Clifford K. Olatunji v. John Ashcroft, Attorney General of the United States

MICHAEL, Before LUTTIG BALDOCK, Bobby R. Judges, Circuit ,Judge of United States Senior Circuit the. Circuit, the Tenth Appeals by sitting designation. opinion. Judge by published

Reversed opinion, which LUTTIG wrote Judge Judge joined. MICHAEL Senior dissenting opinion. BALDOCK wrote Immigration Judge, Olatunji before an OPINION ordered to be removed from the United LUTTIG, Judge. Circuit Nigeria. ap- States to J.A. 183-84. His Olatunji appeals from the dis- Petitioner peal Immigration Appeals to the Board of § 2241 of his 28 U.S.C. trict court’s denial was unsuccessful. Id. at 187-89. sought review of his petition, habeas which by directly pursuant appealing continued detention the INS Instead of the Board’s court, pro to a final order of removal issued decision to this filed a Immigration Appeals. petition Board of For the se for a writ of habeas corpus follow, judgment alia, reasons argued, the district court. He inter reversed and the habeas district court is inadmissibility pro- that IIRIRA’s criminal petition granted. is visions were retroactive to plead guilty his decision to and that his

I. removal under IIRIRA would violate the Olatunji, Nigeria, K. a citizen of Clifford Fifth Amendment’s Due Process Clause. in ongo- has been the United States on an jurisdiction The district court exercised since He became a basis lawful Olatunji’s peti- over claims and denied the permanent in resident 1993. J.A. 116. tion on the merits. 196-205. J.A. 1994, Olatunji illegally was arrested for

selling policies stealing gov- insurance II. property. subsequently pled ernment He to the question As threshold of the dis- guilty count of government to one of theft jurisdiction, 8, trict court’s title section 641, property § in of violation 18 U.S.C. 1252(a)(2)(C), Code, of the United States 133-35, J.A. and was sentenced to two that, provides “[notwithstanding any other in a community months of confinement law, provision juris- of no court shall have center, $259, treatment fined ordered to any diction to review final order of removal $2,296 restitution, pay in placed against an by alien who is removable rea- probation years. for two Id. having involving son of committed a [crime 1998, Olatunji traveled to London for turpitude].” Despite plain moral this lan- return, days. Upon his sought nine he guage, government urges that direct re-enter States United lawful Olatunji’s review of “substantial constitu- permanent resident. J.A. 198-99. He dis- permitted tional claims” is under IIRIRA and, pursuant closed his conviction 1994 Olatunji’s and that petition instant habeas provisions Illegal Immigration of the Re- precluded by is his failure to seek relief on Immigrant Responsibility form and Act direct review. (“IIRIRA”) 1996, enacted after ac- was cordingly permanent notes, classified as a lawful government As the at least two of seeking resident “admission” into the Unit- our sister agreed circuits have with its 1101(a)(13)(C)(v). States, § ed 8 U.S.C. interpretation Respondent’s IIRIRA. He subsequently authorities, deemed inadmissible Br. at 14. Both of these Roble- 153-53; (7th conviction. J.A. 8 v. Ashcroft, do-Gonzales 342 F.3d 667 1182(a)(2)(A). Cir.2003)1 INS, § hearing U.S.C. After a and Patel v. 334 F.3d 1. The Seventh Circuit has not even treated der the Court’s decisions in Calca- 1252(a)(2)(C) jurisdictional scope Cyr, of section ... and St. it is also clear no-Martinez consistently. Compare Ashcroft, may Bosede v. that Bosede not raise other constitutional 441, (7th Cir.2002)(holding statutory challenges 445-46 peti- ain direct review 1252(a)(2)(C) tion, pursuant corpus to section and ''[u]n- but that habeas under 28 U.S.C. (11th Cir.2003), Respon courts of Brief for the 1259, appeals.” rest on the 1262-63 dicta, gov in particular dent S.Ct. following (2001) added). (emphasis concession referenced 150 L.Ed.2d ernment’s dicta, appears consequence which Justice It under within this was as opinion standing government interpreted for Court Calcano- that the Stevens’ INS, 1252(a)(2)(C) 533 U.S. S.Ct. Martinez v. direct1 permit section re (2001): , 2268, 150 L.Ed.2d 392 in the Courts of in order to Appeals, view 1252(a)(2)(C) question avoid the “serious constitutional is not scope [§ ] arise if a would federal statute entirely Though clear. the text were broad, deny any judicial construed to quite it is not without provision forum a colorable claim.” ambiguities.... constitutional Webster [T]he its Doe, 592, 603, ap- that the courts coneeded (1988) review “sub- peals jtmsdiction retain 100 L.Ed.2d 632 challenges” stantial constitutional But as the Court made clear raised aliens ivho come within jurisdiction-stripping IIRIRA’s 1252(a)(2)(C). As the strictures of provisions fact do not eliminate the dis in this case do not raise petitions jurisdiction trict courts’ habeas under 28 issues, types these we need not ad- Cyr, § 2241. v. U.S.C. INS St. Nonetheless, it point dress this further. 289, 313-14, 121 150 L.Ed.2d government that the remains instructive (2001). Thus, premise 347 the entire for background princi- that acknowledges in government’s assertion Calcano- statutory construction and consti- ples of Martinez, that direct review substantial in tutional concerns must be considered claims must exist because no constitutional scope juris- of IIRIRA’s determining the -including other avenue of habeas review1— diction-stripping provisions. available, longer no corpus —was (emphasis Id. at 350 n. 121 S.Ct. 2268 indeed, any Cyr. moment after St. And by government in authorities cited Cal- proposed in of its support cano-Martinez concession, dicta, and its referenced This interpretation simply noted the serious must be understood the context that would arise if question constitutional proper full as to the government’s proposal judicial all review of Congress eliminated ,1252(a)(2)(C) in interpretation of section challenges to removal and constitutional There, govern- Calcano-Martinez. decisions, decisions that have deportation IIRI- by enacting maintained that ment litigate where a forum to no relevance jurisdiction-stripping provisions, RA’s constitutional claims does exist. substantial precluded the district “Congress ha[d] also Ashcroft, 324 F.3d See Cedano-Viera v. ... reviewing challenges by courts from (9th Cir.2003) (“[T]he thrust of otherwise,” 1069 that corpus or habeas Calcano-Martinez, together ju- opinion “Congress’s unmistakable intent ... is opinion St. Court’s provisions [IIRIRA] [was] dicial review jurisdiction over constitutional issues challenges ... into the that to channel all ferring jurisdiction with the "coincided” § available for some such such 2241 remains claims”) added), that IIRIRA ... had abolished with Robledo- "conclusion review,” contending Ashcroft, but nonetheless 342 679-80 n. habeas v. Gonzales (7th Cir.2003) (holding precedent still bound the circuit be- section that this 1252(a)(2)(C) panel's decision was dicta cause the Bosede is a bar to direct review of not pursuant opinion circulated was not constitutional claims and admit- substantial rules). precedent to local circuit ting that Seventh Circuit con- ap- diction-stripping from the courts of statute that unques- is withdrawn place to peals tionably and that the resolve such enacted to curtail such access to through judicial Olatunji issues is the district courts habeas being review. barred corpus.”). pursuing from direct review in the courts IIRIRA, appeals under the district interpretation our Consistent with jurisdiction court properly exercised its 1252(a)(2)(C), section as informed pursuant to section 2241. Congress provided where a forum claims, litigating constitutional the Su- III. Court has declined to read preme excep- unambiguous tions into statutes limiting Turning dispute the merits of the jurisdiction. Weinberger federal us, Olatunji before contends that IIRIRA 749, 762, Salfi, legal consequences has attached new to his (1975) (refusing L.Ed.2d 522 to read a plead guilty decision to and that this challenge constitutional exception into impermissible under the well established 405(h) Act, § Security U.S.C. of the Social presumption against applica barring jurisdiction 1331 “to re- tion of statutes. The and the any cover on claim arising under II [Title agree dissent with the first half of this Act],” Security of the Social because the contention, namely Olatunji would Security provides juris- Social Act “itself free, prior have been to IIRIRA’s enact challenges diction for constitutional to its ment, guilty to travel abroad after Cedano-Viera, provisions”); see also the sole reason under IIRIRA (“[T]he F.3d at 1070 Webster rule turned longer can no travel abroad on the absence of other available fo- facing proceedings without removal is his rum, which respect is the case with plead guilty. Respondent’s decision to Br. 1252(a)(2)(C), all routes to 21-24; at post government at 29. The the courthouse are not closed when there maintain, dissent nonetheless despite the relief.”); an opportunity is for habeas longstanding presumption against retroac- INS, Flores-Miramontes v. 212 F.3d tivity, that IIRIRA’s applica retroactive (9th Cir.2000). permissible tion is unless can certainly demonstrate that he “almost re sum, the mandate of section lied” upon ability to take brief trips 1252(a)(2)(C) ju that “no court shall have abroad plea. when he entered his Post at risdiction to review final order of re 325, 121 citing Cyr, St. 533 U.S. at S.Ct. moval” plainly extends to all claims on 2271. And sug further review, direct including constitutional gests that it can presumption defeat the claims. Cyr’s holding That St. rested on against retroactivity merely by notifying the purported legal and historical distinc aggrieved parties of the adverse conse “jurisdiction tion between to review” and quences of the statutes it seeks to enforce 311-312, corpus,” “habeas see 533 U.S. retroactively. confirms that such is the correct interpretation Believing section requirements these twin 1252(a)(2)(C)’s unambiguous prohibition. would all but turn the presumption against 1252(a)(2)(C) should, head, Section accordingly, retroactivity on its we hold that reli- (whether be exception. enforced without subjective objective) The con ance or is trary interpretation petition would allow requirement impermissible not a retro- multiple ers opportunities pursue activity their government’s and that the notice is juris- constitutional claims the face of a impermissibly insufficient overcome the Olatunji’s rely. proposed imposition subjec- of a IIRIRA on effect of retroactive requirement tive reliance is understanda- guilty plea.2 light Supreme ble in Court’s confus- A. subject, beginning treatment of the here, Landgraf continuing through Cyr. St. Where, Congress has However, subjective we do not tempo a statute’s believe clearly spoken as to is, be, ought or relevant to the begin “presump application, ral we legislation” question particular statute is against tion retroactive, jurispru nation’s “deeply rooted our as such is nei- Products, dence,” Film Landgraf by Supreme precedent v. USI ther dictated (1994).3 244, 265, 114 congres- S.Ct. nor presumption 511 U.S. related to impermis to have an A statute will be held underlying against sional intent the bar away it “takes effect when retroactivity. sible retroactive under rights acquired impairs vested A careful review of both the basis for laws, obligation, a new existing or creates judicially-imposed presumption against a new duty, a new or attaches imposes and the Court’s ret- or con respect to transactions disability, roactivity jurisprudence shows that already past.” sideration legal fact that IIRIRA has attached new (quoting Society is, consequences Olatunji’s guilty plea 22 F. v. Wheeler Propagation Gospel alone, claim, sufficient to sustain his (C.C.D.N.H. 13, 1356 No. Cas. necessary. that no form of reliance is If 1814) J.)). “[T]he'judgment wheth (Story, form were understood as some of reliance retroactively particular statute acts er teach- required by Court’s by familiar guided informed and should be subject, only objec- ings on the could notice, re of fair reasonable considerations impossible It tively reasonable reliance. liance, expectations.” and settled Land teachings require- to infer from those 270, 114 S.Ct. 1483. graf, subjective proposed ment of government and the dissent. Whether, Landgraf framework, party must dem aggrieved on a

onstrate some form of reliance question congres- of Retroactivity that a later- is a in order to establish statute congressional face of retroac sional intent. impermissibly enacted statute is given of a temporal silence on the reach Supreme tive has not been resolved statute, did presumed Congress it is and the dissent Court. applied claim, for the statute to be Landgraf, under intend purportedly retroactively. Landgraf, 511 U.S. that he “almost must establish (“Since 271, early days 114 S.Ct. 1483 certainly upon” pre-IIRIRA relied law Court, declined, 30-31; give detriment, Br. at of this we Respondent’s his burdening to statutes retroactive effect post citing Cyr, at 43-44 ,had made 2271, rights Congress unless 325, private that he did not so statutory conceded that the rele- Olatunji’s 3. The Government has we hold that 2. Because relief, portions contain "effec- vant of IIRIRA do not retroactivity entitles him to we claim provisions "temporal tive date” or reach” claim that his removal under do not reach his step of must reach the second that "the Court constitutionally prohibited under IIRIRA is Landgraf Respondent’s Br. at 25- test.” Clause, Due Process the Fifth Amendment's 26. 286, intent.”); change id. at 114 S.Ct. the nature and extent of the clear its (“A pro- legislator supported degree who the law and the of connection reasonably oppose spective might operation statute between the new rule of the same statute. application past Any and a relevant event. test of Indeed, retroactivity there is reason to believe room will leave for dis- express retroactivity provi- cases, ... agreement unlikely omission of in hard and is ... passage classify sions was a factor of the variety legal the enormous bill.”). gov- Neither the dissent nor the changes perfect philosophical clari- subjec- However, attempts ernment even to relate its ty. retroactivity is a matter requirement to this funda- judges tive on which tend to have ‘sound prohibition instincts,’ on underpinning mental consider- familiar statutory retroactivity. notice, ations reasonable reli- of fair ance, expectations and settled offer understanding Consistent with guidance. sound retroactivity question congressional is a intent, historically (citations courts have asked sim- 270, Id. at 114 S.Ct. 1483 omit- ply question ted) whether the statute in at- legal consequences tached “new to events Landgraf’s ambiguous treatment of reli- completed before its enactment.” Id. at ance generated substantial confusion 268, Thus, 114 S.Ct. 1483. as Justice Sto- party prove as to whether a must some ry formulation, oft-quoted wrote form of reliance in order to demonstrate statute, “every away which takes or im- impermissibly that a statute is retroactive. rights pairs acquired existing vested This confusion within exists laws, obligation, or creates a new imposes Court, in postdating its decisions Land- duty, disability, a new or attaches a new graf. Compare, e.g., Hughes Co. Aircraft respect to transactions or considerations Schumer, ex United States rel. 520 U.S. already past, retrospec- must be deemed 946, 117 S.Ct. 138 L.Ed.2d 135 Society tive.” Propagation the Gos- (1997)(holding that the elimination of cer- Indeed,

pel, 22 F. Cas. the Land- qui tain defenses to tarn suits under the graf Court itself relied numerous False Claims Act was retro- cases where the determina- active discussing Hughes without appears tion to have been based exclusive- detrimentally Aircraft relied ly question on the factual of whether the scheme), statutory with St. “change[d] legal statute consequences (ob- 150 L.Ed.2d 347 completed acts before its effective serving that aliens who had entered date.” Id. at 268 n. 114 S.Ct. 1483. agreements prior to IIRIRA’s enactment decisions, Recent begin- had possibility receiving relied on the itself, ning Landgraf admittedly with can 212(c) section holding waivers and that suggesting be read as Story’s that Justice IIRIRA retroactively applied could not be formulation is not necessarily the whole of aliens). to such The confusion extends retroactivity the In inquiry. Landgraf, for throughout Appeals. the Courts of Com- example, the Court noted the influence of pare Ponnapula Ashcroft, v. 373 F.3d 480 Story’s formulation, Justice but then ob- (3rd Cir.2004) that, (holding irrespective served as follows: reliance, subjective IIRIRA cannot ret- be 212(c) particular

The conclusion that a rule roactively applied as a bar to section operates “retroactively” comes at the discretionary waivers to aliens who de- process judgment concerning end of a plea agreements go clined and elected to Reno, applied Act to trial), Rights 319 F.3d could be Rankine v. Cir.2003) (2d (holding occurring that IIRIRA conduct before the Act. 93, 99 un- retroactively acknowledged as to court that “concerns of applied a bar could 212(c) expectations discretionary surprise upsetting waivers fair section in the case of to trial because are attenuated intentional go who elected aliens discrimination, detrimentally has employment which petitioners of these “none generation,” a in on contin- been unlawful for more than reliance changed position 212(c) impermis- but nonetheless held the statute for relief’ and be- eligibility ued reliance, sibly the “[e]ven in “it and the retroactive because where cause status, morally reprehensi- in immigration question conduct consequent change illegal, degree impermissible retroac- ble or a of unfairness the produced that IIRIRA”). And, imposes inherent whenever law addi- unsurpris- tive effect of on conduct that occurred among exists tional burdens ingly, the same confusion past.” In Id. at n. in the courts. in the to suit federal parties case, government vacillated very pointed question of to the response in Landgraf That the Supreme Court requirement remains a reliance whether impose requirement did not intend a Hughes after Aircraft. by Hughes is confirmed reliance Aircraft. There, en- held that the elimination Although Landgraf’s, ambiguity has Court qui certain tam suits under amount of confu- of defenses gendered significant a False Act not be sion, Landgraf’s holding applied nor sub- Claims could neither authority retroactively Hughes Aircraft. And it supports sequent Supreme Court single even Cer- so held without a word subjective requirement. Hughes Air- of discussion as to whether tainly Story’s familiar statement Justice matter, similarly statutory or, that situat- determining test for retroac- for craft — on Hughes held in contractors —had relied tivity the Court ed —which to its detriment. demonstrate ret- the eliminated was sufficient to defense Aircraft contention, if re- Contrary to the dissent’s roactivity no of reliance. mention —makes requirement, indeed Aircraft, 520 liance were Hughes certainly would have ad- there rea- almost 1871. And neither is Court or least remanded subjective question instinctively to believe dressed son determination a consideration factual properly should be had had not relied analysis: Hughes Aircraft or plain- Whether a prior statutory scheme. It is rely statutory not on a tiff did did simply exceedingly unlikely that the Court to whether is irrelevant scheme factor. has retroactive effect overlooked scheme fact is,” “It the Third Circuit plaintiff. enough, own if not our And this were noted, strange ‘presumption’ “a Hughes Air- interpreted has so Circuit only heightened on so a show- that arises Crocetti, Velasquez-Gabriel craft. Ponnapula, 373 ing as actual reliance.” (4th Cir.2001), only 263 F.3d Hughes emphasize did we Aircraft Act False Claims that the amended confronted the Landgraf, “h[eld] retroactively discussing without Rights operated Act of of the Civil question whether detrimentally on any relied right party to recover whether which created a that law,” we ourselves stated but punitive damages previous compensatory “[tjhat not Velasquez-Gabriel did fact of Title VII the Civil certain violations rely not, detrimentally may on law Velasquez-Gabriel, effective date. 241(a)(5) however, a claim that F.3d foreclose at 109-10. Chambers was denied operates retroactively.” relief IIRIRA nonetheless did not attach new Reno, also v. F.3d consequences past Chambers 292- to his “relevant con- (4th Cir.2002) (“In duct,” trial, namely view these obser- his to go decision by Hughes vations the Court and was therefore [in ] not retroactive in Aircraft fact retroactivity, Chambers, acknowledged Thus, about we have 307 F.3d at 293. Cham- that an alien’s failure to demonstrate reli- bers did even fall not under the Justice pre-IIRIRA might Story ance on law not retroactivity fore- framework because his that post-IIRIRA go close a claim version “decision to to trial not did render him operates retroactively.”). of the INA deportable subject In- depor- or him to certain tation, explicably, the dissent not regardless does even at- pre- post- tempt interpreta- to address our Circuit’s applied.” IIRIRA law Id. (emphasis in tion Hughes Indeed, in the original). context that IIRIRA was not Aircraft IIRIRA retroactivity substantively claims. retroactive to Chambers’ rel- past evant conduct was the exclusive dis- The dissent that our maintains Circuit tinction by offered the Chambers court to Chambers, has held in Velasquez-Gabriel, Velasquez-Gabriel’s reservation that un- Reno, (4th Tasios der Hughes alien is not foreclosed from Cir.2000) required that reliance is in order challenge IIRIRA by his to find a statute retroactive. inability subjective to demonstrate reli- Post at But 25-27. it has not. The dissent ance. Id. simply misreads these authorities. none of these cases did hold we that an to say Suffice it Velasquez- neither alien must show ability detrimental reliance Gabriel’s to avoid the costs of IIRI- pre-IIRIRA law to a retroactivity establish RA’s enactment nor inability Chambers’ claim. While Velasquez-Gabriel and demonstrate IIRIRA was substantive- Chambers, peti- ly we concluded that neither Story’s retroactive Justice frame- law, tioner upon pre-IIRIRA had relied in work way Olatunji’s bears in on claim. both cases we specifically below, declined—in As demonstrated could not light of Hughes rest our hold- avoid the cost of IIRIRA because that Aircraft —to fact, on this conclusion. legislation as the entirely either foreclosed his preceding quotations ability from these cases to travel abroad —a cost not attend- clear, make far from holding ant to plea agreement it subjected —or is the qua retroactivity, sine non of him both to deportation upon reentry. For the Velasquez-Gabriel reason, Chambers and pre- said same IIRIRA’s on Olatunji effect cisely the opposite, that aliens indisputably even who is substantively, retroactive detrimentally not pre-IIRI- fact, relied on i.e. under Justice Sto- RA law can ry’s sustain claim that IIRIRA is formulation.

impermissibly retroactive. Tasios holds nothing different from

Velasquez-Gabriel, “represent- who was Velasquez-Gabriel. Chambers or In Tas- by time,” ios, ed counsel the 440(d) entire was denied we held AEDPA section relief because he completely could have had undeniably “an retroactive effect” avoided the pre-enactment retroactive effect IIRIRA guilty pleas and therefore adjust applying to pre- his status under could pose a bar to discretionary relief law, 212(c). IIRIRA including during Tasios, the six under section 204 F.3d at months between IIRIRA’s passage Confronting and its the “dictum” from De (4th 1034, INS, flowing Landgraf.... Cyr from St. was an 1041-42 v. Osorio Cir.1993) easy the retroactivity “the could not case on issue.” Pon- that De Osorios they napula, (quotation relied on the at argue that 373 F.3d 492-93 plausibly omitted). discretionary relief when availability of laws,” drug to violate the Tas-

they chose Altmann did not establish a likewise tos, explained we that “we 204 F.3d it is requirement. While indeed analysis to the conduct not limit our do Altmann, points noted in as the dissent felony in the conviction.” In- resulted out, the “aim of presumption held, stead, guilty pleas we and conces- [against retroactivity] tois avoid unneces- deportability are also “conduct” sions sary post changes legal hoc rules imper- can “legal effect” of which parties shaping pri- which relied their en- missibly by subsequently “determined conduct,” Altmann, mary at 2252 S.Ct. Id. at We did observe acted law.” added), the Court neither said these that the relevant difference between nor legal held for de- framework completed conduct categories previously termining impermissi- whether statute (ie., felonious offense and lawful bly includes retroactive consideration of concession) was possibili- or agreement Rather, quoting Landgraf, reliance. Alt- But we ty ].” ] “reasonable! reliance! mann describes “the presumption against holding granted relief without even —or application” as follows: matter —that Tasios discussing for that he required to demonstrate that sub- When, however, the no statute contains 212(c) jectively on section when he relied such court express command the must plea. entered his determine whether the new statute effect, ie., would have retroactive holding only today And is our consis- not impair rights it a party whether would precedent, circuit it is also tent our acted, he increase possessed par- when precedent, Court consistent with conduct, ty’s liability impose past for notwithstanding the dissent’s contention respect transactions new duties with that our otherwise. The dissent claims If already completed. the statute would holding Cyr with both St. conflicts operate retroactively, our traditional — Altmann, Austria Republic U.S. it presumption teaches does (2004). -, S.Ct. 159 L.Ed.2d govern congressional clear intent absent It conflicts with neither. favoring such a result. Cyr requirements not alter St. did retroactivity. Cyr quoting Landgraf, Id. at 2250-51 establishing for St. dis- only reli- Cyr], 114 S.Ct. 1483. Not [St. the fact that “aliens like cussed conspicuously ance absent from “Land- certainly almost relied that likelihood rule,” discretionary graf default as Altmann Court receiving relief under [of 212(c) test, governing see 124 forgo described S.Ct. deciding ] but Altmann’s formulation stands right to a trial.” St. 533 U.S. at their yet further confirmation that the Su- 2271. But St. did not Story’s preme intends Justice subjective add a reliance re- Court purport rather, application Landgraf framework be sufficient quirement; applied id., presumption,” “traditional of facts that indicated “an obvious a set (em- retroactivity. While Altmann against Id. and severe retroactive effect.” presumption reaffirms that the regarded phasis The “Court reliance inter- straightforward against result serves Cyr as a clear and ests, that just it also confirms reliance is not a validate only this. Not does the dis- retroactivity. requirement of (internally sent admit inconsistent with its opinion) own that the court in- has never sum, presumption the historical upon sisted reliance as a requirement against application of statutes analysis, also, by way but require did not reliance. Neither Land- omissions, betrayed the dissent has its own graf subsequent Supreme nor Court au- understanding that a operate statute does imposes such thority any requirement. if, alone, retroactively it legal attaches new And we believe that the consideration of consequences prior to conduct. is to statutory irrelevant retroac- analysis. tivity prominently dissent quotes the Su- formulation, Story’s preme Court’s Justice which the observation that “the Court used Supreme consistently Court has various to has relied describe formulations only conception the functional upon, legislative asks ret- statute fact roactivity, effect, and made no suggestion has retroactive and we ask no would Story’s If Justice presumption more. the is formulation was the exclu- that Con- gress sive definition operate presumptively impermis- does not intend statutes to (and retroactively legislation,” presumption post that is sible retroactive the see indulge), quoting Hughes, we then it that if 520 U.S. at follows a statute Unrecognized does in impose legal new conse- fact dissent, actions, quences past quoted the Congress not observation actual- did ly majority’s intend such. the establishes the particular peti- point Whether and re- tioner that of subjectively rely upon namely did did not futes the that the dissent — prior Supreme the statute Court has nothing variously or scheme has articulated requirements to to Congress’ retroactivity, whatever do with show intent —the has very for presumption against upon require- basis never insisted ment, statutory It retroactivity. thing consistently is has concluded one indulge Story’s Justice supportable presumption formulation is “sufficient Congress for invoking its the presumption against intends enactments not to operate retroactivity.” Hughes, it retroactively; alto- another U.S. gether different, indulge quite 117 S.Ct. 1871. unsupported unsupportable, presump- Moreover, in further quotation of the intends, tion Congress only so but Court, the dissent states that “a particular where the petitioning party can operate statute does not ‘retrospectively’ prove subjectively that he relied on the merely because it is applied a case prior statute to his detriment. other arising antedating from conduct the stat- words, Congress where apparently enactment, or upsets expectations ute’s given thought no question to the retro- law,” in prior post based quoting at 28 activity whatever, there is no basis Landgraf 269; rather, inferring that Congress’ intent was asserts, confidently dissent it is “reliance” more nuanced than that statutes should that the requires in addi- not held apply retroactively. Any- conduct, tion to mere application more,

thing in the face of complete con- in order for a law be impermissibly gressional silence, nothing judicial but again, retroactive. But only once not does legislation. passage from which quotes the dissent Though Judge Baldock other- interpretation believes bear imposed wise, we actually dissent; understand his dissent passage by affirmatively majority point upon which proves 2. very the next For the dissent omits rests. Olatunji to is entitled relief under it quotes following the sentence sentence that governs the framework we conclude sen- It is in this omitted Landgmf. from retroactivity determination. After his the what must explains that the Court tence guilty plea but to IIRIRA’s to whether statute enactment, asked addition Olatunji would have been free antedating its enact- to conduct as applies trips trip to take brief abroad —such there, And, to tellingly, subjecting the Court himself ment. London—without proceedings. previously ap removal The as the further identify not “reliance” does plicable governing perma statute lawful as dissent would have one the inquiry, reentry the nent resident into United “[R]other,” the Supreme said believe. States, 1101(a)(13), pro former 8 U.S.C. Court, whether the “the court must ask vided: legal attaches new conse- provision new “entry” any coming The term means completed before its en- events

quences States, an alien into the United from a actment,” standard that precisely the id.— foreign port outlying from an place or or (the today.4 majority) adopt we voluntarily or other- possession, sum, that the dissent asserts concern wise, having that an alien a law- except Supreme prece- Court “ignored we in the permanent residence United ful has dent,” precedent the Court’s claiming making not be as regarded States shall for reliance a “central role” established entry the United States the into for at analysis.” ... Post “the immigration the laws the purposes of if it to take this assertion of 23. But is hard proves to the the alien satisfaction of For, only it be- seriously. not concern Attorney departure to General that his the yond dispute Supreme that Court foreign place outlying or or to an port in order hold insisted not possession not intended retroactive, es- law as we Fleuti, Rosenberg itself ac- tablish above and the dissent 83 S.Ct. L.Ed.2d (albeit knowledges unwittingly); but it (1963), Court held that refuses even address the dissent under departures that were “not intended” precedent that it con- re- statutory exception entry to the precedent, which as we “ignore,” tends we “innocent, casual, and quirement included demonstrate, not that reliance is 461-62, does hold Id. trips abroad. 83 S.Ct. brief’ and, indeed, impermis- laws required holds Olatunji contends under 1804. without even so much as sibly retroactive not Fleuti doctrine he would have been “entry” of the “reliance” that the dissent into United required mention seek steadfastly day trip to the after his nine London. maintains is essential States only that he was retroactivity analysis. further contends succeeding by Landgraf the dissent. authority sentence omitted cited in between sentences, There, Republic explained two National Bank while these Thomas Justice States, Miami v. United restricting enlarging "newly enacted laws (Thom- (1992) actions,” 121 L.Ed.2d "pending jurisdiction” apply to all as, J., concurring concurring part jurisdictional rule does "this affect sen- judgment), further confirms that first general is not to be principle a statute oblique to a tence is not an reference such given effect unless construc- requirement, further confirmation were if language.” Id. required explicit tion is beyond explicit point made in needed 39 (3rd Cir.2004). said,

required to seek “admission” under IIRI- 373 F.3d 480 This we thereby subjecting himself to remov- must admit that it is unclear in what to us RA' — proceedings of his 1994 guilty circumstance, al any, if reli- “reasonable —because court, plea. gov- (or Neither the district should) ance” inquiry yield will least ernment, nor disagrees the dissent a conclusion different from that reached 203; Respondent’s these contentions. J.A. Story’s Justice framework. For (“Petitioner 23-24; post Br. 29at could would seem never to be unreasonable briefly have abroad ... traveled without to rely upon duly one promul- enacted or any consequences.”). gated law. Whether the time, thinking

The was or not at dissent’s observations that “IIRIRA such its Landgraf had no effect on decisions in sendHughes whatsoever Petitioner’s Aircraft same, agreement rights no plea suggest and Petitioner because in both cases might during plea have bargain- acknowledged obtained the Court that the parties eliminated,” post have been any do had relied little —if stat- —on utes, not bear on IIRIRA whether has attached but in both instances later held the legal consequences Olatunji’s new to plea. enacted statutes to be impermissibly retro- Olatunji does not claim IIRIRA af- active. particular terms agree- fected of his Ponnapula, Third Circuit held deprived ment or him consideration ob- changes respect IIRIRA’s dis- to during bargaining tained process; 212(c) cretionary waivers under section rather, he claims IIRIRA has attached retroactively could not be applied to aliens legal consequences new to the conviction plea who had declined deals proceeded and plea. that resulted from his The dissent trial, irrespective subjec- those aliens’ dispute does not this contention it because observed, tive reliance. The Third Circuit admits “Petitioner could have briefly as we have suggested, subjective reli- traveled abroad in without any conse- ance is inconsistent with Supreme Court quences,” post at but that he is now precedent aggrieved because the parties deportable because of IIRIRA’s treatment Landgraf Hughes and could Aircraft guilty plea. of his Id. have made such a showing, id. at and Accordingly, we that Olatunji conclude subjective because reliance is inconsistent

has established that IIRIRA impermis- is with “the language presumption in sibly retroactive it indisputably Landgraf progeny.” and its Id. at 490. legal consequences attached new to his The concluded, Third Circuit further we plead guilty. decision to concluded, Cyr that St. did not estab- lish a subjective requirement. reliance And it went on hold that that ease clear, As the foregoing makes we imposes instead a “reasonable reliance” re- reliance, form, believe is irrelevant because, alia, quirement inter “the Court’s the retroactivity inquiry. To the extent holding is not limited to those aliens who that it could or should be understood as actually relied on the availability of required in order to impermissi establish 212(c) relief.” Id. at however, ble retroactive effect we would original). insist most objectively reasonable (as

reliance opposed subjective to the Relying Cyr, reli on St. Landgraf, Hughes proposed by ance government Hadix, Aircraft, and the and Martin dissent). See, e.g., Ponnapula v. Ashcroft, 144 L.Ed.2d 347 ability their (1999), the rea- continued take brief explained the Third Circuit trips they pled guilty. when abroad requirement as follows: sonable reliance interest here no less [Cjourts group concentrate on the are to Hughes than in attenuated statute ad- to whose conduct Aircraft Landgraf. explained Cyr, “[pjlea As in St. it employers Landgraf was dressed —in agreements quid pro involve a be- quo VII; in Hughes subject Title Aircraft gov- tween a criminal defendant contractors; in Ha- government it was exchange per- ernment some attorneys performing prison was it dix benefit, ceived defendants waive several services; monitoring in St. reform rights (including their constitutional accepted agree- aliens who was trial) grant right determining a view to ment —with ” ‘tangible numerous benefits.’ reasonable. 321, 121 2271. In 533 U.S. at addi- explained further The Third Circuit Id. to preceding, entering plea tion aliens that, Hughes with and consistent Aircraft of agreements forgo possibility prevail- will reliance” fre- Landgraf, “reasonable thereby and avoiding trial convic- substantially more attenuated be quently Moreover, tion. “there can little doubt But, said, Cyr. was in than it St. that, matter, alien general a defendants may have fact that an interest been considering plea whether to enter into a attenuated, however, had little sali- of agreement acutely are aware the immi- analysis Court’s ence gration consequences of their convictions.” For retroactivity questions. ex- other Thus, alien, Olatunji, Id. an like could rea- unlikely that ample, ex ante it was sonably the ramifications have considered given govern- Hughes any Aircraft —or plea immigration his on his sta- guilty to ment contractor —would need avail tus, including implications its for travel a against of a defense qui itself specific abroad. action; Film or that Prod- tam USI merely This hypothetical. is not Olatun- subject to any given employer ucts—or immediately ability to ji’s plea limited find itself accused of Title VII —would permitted engage in travel other than meriting punitive discriminatory conduct Brief for by the doctrine. Petition- Fleuti anyone damages. In neither case would 1182(a)(2)(A)(i)(I). 31; § 8 U.S.C. er ante, claimed, that the affected have ex Cyr, can be little doubt” Under St. “there than a companies anything had more Olatunji’s position that defendants seriously highly contingent thus —and “acutely aware” of these would have been then-existing attenuated —interest consequences of “immigration pre-IIRIRA state the law. respect to travel. their convictions” Id. at 495. minimum, accepted plea At a who aliens to reason- agreement prior IIRIRA could Olatunji If it would govern, to were ability ably continuing relied on their have course be entitled relief this trips to take abroad. brief As in framework as well. in- The that this reliance dissent claims conduct 8 U.S.C. group whose aliens, 1101(a)(13)(C) “Petitioner like terest is defeated because § is addressed is in 1994 briefly traveled abroad agreement could have Olatunji, accepted who consequences he was without to IIRIRA’s enactment. rele then, aliens, government property, theft of acquitted of inquiry, is whether these vant government guilty to the theft of reasonably pled objectively, might have relied by jury party or convicted of theft of property, opportunity future avoid property.” consequences, Post at 29. not as a government warning While that the past an accurate statement fact—and an il- has attached new costs of IIRI- conduct. lustration the retroactive effect RA—this does not observation address the This conclusion is consistent with Su- reality similarly other preme Court Circuit authority holding reasonably aliens situated could have un- that statutes do not plea agreements derstood their as a limi- party effect when a has an opportunity to ability tation their travel abroad avoid all of new consequences. its prohibition. than an outright rather That Hadix, Martin v. aliens, if of these faced with IIRI- some 1998, (1999)(holding L.Ed.2d 347 travel, foreign effective might RA’s ban on 803(d)(3) section Lit- Prison Reform go have elected to to trial no less attenu- (“PLRA”), igation Act caps which attor- ated than the notion that the defendants ney’s pursuant fees awarded U.S.C. Landgraf already would have altered their applied exclusively per- to services illegal conduct in face of increased formed after the enactment of PLRA compensatory punitive damages. attorney “[i]f does not wish to perform new, pay services lower

B. rate, she can choose not to work. In other arguing addition to that Ola words the PLRA has future effect on tunji’s claim must fail because he has not work; future does not this raise retroactiv- reliance, subjective govern established the ity concerns”); Velasquez-Gabriel, 263 ment maintains that IIRIRA is not imper 109-10 (holding that IIRIRA missibly retroactive because it was enacted was not retroactive because Velasquez-Ga- prior Olatunji’s decision travel abroad briel had ample opportunity to for a apply and that he therefore should have been on adjustment law, status pre-IIRIRA notice of requirements. Respondent’s its including the six IIRI- months between atBr. 27-28. court adopted The district RA’s enactment according [when— reasoning this when it held that “the 1996 dissent —he would have been on notice] IIRIRA applied amendment has been pro date). and its effective spectively occurring post-enact events

ment,” namely Olatunji’s decision to travel IV.

abroad. J.A. 204. The Supreme Court repeatedly has

But Olatunji not claim does judiciary counseled that the presume is to IIRIRA is Congress, retroactive as to that unless has expressly stat- abroad; rather, his decision to otherwise, travel ed he does intend its statutes contends IIRIRA is retroactive as to operate retroactively. to his gov- As even the plead Moreover, decision to guilty. concede, ernment and the dissent IIRIRA that Olatunji fact should have unmistakably discontinued had retroactive effect foreign all Olatunji’s travel after IIRIRA’s enact guilty plea. Because reli- merely ance, ment its reliance, confirms retroactive effect particularly subjective guilty on his plea. no required had notice is not impermissible to establish Congress the time retroactivity, would we hold that this retroactive subsequently effectively prohibit decide to effect impermissible. Because the him from traveling have, government’s abroad. Notification is “notice” could not only not, relevant provides effect, to the extent that it negate impermissible did this A. he seeks. relief Olatunji is entitled of the district Accordingly, judgment opinion ignores Supreme Court’s court is reversed. undeniably Reliance precedent. Court plays Supreme a “central role”

REVERSED retroactivity analysis. this Court’s Just term, explained the Court BALDOCK, Judge, Circuit [against Senior “aim of retroac- presumption tivity] unnecessary post hoc is to avoid dissenting. changes legal parties on which rules opinion runs afoul Because this Court’s shaping primary relied in their conduct.” and Fourth Circuit Supreme Court — Altmann, Republic Austria v. as it is equally puzzling precedent, 2240, 2252, -, 159 L.Ed.2d S.Ct. light I dissent. unpersuasive, (2004) added). Further, (emphasis the Su- opinion, the Government erroneous Court’s preme repeatedly Court counseled rehearing en banc on seek presumably will particular of whether a judgment impermis- IIRIRA is issue retroactively should in- statute acts applied to Petitioner. sibly retroactive “familiar considerations of fair formed pro- participate notice, reliance, I in such Because cannot and settled ex- reasonable why, I ceedings, fully pectations.” Landgraf forth the reasons v. USI Film Prod- set ucts, 244, 270, 511 U.S. remains a relevant point, at this (1994) L.Ed.2d retroactivity analysis. in a factor clearly predominated the Su- Reliance inappropriately propagates a The Court analysis in INS v. preme Court’s in the law of retroactiv- change substantive 289, 121 150 L.Ed.2d imper- to find IIRIRA In its effort ity. (2001). There, Court ease, missibly “[bjecause respondent, and ultimately held (whether subjec- broadly “reliance holds him, re- certainly other like almost aliens objective) of requirement or is a tive receiving dis- likelihood th[e] [of lied at retroactivity.” Op. 388. impermissible in deciding whether cretionary relief] chides holding, In so the Court Gov- trial, the elimination forgo right to a their suggest- and the dissent for even ernment 212(c) by of relief IIR- any possibility of in reliance a factor is retroactive IRA an obvious and severe has complete broad and analysis. The Court’s 325, (empha- 2271 Id. at 121 S.Ct. effect.” however, reliance, unsup- dismissal added).1 also rec- The Fourth Circuit sis might holding The Court’s be portable. clearly “key ognized that reliance was writing on a clean if we were defensible retroactivity analysis. Cyr’s event” in St. ignores slate, not. but we are The Court Reno, 284, F.3d 290 v. 307 Chambers prece- and Fourth Circuit Supreme Court (4th Cir.2002), the Fourth example, dent, and, large body dismissing such a in in key event terms explained “[t]he Circuit turns its “confusing,” the Court analysis of law whether the new Cyr’s of St. of its implications on the substantial a retroactive effect produce back statute would in decision to abandon proposition I address each was the alien’s opinion. will plead trial right to a constitutional turn. directly See mining authority controls. us to what Supreme Court has directed fol- The 1. 203, Felton, 237, 117 Agostini 521 U.S. analogous precedent— v. Court low most (1997). S.Ct. 138 L.Ed.2d 391 obviously Cyr deter- in this case—when St. 400 deportable Story’s offense in

guilty to a formulation in employed Landgraf, Further, 268-69, Velasquez-Ga- on prior law.” U.S. at should exclusive Crocetti, (4th briel v. test of impermissible retroactivity. See Cir.2001), the Fourth Op. formulation, Circuit noted that Under 393. this courts “heavily Cyr Court St. relied” on the look to a away statute takes or fact that aliens like impairs rights, “almost cer- vested creates a new obli- tainly gation, to their detriment” imposes relied duty, new attaches pre-IIRIRA disability law. past new transactions. See 269-70, Landgraf, 511 U.S. S.Ct. fact, acknowledges this Court the use Contrary assertion, 1483. to the Court’s in light understandable Supreme Court in Hughes Co. Aircraft “confusing Court’s treatment” of States, 939, 947, v. United 520 U.S. retroactivity. Op. See at 389. The Court (1997), specifi- L.Ed.2d 135 recognizes thus Court has cally stated “the Court has used various in determining utilized reliance whether a formulations describe the functional an impermissible statute has coneeptio[n] legislative retroactivity, and Court, effect. I do not Unlike believe made suggestion no Story’s that Justice we can refuge take the statement formulation was the exclusive definition of “confusion exists within the Supreme presumptively impermissible retroactive Court” in order to ignore binding prece- legislation.”2 Instead, Op. dent. See we judges apply the inferior courts must the law as B. the Supreme Court directs. Hutto v.

Davis, 370, 375, opinion ignores Court’s Fourth Cir- (1982) curiam) (per L.Ed.2d 556 (noting cuit precedent. The Fourth Circuit has anarchy prevail “unless we wish within consistently used reliance as factor in judicial system, precedent the federal of determining whether a statute has im- must be Court followed the lower permissible retroactive effect. See Tasios federal courts no matter how misguided Reno, (4th 204 F.3d 550-52 Cir. judges may those think courts it to 2000); Velasquez-Gabriel, 108; 263 F.3d at be”). This Court’s concession the Su- Chambers, 307 F.3d at 290.3 preme utilized the reliance fac- Tasios, begin, To Judge Michael, tor precludes holding it from otherwise. court, writing for the addressed the issue

Moreover, in its effort to discard of reli- whether eliminating discretionary relief entirely, ance suggests the Court after pled Justice an guilty alien in reliance on repeatedly my Moreover, 2. The Court belies dissent. 3. Re- our sister circuits also rec- liance, ognized my opinion, that reliance is a in is not the relevant factor exclusive in a retroactivity analysis. example, For in Ran- retroactivity analysis. factor in a On the con- Reno, (2d Cir.2003), kine v. 319 F.3d 102 traiy, Story's equally Justice formulation is the explained Second Circuit "the issue of determining relevant when whether a statute played a central role in the Su- light has a Cyr retroactive effect. In of St. and preme Court's and the circuit courts’ reason- however, precedent, Fourth Circuit respect to the of IIRI- undoubtedly plays a “central role” in such added). (emphasis RA.” Additionally, and, analysis contrary holding, to the Court's INS, First Circuit noted in Dias v. 311 F.3d entirely. cannot be discarded See St. 533 (1st Cir.2002) curiam), (per that a 323-25, 2271; Chambers, U.S. at analysis "retroactivity must include an exami- 307 F.3d at 290-92. guilty plea nation of reliance in a situation.” added). (emphasis attempt at 553. This Court’s ironic impermissibly retroactive. relief was such According Judge Mi- should implicitly go F.Sd at 551. overrule Tasios court, a reliance was opinion Maryland, for the chael’s unnoticed. See Booth v. (4th Cir.2003) explained: factor. He very relevant (explaining F.3d “on reasonably rely quite could settled panel no one of “[i]t While discretionary availability of a waiver a prior panel. Only circuit cannot overrule that”). choosing engage when deportation the en banc can do there illegal drug activity,” are in Fourth on expounded Judge The Circuit per- in which a least two circumstances in reasoning Velasquez-Gabriel, Michael’s reasonably modify his conduct son could There, F.3d at the Fourth 108. Cir- 212(c) §of on the prospect in reliance explained in cuit St. First, might an relief. alien waive (1) “heavily Cyr relied two factors ... to crimi- plead guilty right trial like had Cyr significant aliens St. likeli- lighter banking on a sen- charge, nal they receiving sought hood of relief the availabili- preserve tence that would (2) they under the old law and almost 212(c) Second, an § of a ty waiver. certainly relied likelihood de- might deportability, concede alien Id. 108 (emphasis their detriment.” defense, know- spite having a colorable (internal added) quotation and citations provide facts of his case ing that the omitted). The court noted that these two 212(c) § possibility of relief.... good also our factors “formed basis of retro- defense possibility a successful [T]he in activity holding (emphasis Tasios.” Id. categorically. At cannot be ruled out added). in Velasquez-Gabriel court rea- confirms that was least one fact ultimately petitioner’s case concluded the rely on pros- an alien to sonable for from critically differed Tasios 212(c) § pleading relief when pect he failed to demonstrate “a rea- conceding in the guilty deportability: pre- likelihood of success under sonable immediately preceding the enact- years IIRIRA law nor a detrimental reliance on AEDPA, judges immigration ment of added). (emphasis Reli- pre-IIRIRA law.” granted over half of the BIA role played thus an in the ance obvious 212(c) applications they decided. analysis imper- IIRIRA was (internal quotations and Id. at 551 citations in missibly Velasquez-Gabriel.4 retroactive omitted) Judge Mi- Building upon Judge Michael’s again analysis chael’s Tasios focused almost Tasios, reasoning Fourth Circuit exclusively Never did on reliance. once as a relevant factor utilized reliance court that consideration indicate Chambers, Chambers, Further, improper. Judge reliance was Fourth Circuit addressed whether specifically Luttig concurred Tasios and impermissible IIRIRA had joined the court’s resolution retroactivi- plea agreement. petitioner a The so, effect on Luttig In ex- ty. doing Judge never guilty proceeded not and pled in Chambers with the use of pressed any concern court’s exclusive, Later, the relevant, trial. id. at 290-91. if not See reliance as a analysis. pre-IIRIRA in id. he relied on petitioner argued a See factor said, clearly responds Fourth consid- The reliance was not the That the Circuit 4. Court qua retroactivity Velasquez- "sine in Velasquez- non" in ered reliance relevant factor Op. at The misses Gabriel. See 392. suggested it be and never once should Gabriel point. Again, suggest I never the reliance entirely. discarded supra 2. is exclusive. See at 389 n. factor guilty. not id. at pled argued law when he and Chambers and “[t]his case rejecting petitioner’s argu- not type 290. does raise the same of reliance ment, Cyr Circuit St. the Fourth discussed seriously concerns because cannot key explained “[t]he and event in terms of argue pled he in guilty reliance on Cyr’s analysis St. was the alien’s deci- procedures the admission that were in ef- right sion to his constitutional abandon fect plea.” (Aple’s time Br. at guilty deportable 31) a trial plead added). (emphasis parties The in this (em- prior law.” Id. offense in reliance quite case surprised will to discover a added). Thereafter, phasis the court held portion substantial their briefs were contrast, “[b]y alien [such an as Chambers] completely off-mark. goes preserve

who does not act to trial today opinion The Court’s an makes al- 212(c).” § eligibility INA Id. at under ready “confusing” area of law even more 290-91, analy- 2271. The court’s S.Ct. “confusing.” Litigants in the Fourth Cir- Chambers, therefore, clearly in sis demon- cuit will be left to what wonder is left of played strates reliance an role in obvious Tasios, Velasquez-Gabriel, and Chambers. retroactively IIRIRA determining whether Further, today’s has opinion potential effected petitioner’s agreement.5 to significantly upset immigration law (1), ways: pled two alien who guilty of C. 1182(a)(2) § offense listed in IIRIRA opinion only The not contra- Court’s before and was denied admission may Supreme venes Court and Fourth Circuit now file a petition; successful habeas precedent, beyond parties’ it well goes (2) opinion supplants the executive’s briefs in case. himself Petitioner legislative’s prerogative to create and spends pages in several his brief discuss- immigration enforce law essentially ing why he shown a reliance interest 1182(a)(2) writing IIRIRA out of the similar Cyr to the aliens St. and Cham- statute. 24-32). (Aplt’s bers. Br. at The Court also points out “the vacil- opinion The Court’s also flies the face lated in response pointed question to the of of the well-settled notion a “statute whether reliance remains a requirement operate ‘retrospectively’ does merely after Hughes Op. at The applied because in case arising from Aircraft.” Government “vacillated” conduct antedating the statute’s enact- is an ment, obvious relevant factor in a retroac- or upsets expectations based in tivity analysis Landgraf, Court and law.” fact, (internal precedent. Fourth omitted); Circuit Tasios, citations emphasized Government’s brief 204 F.3d at By discarding 550.6 suggests 5. The Court I have reasoning misread Cham- Court in St. bers, my reading. but I am not alone in Cyr, the court found that Chambers did not recognized import Second Circuit the clear possess "a comparable reliance interest Judge opinion lucid Traxler’s in Chambers: Cyr." that which was at heart of St. Decisions from other circuits are in accor- Rankine, (internal 319 F.3d at 101 citations holding. dance with our In Chambers omitted) Reno, Fourth Circuit held in case legally indistinguishable peti- from those succinctly explained 6. The Fourth Circuit repeal tioners here that IIRIRA's Chambers, 307 F.3d at that "the fact that 212(c) § impermissibly relief was not retro- deportable Chambers' conviction was not a applied active to when an alien convicted sentencing, offense the time of his but later aggravated felony. Using after trial of an reliance, Furthermore, notwithstanding holds a essentially stat- entirely, this Court merely of Petitioner’s case would also outcome ute a retroactive effect Story’s made a different not differ under Justice formula- might have an alien plead retroactivity analysis. to See deciding whether tion choice when 947,117 approach defies guilty. Hughes Aircraft, This 520 U.S. at S.Ct. guilty or course, are, commonsense; procedures most aliens 1871. IIRIRA’s admission away have argue they simply impair would made do not take or vested going laws, they existing had known law create rights acquired choice different have,” impose duty, “Would or change. obligation, was a new new going have,” disability does not respect or “should have” a new “could attach conduct, i.e., past retroactive. de- a statute relevant Petitioner’s make noted, As IIRIRA plead guilty. cision to had no effect whatsoever on Petitioner’s D. agreement and no Petitioner rights observations, and based these With bargain- might during plea obtained have and Fourth Circuit binding Supreme Court Simply, have eliminated. wheth- been Petitioner, precedent, I would hold travel and be er Petitioner could abroad aliens, did not al- similarly situated recourse never readmitted without was rely law certainly pre-IIRIRA most bargaining process. Accord- part former guilty. Specifically, pleading when application of IIRIRA to Petitioner ingly, 101(a)(13) Fleuti doctrine INA and the not have an unlawful retroac- simply does into an alien’s did not take consideration I therefore dissent. tive effect. pled Petitioner criminal conviction when Fleuti, Rosenberg v. guilty in 1994. (1963). Therefore, whether

L.Ed.2d guilty plea or was convicted via

Petitioner determining was irrelevant jury briefly could traveled

whether he have differently, Peti- in 1994. Stated

abroad CORPORATION, COMPAQ COMPUTER briefly traveled abroad tioner could tiff-Counter-Def consequences 1994 without Plain endant-Appellee, acquitted he of theft was govern- theft of pled guilty to property, by jury property, ment convicted Petitioner’s government property.

theft of INCORPORATED, ERGONOME squarely in line with Cham- case thus falls Defendant-Counter-Claimant- distinguishable from markedly and is bers Appellant, “almost certain- because Petitioner ly” agree plead guilty with the Brown; did not Stephanie L. Thomas that, conferring a Mowrey, “by benefit expectation Defendants- W. he would receive Appellants. government, on the Chambers, 307 F.3d at benefit return.” Ergonome Incorporated;

290; also St. see al., Plaintiffs, et enacted, retroactively.” operate cause IIRIRA after does not became so IIRIRA

Case Details

Case Name: Clifford K. Olatunji v. John Ashcroft, Attorney General of the United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Oct 19, 2004

Citation: 387 F.3d 383

Docket Number: 00-6650

Court Abbreviation: 4th Cir.