Petitioner Brian Singh, a native and citizen of Guyana, seeks review of a March 28, 2007 order of the Board of Immigration Appeals (“BIA”) dismissing the petitioner’s appeal from an August 23, 2005 decision of Immigration Judge (“IJ”) Gabriel C. Videla denying his application for a waiver under former Immigration and Nationality Act of 1952 (“INA”) § 212(c), 8 U.S.C. § 1182(c) (reрealed 1996), and ordering him removed. In re Brian Singh, No. A 35-392-737 (B.I.A. Mar. 28, 2007), aff'g No. A 35-392-737 (Immig. Ct. N.Y. City Aug. 29, 2005). The IJ found the petitioner statutorily ineligible for a waiver application under § 212(c) because he pled guilty to an aggravated felony after the enactment of the Immigration Act of 1990 (“IMMACT”), Pub.L. No. 101-649, 104 Stat. 4978 (Nov. 20, 1990) (codified at 8 U.S.C. § 1182(c) (repealed 1994)), and subsequently served a sentence of more than five years imprisonment.
Singh asks this Court to vacate the agency’s decision on one of two grounds. First, he argues that § 511(a) of IM-MACT’s exclusion of any “alien who has
*121
been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years” from eligibility for discretionary relief from deportation is imper-missibly retroactive as applied to him pursuant to the Supreme Court’s reasoning in
INS v. St. Cyr,
We reject both of these arguments. Singh’s attempt to utilize the date of his confession as the operative date to analyze his eligibility for § 212(c) relief runs counter to the Supreme Court’s reasoning in
St. Cyr.
In addition, § 404(d) of AEDPA is not impermissibly retroactive when applied to an alien who did not seek § 212(c) relief prior to becoming statutorily ineligible for such relief under IMMACT.
Cf. Wilson v. Gonzales,
Background
Singh entered the United States as a lawful permanent resident on August 21, 1976. On April 12, 1990, Singh was arrested and admitted to police that he was acting as a “middleman” for two cocaine dealers. On March 11, 1991, Singh pled guilty in the United States District Court for the Middle District of Florida to one charge of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. On May 3, 1991, he was sentenced to 108 months imprisonment, followed by three years probation.
On January 26, 1999, the former Immigration and Naturalization Service personally served Singh with a Notice to Appear, charging him with removability under INA § 237(a)(2) (A) (iii), in that after admission, he was convicted of an aggravated felony as described in § 101(a)(43)(B), an offense relating to illicit trafficking in a controlled substance. Singh admitted the factual allеgations charged in the Notice, but denied that he was removable.
On August 23, 2005, after a rather complicated procedural history not relevant to the resolution of Singh’s claims, IJ Videla found that Singh was statutorily ineligible to apply for a waiver under former INA § 212(c). See also 8 C.F.R. § 1212.3(f)(4). The IJ explained that because Singh was convicted of an aggravated felony and sentenced to confinement for a period greater than five years, he was statutorily ineligible for § 212(c) relief under the law in effect at the time he pled guilty (namely, IMMACT). In addition, the IJ denied Singh’s request for cancellation of removal under INA § 240A(a), because his conviction constituted an aggravated felony, and thus ordered Singh removed to Guyana.
On September 21, 2005, Singh appealed the IJ’s decision to the BIA. Singh argued that the date of his confession, rather than the date of the plea agreement, should be the triggering date for retroactivity purposes. Thus, he claimеd, because his con *122 fession predated IMMACT, the IJ’s finding that he was ineligible for a § 212(c) waiver was impermissibly retroactive in light of the Supreme Court’s reasoning in St. Cyr. In the alternative, Singh argued that he detrimentally relied on the availability of a § 212(c) waiver under IM-MACT, for which&emdash;before the enactment of AEDPA excluded all convicted aggravated felons from relief&emdash;he could have filed an affirmative application at any time before he had completed five years of his nine-year prison sentence. He argued that because he relied on a waiver’s continuing availability in deciding not to apply for one, AEDPA was imрermissibly retroactive as applied to him.
The BIA rejected both of these arguments. With regard to Singh’s first argument, it held that the date of an alien’s plea agreement rather than that of an earlier confession is the relevant event for the purposes of retroactivity analysis under St. Cyr. The BIA also refеrenced 8 C.F.R. § 1212.3(f)(4)(i), which codified St. Cyr’s holding. Id. (date of “plea agreement” governs eligibility for exceptional eligibility for § 212(c) relief). With regard to Singh’s second argument, the BIA held that the fact that AEDPA was enacted when Singh had served approximately 4 years and 11 months of his sentence and yet he “had not applied for[ ] аnd had no prospect of obtaining a section 212(c) waiver at that time,” combined with the length of his sentence (well over five years), “preclude[d] the possibility of detrimental reliance.”
Discussion
On appeal, Singh renews the two arguments that he made to the BIA. We find both arguments unpersuasive and accordingly dismiss thе petition for review.
I
On April 12, 1990, when Singh was vided that: arrested by the police and confessed to drug trafficking, § 212(c) of the INA pro-
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 unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions [setting forth various grounds for exclusion].
8 U.S.C. § 1182(c). While the statutory language is limited to aliens attempting to reenter the country, § 212(c) has long been interpreted to give aliens in dеportation proceedings as well as exclusion proceedings the right to apply for a discretionary waiver.
See Francis v. INS,
*123
Singh contends that § 511 of IMMACT is being applied to him impermissibly retroactively because he confessed his guilt before the statute was enacted. In
Buitrago-Cuesta v. INS,
Singh’s attempt to utilize the date of his confession as the operative date to analyze his eligibility for § 212(c) relief runs counter to the Supreme Court’s reasoning in St. Cyr. 1 In holding that AEDPA’s exclusion of all aliens convicted of aggravated felonies from eligibility for § 212(c) relief could not be applied retroactively to aliens who pled guilty before its enactment, 2 the St. Cyr Court explained:
As we have repeatedly counseled, the judgment whether a particular statute acts retroactively “should be informed and guided by ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ”
... Plea agreements involve a quid pro quo between a criminal defendant and the government. In 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, such as promptly imposed punishment without the exрenditure of prose-cutorial resources.” There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions. Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA ... 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.
That
St.
Cyr's analysis resonates specifically in the plea agreement context is also evident from several of this Court’s subsequent deсisions. In
Khan v. Ashcroft,
II
In
Restrepo v. McElroy,
It cannot ... be doubted that an alien ... might well decide to forgо the immediate filing of a 212(c) application based on the considered and reasonable expectation that he would be permitted to file a stronger application for 212(c) relief at a later time. It seems equally clear that ... AEDPA’s undermining of this settled expectation represents a prototypical case of retroactivity.
Id. at 634.
In
Wilson,
we held that an alien in the position of the petitioner in
Restrepo
must demonstrate that he “reasonably relied on the continued availability of § 212(c) relief and, based on that reasonable reliance, intentionally forwent filing an application for § 212(c) relief until a later date in the hopes of presenting a stronger application,” in order to have his eligibility for § 212(c) relief judged under pre-AEDPA law.
3
Singh is correct insofar as he argues that his eligibility for § 212(c) relief should be governed by pre-AEDPA law. However, this is because&emdash;as we have already explained&emdash;Singh pled guilty before AED-PA’s enactment and thus his claim falls squarely under
St.
Cyr’s prohibition on retroactively applying AEDPA to aliens with plea agreements pre-dating the Act. In other words, Singh’s claim does not require the extension of
St. Cyr
1
s logic that we endorsed in
Restrepo
and
Wilson.
Similarly, our holdings in those cases do nothing to advance Singh’s position: Because Singh had served more than five years imprisonment when he first sought § 212(c) relief (after the initiation of deportation proсeedings against him in 1999),
*125
he is ineligible for § 212(c) relief even under pre-AEDPA law.
See also 8
C.F.R. § 1212.3(f)(4)(i). In fact, when
Restrepo
was remanded to the District Court for the Eastern District of New York (Weinstein, J.) for proceedings consistent with this Court’s opinion, see
[T]he petitioner had been in prison for more than five years by September 9, 1997, the date the immigration judge ordered him deported. At that time he was statutorily barred from seeking section 212(c) relief because of the length of time he had been imprisoned.... [H]e does not fall into the category of aliens that reasonably could have relied on the continued availability of section 212(c) relief. There could be no reason for someone to postpone filing for so long that he becomes statutorily ineligible for the relief sought, in this case by triggering the five year bar.
Restrepo v. McElroy,
It is also worth noting that Singh’s eligibility for relief under IMMACT was within оne month of expiring when AEDPA was enacted and yet he had not applied for relief, and that Singh still had more than four years left to serve on his sentence at that time. As a result, his claim of reliance on § 212(c) relief is suspect and his claim of detriment from its elimination is specious.
Conclusion
For the foregoing reasоns, Singh’s petition for review is Denied. Having completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is Dismissed as moot.
Notes
. See also 8 C.F.R. § 1212.3(f)(4)(i) ("An alien whose convictions for one or more aggravated felonies were entered pursuant to plea agreements made on or after November 29, 1990, but prior to April 24, 1996, is ineligible for section 212(c) relief only if he or she has served a term of imprisonment of five years or more for such aggravated felony or felonies.”) (emphasis added).
. The Court reached the same conclusion with regard to the retroactivе application of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996's ("IIRIRA”), Pub.L. No. 104-128, 110 Stat. 3009, subsequent repeal of § 212(c).
. Singh raises this same argument with regard to the application of IIRIRA to his eligibility for § 212(c) relief. Our rejection of Singh’s argument with respect to AEDPA applies with equal force to his argument with respect to IIRIRA. See supra note 2.