Lead Opinion
Judge STRAUB concurs in a separate opinion.
Petitioner, a legal permanent resident alien, seeks review of a decision of the Board of Immigration Appeals affirming the immigration judge’s denial of cancellation of removal for failure to satisfy the seven-year continuous residence requirement of INA § 240A(d), 8 U.S.C. § 1229b. Because petitioner’s removal proceedings were initiated after the effective date of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (“IIRI-RA”), the agency retroactively applied IIRIRA’s permanent provisions, including the “criminal-offense stop-time rule,” 8 U.S.C. § 1229b(d)(l)(B). The agency determined that pursuant to this rule, petitioner’s commission of a criminal offense on April 9, 1995 terminated his period of continuous residence one month before he could achieve the requisite seven years. Petitioner asks us to review that determination.
BACKGROUND
Petitioner Leonardo Zuluaga Martinez (“Zuluaga”), a native and citizen of Colombia, entered the United States in April 1985. He became a legal permanent resident on December 1, 1990. On April 9, 1995, Zuluaga was arrested in Massachusetts for possession of heroin. This led to his conviction, in May 1998, based on a guilty plea to illegal possession of drugs and three counts of assault and battery, under Massachusetts law, for which he was sentenced to an 18 month term of imprisonment.
In June 1998, the Immigration and Naturalization Service (“INS”) served Zuluaga with a notice to appear, charging him as removable under Immigration and Nationality Act (“INA”) § 237(a)(2)(B)®, for having “been convicted of a violation of ... any law or regulation- of a State ... relating to a controlled substance.” 8 U.S.C. § 1227(a)(2)(B)®. In March 1999, petitioner was convicted a second time for illegal possession of heroin in violation of Massachusetts law, following an arrest on November 21, 1997. The INS thereupon charged Zuluaga as being additionally removable as an aggravated felon pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on the May 1998 convictions for assault and battery, and pursuant to INA § 237(a)(2)(B)®, based on the March 1999 heroin conviction.
In May 1999, at a hearing before the Immigration Judge (“U”), Zuluaga admitted to all of the above convictions. The IJ then found (1) that Zuluaga was removable from the United States and (2) that the
Zuluaga appealed to the Board of Immigration Appeals (“BIA”). In October 1999, while that appeal was pending, the Massachusetts state court granted Zuluaga’s motion to vacate his assault and battery convictions because the trial court had failed to warn him about the immigration consequences of the plea. The BIA initially dismissed Zuluaga’s appeal, but subsequently granted his motion to reopen based on Massachusetts’s vacatur to allow Zuluaga to pursue cancellation of removal.
The IJ, on remand, then determined what lies at the heart of this appeal: that Zuluaga was still statutorily ineligible for cancellation of removal because he had failed to achieve seven years of continuous lawful permanent residence, as required under INA § 240A(a)(2), 8 U.S.C. § 1229b(a)(2). The IJ found that because Zuluaga had entered the country illegally without inspection, his period of lawful residence did not begin until May 4, 1988, the date he applied for temporary resident status. The IJ further determined that by operation of the stop-time rule of INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1)(B), which became effective according to IIRI-RA on April 1, 1997, Zuluaga’s period of continuous residence ended on April 9, 1995 when he committed his first drug offense, a month short of the seven years of continuous lawful permanent residence necessary for cancellation eligibility. The IJ denied Zuluaga’s application for cancellation of removal and the BIA summarily affirmed.
The district court, upon a habeas petition, returned the case to the IJ, via the BIA, to determine whether Zuluaga might have been admitted earlier than May 4, 1988. But, after considering further evidence on the issue, the IJ confirmed his original determination, again denied relief, and ordered removal.
Zuluaga then moved for reconsideration of the IJ’s decision, not arguing that the May 4, 1998 starting date for the seven year period was improper, but that the application of the stop-time rule which cut off the period just short of the seven years was impermissibly retroactive. The IJ declined reconsideration, relying on the BIA’s decision in In re Perez, 22 I. & N. Dec. 689 (B.I.A.1999) (en banc), which had applied the stop-time rule to offenses preceding the passage of IIRIRA.
In November 2003, the BIA rejected Zuluaga’s appeal. The BIA affirmed the IJ’s conclusion that Zuluaga had failed to demonstrate the requisite seven years of continuous residence prior to the commission of his crime on April 9, 1995. Relying also on In re Perez, the BIA concluded that the stop-time rule applied to Zulua-ga’s situation and precluded cancellation of removal. Zuluaga timely filed a petition for review of the BIA’s decision.
DISCUSSION
Zuluaga does not challenge the agency’s factual determination that his continuous residence “clock” began to run on May 4, 1988, but he argues that it did not stop on April 9, 1995. Zuluaga maintains that the criminal-offense stop-time rule, which became effective on April 1, 1997, is imper-missibly retroactive as applied to criminal conduct that preceded its enactment. Zu-luaga asks us to conclude (1) that the commission of the offense on April 9, 1995 did not stop the accrual of his seven years of permanent residence and (2) that he is therefore eligible for cancellation of removal. As a consequence, he asks us to
A. Immigration Framework in 1995
Under the immigration laws in effect in April 1995, when Zuluaga committed the offense at issue, legal permanent residents who were subject to deportation, but who had resided in the United States for seven consecutive years, were eligible to apply for a discretionary waiver of deportation under INA § 212(c). See 8 U.S.C. § 1182(c) (repealed 1996) (“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 unrelin-quished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.... ”). Although “ § 212(c) was literally applicable only to exclusion proceedings,” the BIA interpreted the provision “to authorize any permanent resident alien with ‘a lawful unrelin-quished domicile of seven consecutive years’ to apply for a discretionary waiver from deportation.” INS v. St. Cyr,
“The decision of whether to award section 212(c) relief involved only a balancing of the ‘adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of [a section 212(c) waiver] appear[ed] in the best interests of this country.’ ” Kai Tung Chan v. Gantner,
Under the pre-IIRIRA system then in existence, aliens accrued time toward their required period of continuous residence and physical presence until they applied for relief from deportation. See Arenas-Yepes v. Gonzales,
B. The Illegal Immigration Reform and Immigration Responsibility Act of 1996
IIRIRA, which was enacted on September 30, 1996 and went into effect on April 1, 1997, eliminated the § 212(c) waiver, and replaced it with cancellation of removal, “a more strict procedure.” United States v. Johnson,
In addition to instituting this new cancellation of removal scheme, however, IIR-IRA established a new stop-time rule in INA § 240A(d)(l) for calculating an alien’s period of continuous residence or physical presence. It is this rule that the government says operates to cut off Zuluaga’s continuous residence period and thereby destroys his eligibility for cancellation of removal.
The rule provides in relevant part that “any period of continuous residence or continuous physical presence 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 ... removable from the United States.” 8 U.S.C. § 1229b(d)(1)(B) (emphasis added). Thus, it is the date of the commission of the offense- — not the date of the subsequent conviction — that matters for purposes of computing an alien’s period of continuous residence. See Tablie v. Gonzales,
D. Retroactivity Analysis under Landgraf
In Landgraf, the seminal case on retro-activity, the Supreme Court confirmed the continuing viability of the centuries-old presumption against retroactive legislation, emphasizing that “[ejlementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Id. at 265,
Based on the above principles, the Landgraf Court articulated a two-step test for determining when a statute could be applied retroactively. In the first step, the court must ascertain, using the ordinary tools of statutory construction, “whether Congress has expressly prescribed the statute’s proper reach.” Id. at 280,
1. Landgraf Step One: Whether Congress Has Expressly Commanded That § 1229b(d)(l)(B) Be Applied to Pre-IIRIRA Conduct
Our analysis as to whether Congress expressly proscribed that the statute apply retroactively begins with an examination of the text. See Robinson v. Shell Oil Co.,
Despite the absence of a clear textual command in § 1229b(d)(l)(B), the government argues that Congress plainly intended for the criminal-offense stop-time rule to apply retroactively. The government finds this intent in the transitional rule of IIRIRA § 309(c)(5). The government fur
IIRIRA § 309(c)(5) and Tablie, however, are not dispositive of this case. Unlike Tablie, this case is a permanent rule case: Because the proceedings against Zuluaga were not pending when IIRIRA was enacted or when it went into effect, the transitional rules do not apply. See Arenas-Yepes,
The government next argues that even if the transitional rule does not technically govern this case, it would be “incongruous” to “hold that the stop-time rule does not apply to [Zuluaga], where this Court has held that it applied to Tablie.” Government’s Reply Brief at 13. To avoid this incongruity, the government asks us to treat Zuluaga’s case as if it were a transitional-rule case and, in support, cites two cases from other circuits, Garcia-Ramirez v. Gonzales,
We decline, however, to follow the path taken by the Fifth and Ninth
Amicus counsel, on the other hand, argues that Congress intended the opposite: that § 1229b(d)(l)(B) not be applied to pre-IIRIRA conduct in permanent-rule cases because “the plain language of the IIRIRA addressing the applicability of different bars to relief shows that Congress used express language when it chose to limit relief based on past events,” and because “a backward looking interpretation would produce absurd results.” Amicus
The absence of express language going to the temporal scope of a new statutory provision may indicate that Congress failed to specifically consider the issue. It does not, however, evince a clear intent to bar the application of a new provision to any case that somehow implicates past conduct or prior events. While there is a judicial presumption against retroactive application, that presumption operates only after the court determines, in step two of the Landgraf analysis, that the provision would have an impermissible retroactive effect as applied to the case at hand. In other words, silence or ambiguity in the statutory text and history requires the court to move on to step two, not to declare a victory for the opponent of retroactivity at step one. See St. Cyr,
Amicus counsel’s absurdity argument is flawed for the same reason. The critical inquiry at step one of Landgraf is “whether Congress has expressly prescribed the statute’s proper reach.” Landgraf,
2. Landgraf Step Two: Whether Application of § 1229b(d)(l)(B) to Zuluaga’s Pre-IIRIRA Conduct Would Produce an Impermissible Retroactive Effect
Before addressing the merits of step two, we pause to consider the extent of deference, if any, that is owed to the BIA’s decision in In re Perez, 22 I. & N. Dec. 689, in which the BIA held that the stop-time rule does not have an impermissible retroactive effect as applied to an alien whose criminal conduct occurred pri- or to IIRIRA’s passage. 22 I. & N. Dec. at 691. In general, when Congress has delegated authority to an agency to administer a statute, and “the statute is silent or ambiguous with respect to [a] specific issue,” we must accord substantial deference to a reasonable interpretation given by the agency and cannot “simply impose [our] own construction on the statute.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
As we have determined, IIRIRA is silent with respect to the specific issue in this case— § 1229b(d)(1)(B) retroactivity. Though statutory silence would ordinarily trigger Chevron deference, this principle does not hold when the issue is retroactivity, for a statute that is silent “with respect to retroactive application is construed under [the Supreme Court’s] precedent to be unambiguously prospective” in effect. St. Cyr,
In Landgraf the Supreme Court explained that a statute is impermissibly retroactive if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.”
Exercising our “commonsense, functional judgment” leads us to conclude that § 1229b(d)(l)(B) would not have an impermissible retroactive effect if applied to Zuluaga’s 1995 offense. As the Supreme Court has observed, whether “a particular application is retroactive will depend] upon what one considers to be the determinative event by which retroactivity or prospectivity is to be calculated.” Republic Nat’l Bank of Miami v. United States,
Because the trigger for retroactivity analysis here is the date that Zuluaga committed the drug offense, he cannot show that the new law attaches a new disability on past acts.
Our view is supported by the facts of Landgraf itself. There, the Supreme Court considered the retroactivity of § 102 of the Civil Rights Act of 1991, which “significantly expanded] the monetary relief’ available to plaintiffs who proved intentional employment discrimination under Title VII of the Civil Rights Act of 1964. Landgraf,
Unlike certain other forms of relief, compensatory damages are quintessentially backward looking.... In this case, the event to which the new damages provision relates is the discriminatory conduct of respondents’ agent John Williams; if applied here, that provision would attach an important new legal burden to that conduct. The new damages remedy in § 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent.
Landgraf,
The relationship between the consequences of a new law and the conduct predating the new law is an important one for retroactivity analysis. See Landgraf,
Our decision remains sound when reasonable reliance is taken into consideration.
When, as in the above cases, the relevant conduct is a legal decision
Moreover, even if Zuluaga were to have somehow improbably relied on the absence of the stop-time rule when he committed the offense, as explained above, the retroactive application of the stop-time rule did not alter the legal consequence of his actions. And there was no subsequent reliance because Zuluaga did not later enter into a transaction or engage in conduct in reliance on the availability of discretionary relief. See Rankine v. Reno,
Additionally, taking into account “familiar considerations of fair notice ... and settled expectations,” INS v. St. Cyr,
In sum, we conclude that applying § 1229b(d)(l)(B) to Zuluaga’s pre-IIRIRA offense would not produce an impermissible retroactive effect.
CONCLUSION
For the foregoing reasons, the petition for review is Denied.
Notes
. The government argues that our holding in Domond v. INS,
. We note that the Ninth Circuit has declined to follow Garcia-Ramirez’s approach in subsequent decisions. See Valencia-Alvarez v. Gonzales,
. Zuluaga does not appear to argue that his case falls within Justice Story’s category of retroactivity pertaining to the cancellation of "vested rights.” In any event, such an argument would be without merit because the Supreme Court has cautioned that “cancellation of removal ... [and other] putative claims to relief are not 'vested rights,’ a term that describes something more substantial than inchoate expectations and unrealized opportunities.” Fernandez-Vargas v. Gonzales,
. The concurrence argues, in essence, that reliance is the only factor relevant to retroac-tivity analysis in immigration cases in this Circuit. That is, the concurrence argues that "in our Circuit, petitioners ... must show that they detrimentally relied on the prior law.” But we have never stated that petitioners must show reliance in every case. While it is clear that reliance has played an important role in our retroactivity cases in the immigration context, the fact that one factor may be determinative in certain cases does not mean that it is the only determinative factor in every case. Indeed, in Domond v. INS,
Under Landgraf s second step, in Domond we then held "that Section 440(d) imposes no new legal consequences on aliens like Domond whose conduct pre-dates AEDPA, but whose convictions came after AEDPA's enactment.” Id. (emphasis added). The panel in Domond reached this conclusion, as the majority opinion does, because "[d]eportation was always the consequence” of the petitioner’s criminal conduct. Finally after engaging in the foregoing reasoning we added: “[n]or does Do-mond’s loss of the Section 212(c) hearings in these circumstances raise the same reliance and expectation concerns raised in St. Cyr.” Id. (emphasis added). As the conjunction "nor” indicates, reliance was not even the first, much less the only factor the Court analyzed under Landgraf s second step. We therefore disagree with our colleague that reliance is the sole factor considered in our jurisprudence in immigration cases raising retroactivity concerns.
. See St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir.2000) (" '[I]t is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief.’ Thus, in considering whether the changes to the availability of discretionary relief would alter the legal effect of conduct that predates the AED-PA and IIRIRA's enactment, our analysis focuses on the decision to enter a guilty plea to a crime — not on the criminal conduct — that qualifies the alien for removal under the immigration laws.” (citation omitted)); see also id. at 419 ("[A] legal resident who is charged with a crime that renders him removable from the United States carefully considers the immigration consequences of his or her conviction and, specifically, the availability of discretionary relief from removal. It is not unreasonable to attribute knowledge of the availability of relief to a legal resident because it is a common requirement that defense counsel and the court advise a criminal defendant of the immigration consequences of a guilty plea.”).
Concurrence Opinion
concurring.
I write separately because I disagree with the majority that retroactive application of the stop-time rule to Zuluaga’s case “did not change the consequence of petitioner’s criminal act.” Nevertheless, because Zuluaga cannot meet this Circuit’s requirement that he show actual, detrimental reliance on the prior law in order to demonstrate impermissible retroactive effect (a requirement that, as explained in more detail below, is the subject of considerable controversy and may be ripe for reexamination or review), I must concur in the judgment.
I.
I agree with the majority that Congress has not expressly commanded that the criminal-offense stop-time rule in 8 U.S.C. § 1229b(d)(l)(B) be applied retroactively so that we must address Langraf step two. It is at the determination of whether the new stop-time rule attaches adverse legal consequences or new disabilities to past acts where the majority and I part ways.
In concluding that retroactive application of the stop-time rule “did not change the consequence of petitioner’s criminal act,” the majority reasons: “The instant petitioner committed the offense before meeting the seven-year residency requirement for suspension of deportation, he became eligible for deportation.” On this score, the majority is simply wrong as a matter of law. Section 237(a)(2)(B)(i) of the INA, under which Zuluaga was charged with removability, states, in relevant part: “Any alien who at any time after admission has been convicted of a violation of ... any law ... relating to a controlled substance ... is deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added); see also Thom v. Ashcroft,
Under the prior law, therefore, the timing of the commission of his offense posed no bar whatsoever to Zuluaga’s ability to
The majority hinges its decision on the unlikely hypothetical possibility that Zu-luaga could have been convicted, placed into removal proceedings, and ordered removed, all within the one month after he committed the offense and before he acquired his seven years of residency.
In any event, resort to hypothetical scenarios is unnecessary here, because the events that actually transpired in Zu-luaga’s case demonstrate clearly that retroactive application of the stoptime rule imposed “new legal consequences” to Zu-luaga’s past conduct. St. Cyr,
I therefore disagree with the majority’s view that retroactive application of the stop-time rule “did not change the consequence of petitioner’s criminal act.” Al
II.
Our post-Rt Cyr decisions make clear that, even in cases where a new immigration law attaches new legal consequences to past conduct, in our Circuit, petitioners seeking to show that the new law was impermissibly applied to their case retroactively must show that they detrimentally relied on the prior law.
Following Rankine, several decisions from this Court have further made clear that we require a showing of actual detrimental reliance. See, e.g., in chron. order, Swaby v. Ashcroft,
Here, Zuluaga cannot show the type of individualized, detrimental reliance on pre-IIRIRA law required by Rankine and Wilson. As the majority correctly states, the operative event in Zuluaga’s case is his commission of the crime. However, any argument that Zuluaga committed the crime in reliance on his future eligibility for suspension of deportation under pre-IIRIRA law is foreclosed by our precedent. In Domond, relying on our decision in St. Cyr, we stated that “it would border on the absurd to argue that [the petitioner] would have decided not to commit a crime if he had known that he ... could face deportation without the availability of a discretionary waiver of deportation.”
III.
The requirement that petitioners arguing impermissible retroactivity show individualized, detrimental reliance on the pri- or law is the subject of a considerable amount of controversy among, within, and surrounding the courts of appeals.
As various courts have noted, the requirement has not been imposed by, and in fact appears to run afoul of, Supreme Court retroactivity case law. In Landgraf, the Supreme Court was asked to decide whether provisions of the Civil Rights Act of 1991 permitting a plaintiff to recover damages for unlawful discrimination could be retroactively applied to the actions of Barbara Landgraf s employer. The Court found that “the new compensatory damages provision would operate ‘retrospectively’ if it were applied to conduct occurring before [enactment of the 1991 Act]” because it would “attach an important new legal burden to that conduct.”
Similarly, in Hughes Aircraft Co. v. United States ex rel. Schumer,
Recent Supreme Court cases in the immigration context do not cast doubt on this interpretation. In St. Cyr, as stated above, the Supreme Court admittedly considered the fact that aliens had relied on the availability of § 212(c) relief in deciding to plead guilty; however, the Court stopped short of stating that such reliance was required for a finding of impermissible retroactivity. See Olatunji,
While some courts of appeals have found the Supreme Court doctrine to be clear on this matter, other courts have disagreed as to whether detrimental reliance should be a requirement at all, and if so, whether subjective, individualized reliance must be shown as opposed to merely objective reliance. The Third and Fourth Circuits, for example, have stated that no showing of reliance is required. See, e.g., Atkinson,
In rejecting a reliance requirement, the Fourth Circuit in Olatunji focused on the presumption against retroactivity set forth in Landgraf, reasoning, “we do not believe that subjective reliance is, or ought to be, relevant to the question of whether a particular statute is impermissibly retroactive, as such is neither dictated by Supreme Court precedent nor related to the presumption of congressional intent underlying the bar against retroactivity.”
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. It is one thing to indulge in the supportable presumption that Congress intends its enactments not to operate retroactively; it is another altogether to indulge the quite different, and unsupported and unsupportable, presumption that Congress so intends, but only where the particular petitioning party can prove that he subjectively relied on the prior statute to his detriment. In other words, where Congress has apparently given no thought to the question of retroactivity whatever, there is no basis for inferring that Congress’ intent was any more nuanced than that statutes should not be held to apply retroactively. Anything more, in the face of complete congressional silence, is nothing but judicial legislation.
Id. at 394. Accordingly, relying on case law from the Third Circuit, the court concluded, “[wjhether a plaintiff did or did not rely on a prior statutory scheme is irrelevant to whether that scheme in fact has a retroactive effect on that plaintiff. ‘It is,’ as the Third Circuit has noted, ‘a strange “presumption” ... that arises only on so heightened a showing as actual reliance.’ ” Id. at 391 (quoting Ponnapula v. Ashcroft,
The Sixth, Ninth, and Tenth Circuits, in contrast, have stated that a showing of reliance is required, but these circuits only require a showing of objectively reasonable reliance. See, e.g., Thaqi v. Jenifer,
The Tenth Circuit’s decision in Hem extensively sets forth the reasoning for requiring a petitioner to show objective reliance — as opposed to the individualized or actual detrimental reliance required in this Circuit. Compare
First, with the exception of a single passing reference to another case, Rankine never once mentions the presumption against retroactivity. As the Court made clear in Landgraf and its progeny, however, this presumption informs every step of the Landgraf inquiry. Second, the particular strategic decisions of the individual petitioners are given dis-positive weight in the retroactivity analysis, not whether they, as a class, faced new legal consequences to their completed conduct. Finally, Rankine appears to turn the presumption against retroac-tivity on its head by demanding that petitioners point to conduct on their part that reflects an intention to preserve their eligibility for relief under § 212(c) by going to trial.
On the other side of this split, along with our Circuit, the First, Fifth, and Seventh Circuits require that petitioners show individualized, subjective detrimental reliance. See, e.g., Dias v. INS,
Even within these Circuits, however, individual judges have expressed disagreement with the actual reliance requirement. For example, in Thom, Judge Calabresi noted that were he “judging on a clean slate, [he] would read the Supreme Court’s seminal decision on civil retroactivity, Landgraf [] — at a minimum — to say that, where Congress has not made its intent clear, courts should presume that any civil statute that would be considered ex post facto in the criminal context was meant to apply prospectively only.”
IV.
As the above illustrates, whether-and to what extent-a showing of reliance on the prior law is required to demonstrate impermissible retroactive effect of a new law is the subject of much debate and, perhaps, “should be re-visited” or reviewed. See De Horta Garcia, 519 F.3d at *666 (Rovner, J., concurring). Nevertheless, for the moment, an individualized showing of actual reliance is required in our Circuit, and this, Zuluaga is unable to demonstrate. Accordingly, while I disagree with the majority that application of the stop-time rule imposes no new legal conse
. The majority again errs when it states that Zuluaga "would have been deportable without possibility of discretionary relief had he been convicted before he accrued seven years.” In fact, Zuluaga would only have been deportable "without possibility of discretionary relief” had he been convicted, served with an NTA, and ordered removed before he had accrued his seven years residency, which occurred one month after he committed the offense. See Arenas-Yepes,
. Indeed, the "new legal consequences” for the petitioners in Rankine were the same as those for St. Cyr. The only difference between the two is that while St. Cyr had pled guilty prior to enactment of the new law, the petitioners in Rankine were convicted at trial prior to enactment of the new law.
. While this passage appears to suggest that the Supreme Court in Fernandez-Vargas required a showing of detrimental reliance, as explained in more detail in section III below, I believe such a suggestion is unsupportable.
. Contrary to the majority’s assertion, I in no way intend to suggest that "reliance is the only factor relevant to retroactivity analysis in . immigration cases in this Circuit,” or that it is the "sole factor considered in our jurisprudence in immigration cases raising retroactivity concerns.” Rather, my view is that under our precedent a showing of reliance is necessary, though not always sufficient, to demonstrate impermissible retroactive effect. Some other factor-for example failure to show retroactive application or effect of" the new law-could also doom a petitioner’s claim. See, e.g., Fernandez-Vargas,
To the extent the majority argues that our Court does not require a showing of reliance in cases where new legal consequences have attached to past acts, this contention — though appealing for the reasons set forth in section III below — is, in my view, unsupportable. Domond v. INS,
. While we have rejected this argument as “borderfing] on the absurd,” I note that whether it should be rejected at all is subject to dispute. See, e.g., Thom,
. Zuluaga argues that "[h]ad he been aware at the time he entered his guilty plea that his eligibility for relief from removal would be pretermitted, he would have considered foregoing the plea.” Even if we were to view the conviction as the operative event for determining whether settled expectations were upset, however, such an argument is foreclosed by our precedent. See Domond,