his Texas drug offense in 1990, six years prior to IIRIRA’s passage, § 1101(a)(13)(C)(v) “ ‘attache[d] new legal consequences to events completed before its enactment.’ ” Vartelas II,
II.
The government also raises a series of' arguments that past decisions of the Supreme Court and of this Court require us to deny Centurion’s petition. With respect to the Supreme Court, the government claims that we are bound by Vartelas II to deny Centurion’s petition. The government understands Vartelas II to hold that the Fleuti doctrine does not apply if a lawful permanent resident merely committed but was not convicted of a relevant crime prior to IIRIRA’s enactment. Vartelas II contains no such holding. As we explained in Centurion I, “Vartelas [II ] did not turn on a distinction between the date of the offense and the date of conviction: the Supreme Court had no occasion to consider the issue in that case because both events, offense and conviction, took place pre-IIR-
The government also claims that our own past decisions foreclose Centurion’s present petition. However, the decisions on which the government relies, Centurion I and Domond v. INS,
To fully explain the limited relevance of Centurion I and Domond to our present decision, it is necessary to chart the trajectory of judicial decisions following the passage of AEDPA and IIRIRA. AEDPA barred aliens who had committed certain crimes from receiving relief under § 212(c), and IIRIRA then repealed § 212(c) altogether. See AEDPA, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277; IIRIRA, Pub. L. No. 104-208, § 304(b), 110 Stat. 3009, 3009-597. In INS v. St. Cyr,
Because Domond barred Centurion from seeking § 212(c) relief, Centurion argued on his prior appeal that Domond did not survive the Supreme Court’s decision in Varíelas II. In Centurion I, this Court held that Domond survived Varíelas II because Varíelas II did not address whether the date of commission or the date of conviction of a crime was the key date for retroactivity purposes. Centurion I,
Although Centurion I is of only minimal relevance to our present decision, the reasoning of Domond is applicable. However, Domond’s insights play out differently in
Second, in Domond, we stated that “waivers available from [§ ] 212(c) hearings were purely discretionary. Therefore, loss of the [§ ] 212(c) hearings, while clearly a hardship, does not impose a new legal consequence on [petitioner’s] pre-AEDPA conduct.”
Third, in Domond, we concluded that any reliance interests were minimal: “ ‘[i]t would border on the absurd to argue’ that [petitioner] would have decided not to commit a crime if he had known that he not only could be imprisoned, but also could face deportation without the availability of a discretionary waiver of deportation.”
Because each of the three bases of the Domond decision weigh in Centurion’s favor in the present context, we reach the opposite conclusion from Domond: § 1101(a)(13)(C)(v) does not apply retroactively as of the date of commission of a drug offense.
Conclusion
For the foregoing reasons, we GRANT the petition for review, VACATE the BIA’s January 27, 2015 order, and REMAND the case to the BIA for further proceedings consistent with this opinion.
Notes
. As will be discussed in greater detail below, the Supreme Court overruled Varíelas I in part. Contrary to our decision in Varíelas I, the Supreme Court held that IIRIRA could not be applied retroactively to deprive Varte-las of the Fleuti doctrine. Vartelas v. Holder,
. However, we emphasize that, on remand, the BIA could choose not to exercise its sua sponte authority to reopen Centurion’s removal proceedings, regardless of the correct meaning of Vartelas II. See Mahmood,
. "Piepowder (‘dusty feet’) courts were temporary mercantile courts held at trade fairs in Medieval Europe; local merchants and guild members would assemble to hear commercial disputes. These courts provided fast and informal resolution of trade conflicts, settling cases while the merchants’ feet were still dusty.” Vartelas II,