2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-8-2007

Atkinson v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-1099

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

 No. 05-1099

 

CLAUDIUS ATKINSON,

 Appellant.

 v.

*ATTORNEY GENERAL OF THE UNITED STATES

 *(Amended in accordance with Clerk's Order dated

3/16/06)

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 01-cv-05462)

District Judge: Honorable Lawrence F. Stengel

 

Argued on July 13, 2006

Before: SMITH, WEIS and ROTH, Circuit Judges

(Opinion filed: March 8, 2007)

Steven A. Morely, Esquire (ARGUED)

Morley, Surin & Griffin, P. C. 

325 Chestnut Street

Suite 1305-P

Philadelphia, PA 19106

Counsel for Appellant
2

Patrick L. Meehan, Esquire

United States Attorney

Robert A. Zauzmer, Esquire

Assistant United States Attorney

Susan R. Becker, Esquire (ARGUED)

Assistant United States Attorney

Chief of Appeals

Paul Mansfield, Esquire

Assistant United States Attorney

Virginia A. Gibson, Esquire

Assistant United States Attorney

Chief, Civil Division

615 Chestnut Street

Suite 12350

Philadelphia, PA 19106

Counsels for Appellee

 

O P I N I O N

 

ROTH, Circuit Judge

If the Supreme Court has determined that the repeal of a

law has an impermissible retroactive effect on a particular

group, does that determination render the law impermissibly

retroactive in its application to other groups affected by the

repeal? That is the question before us in this appeal.

I. Factual Background and Procedural History

Claudius Atkinson is a citizen of Jamaica who entered the

United States as a non-immigrant visitor in January 1983. He

adjusted his status to that of lawful permanent resident two years

later on January 25, 1985. On December 16, 1991, following a

jury trial in the Court of Common Pleas for Philadelphia

County, Atkinson was convicted of criminal conspiracy and

possession with intent to distribute a controlled substance.
 1

 In March 2003, the INS was folded into the Department

of Homeland Security, and the action commenced against

Atkinson by the former INS is now being carried on by the

Bureau of Immigration and Customs Enforcement. 

Consistent with our previous practice, we will continue to

refer to the INS because it was the agency involved in the

initial action against Atkinson. Ponnapula v. Ashcroft, 373

F.3d 480, 482 n.1 (3d Cir. 2004). 

3

Atkinson was sentenced to not less than six or more than twelve

months imprisonment to run concurrently with a sentence of not

less than eleven or more than twenty-three months of work

release. In addition, he was given three years of probation. 

Atkinson finished serving his sentence and, according to

the record, lived an uneventful existence with his family in

Philadelphia until June 2, 1997, when he received a Notice to

Appear, initiating removal proceedings, from the the

Immigration and Naturalization Service (INS).1

 According to

the Notice, Atkinson was removable from the United States

pursuant to sections 237(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the

Immigration and Nationality Act (INA) because he was an alien

convicted of a controlled substance offense and because he was

an alien convicted of an aggravated felony. 

In March 1998, an Immigration Judge (IJ) held that

Atkinson was removable and ineligible to apply for a waiver of

deportation under former section 212(c) of the INA, 8 U.S.C. §

1182(c) (repealed 1996), which permitted deportable aliens, who

had accrued seven years of lawful permanent residence in the

United States, to request discretionary relief from deportation if

the equities weighed in favor of their remaining in the country.

The IJ ruled that the repeal of section 212(c) applied

retroactively. In 1991, however, when Atkinson was convicted,

even aliens who had been convicted of an aggravated felony

were eligible to seek such relief provided that they had served

a sentence of less than five years imprisonment. See 8 U.S.C.

§ 1227(a)(2)(A)(iii); 8 U.S.C. § 1182(c). 
 2

It appears that St. Cyr was issued the same day as the

BIA’s initial decision in Atkinson’s case.

4

Atkinson appealed the decision to the Board of

Immigration Appeals (BIA), which, on June 25, 2001, affirmed

the IJ’s decision without a written opinion. Less than one month

later, Atkinson filed a motion to reconsider with the BIA, based

on the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289

(2001). The Court held in St. Cyr that the provisions of AEDPA

and IIRIRA, eliminating the possibility of discretionary relief

under former section 212(c), could not be applied retroactively

to a lawful permanent resident alien who had pled guilty to an

aggravated felony charge.2

 

While Atkinson’s motion for reconsideration was

pending, he was detained by the INS on October 18, 2001. On

October 29, Atkinson filed a petition for a writ of habeas corpus

and a stay of removal. The stay of removal was granted, and, on

the same day, Atkinson was released from custody pending the

resolution of his habeas petition. On July 12, 2002, the BIA

issued a short opinion denying Atkinson’s motion for

reconsideration on the ground that St. Cyr applied only to aliens

who had entered into plea agreements and not to aliens who, like

Atkinson, had been tried and found guilty. 

The District Court referred Atkinson’s petition to a

Magistrate Judge who, on April 29, 2004, issued a Report and

Recommendation, advising the District Court to grant the habeas

petition. The Magistrate Judge reasoned that, with respect to the

retroactive elimination of section 212(c) relief, there was no

principled distinction between aliens who had pled guilty and

aliens who had gone to trial. After the Magistrate Judge issued

her Report and Recommendation, but before the matter was

considered by the District Court, we decided Ponnapula v.

Ashcroft , 373 F.3d 480 (3d Cir. 2004). In Ponnapula, we held

that it was impermissible to apply AEDPA and IIRIRA

retroactively to aliens who had been offered pleas but had

rejected them. The District Court interpreted our decision as

creating a requirement that, in order to render a statute

impermissibly retroactive, aliens must show that they had
5

reasonably relied on the pre-existing state of the law. In

Ponnapula, the defendant/alien had been offered a plea

agreement. Atkinson was not offered an agreement. Moreover,

in Ponnapula, we stated in dictum that we doubted that aliens in

Atkinson’s situation could show sufficient reliance on the thenstate of the law to render IIRIRA’s repeal of section 212(c)

impermissibly retroactive. Id. at 494. Based on its

understanding of Ponnapula, the District Court denied

Atkinson’s petition for a writ of habeas corpus. Atkinson filed

a timely notice of appeal. 

II. Jurisdiction and Standard of Review

Atkinson’s petition for a writ of habeas corpus was

denied on December 20, 2004. Subsequently, Congress passed

the REAL ID Act, which became effective in May 2005. Pub.

L. No. 109-13, 119 Stat. 231. Section 106(a) of the Act

eliminated the district courts’ habeas jurisdiction over final

orders of removal in nearly all cases. 8 U.S.C. § 1252(a)(2);

Francois v. Gonzales, 448 F.3d 645, 647 (3d Cir. 2006). Where,

as here, we are faced with an appeal from a district court’s preREAL ID Act decision on a habeas petition, we vacate the

district court’s opinion and review de novo constitutional claims

and questions of law in the habeas petition as if they had been

filed with us in the first instance as a petition for review of an

immigration decision. 8 U.S.C. § 1252(a)(1). 

This petition for review presents us with a question of

law: the BIA’s legal conclusion that Atkinson was ineligible to

apply for relief under former section 212©.

III. Discussion

A. Statutory Framework

 Because the statutory schema in place prior to AEDPA

and IIRIRA bears on
 3

A more thorough review of the interwoven statutory

framework is available in St. Cyr, 533 U.S. at 293-298.

 4

Section 212(c), 8 U.S.C. § 1182(c) (1994) (repealed

1996), provided: “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 . .

..” 

 5

Roughly 50% of applications for 212(c) relief were

granted. St. Cyr, 533 U.S. at 296 n.5 (citing Rannik, The

Anti-Terrorism and Effective Death Penalty Act of 1996: A

Death Sentence for the 212(c) Waiver, 28 U. Miami InterAm. L. Rev. 123, 150 n.80).

6

retroactivity, a brief history is helpful.3

Section 212 of the INA excluded from the United States

several classes of aliens, including aliens convicted of offenses

involving moral turpitude or illegal trafficking in drugs.

However, the Attorney General was given discretion to admit

otherwise excludable aliens.4

 Although section 212(c) by its

terms applied only to exclusion proceedings, it was interpreted

by the BIA also to permit a permanent resident alien with a

lawful unrelinquished domicile of seven consecutive years to

apply for a discretionary waiver of deportation. St. Cyr, 533

U.S. at 295 (citing Matter of Silva, 16 I. & N. Dec. 26, 30, 1976

WL 32326 (1976); Francis v. INS, 532 F.3d 268 (2d Cir. 1976)).

Because of the large class of convictions that triggered

removability, section 212(c) was frequently called upon to

enable permanent resident aliens to remain in the country.5

The first significant change in section 212(c) occurred in

1990, when Congress amended it to preclude aliens convicted of

aggravated felonies, who had served a term of imprisonment of

five years or greater, from applying for a waiver of deportation.

104 Stat. 5052 (amending 8 U.S.C. § 1182(c)). Then, when

Congress enacted section 440(d) of AEDPA in 1996, it set forth

certain offenses for which convictions would preclude resort to
 6

In Lindh v. Murphy, 521 U.S. 320 (1997), for example,

the Court relied on a negative inference to conclude that

Congress did not intend to retroactively apply certain sections

of AEDPA, stating “if a congressional intent to not apply a

statute retrospectively can be discerned, then the courts are to

follow that intent, without regard to whether the statute has

‘retroactive effect.’” 521 U.S. at 326-27 Mathews, 161 F.3d at

161.

7

212(c) regardless of sentence length. 110 Stat. 1277 (amending

8 U.S.C. 1182(c)). That same year, Congress passed section

304(b) of IIRIRA, which repealed section 212(c) and replaced

it with a provision that grants the Attorney General the ability to

cancel removal for a narrow class of inadmissible or deportable

aliens. St. Cyr, 533 U.S. at 297. That narrow class does not

include those who, like Atkinson, were previously convicted of

an aggravated felony. Id. (citing 8 U.S.C. § 1229b(a)(3) (1994

ed., Supp. V)).

B. Retroactivity Analysis

We begin our retroactivity analysis with the Supreme

Court’s decisions in Landgraf v. USI Film Prods., 511 U.S. 244

(1994), which sets out the procedure for assessing whether a

civil statute should apply retroactively. The first question is

whether Congress has expressly provided that the statute should

be retroactive. Landgraf, 511 U.S. at 280. If the answer is yes,

our inquiry is over. Mathews v. Kidder, Peabody & Co., 161

F.3d 156, 160 (3d Cir. 1998). If the statute lacks such an

express statement, we ask whether the normal rules of statutory

construction unequivocally remove the possibility of

retroactivity.6

 Mathews, 161 F.3d at 160. If Congress did not

expressly provide for retroactivity and if a court applying

normal rules of statutory construction would not find an intent

to apply the statute only prospectively, then we must determine

whether applying the statute to events that antedated its

enactment would have a retroactive effect. Id. at 160-61. If we

find a retroactive effect, “we employ the strong presumption”

against applying such a statute retroactively. Id. at 161.
8

Resolving whether a statute has a retroactive effect

“demands a commonsense, functional judgment about ‘whether

the new provision attaches new legal consequences to events

completed before its enactment.’” St. Cyr, 533 U.S. at 321

(quoting Martin v. Hadix, 527 U.S. 343, 357-58 (1999) (quoting

Landgraf, 511 U.S. at 270)). “A statute has retroactive effect

when 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 . . ..”’” Id. (quoting Landgraf, 511

U.S. at 269 (quoting Soc’y for Propagation of the Gospel v.

Wheller, 22 F. Cas. 756, 767, No. 13,156 (C.C.D.H.N.H.

(1814)))). The judgment whether a statute has retroactive effect

is “informed and guided by ‘familiar considerations of fair

notice, reasonable reliance, and settled expectations.’” Id.

(quoting Martin, 527 U.S. at 358 (quoting Landgraf, 511 U.S. at

270.)). 

The retroactivity of the repeal of section 212(c) was

considered by the Supreme Court in St. Cyr. Applying the

Landgraf analysis, the Court concluded that Congress did not

expressly provide for the temporal reach of the repeal. The

Court then moved on to the issue of whether the repeal produced

an impermissible retroactive effect on aliens like St.Cyr who

had pled guilty in reliance on a plea agreement. St. Cyr, 533

U.S. at 320. The Court held that IIRIRA’s removal of

discretionary relief could not be applied to an alien who had

negotiated a plea to an aggravated felony charge during the time

when section 212(c) relief was available. 533 U.S. at 321. The

Court focused on the quid pro quo nature of a plea agreement

and stressed that an alien who had pled guilty to aggravated

felony with the expectation that he would be eligible for section

212(c) relief would suffer a “new disability” if that relief were

subsequently eliminated. Id. at 321-23. 

The Court did not clarify whether it understood reliance

by the person affected to be the condition of finding

impermissible retroactivity or merely the factor, in the context

of that case before the Court, that demonstrated an

impermissible retroactive effect. Nor did the Court consider

whether, beyond the reliance factor, there were other indicia that
9

the repeal of section 212(c) attached new legal consequences to

completed events. However, since the Court’s decision in St.

Cyr, courts of appeals in other circuits have understood the

Court’s discussion of reliance and quid pro quo as requiring that

there be reliance on the prior state of the law in order to make a

finding that the elimination of section 212(c) relief is

impermissibly retroactive. See, e.g., Rankine v. Reno, 319 F.3d

93, 99-102 (2d Cir. 2003) (focusing on lack of reliance in

rejecting alien’s claim that IIRIRA’s repeal of section 212(c)

was impermissibly retroactive as to aliens who went to trial and

were convicted of aggravated felonies); Chambers, 307 F.3d at

284 (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002)

(same); Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th

Cir. 2002) (same). 

Such a reading of St. Cyr, however, runs contrary to our

understanding of prior Supreme Court law. As we noted above,

Landgraf teaches that, in determining if a statute applies

retroactively, a court must begin with the statute. If the statute

is ambiguous as to its temporal reach, the question is whether it

attaches new legal consequences to past events. 511 U.S. at

282-84. If the court determines that the statute has retroactive

effect because of such consequences, that determination is

applied across the board. 

The Court has never held that reliance on the prior law is

an element required to make the determination that a statute

may be applied retroactively. See Ponapulla, 373 F.3d at 489

(noting that “the Supreme Court has never required actual

reliance in any case in the Landgraf line.”). In Landgraf, for

instance, the plaintiff, Barbara Landgraf accused her employer

of violating Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. After a bench trial, the District Court found that

plaintiff had been sexually harassed, causing her to suffer

mental anguish. Landgraf had, however, resigned from her

employment for reasons that the District Court found to be

unrelated to the sexual harassment. For that reason, the District

Court dismissed her complaint because she was no longer

entitled to equitable relief and Title VII did not then authorize

any other form of relief. Landgraf, 511 U.S. 248-49. 
10

While Landgraf’s appeal was pending, Title VII was

amended to permit recovery of compensatory and punitive

damages for certain violations and to provide for a jury trial if

such damages were sought. See Rev. Stat. § 1977A(a), 42

U.S.C. § 1981a(a) (1988 ed. Supp IV) as added by § 102 of the

1991 Act, Pub. L. 102-166, 105 Stat. 1972. The Supreme Court

granted certiorari to decide whether the amendments applied to

a Title VII case which was pending when the statute was

amended. Id. at 247.

In determining that the amendment did not apply to

pending cases, the Court did not base its decision on the specific

conduct of Landgraf’s employer or on any reliance that either

Landgraf or her employer may have had on the state of the law

when discriminatory conduct occurred. Instead, the Court made

a general analysis of the impact of the amendment, finding

retroactivity improper because the amendment instituted a legal

change that attached a new legal burden to the proscribed

conduct. Id. at 282-84; see also Ponnapula, 373 F.3d at 491.

Since the Court found the impermissible impact, the amendment

has been applied prospectively by the courts of appeals without

the need for any reexamination of the basis for denying

retroactivity – except a passing citation to Landgraf. See, e.g.,

Jonasson v. Lutheran Child & Family Services, 115 F.3d 436,

438 fn. 1, (7th Cir. 1997). 

Similarly, in Hughes Aircraft Co. v. Schumer, 520 U.S.

939 (1997), the False Claims Act (FCA) had been amended in

1986 to partially remove the bar to suits based on information

which was already in the government’s possession. The former

Division Contracts Manager for Hughes’ B-2 Division brought

an action in 1989 based on alleged mischarges made by Hughes

against Northrup, and ultimately against the government.

Hughes moved to dismiss, contending that the 1986 amendment

was not retroactive and that the action against it was precluded

by the pre-1986 FCA because the information upon which the

action was based was already in the possession of the

government. The District Court denied the motion. Hughes

then moved for summary judgment on the merits. The District

Court granted this motion and the plaintiff appealed. Hughes

cross-appealed the denial of its motion to dismiss. The Ninth
11

Circuit Court of Appeals rejected the cross-appeal, finding the

1986 amendment should be applied retroactively in suits based

on pre-1986 conduct. 520 U.S. 943-45.

The Supreme Court granted certiorari to consider, among

other issues, whether the 1986 amendment was applicable to

pre-1986 conduct. The Court held that the 1986 amendment

should not have been applied retroactively. Id. at 945. In doing

so the Court concluded that by eliminating a defense to an FCA

action, the 1986 amendment attached a new disability to

transactions already past. Id. at 948. There is, however, no

consideration in Hughes of whether Hughes Aircraft, in

particular, or any defendant, in general, in an FCA action might

have relied on the former law in conducting business with the

government. See Ponapulla, 373 F.3d at 491; Olatunji v.

Ashcroft, 387 F.3d 383, 391 (4th Cir. 2004). It was the new legal

burden imposed on events past, rather than the reliance on the

former law by the person affected, which was the basis for

holding that the 1986 amendment would not be applied

retroactively. 

Again, in Hadix, the question of retroactivity was the

issue. Here, the Prison Litigation Reform Act of 1995 (PLRA),

110 Stat. 1321-72, 42 U.S.C. § 1997e(d)(3) (1994 ed., Supp. III)

had placed a limit on the fees that might be awarded to attorneys

who litigate prisoner lawsuits. The Supreme Court was asked

to decide whether the limit on fees applied to post-judgment

monitoring of defendants’ compliance with the remedial decrees

that had been performed before the PLRA became effective.

The District Court had ruled that plaintiffs were entitled to fees

at the prevailing rate, which had been set by the court at $150

per hour. Under the PLRA, fees would be limited to $112.50

per hour. 527 U.S. at 348-50.

The Supreme Court determined that the limitation on fees

would apply to post-judgment monitoring performed after the

effective date of the PLRA but not to services performed prior

to that date. 527 U.S. at 347. In coming to this conclusion, the

Court noted that the attorneys had worked in reasonable reliance

on the fee schedule and that, before the effective date of the

PLRA, they reasonably expected to receive compensation
12

according to this schedule. Id. at 358-60. A reduction in the

rate of compensation would attach new legal consequences to

completed conduct. Id. (citing Landgraf, 511 U.S. at 270).

In Hadix, this reliance on a set fee was the expectation

which convinced the Court that a new legal burden had been

imposed on past events. Nevertheless, reliance on preamendment law has not been interpreted by our sister courts of

appeals as an element in determining across the board that the

PLRA amendment is not retroactive. See Cody v. Gomez, 304

F. 3d 767, 776-77 (8th Cir. 2002) (holding that in an action to

determine the propriety of awarding fees for monitoring [but not

the amount of the fee], the PLRA did not apply retrospectively

to fee requests for services performed prior to its effective date,

citing Hadix); Madrid v. Gomez, 190 F.3d 990, 994-95 (9th Cir.

1999) (holding that where fees for monitoring were awarded by

motion after services were performed, not by a pre-fixed

schedule as in Hadix, the PLRA did not apply retroactively,

citing Hadix). 

Thus, we see that the “reliance” factor is an element to

consider in determining whether the enactment of a new law has

created a “new disability.” Nevertheless, in Landgraf, Hughes,

and Hadix, whether the party before the court actually relied on

the prior state of the law is not the conclusive factor in

determining whether the amendment as a whole is to be applied

retroactively or prospectively. Impermissible retroactivity, as

defined in Landgraf, does not require that those affected by the

change in law have relied on the prior state of the law. Id.

We, therefore, turn to the situation of aliens who, like

Atkinson, had not been offered pleas and who had been

convicted of aggravated felonies following a jury trial at a time

when that conviction would not have rendered them ineligible

for section 212(c) relief. Does applying IIRIRA to eliminate the

availability of discretionary relief under former section 212(c)

attach new legal consequences to events completed before the
 7

 The government argues that Atkinson is barred from

obtaining a discretionary waiver under former section 212(c)

because he failed to establish seven-years of unrelinquished,

lawful permanent residence in the United States. The

government makes its argument on the basis of the “stoptime” provisions enacted as part of IIRIRA, which, the

government contests, interrupt the accrual of time toward the

seven years of unrelinquished residence upon conviction of an

aggravated felony. Because of the date of enactment of

IIRIRA stop-time provisions, we are inclined to believe that

they apply only to cancellation of removal, 8 U.S.C. §

1229b(d)(1), and not to aliens seeking a discretionary waiver

under former section 212(c). See Sandoval v. Reno, 166 F.3d

225 (3d Cir. 1999). We do not explicitly so hold, however,

because neither the IJ nor the BIA relied on the stop-time

provisions in rejecting Atkinson’s attempt to seek a waiver

under former section 212(c). Accordingly, the government

remains free to raise this argument in response to Atkinson’s

application for 212(c) relief.

13

repeal? We conclude that it does and that Atkinson cannot be

precluded from applying for 212(c) relief.7

 

Atkinson’s case presents a straightforward application of

the retroactive effect test. IIRIRA has plainly attached new

legal consequences to Atkinson’s conviction. See Olatunji, 387

F.3d at 396. Prior to IIRIRA’s enactment, Atkinson remained

free to apply for a waiver under section 212(c) despite his

conviction of an aggravated felony. After IIRIRA, he lost that

right; applying basic principles of retroactivity, IIRIRA attached

a new legal consequence to Atkinson’s conviction: the certainty

– rather than the possibility – of deportation. Such a change in

legal consequences based on events completed before IIRIRA’s

enactment constitutes an impermissible retroactive effect. See

St. Cyr, 533 U.S. at 325; Landgraf, 511 U.S. at 283; Hughes,

520 U.S. at 942. 

We emphasize that the important “event” to which

IIRIRA attached a new legal consequence was the conviction.

The fact that Atkinson was not offered a plea and did not engage
14

in a quid pro quo exchange is not the event which triggered his

inability to seek relief. Applying IIRIRA’s repeal of 212(c)

retroactively affected aliens because of the conviction for an

aggravated felony. This is clear because, regardless of whether

the conviction resulted from trial or plea, IIRIRA’s repeal of

section 212(c) had the same impact – the repeal did not attach

any different legal consequences to a conviction based on a

bargained plea than it did to a conviction following trial.

A significant characteristic of the “event” here is that it

occurred in the past and cannot be changed. That fact

distinguishes Atkinson’s situation from that of an alien felon

who has returned to the country illegally. In Fernandez-Vargas,

the Supreme Court held that IIRIRA’s provision for

reinstatement of removal orders against aliens illegally

reentering the United States could be applied retroactively to

aliens who reentered prior to IIRIRA’s enactment. 126 S. Ct.

2422 (2006). The Court found that applying IIRIRA to such

aliens did not attach new legal consequences to past events

because “it is the conduct of remaining in the country after entry

that is the predicate action; the statute applies to stop an

indefinitely continuing violation that the alien himself could end

at any time by voluntarily leaving the country.” Id. The Court

specifically distinguished the situation in St. Cyr because in that

case the alien’s plea and agreement for a quid pro quo were

entirely in the past, “and there was no question of undoing

them.” Id. at 2432. Here, Atkinson’s trial and conviction are

entirely in the past, and there is no possibility of undoing them.

See also St. Cyr v. INS, 229 F.3d 406, 418 (2d Cir. 2000) (“it is

the conviction, not the underlying criminal act, that triggers the

disqualification from § 212(c) relief.”) (internal citations and

quotations omitted); Thom v. Ashcroft, 369 F.3d 158, 168 (2d

Cir. 2004) (Underhill, District Judge, dissenting) (noting that the

conviction was the relevant past event because it was the trigger

for whether IIRIRA attached new legal consequences); contra

Chambers v. Reno, 307 F.3d 284, 293 (4th Cir. 2002) (stating

that the relevant past conduct was the alien’s decision to go to
 8

The dissent in Chambers described the relevant past

conduct to be the alien’s crime of conviction. Id. at 293-94. 

The dissent noted that it was the underlying criminal conduct,

not the decision to plead, that rendered the alien subject to

deportation and in need of the ability to apply for a section

212(c) waiver. Id. at 295. The dissent was on the proper

track but we consider the relevant past event to be the

conviction – absent a legal determination of guilt, the alien is

not subject to deportation or in need of section 212(c) relief.

15

trial).8

For the above reasons, we conclude that reliance is but

one consideration in assessing whether a statute attaches new

legal consequences to past events. See Landgraf, 511 U.S. at

270. In applying its commonsense, functional judgment as to

whether a statute attaches new legal consequences, a court can

certainly be guided by considerations of fair notice, reasonable

reliance, and settled expectations. Hadix, 527 U.S. at 357-58.

Nowhere in the Supreme Court’s jurisprudence, however, has

reliance (or any other guidepost) become the sine qua non of the

retroactive effects inquiry. Olatunji, 393-94. Moreover, nothing

in the Landgraf line of cases supports the theory that the limits

of permissible retroactivity are different for one group – those

who accept (or consider) a plea agreement – than they are for

another – those who exercise their constitutional right to a trial.

It is for this reason that we are not troubled by our dictum

in Ponnapula casting doubt on whether an alien in Atkinson’s

situation could demonstrate a reasonable reliance interest

necessary to demonstrate a retroactive effect. 373 F.3d at 494.

Specifically, we stated that “aliens [who went to trial because

they were not offered a plea agreement] had no opportunity to

alter their course in the criminal justice system in reliance on the

availability of § 212(c) relief, [and] we highly doubt (though do

not explicitly hold, for the issue is not before us) that such aliens

have a reliance interest that renders IIRIRA’s repeal of former

§ 212(c) impermissibly retroactive as to them.” Id. We agree

that aliens who were not offered plea bargains did not rely on
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the existence of section 212(c) relief in deciding to go to trial.

This does not cause us pause, however, because the relevant

question is whether IIRIRA attached new legal consequences to

those aliens’ convictions and resulting sentences. The answer,

as we have described, is yes. 

IV. Conclusion

We hold that the BIA cannot preclude Atkinson from

applying for a discretionary waiver under former section 212(c)

because IIRIRA’s repeal of that section cannot be applied

retroactively. Treating Atkinson’s appeal from the District

Court’s denial of his habeas petition as a petition for review,

Francois, 448 F.3d at 647, we will grant the petition and remand

this case to the BIA for further proceedings consistent with this

opinion.