377 F.3d 500 | 6th Cir. | 2004
Before: NORRIS, COLE, and ROGERS, Circuit Judges.
1 No. 03-1587 Thaqi v. Jenifer, et al. 3 4 Thaqi v. Jenifer, et al. No. 03-1587 8 U.S.C. § 1227(a)(2)(A)(ii). Thaqi conceded deportability By the time that deportation proceedings were initiated but requested alternative relief, including consideration for a against Thaqi on March 10, 1997, however, the standards discretionary waiver of deportation under § 212(c) of the governing eligibility for a waiver under § 212(c) had changed. INA. See 8 U.S.C. § 1182(c) (1994). The Immigration Judge By that date, AEDPA had become effective, and had amended conducting Thaqi’s hearing denied the § 212(c) waiver INA § 212(c) to cancel eligibility for waivers for aliens who, without explanation, and the BIA summarily affirmed. The like Thaqi, had been convicted of two unconnected crimes of BIA then denied Thaqi’s motion for reconsideration, basing moral turpitude. See 8 U.S.C. § 1182(c) (1996). It was this its decision on the conclusion that he was ineligible for a provision upon which the BIA relied to determine that Thaqi § 212(c) waiver under AEDPA because one of his convictions was ineligible for relief under § 212(c). In his petition, Thaqi resulted from a jury verdict. protests the application of a later-enacted law to increase the
immigration consequences of his convictions. Following the BIA’s decision, Thaqi filed a petition for a writ of habeas corpus in district court, in which he sought Whether it was appropriate for the BIA to rely upon declaratory and injunctive relief solely on the ground that the AEDPA to strip Thaqi of eligibility for the waiver based upon BIA erred in determining that he was ineligible for a crimes he had committed prior to AEDPA’s effective date is discretionary waiver of deportability. The district court governed by the Supreme Court’s decision in INS v. St. Cyr , denied Thaqi’s petition, reasoning that the BIA correctly 533 U.S. 289 (2001). In that case, the Court had to determine concluded that, because Thaqi had once been convicted whether a provision of the Illegal Immigration Reform and following a jury trial, the Supreme Court’s decision in St. Cyr Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div. did not require a determination that he remained eligible for C, 110 Stat. 3009-546 (“IIRIRA”), which repealed § 212(c)
entirely, could be applied retroactively. [1] St. Cyr was an alien § 212(c) relief. who had become deportable after pleading guilty to a drug II. crime under Connecticut law. At the time of his conviction on March 8, 1996, he would have been a candidate for a An alien’s eligibility for a discretionary waiver of § 212(c) waiver. The INS, however, only initiated deportation has changed over time. Thaqi became deportable proceedings against St. Cyr on April 10, 1997, ten days after under the immigration laws on December 31, 1995, the date IIRIRA became effective, and it sought to use his drug on which his guilty plea resulted in his second criminal conviction as grounds for deportation. St. Cyr requested conviction. See 8 U.S.C. § 1227(a)(2)(A)(ii). At that time, § 212(c) relief, but the INS ruled that IIRIRA rendered him Thaqi would have been eligible for consideration for a ineligible because IIRIRA repealed § 212(c). St. Cyr objected discretionary waiver of deportation under § 212(c) of the to the INS’s retroactive application of IIRIRA. St. Cyr , 533 INA. Only an alien who had “been convicted of one or more U.S. at 293. aggravated felonies and ha[d] served for such felony or felonies a term of imprisonment of at least 5 years” would have been ineligible for the waiver. 8 U.S.C. § 1182(c) (1994). Neither of Thaqi’s convictions were for aggravated felonies. [1] This provision of IIRIRA took effect after AEDPA had already
become effective and after the INS had b egun proceed ings aga inst Th aqi, and is therefore not applicable to Thaqi’s case.
No. 03-1587 Thaqi v. Jenifer, et al. 5 6 Thaqi v. Jenifer, et al. No. 03-1587 The Court applied a two-step test to determine whether the immigration consequences of the convictions. Given the provision repealing § 212(c) could be applied retroactively. frequency with which § 212(c) relief was granted in the “[T]he first step in determining whether a statute has an years leading up to AEDPA and IIRIRA, preserving the impermissible retroactive effect is to ascertain whether possibility of such relief would have been one of the Congress has directed with the requisite clarity that the law be principal benefits sought by defendants deciding whether applied retrospectively.” Id . at 316 (citations omitted). to accept a plea offer or instead proceed to trial. Having determined that Congress had not clearly stated an The case of Charles Jideonwo, a petitioner in a parallel intent regarding retroactive application, the Court then turned litigation in the Seventh Circuit, is instructive. Charged to the second step, asking whether retroactively applying in 1994 with violating federal narcotics law, Jideonwo IIRIRA “produces an impermissible retroactive effect[:]”
entered into extensive plea negotiations with the The inquiry into whether a statute operates Government, the sole purpose of which was to ensure retroactively demands a commonsense, functional that he got less than five years to avoid what would have judgment about whether the new provision attaches new been a statutory bar on 212(c) relief. The potential for legal consequences to events completed before its unfairness in the retroactive application of IIRIRA’s enactment. A statute has retroactive effect when it takes § 304(b) [which repealed INA § 212(c)] to people like away or impairs vested rights acquired under existing Jideonwo and St. Cyr is significant and manifest. laws, or creates a new obligation, imposes a new duty, or Relying upon settled practice, the advice of counsel, and attaches a new disability, in respect to transactions or perhaps even assurances in open court that the entry of considerations already past. As we have repeatedly the plea would not foreclose § 212(c) relief, a great counseled, the judgment whether a particular statute acts number of defendants in Jideonwo’s and St. Cyr’s retroactively should be informed and guided by familiar position agreed to plead guilty. Now that prosecutors considerations of fair notice, reasonable reliance, and have received the benefit of these plea agreements, settled expectations. agreements that were likely facilitated by the aliens’
belief in their continued eligibility for § 212(c) relief, it IIRIRA’s elimination of any possibility of § 212(c) would surely be contrary to familiar considerations of relief for people who entered into plea agreements with fair notice, reasonable reliance, and settled expectations the expectation that they would be eligible for such relief to hold that IIRIRA’s subsequent restrictions deprive clearly attaches a new disability, in respect to them of any possibility of such relief. transactions or considerations already past. Plea agreements involve a quid pro quo between a criminal Id . at 320-24 (citations, quotations marks and footnotes defendant and the government. In exchange for some omitted). In deciding Thaqi’s case, we must apply the perceived benefit, defendants waive several of their reasoning of St. Cyr to determine first whether the language constitutional rights (including the right to a trial) and of the statute in question reveals Congress’s intent regarding grant the government numerous tangible benefits, such as retroactivity, and second, whether enforcing the statute promptly imposed punishment without the expenditure against Thaqi would result in an impermissible retroactive of prosecutorial resources. There can be little doubt that, effect. as a general matter, alien defendants considering whether to enter into plea agreements are acutely aware of the
No. 03-1587 Thaqi v. Jenifer, et al. 7 8 Thaqi v. Jenifer, et al. No. 03-1587 On the first question, we agree with the parties that the however, do not apply to Thaqi’s circumstances. Although language of AEDPA reveals nothing regarding Congress’s Thaqi’s first conviction resulted from a jury trial, his second, intent. Moving to the second part of the inquiry and applying the one which would render him ineligible for § 212(c) relief the reasoning of St. Cyr to Thaqi’s case, we conclude that under AEDPA, resulted from a guilty plea. enforcing AEDPA against Thaqi would have an
III.
impermissible retroactive effect. For the foregoing reasons, the judgment of the district court In St. Cyr , the conviction that rendered the petitioner is reversed and the case is remanded to the district court for ineligible for § 212(c) relief was the result of a guilty plea; in further proceedings consistent with this opinion. the opinion of the Supreme Court, St. Cyr might well have chosen to contest the charge had he known that, under later legislation, his conviction would render him ineligible for an avenue of relief from deportation. In Thaqi’s case, the crime that rendered him ineligible for § 212(c) relief was also the result of a guilty plea—it was his second conviction, in which he pleaded guilty to larceny, that made him guilty of two unconnected crimes of moral turpitude. Accordingly, under the logic of St. Cyr , had he known that later legislation would deprive him of § 212(c) eligibility, Thaqi would likely have decided to contest the larceny charge. Accordingly, applying AEDPA retroactively to bar Thaqi from eligibility for a discretionary waiver of deportation would have an impermissible retroactive effect. [2]
The government cites various cases in which courts of appeals have concluded that where petitioners had been convicted following jury trials, the retroactive application of a statute eliminating their eligibility for § 212(c) relief would not have had impermissible retroactive effects. See Rankine v. Reno , 319 F.3d 93, 100-02 (2d Cir. 2003); Dias v. INS , 311 F.3d 456, 458 (1st Cir. 2002); Chambers v. Reno , 307 F.3d 284, 290-93 (4th Cir. 2002); Armendariz-Montoya v. Sonchik , 291 F.3d 1116, 1121-22 (9th Cir. 2002). These cases,
NOTES
[2] W e note that, under St. Cyr , the petitioner ne ed no t demonstrate actual reliance upon the immigration laws in order to demonstrate an impermissible retroactive effect; he need only be among a class of aliens whose guilty pleas “were likely facilitated” by their continued eligibility for § 2 12(c) relief. St. Cyr , 533 U.S. at 323 .
