Murali Krishna PONNAPULA v. John ASHCROFT, Attorney General of the United States of America; James W. Ziglar, Commissioner of the Immigration and Naturalization Service; Edward McElroy, New York City District Director of the Immigration and Naturalization Service; Kenneth Elwood, Philadelphia District Director of the Immigration and Naturalization Service; Immigration & Naturalization Service; United States Department of Justice, Appellants.
No. 03-1255
United States Court of Appeals, Third Circuit
Filed June 28, 2004
373 F.3d 480
Argued Feb. 26, 2004.
Alexander E. Eisemann (Argued), Katonah, N.Y., for Appellee.
Paul A. Engelmayer, Christopher J. Meade (Argued), Katherine R. Goldstein, Wilmer, Cutler & Pickering, New York, N.Y., Joshua L. Dratel, National Association of Criminal Defense Lawyers, Joshua L. Dratel, P.C., New York, N.Y., Jonathan E. Gradess, Executive Director, Manuel D. Vargas, Project Director, Immigrant De-
Before RENDELL, BARRY and BECKER, Circuit Judges.
BECKER, Circuit Judge.
This appeal centers on the question whether the Immigration and Naturalization Service (“INS“) can apply a new law retroactively in a way that will alter the immigration consequences of an immigrant‘s decision made under prior law.1 Under former
Section 212(c) was repealed in September 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“), Pub.L. No. 104-208, 110 Stat. 3009-546 (codified in scattered sections of
In INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court held that discretionary relief under former
In St. Cyr, the Court concluded that the retroactive application of IIRIRA section 304(b) would have an impermissible retroactive effect on aliens—such as St. Cyr—who had pleaded guilty prior to the repeal of
Rejecting the position of the government that Ponnapula is precluded from claiming retroactive effect by reason of the discussion in St. Cyr, we conclude that St. Cyr is simply one application of the general principles articulated in Landgraf that counsel against interpreting statutes to have retroactive effect. Here, with respect to an alien who reasonably could have relied on the potential availability of
I.
A.
In 1993, a New York state grand jury indicted Ponnapula, along with several other defendants, for grand larceny in the first degree,
Over the next year, Ponnapula and the Manhattan District Attorney‘s Office engaged in plea negotiations. The District Attorney‘s Office offered to allow him to plead guilty to a misdemeanor with a probationary sentence. Ponnapula considered the offer and the immigration consequences of pleading guilty versus going to trial. His counsel advised him that if he was convicted, he would very likely receive the minimum sentence of only one to three years’ imprisonment, which is less than the five years necessary to disqualify an alien from
The advice of Ponnapula‘s counsel, and his reliance thereon, is easily understandable, for the evidence at trial barely established criminality. Indeed, Ponnapula‘s participation was so limited that the trial judge set aside the jury‘s guilty verdict and dismissed the indictment as to Ponnapula, for reasons chronicled in the margin.2 It is also noteworthy that while the loan application contained false statements, the bank was well secured, and recovered $1.85 million of the $1.9 million loan amount when it ultimately sold the parking lot. However, the order setting aside the conviction was eventually reversed on appeal and the conviction reinstated.
Upon remand, the trial court imposed the mandatory minimum term of one to three years imprisonment on this New York State “B” felony, see
With respect to the documents that Murali signed at the closing, Dandapani and Krasner, the bank‘s attorney, each testified that Murali only glanced at the papers, but did not read them before signing. Moreover, there was no evidence that Murali signed the documents with knowledge that Prasad intended to misapply the proceeds of the loan....
[T]he People‘s key witness, Vijay Dandapani, testified unequivocally that Murali never knew of the misrepresentations made to the bank in the loan application. The remainder of the evidence presented by the People simply fails to support the contention that Murali was a knowing participant in any misrepresentations made by Prasad or his assistants with regard to the loan.
[P]etitioner‘s counsel has convinced me that his client was, for lack of a better term, the small fry or—maybe even better term—the schnook of this particular group of miscreants. And though I have no power other than the power to comment on what should be done now in terms of his incarceration, for what it‘s worth, it seems to me it would certainly be in the interests of justice for him to be released on work release.
After Ponnapula was allowed out on work release, the INS filed a detainer and warrant for a removal hearing on October 2, 2000, and pursuant to New York law Ponnapula was returned to state custody. On January 8, 2001, after a hearing, an immigration judge found Ponnapula removable from the United States. On appeal, the BIA affirmed, holding that St. Cyr could not be extended beyond defendants who had pleaded guilty. On May 7, 2002, after two years of incarceration on his conviction, the New York State Department of Correctional Services released Ponnapula. Upon his release, the INS took him into custody and transferred him to the Pike County, Pennsylvania jail for detention. On May 8, 2002, pursuant to
B.
In analyzing the petition for hardship relief, the District Court reasoned that it was “presented with the very narrow legal question of whether ... to apply IIRIRA retroactively to [Ponnapula].” Ponnapula v. Ashcroft, 235 F.Supp.2d 397, 402 (M.D.Pa.2002). However, it decided that the exemption-stripping provision in IIRIRA could not be applied, “[g]iven the factual underpinnings of this case,” id., and it concluded that Ponnapula was entitled to apply for hardship relief. More specifically, the District Court found that the “[e]limination of any possibility of former
Summarizing its position, the District Court ruled that “[i]n deciding not to accept the plea bargain offered, but instead to go to trial, Petitioner conformed his conduct to the settled expectation that
Because Ponnapula had lived continuously in the United States for seven years and had been sentenced to less than five years’ imprisonment, he would have been eligible for
II.
A.
It will be useful to set forth a brief description of the statutory regime in place prior to 1996 and the passage of AEDPA and IIRIRA. Under that regime, pursuant to
There was also a strong likelihood that such relief would be granted: The Attorney General granted it in over half of all cases in which it was sought. See St. Cyr, 533 U.S. at 296 & n. 5, 121 S.Ct. 2271. Moreover, the relief was predictably granted where certain factors were present, including family ties within the United States, residence of long duration in this country, evidence of hardship to the immigrant‘s family as a result of deportation, and a stable history of employment. See In re Marin, 16 I & N Dec. 581, 584-85 (BIA 1978).3
With IIRIRA, Congress repealed
The practical effect of the repeal of
B.
Since the principal authority governing this case is Landgraf, we rescribe its fundamental precepts. There the Supreme Court held that, absent a clear command to the contrary from Congress, there is a “presumption against statutory retroactivity.” 511 U.S. at 270, 114 S.Ct. 1483.4 Without such a clear statement, retroactive application of a statute is impermissible when it “would impair rights a party possessed when he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed.” Id. at 280, 114 S.Ct. 1483. In Martin v. Hadix, the Court elaborated that the question whether a new statute attaches new legal consequences to prior conduct “demands a commonsense, functional judgment” that “should be informed and guided by ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” 527 U.S. at 357-58, 119 S.Ct. 1998 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483). Most recently, in Republic of Austria v. Altmann, 124 S.Ct. 2240 (2004), the Supreme Court held that the Landgraf line does not apply to the “sui generis context” of the Foreign Sovereign Immunities Act, slip op. at 18, but nonetheless both the majority and dissent expressly reaffirmed Landgraf‘s “old and well-established principle,” slip op. at 3 (Kennedy, J., dissenting); see also slip op. at 13-18 (reaffirming but distinguishing Landgraf). The Altmann Court ex-
plained that “the aim of the presumption is to avoid unnecessary post hoc changes to legal rules on which parties relied in shaping their primary conduct.” Slip op. at 17-18.
In St. Cyr, the Court applied the principles of Landgraf in considering whether IIRIRA‘s repeal of discretionary relief under former
In reaching this conclusion, the Court focused on an alien‘s reasonable reliance on the possibility of discretionary relief under former
C.
The crux of the government‘s argument is that the appeal is controlled by St. Cyr, which it views as resting uniquely on the existence of the quid pro quo of criminal plea agreements. The absence of this quid pro quo here, the INS argues, causes Ponnapula‘s claim to fail. Of course, the unspoken premise of this argument is that St. Cyr articulated the exclusive conditions for impermissible retroactivity in this context.
The Courts of Appeals for the Second and Fourth Circuits have confined St. Cyr to the plea-agreement context on the understanding that a quid pro quo is required. See Swaby v. Ashcroft, 357 F.3d 156, 161-62 (2d Cir.2004); Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.2003); Chambers v. Reno, 307 F.3d 284, 290-91 (4th Cir.2002).5 Other Courts of Appeals have also limited St. Cyr‘s retroactivity holding to the plea-bargain context without specifically invoking the quid pro quo language from St. Cyr. See Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir.2004) (per curiam); Dias v. INS, 311 F.3d 456 (1st Cir.2002); Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir.2002); Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir.2002). A related argument advanced by the INS and in these cases is that the immigrant has “rolled the dice” by going to trial and thereby forfeited any claim to certainty. See, e.g., Chambers 307 F.3d at 291-92.
III.
A.
Because we disagree with other Courts of Appeals’ application of Landgraf to the question in this case, some background on those Courts’ treatment of Landgraf is necessary. We treat the Second Circuit‘s opinion in Rankine as representative. There, the Court laid out the Supreme Court‘s modern retroactivity doctrine with citations to Landgraf, Hadix, and St. Cyr, see Rankine, 319 F.3d at 98-99, much as we have done above, see supra Part II.B. The Court explained that the Rankine petitioners’ “choice to go to trial puts [them] on different footing [from St. Cyr] in two crucial respects.” Rankine, 319 F.3d at 99.
First, none of these petitioners detrimentally changed his position in reliance on continued eligibility for § 212(c) relief. Unlike aliens who entered pleas, the petitioners made no decision to abandon any rights and admit guilt—thereby immediately rendering themselves deportable—in reliance on the availability of the relief offered prior to IIRIRA. The petitioners decided instead to go to trial, a decision that, standing alone, had no impact on their immigration status. Unless and until they were convicted of their underlying crimes, the petitioners could not be deported.
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Second, the petitioners have pointed to no conduct on their part that reflects an intention to preserve their eligibility for relief under § 212(c) by going to trial. If they had pled guilty, petitioners would have participated in the quid pro quo relationship, in which a greater expectation of relief is provided in exchange for forgoing a trial, that gave rise to the reliance interest emphasized by the Supreme Court in St. Cyr. As the Court made clear, it was that reliance, and the consequent change of immigration status, that produced the impermissible retroactive effect of IIRIRA. Here, petitioners neither did anything nor surrendered any rights that would give rise to a comparable reliance interest.
Id. at 99-100 (citation omitted).
Three aspects of this opinion are noteworthy. First, neither in the passages above, nor anywhere else in the opinion, does the word “presumption” appear,6 yet the presumption against retroactivity is the essence of the Landgraf line of cases. Second, the passage above discussing a detrimental change in position appears to require actual reliance by the party seeking to avoid retroactive application, yet the Supreme Court has never required actual reliance in any case in the Landgraf line.
B.
The Second Circuit‘s lack of emphasis on the presumption against retroactivity is in considerable tension with the Supreme Court‘s consistent treatment of retroactivity analysis. See supra note 4 (cataloging references to “presumption” in Landgraf, Hughes Aircraft, Hadix, St. Cyr, and Altmann). The Supreme Court‘s framework for assessing the retroactivity of civil laws has been consistently applied: The Court first looks for a clear statement from Congress that a statute is to be applied retroactively, and will defer to such a command. See, e.g., Landgraf, 511 U.S. at 270, 114 S.Ct. 1483. But in the absence of a clear command, a consistent line of cases establishes that ” ‘congressional enactments and administrative rules will not be construed to have retroactive effect.’ ” Id. at 272, 114 S.Ct. 1483 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)).
Landgraf softens this apparently categorical stance by recognizing that another line of cases holds that “in many situations, a court should ‘apply the law in effect at the time it renders its decision,’ even though that law was enacted after the events that gave rise to the suit.” 511 U.S. at 273, 114 S.Ct. 1483 (quoting Bradley v. Sch. Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)). The Landgraf Court cited as examples laws “authoriz[ing] prospective relief,” id., “statutes conferring or ousting jurisdiction,” id. at 274, 114 S.Ct. 1483, and “[c]hanges in procedural rules,” id. at 275, 114 S.Ct. 1483. Harmonizing these two lines, the Court explained:
When a case implicates a federal statute enacted after the events in suit, the court‘s first task is to determine whether Congress has expressly prescribed the statute‘s proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
511 U.S. at 280, 114 S.Ct. 1483.
Moreover, in Hughes Aircraft, the Court explained that a “conten[tion] that only statutes with one of these effects are subject to our presumption against retroactivity” would “simply misread[ ] our opinion in Landgraf.” 520 U.S. at 947, 117 S.Ct. 1871. The Hughes Aircraft Court held that the language quoted above “does not purport to define the outer limit of impermissible retroactivity,” but merely describes “a sufficient, rather than a necessary, condition for invoking the presumption against retroactivity.” Id. Because the Supreme Court has repeatedly couched its holdings in this area in terms of a liberal presumption—albeit one that arises only conditionally, on a finding of retroactive effect—we read Landgraf and its progeny to hold that the presumption
Our disagreement with the courts that have held that IIRIRA‘s repeal of
The Second Circuit‘s subtle heightening of the showing required to trigger the presumption against retroactivity is also visible in that Court‘s apparent insistence that an alien show actual reliance to reap the benefit of the presumption against retroactivity. It is a strange “presumption,” in our view, that arises only on so heightened a showing as actual reliance (though as we explain, see infra Part IV, Ponnapula actually has made such a showing). Relatedly, the Second Circuit seems to require a quantum of evidence regarding the subjective intent of the party seeking to avoid retroactive application; this too strikes us as being in tension with the language of presumption in Landgraf and its progeny; furthermore, such a requirement incorrectly focuses attention on the particular facts and circumstances of the party before the court.
The Supreme Court has never required actual reliance or evidence thereof in the Landgraf line of cases, and has in fact assiduously eschewed an actual reliance requirement. Landgraf, Hughes Aircraft, Hadix, and St. Cyr all establish this. In Landgraf, the question was whether the Civil Rights Act of 1991‘s addition of compensatory and punitive damages remedies to certain Title VII suits could be applied retroactively to reach preenactment conduct. The Court concluded that the remedies could not be applied retroactively, but it reached this conclusion without once referring to the defendant‘s conduct or the defendant‘s actual expectations. In fact, the defendant (USI Film Products) is not even mentioned in the pertinent section of the Court‘s opinion. See Landgraf, 511 U.S. at 280-93. Indeed, it is difficult to see how USI Film Products could have proven its actual reliance on the absence of a punitive damages provision.
Likewise, in Hughes Aircraft, the particular situation or expectations of the defendant were immaterial to the Court‘s analysis. Hughes Aircraft was brought under an amendment to the False Claims Act that eliminated a defense to certain qui tam suits. Hughes Aircraft argued that the elimination of the defense could not be applied retroactively, and the Court agreed. Again, the Court evaluated the retroactivity question in the abstract, without reference to Hughes Aircraft‘s conduct or expectations, see Hughes Aircraft, 520 U.S. at 947-52, 117 S.Ct. 1871, and it is again difficult to see how the defendant could have established its actual reliance on the prior state of the law.
Hadix concerned Congress‘s amendments to the fee provisions applicable to post-judgment monitoring in prison reform suits. The amendments capped the hourly
Important for our purposes is not the result, however, but the Court‘s reasoning. Hadix differs from Landgraf and Hughes Aircraft in that Hadix does in fact refer to the particular situation of the party seeking to avoid retroactive application. Nonetheless, the Hadix Court‘s discussion focuses not on the bona fides of the attorneys’ claimed actual reliance,8 but instead on whether reliance was (or would have been) reasonable. See, e.g., id. at 360, 119 S.Ct. 1998 (“To impose ... new standards now, for work performed before the [amendments] became effective, would upset the reasonable expectations of the parties.“); id. (“After [the date of the amendment], any expectation of compensation at the [pre-amendment] rates was unreasonable.“).
St. Cyr is the most recent case in the Landgraf line. As with Hughes Aircraft and Landgraf itself, the analytical focus of the opinion is not on the facts and circumstances of the party before the Court. The Court briefly considered the putative actual reliance of Enrico St. Cyr and a similarly situated alien, Charles Jideonwo, but did so merely for illustrative purposes. See St. Cyr, 533 U.S. at 323, 121 S.Ct. 2271. St. Cyr is principally concerned with the reasonable reliance interests of aliens who enter into plea agreements as a class. To that end, the discussion of the quid pro quo in criminal plea agreements is directed at establishing, as a general matter, the reasonable reliance of this class of aliens, irrespective of the course of St. Cyr‘s own plea negotiations.9
Moreover, the St. Cyr Court‘s language does not require concrete certainty about the exact historical motives and actual reliance and expectations of each alien who pled guilty. We set out several examples in the margin.10 On the whole, we think
the Supreme Court regarded St. Cyr as a clear and straightforward result flowing from Landgraf; to paraphrase counsel for the amici curiae at oral argument, St. Cyr was an easy case on the retroactivity issue.
Thus the Supreme Court has avoided an “actual reliance” formulation in favor of a “reasonable reliance” formulation in its retroactivity analysis. “Reasonable reliance” is specifically highlighted in Hadix, 527 U.S. at 357-58, 119 S.Ct. 1998 (holding that retroactivity analysis “should be informed and guided by ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ “). The likelihood that the party before the court did or did not in fact rely on the prior state of the law is not germane to the question of retroactivity. Rather, courts are to concentrate on the group to whose conduct the statute is addressed—in Landgraf it was employers subject to Title VII; in Hughes Aircraft it was government contractors; in Hadix it was attorneys performing prison reform monitoring services; in St. Cyr it was aliens who accepted a plea agreement—with a view to determining whether reliance was reasonable.
The Landgraf line also establishes that a change in law can be found impermissibly retroactive without establishing that some (or all) members of the group affected by the change in law relied on the prior state of the law. For example, it is unlikely that in Landgraf any employer demonstrably relied on the absence of a punitive damages remedy for Title VII violations, or that in Hughes Aircraft any government contractor purposely arranged its billing practices ex ante to take advantage of a specific defense under the False Claims Act. Likewise, in St. Cyr, the Court found it sufficient that the plea agreements of deportable aliens were “likely facilitated by the aliens’ belief in their continued eligibility for § 212(c) relief.” 533 U.S. at 323, 121 S.Ct. 2271 (emphasis added). And indeed the Court‘s holding is not limited to those aliens who actually relied on the availability of
The holding in St. Cyr then is simply not subject to a qualification that the alien seeking the opportunity to pursue
C.
We have established that the question we must answer is whether the repeal of
As noted above, in St. Cyr, the Supreme Court found that all aliens who accepted plea agreements had some reliance interest in the potential availability of
Accordingly, we focus on the choice made by aliens who went to trial and were convicted prior to the effective date of IIRIRA‘s repeal of former
As for the former category, we hold that aliens such as Ponnapula who affirmatively turned down a plea agreement had a reliance interest in the potential availability of
A case about aliens who accept plea agreements (i.e., St. Cyr) is relatively straightforward because the availability of
To be sure, there are aliens who would appear to have had a very attenuated reliance interest in the availability of
Moreover, in St. Cyr itself, as we have discussed above, the Court extended its holding to all aliens who had accepted plea agreements; some of these aliens necessarily had attenuated reliance interests in the availability of
Finally, if it was reasonable in St. Cyr for an alien to rely on the attenuated availability of
those convictions, would have been eligible for § 212(c) relief at the time of the plea under the law then in effect.” 533 U.S. at 326, 121 S.Ct. 2271. This reflected approval of Judge Oakes‘s opinion for the Second Circuit, St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), which adopted the same categorical approach: “[W]e hold that the bar on applying for relief enacted in AEDPA § 440(d) and IIRIRA § 304 does not apply to an alien who pled guilty or nolo contendere to an otherwise qualifying crime prior to IIRIRA‘s enactment date.” Id. at 421.15 Accordingly, Ponnapula is entitled to apply for discretionary withholding of deportation under former
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In this Part, we have set out our view of the most faithful application of the Landgraf line to the case at bar. We recognize, however, that the other Courts of Appeals to address cases like Ponnapula‘s have tak-
IV.
A.
We have described the background of facts, all uncontradicted and accepted by the District Court, which demonstrate that Ponnapula played a minor and essentially unknowing role in the fraudulent scheme. We incorporate these facts by reference here. The best description of Ponnapula‘s pretrial posture is supplied by the declaration of his trial counsel, Alexander E. Eisemann, Esq., in support of a motion for a temporary restraining order in the District Court. In pertinent part, Eisemann‘s declaration states as follows:
At one point prior to petitioner‘s trial, Assistant District Attorney David Steiner offered to allow him to plead guilty to a misdemeanor with a probationary sentence. Petitioner considered the offer and the immigration consequences of pleading guilty and going to trial. He realized that even if he were convicted of a felony after trial he would still be eligible for hardship relief from deportation pursuant to section 212(c) of the Immigration and Nationality Act, see
8 U.S.C. § 1182(c) (1994). Moreover, his counsel advised him that, if convicted after trial, he would likely receive a sentence of less than five years’ imprisonment and that he would, in all likelihood, receive a sentence of only one to three years’ imprisonment.In reliance on these facts, petitioner declined the misdemeanor offer and proceeded to trial.
App. 56-57.
In short, as the District Court noted:
Here, there can be no doubt that Petitioner conformed his conduct to match his settled expectations of immigration law. Petitioner was offered an opportunity to plead guilty to a misdemeanor which would have had no immigration consequences, but turned down the plea because “even if he were convicted of a felony after trial he would still be eligible for hardship relief from deportation pursuant to § 212(c).”
235 F.Supp.2d at 405 (quoting Eisemann Decl.).
We stress that Ponnapula actually relied on the state of the law in rejecting the misdemeanor plea agreement and going to trial. Notably, none of the court of appeals cases treating St. Cyr as requiring a quid pro quo involved actual reliance by the immigrant on the then state of the law. Also, in these cases the charges (and the sentences) facing the immigrant were far more serious than those facing Ponnapula. For example, to recur to the cases cited supra Part II.C, Rankine was charged with attempted murder, his co-petitioner Lawrence, a repeat offender, was convicted of a mid-level drug offense, and his co-petitioner Eze was convicted of first degree rape.17 See Rankine, 319 F.3d at 96-97. Theodoropoulos v. INS, 358 F.3d 162 (2d Cir. 2004) was convicted of a high-level drug conspiracy. See Theodoropoulos v. INS, 313 F.3d 732, 734 (2d Cir. 2002). Montenegro was convicted of possession of cocaine with intent to distribute, see Montenegro, 355 F.3d at 1036, as was Armendariz-Montoya, see Armendariz-Montoya, 291 F.3d at 1118. In none of these cases does the record reflect or even suggest a plea agreement was offered, or that the defendant had reasonable assurance that his sentence would be less than five
B.
We must also engage the rationale of these cases. As will appear, while that rationale will support the result reached on the facts of those cases, any attempt to apply it to deny relief in Ponnapula‘s case falls of its own weight or at least cannot survive rigorous scrutiny. We treat Rankine as representative. In arriving at its result, the Court relied principally on selected parts of the Supreme Court‘s opinion in St. Cyr:
The [Supreme] Court focused on the fact that plea agreements are a form of quid pro quo where, “[i]n exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous tangible benefits.” [St. Cyr, 533 U.S.] at 322, 121 S.Ct. 2271 (internal quotation omitted). Recognizing that § 212(c) relief was frequently granted prior to the enactment of AEDPA and IIRIRA, the Court found that “preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” Id. at 323, 121 S.Ct. 2271.
The Court also highlighted the “clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.” Id. at 325, 121 S.Ct. 2271. Because there was a “significant likelihood”
that resident aliens would receive § 212(c) relief prior to IIRIRA, the Court found that aliens “almost certainly relied upon that likelihood in deciding whether to forgo their right to trial,” id., and instead to plead to sentences that would preserve their eligibility for such relief. Without the possibility of relief, these pleas guaranteed the aliens’ removal; the elimination of § 212(c), therefore, changed the legal effect of their pleas and unsettled their reliance. The Court concluded that “it would surely be contrary to ‘familiar considerations of fair notice, reasonable reliance, and settled expectations’ to hold that IIRIRA‘s subsequent restrictions deprive them of any possibility of such relief.” Id. at 323-24, 121 S.Ct. 2271 (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483) (internal citation omitted).
Rankine, 319 F.3d at 99. The Court conceded that St. Cyr did not directly control the outcome, but then opined that:
We cannot, however, ignore the strong signals sent in those opinions that aliens who chose to go to trial are in a different position with respect to IIRIRA than aliens like St. Cyr who chose to plead guilty.
Id. We agree, for it is clear that St. Cyr does not control the outcome. But for reasons explained above, see supra Part III, we do not agree that relevant jurisprudence contains “strong signals” that aliens who go to trial are in a different position from those who plead guilty.
The wellspring of Rankine and its companion cases is a concern for actual reliance. Though we have explained why we do not believe that this is the best rendering of Landgraf, we accept that here as a
From our discussion above of the lack of concern in the Landgraf line for actual reliance, it should go without saying that there is no mention of a quid pro quo or surrender of constitutional rights in Landgraf, Hughes Aircraft, or Hadix. Neither is there any mention of a quid pro quo in our decision in Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 164 (3d Cir.1998):
In this case, the events in question are the alleged fraudulent acts by the defendants. If the RICO Amendment is applied to this case, it would attach new legal consequences to these events. Before the Amendment, the legal consequences included liability under the federal securities laws and RICO; after the Amendment, the legal consequences included liability only under the securities laws.
Focusing then on new legal consequences to Ponnapula himself, they surely have occurred here. Ponnapula relied on the advice of counsel. It is hard to imagine that Ponnapula would not have accepted the misdemeanor plea offer if he had known about the risk of being ineligible for
We do not gainsay that the existence of a quid pro quo (for a guilty plea) justified the result in St. Cyr. But to the extent that the Court in St. Cyr noted that plea agreements involve a quid pro quo between the criminal defendant and the government and a waiver of several constitutional rights, see 533 U.S. at 322, 121 S.Ct. 2271, these statements do not create an additional requirement necessary to establish retroactive effect. In our view, these statements only serve to highlight the obvious and severe retroactive effect of applying IIRIRA to aliens who pleaded guilty; in other words, the quid pro quo notion comfortably fit the case. What Rankine and its companion cases have done is to convert quid pro quo into a rigid baseline test, to ossify the language of St. Cyr into a test that the Supreme Court simply never mandated and we are unwilling to create.
In a variation on this theme, the government argues that “Ponnapula‘s simple expectation or reliance is not the same as the heightened expectation of relief which the St. Cyr aliens brought at the price of their constitutional rights and paid for with the immediate certainty of deportation.” The Rankine Court used similar rhetoric: “The petitioners here assumed no similarly heightened expectation from their decision to go to trial.” 319 F.3d at 100. We find no basis for a “heightened expectation” standard in St. Cyr or elsewhere in the Supreme Court‘s jurisprudence, and we reject it.
We have not here reviewed in detail each of the court of appeals cases that have rejected extending St. Cyr to immigrants who were convicted at trial before IIRIRA. Suffice it to say that the holdings in these cases are largely the result of
C.
Another notion that appears in the other court of appeals cases is that of “rolling the dice.” In Chambers, the Court opined that the petitioner there did not possess “a reliance interest comparable to that which was at the heart of St. Cyr,” 307 F.3d at 290, because “by rolling the dice and going to trial, Chambers actually ensured that his eligibility for discretionary relief would remain uncertain,” id. at 291.
We find the “roll the dice” metaphor unhelpful, at least in this case. While Ponnapula may have “rolled the dice” in terms of guilt or innocence at trial, he did not do so with respect to immigration consequences in view of his reasonable expectation that there would be no adverse immigration consequences of going to trial. We do not generally speak of rolling the dice when the odds are stacked extremely heavily in one‘s favor. Assuming that the metaphor is applicable to someone, it does not apply to Ponnapula, because (to extend the metaphor), Ponnapula was (retroactively) deceived as to what was riding on the roll of the dice. Neither do we find persuasive the arguments that Ponnapula gave up “certainty” and should not be rewarded for “guessing wrong.” These notions are inconsistent with our explanation of Landgraf.19
A related argument pressed by the government is that there can be no reasonable reliance in this case because there was a risk that Ponnapula might have been sentenced to more than five years in prison—and that, thereafter, he might have served more than five years in prison—thereby making him ineligible for
V.
In sum, approaching the issue in this case from the first principles of Landgraf retroactivity analysis, and rejecting the actual-reliance approach of our sister Courts of Appeals, we conclude that Ponnapula is entitled to pursue
Notes
The People presented no evidence that Murali participated in any way in the inclusion of any false statements contained in the loan application, or that Murali knew that the loan documents contained any false representations. The People‘s most important witness, Dandapani, testified that Murali was not informed of misrepresentations that Prasad ordered Dandapani and Shetty to include in the loan application and the supporting documents. Murali could not have learned from the documents themselves that Prasad was deceiving the bank. The evidence shows that Murali never had a chance to examine them. Thus, Murali was in no position to detect even the glaring misrepresentations concerning his finances that were contained in the loan applications.