2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

6-28-2004 

# P onn apul a v

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P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-1255

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IN T HE UNI TED ST ATES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

_____________
NO. 03-1255

_____________
MURALI KRI SHNA PON NAPULA;

v.

JOHN ASHC ROFT , Attorney Generalof

the Un i t edSt ates of

Ame r i ca ; JA MES W. ZIGLAS , Commissioner of the Immigration and Natura lization Service; ED WA RD M CE LR OY , New Yo rk C ity Distri ct Direc tor of t

he Immigration and Naturali zati on Service; KE NN ET H E LW OO D, P hilade lphia Distri ct Direc tor of t

he Immigration and Natura lization Service;

IMMI GRATI ON & NATURALIZATION SERVICE; UNIT ED STA TES DE PARTMENT OF

JUSTICE,
App ellants

________ On Appeal from the United St ates Distri ct Court For The M iddle D istrict of P enns ylvania (D.C. No. 02-cv- 01214) Dis tric t J udg e: Hon or ab le Sy lv iaH. Rambo

__________ Argued February26, 2004

Before: RENDEL L, BARR Y and BE CK ER , Circuit

Judges

(Fil ed June 28, 2004 )

DARYL F. BLOOM Office of United St ates Attorney Federal Bui lding 228 Walnut Stre et P.O. Box 11754 Harrisburg, PA 17108

WILLIAM C. MINICK (Argued) United Sate s Department of Justi ce Office of Immigrat

ion Litigati on P.O. Box 878 Ben Franklin St ation Washington, DC 20044

Attorn eys for App ellants

ALEX AND ER E. EISEM ANN (Argued) 282 Katonah Ave. Suite 244 Katonah, NY 10536

Attorneyfor Appellee

PAUL A. ENGELMAYER CHR ISTOPHE R J. MEA DE (Argued) KA TH ER INE R. GO LD STE IN Wilmer, Cutl er & Pickeri ng 399 Park Avenue New Y ork, NY 100222

JOSHUA L. DRATEL National Association of Crimi nal Defe nse La wyers Jos huaL. Dr at el , P .C. 14 Wall Stre et New Y ork, NY 10005

JONA THA N E. GRA DESS, Executive Director MA NUE L D. VA RGA S, Proj ect Director Immigrant

Defense Project New Y ork State Defenders Associ ation P.O. Box 20058 West Villa ge Stati on New Y ork, NY 10014

Attorney s for AmiciCuriae, Nat ional Association of Criminal Defense Lawyers and the New York State Defenders Associat ion in Support of Appel lee

________________________
OPINI ON OF THE COURT

________________________

BE CK ER , Circuit

Judge

. This appe al c enters on the question w h ether the Immigrat ion an d Naturali zati on Service ( “INS”) can a pply

a new law retroa ctive l y in a w ay that w ill alte r th e immigration consequenc es of an immigran t’s decisi on made unde r prior la w. 1 Und er former § 212(c) of the Immigration and N ationality Act (“INA ”), 8 U.S.C. § 1182(c ) (re pealed 1 996) , depo rtable aliens wh o had a ccru ed seven years of lawful permanent resi dence in the United States c ould re quest discretionary reli ef from deportation by ar guing that t he equiti es weighed in fa v or of their remaini ng in the U nited States . Even an alie n deportabl e because he had bee n convict ed of an ag gr av ate d f elo ny, see 8 U. S. C. § 1227 (a)(2)(A)(iii) (1994), was eligible for such di scretionaryreli ef if he served a term of impriso nm ent le ss than five years. See 8 U.S .C. § 118 2(c).
Section 21 2(c) w as rep ealed in September1996, when Congress pass ed the Ill egal Immigr ation Reform and Im migr ant Respo nsibility Act (“IIRIRA ”), Pu b. L. No . 104-208 , 110 Stat. 300 9-5 4 6 (co di fied in scattered sections o f 8 U .S.C.). Sectio n 304(b) of I IRIRA repealed § 212(c ) rel ief entirel y, replac ing it with a procedu re ca lled “ cancell ation o f

rem ova l,” see 8 U.S.C. § 1 229b (1996), and providi ng that

cancell ationof removal is not avai lable to an a lien c onvicte d of any ag gr av ate d f elo ny. This provi sion was

con sist ent with section 440(d) of the Antiterrori sm and E ffec tive D eath P enalty Ac t (“ AED PA”), Pub. L. No. 104-132, 110 Stat. 121 4 (co dified in relev ant pa rt at 8 U.S .C. § 11 82 ( 199 6)), e n acted shortly

1 Since March 1, 2003, the INS has been part of the Department of Ho mela nd S ecurity. Th e activ ity involved i n this case is now carried on by th e Bureau of I mmig ra ti on a nd Cu st oms Enforcemen t. However, since the case bega n as a n IN S m atter, w e sha ll cont inue to r efer

to the INS.3

before IIRIRA, which rendered ali ens
conv icte d o f aggravat ed feloni es , regardless of the l ength of their s entence, inelig i ble for dis creti onary reli ef from deportation u nder form er § 212 (c).
In INS v. St. Cyr , 533 U.S . 289, 326 (2001), the Supreme Court held that discr etionary reli ef underformer § 212(c) “remains ava ilabl e for aliens . . . whose convictions were obtai ned through pl ea agree men ts and who . . . would have been eligible for § 21 2(c) reli ef at the time of their plea under

the la w then in effect.” In St. Cyr , the C ourt n eede d to determi ne whether IIRIR A secti on 304(b) appl ied

re tro ac tiv ely. After concl udi ng that Congress did not pr ov ide a suf ficien tly clear command with res pect t o the temporal reach of the repea l o f for mer § 212(c) by I IRIRA section 304( b), t he Cou rt applie d the next step of the famili ar princi pl es o f Lan dgra f v. US I Film Pro ducts , 511 U.S. 244 ( 199 4), to determi ne whether the repeal had an impermiss ible retroac ti ve e ffe ct. Landgraf catal oged a hi st or y of S upr eme Cou rt precedent

establ ishi ng a “presum p tion against stat

utoryretr oacti vity ,” id. at 270, in the absenc e of a clear command from Congress. A statute w ill be imp ermis sibly

r etroac tive when it attaches ne w legal consequences t o prior e vents beca use its applic ation“wou ld imp air rights a party possesse d wh en h e ac ted, i ncrease a party’s liabil ityfor past conduct, or impose

n ew duties with res pect t o trans act ion s alrea dy completed .” Id . at 280. The questi on whe ther a ne w statute att aches

new legal consequences to prior conduct “d em ands a commonsense, functional

judg men t” that “ should be i nformed an d guid ed by ‘fam iliar con sidera tions o f fair notice , reasonabl e reli ance, and s ettl ed expectations.’” M artin v. Ha dix , 527 U.S. 343, 357- 58 (1999) (quot ing Landgraf

, 511 U .S. at 270).
In St. Cyr , the Court concluded that the retr oacti ve applic ati on of IIRIRA secti on 304(b) woul d ha ve a n i mpermi ss ible retr oacti ve effe ct on a lie ns

— such as St. Cyr—who had pleaded gui lty prior to the repeal of § 21 2(c). The Court highl ighted the quid pro quo of the cri minal pl ea agree men t, and reasoned that because alie ns like St. Cyr al most cert ainly reli ed upon t he l ikeliho od o f rece ivin g discretionary relief in decid ing w hethe r to forgo thei r ri ght to a t

rial , the elimi nation of any pos sibility of § 212(c) r elie f by II RIRA has an o bvious an d severe retr oacti ve effe ct. Th is appeal present s the questi on whe t her

app li cat io n of II RIRA secti on 3 04(b ) wo uld h ave a similarly impe rmissib le retr oacti ve effect on t he petitioner, Murali Kris hna Ponnapula. Pon napu la turned down a misdemeanor plea agreement, went to trial when former § 212 (c) w as still i n e ffect, and was convict ed of a felonyby the jury ; he went to tri al in relian ce on the ad vice o f his counsel that, even if he were foundgu ilty, he would very likel y not recei ve a sente nce that wou ld render him ineligible for § 212(c) reli ef, bec ause of his very minor role i n the offense

. Rejecti ng the posi t ion of the governmentthat Ponn a pula is preclude d from clai ming retroacti ve effect by reason4

of the dis cussion i n St. Cyr , w e c onclude that St. Cyr

is simp ly one ap plicati on of the gene ral princ iples artic ulated in Landgraf

that c ounsel agai nst i nterpreting stat utes to have retroacti ve effect. Here, with respect to an a lien who re aso nably could have rel ied on the poten ti al

ava ilability of § 212 (c) relief , applica ti o n of the Landgraf

pr in ci pl es sh ows t hat I I RIRA secti on 304 (b) has a n impe rmis sible retr oac tive e ffect

. Mo reover, on th is r ecord, where the petit ioner dem onstr ated cl ear an d

reason able actualreli ance on the former statutory scheme in making t he decisi on to go to tri al, ther e is a fortiorian impe rmissib le r et

r oa cti ve ef

fe ct

. We begin with t

he facts of Ponnapula’s case.

I.
A.
In 199 3, a N ew Yo rk state g rand ju r y indi cte d Ponnapula, along with s everal otherde fend ants, for grand l arcenyin the first de gr ee , N .Y

. Penal Law § 155.42, and f alsi fyi ng busin ess rec ords in the fir s t degree, N.Y. Penal Law § 175.10. Es sentially the offense invol ved a fraudule nt applic ation s ubmitt ed to the Bank of In dia fo r a loan to gen erate

wo r king capita l, secure d by a va luable parking lot located near La Gua rdia Airpo rt in Ne w Y ork C ity. The loa n app licatio n
wa s submitted by a gr oup headed by Ponn apula’s brother, Dr. P. S . Pras ad. Prasad and h is assistan t, Vijay D anda pani, prepareda loan appl ication in t he name of

a shellcompan y , listed Po nnap ula as its nominal presi dent, and submitted an inflated personalnet worth s tate ment over his name. The loan w as ev entua lly approved. H ow ever, t he undisputed evidence establish ed tha t Pr asad and Dandapani did al l of this without Ponn apula’s know led ge, and t ha t Dand ap ani forged P onnap ula’s signature

on both the loa n app licati on and the net

wo rth st atem ent.
Over the next

year , Ponnapulaand the Manhattan Dist r ict Attorney ’s Office engaged in plea neg otiat ion s. The Distri ct Attorney’s Of fice o ffere d to allo w h im to pl ead g uilt

y t o a misdemeanor wit h a prob ati onary se ntence. Ponnapul a considered the of fer an d the im mig rat ion consequences of pl ea ding guil ty versus going to trial. His c oun sel adv ised h im that if h e was convicted , he wo uld very likely receiv e the m in imu m sentence of onl y one to three ye ars’ i mprisonmen t , which is l ess than the fi ve years necessary to disqual ifyan a li en f

ro m § 212(c) r elie f. Acco rdi ng ly, Ponnapula rea sonabl y belie ved that e ven if he were convi cted of

a fe lo ny a fte r tr ial he w ou ld sti ll li ke ly b e eli gible for hards hip rel ief fro m deportat ion pursuan t to former § 212(c). In r elianc e on th is adv ice, Po nnap ula dec ided to turn down the misdemean o r offerand pro cee ded to tria l. On December 20, 1994, he was conv icted o f bo th cou nts in the indi ctment. He was sentenced t o the minimum te rm o f imp risonm ent— one to three year s. The advice o f Pon napu la’s co unse l, and hi s re liance thereo n, is easily underst andable, for the e viden ce a t trial5

barely established cri min alit y. Indeed, Ponn apula’s participation was so limi ted that the trial judge set aside the jury’s guilty ve rdi ct and di smissed t he indic tment

as to Ponnapula, for re ason s chro nicled in the margin. 2 It i s al so n oteworthythat while the loan applic ation c ontaine d false statements, the bank was well secured, and

recovere d $1.35 mil lion of the $1.9 mil lion loa n amo unt when it ultimat elysold the parking lot. However, the orde r setting aside the convi ct ion wa s eve ntually

revers ed on appeal and t he conviction reins tate d. Upon remand, the trial c ourt i mposed the mandat o ry minim um term o f on e to three years imp risonm ent on th is New York State “B” felo ny, see N.Y. Penal Law § 155.42, but

the trial j udge recommended to th e N ew Yo rk Sta te Correcti ons Dep art men t that it “c onsider [def enda nt] fo r a n e ar ly r ele ase progr am t hat encompasses work re lea se. ” Ponnapula the n file d a peti tion for habeas reli ef in th e Un ited States District Co urt for the S outhern Dis tri ct of New York. 2 According to Judge C arruthers: The People pres ented no evidence t

hat Murali parti cipat ed in anyway in t

he incl usion of any false s tate ments contained in t he loan a pplica tion, or th at M urali knew that the loan d ocum ents contained any false representations. T he Peo ple’s most important witness, Da ndap ani, testifie d that M urali was not informed of misrepr esentat

ions that Pras ad orde red D anda pani a nd S hetty to include in the l oan appli cati on and the su ppo rting do cum ents. M urali could not ha ve learned from the documents the mselves t hat Pras ad was deceivi ng the bank. The evidence s hows that Muralinever had a ch anc e to e xam ine th em

. Thu s, M urali w as in n o po sition to detect even the gl aring misre prese ntation s con cernin g his finan ces tha t wer e con tained in the loan applicati ons. With respe ct to the docu men ts that Mural i si gned at the closi ng, Dandapani and Krasner, the bank’s attorney , each testi fied that Murali only glanced at the papers, but did no t read them b efore signi ng. Moreover, there was no evidence t

hat Murali signed t

he documents with knowle dge that Prasad i ntended t o misapply the pro cee ds o f the loan

. . . .

. . . . [T]he Peopl e’s key witn ess, V ijay Dan dapa ni, testified uneq uivo cally that M urali never knew of the misrepr esentat

ions made to t

he bank in the loan appl ication. The remainder

of the evi dence prese nted b y the Peo ple sim ply fail s to support the c ontenti on that Murali was a knowing part icipant in anymisrepr esentat

ions made by Prasa d or h is assistan ts with regard to the loan.6

Wh ile conc lud ing that

the evi dence had be en legally su ffici ent to s ustai n petit ioner ’s conviction of a l arceny invo lv i ng more than one million dollars, and that he w as co nstrain ed to deny fede ral habeas rel ief, Judge Rakoff observed: [P ]eti tioner ’s counsel ha s
con vi nced me that his client was, for lack of a bet

tert erm, th e sm all fry or —ma ybe eve n bette r t e r m—t he sch nook of thi s particular

group of miscreants.
An d though I have no power otherthan the power to comment

on wh at sho uld b e don e now in te rms of his i ncarcer ation, for what it’s wo rth, it seem s to me i t wo uld certain ly be in the i nteres ts of justice for him to be relea sed on work releas e. After Po nnap ula was all owed out on work relea se, th e I NS file d a detai ner and warrant for

a removal hearing on October 2 , 2000, and purs uant to New York l a w Ponnap ula w as re tu rn ed to sta te c us to dy. On Jan uar y 8, 200 1, aft er a hearing, an immi g rati on judg e fou nd P onn apula

remo vable from the U nited S ta tes. On appe al, the BIA affirmed, holdi ng that S t. Cyr could not be exten ded beyond defe ndan ts who had pl ea de d gu il ty . O n May 7, 200 2, aft er two y ears of incarc erati on on h is con victio n, the New York State Departmen t of Correctional Services re le as ed Pon na pul a. Up o n his relea se, the INS tookhim int o custodyand trans ferred hi m to th e P ik e C ou nt y, Pen nsylvan ia jail for dete ntion. On M ay 8, 2002, p urs uant to 28 U. S.C. § 2241, Pon napu la file d the habeas petition that is the su bject o f this ap peal.

B.
In analy zing the petition for h ardsh ip

r elie f, the D istrict Co urt reas oned that i t

was “pres ented with the very narrow legal ques ti on of wh ether

. . . to ap pl y II RI R A retroac tively to [P onn apu la].” Pon nap ula

v. Ash croft , 235 F. Supp . 2d 397, 402 (M. D. Pa. 2002). However, i t deci ded that the ex e mp tion-strip ping prov ision in II RIRA could not

be appli ed, “[g] iven the factualunderpinni ngs of thi s case,” id. , an d it concluded that Ponnapula was entitled to app ly for hard ship relie f. Mo re sp ec ifi ca lly, the Dist

rict Court found that the “[ e] lim in ati on of an y poss ibil ity of former § 212(c) r elie f b y I IRIRA has an ob vio us and severe retroac tive e ffect on persons like Pet

iti one r w ho reli ed on settled expe ctati ons of the i mmigrati on la ws in place at

the ti me he turned down a ple a bargain an d decided to go to tri al. ” Id

. at 4 03. It

also found t

hat “A major factor in his decisi on not to ac cept the offerwas the lack of anydistincti on for the purposes of § 212(c) r elie f be twee n a misdemeanorand felonyconviction. ” Id

. (inter nal quo tatio n m ark s om itted ). Summarizing its position, the Distri c t Cou rt ruled that “[i]n d ecidin g no t to acceptthe ple a bargai n offered, but inst ead to go to trial, Petitioner confo rm ed his conductto the se ttled ex pecta tion tha t § 212(c) reli ef would be a vail able

. A cc or di ng ly, the cou rt fi nd s tha t forecl osing § 21 2(c) re li ef t o Petitioner

wo uld have an impermis sibl e retroacti ve7

effect. ” Id. at 406.
Because P onnap ula had l ive d contin uou sly in the United States for se ven years and had been sent enced to l ess than five y ears ’ impri sonment, he would have been eligible for § 212( c) r elie f had it not be e n elimi nated. Indeed, i t would appear from th e rec ord that

he would like ly have been gran ted it: Ponnapula’s wife and two children as well as sev eral of his brothe rs
are natural ized Unit ed State s citizens . All of them live in this co untry. Ponnapu la’s fou rteen-yea r-old and tw enty-year-old daugh ters do n ot sp eak Te lgu , the native language of their parents. W ith t he excepti on of the first o ne an d on e-half years of th e o ld er da ug ht er ’s i nf an cy, each has spen t a total of only six we eks in India in their enti re lives. The youngest daughter is in the n inth grade, and removal of her fathe r wou ld lea d to her mothe r leavi ng the co untry , and would forc e the daughter to res ide in a

place where s he has

no ties and does not s peak the la nguage. Indeed, Ponnapula had been app ro ved to bec ome a United States ci tize n and was planning to take the oath in 199 3, bu t did not do so becaus e he was indic ted for this offense before the oat h c ould be administered.

II.

A.
It will be us eful t o set forth a brie f descri ption of

th e s ta tu to ryre gi me in plac e prior to 1996 and the passa ge of AEDPA and II RIR A. Under that regime, pur suant to § 212(c), a lawful permanent resi dent convict ed of a de portabl e offense was statutorily eligible to seek fro m t he AttorneyGeneral discretionary reli ef from deportat ion. See 8 U. S.C

. § 11 82(d)(19 94). Pri or to II RIRA , imm igrants who were d eport abl e on the basis of a c rimina l offe nse c ould apply for § 212(c) r elie f so long as theyhad lived in this country continuous ly for seven years. O n l y th o s e wh o had b e e n convict ed—either by pl ea or attri al—of a

cr ime that fe ll unde r th e de finit ion of an “aggravat ed felony ,” see 8 U .S.C . § 1101(a)( 43) (1994), and who had served a prisonterm o f at least five years were statutoril y ineligible for discretionary

r e lief

. See 8 U.S .C. § 118 2(c) (1994 ). Even a defendant convi cted of an aggravat ed felonyand sentence d to five or
more years’ i mprisonment mi ght have

ma intai ned eligibili ty for § 212(c) reli ef providedthat he had not served five years of his se ntence by th e t ime of his r emoval hearing.
There was also a st

rong li kelihood t

hat such relief w ould be grante d: The Attorney General gran ted it in over hal f of allcases in wh ich it wa s so ugh t. See St. Cyr , 533 U.S. at 296 & n.5. Mo reover, the rel ief

was pr ed ict ab ly g ran ted w here c ertain factors we re pres ent, inclu ding fam ily ties with in the Unite d States , res idence of l ong durati on in thi s country, evide n ce of hard ship to the im migra nt’s familyas a result of deportation, and a stabl e his tory of e mp loym ent. See In re M arin , 16 I&N8

Dec. 58 1, 584-85 (BIA 1978). 3

With IIRIRA, Congress repealed § 212(c) relief alto gethe r and replac ed it with a provis ion that

creat ed a new and signif icantly narrower form of reli ef call ed “cance ll ationof removal. ” This form of reli ef is now unav ailable to any i mmigrant who was convicte d of a n aggravat ed fe lo ny, no matt er the l ength of the

se nte nce. See 8 U.S.C. § 1229b. The defini tion of

“aggravat ed felony ” has been retroac tively e xpanded to i nclude dozens

mor e offenses, includi ng misdemeanor an d low-levelfelonyoff ens es. See 8 U. S. C. § 1101(a )(43). Courts have uphe ld the applic a tion of the expanded def inition of “aggravat ed felony ” to minor of fen ses. See, e.g. , United Stat

es v. Pacheco , 225 F. 3d 148 , 1 54 ( 2d Ci r. 2000 ) (misdemeanor

state theft

of a video ga m e valued at $1 0, f o r which immigr ant recei ved one-y ea r susp ende d sen tence , is

an aggrav at ed fe lony); United Stat es v. Gra ham
, 169 F.3d 787, 792 ( 3d Cir. 1999) (misdemeanor

crime of petty larce ny is an aggrava ted felony).
The pr acti cal effec t of the repeal of § 212(c) reli ef, i n conjunction with s everal otherstat

ut o ry amendments, i s that a far larger number of immigrant s are now depo rtable under th e new law, while a much smaller num ber are eligible for a n y form of reli ef from de portat ion

. Mo reov er, if the repeal is appl ied retroac tively to immigrants su ch as Ponn a pula, the pra ctical ef fect is th at it will convert what

wa s the m ere po ssibility of d epo rtatio n in to a c ertai nty.

B.
Since the princi pal authori ty governing this case is Landg raf , we re scribe its fundamental pre cep ts. There the S upr eme Cou rt held th at, absent a c lear c ommand to the contrary from Con gress, there i s a “presumpti o n ag ain st st atutor y retro activ ity.” 511 U.S. at 270. 4 Without such a clear s tatem ent, retr oacti ve applic ationof a stat

ute is imper mi ssible when it “wo uld imp air rights a party possesse d whe n he acted, increa se a party’s liabil ityfor past conduct, or impose

new duties with res pectto trans acti ons alrea dy completed. ” Id. at 280. In M artin

v. Ha dix , the Court elaborated t hat the

3 Section 212( c) rel ief i s governed by pred ictable s tanda rds, “co mp arable to common-law rules, ” St. Cyr , 533 U.S. at 296 n.5. 4 See also Landgraf , 511 U.S. at 265, 271, 271 n.25, 272, 273, 275 n. 29, 277, 278, 279, 286 ( referring, variousl y, to the “presumpti on against

retr oacti ve legislation,” the “presumption against stat utoryretr oacti vity ,” the “anti retr oacti vity

presumpti on,” and the “traditio nal pre sum ption a gains t truly ‘retrosp ective ’ app lication” ); Hughes Aircr aft Co . v. Un ited Sta tes ex r el. Schumer , 520 U.S. 939, 946, 947, 950, 951 , 952 ( 199 7) (sam e); Ha dix , 527 U. S. at 352 , 367 ( sam e); St. Cyr , 533 U.S. at 316 , 320, 3 24 (sa me); Republic of Austri a v. Alt

mann , No. 03-13, sli p op. at 14, 17 (U .S. June 7, 200 4) (same).9

questi on whethe r a new statute att aches

new legal consequences to prior conduct “demands a commonsense, func ti onal judg men t” that

“s hould be inf

ormed and guided b y ‘fam iliar con sidera tions o f fair notice , reasonabl e reli ance, and s ettl ed expec t ations.’” 527 U.S. at 357- 58 (quoti ng Landgraf

, 511 U.S. at 280). Most

re ce nt ly, in Rep ubl ic of Austria v. Altmann , the S upre me C ourt h eld that t he Landgraf

line doe s not appl y t o the “ sui gene ris conte xt” of the Forei gn Sovereign Imm uniti es Act, sl ip op. at 18, but nonetheless bo th t he majori ty and disse nt expr essly reaffi rmed Landgraf ’s “ol d and well-es tabli shed princi ple, ” s l ip op . at 3 (K en ne dy, J., dissenting); see also slip op. at 13-18 (re affirmi ng but dis tingui shi n g Landgraf

). The Altmann Court explained that “the a im of the pre sum ption is to avoid unnecess ar y post hoc chan ges to legal rules o n w hich p arties relie d in shaping their primary conduct. ” Slip op. at 17-18.
In St. Cyr , the Court appli ed the princi ples of L a ndg raf in consi dering whether IIRIRA ’s repeal of d iscretionary reli ef under former § 212(c) would have a retr oacti ve effectif app lied to an ali en who

was “convict ed pursuant to a ple a agreementat a time when [his] plea w ould not have rende red [ him] ineligible for § 21 2(c) reli ef.” St. Cyr , 533 U.S. at 320. The Co urt fi rst e xamined whether t he provisi ons repeal ing former § 21 2(c) evinced a clear

Congressiona l inten t t o apply the rep eal re troa ctive ly. Concluding that there was no s uch clear statem ent, see St. Cyr , 533 U. S. at 314-20, the Court next considered whe ther a p ply ing the repeal retroac tively would be impermis sibl e. The Cou rt c onclu ded th at app lying the re peal to alie ns “who entered i nto p le a agre eme nts with the expec tat ion that theywould be eligible for [§ 2 12(c )] relief” wo uld “‘att ach[] a ne w disab ility, in respect to trans acti ons or consi derati ons alr eady past’” and produce a retr oac tive e ffe ct. Id. at 321 (quoti ng Landgraf , 511 U.S. at 269). The Co urt ult imat elyheld somethi ng somewhat mo re exp ansiv e: “W e . . . hold that § 212(c) r elie f rem ains avail able for aliens, like respondent, whose convicti ons
were obtaine d thr oug h plea agree men ts and who, not withst and ing thos e convictions, would have been eli gible f or § 212(c ) rel ief at

the ti me of their

plea under the l aw then in effec t.” Id. at 326.
In reach ing this conclusion , the Court focused on an ali en’s re asonable relianc e
on the possibili ty of di scretionaryreli ef

un der fo rmer § 212(c) as one of the most important

factor s prompti ng him to fore go tri al and enter

a plea agreement. “ Given the frequencywith which § 212(c) r elie f was g ranted in the years lead ing up t o . . . IIR IRA ,” the Cou rt reasoned, “preserving the possibi lit

y of s uch reli ef would ha v e bee n on e of the principa l benefi ts sought by defendants decidi ng whe t her to ac cept

a plea offer

or inste ad to pro cee d to trial.” Id. at 323. Indeed, “ [t]here can be litt le doubt that, as a generalmatter , al ien defe ndan ts conside rin g whether to e nter into a plea agreem ent are acutel y aware of the immi g ration c onse quen ces o f their

con victi ons .” Id. at 322 . In sup port o f its conclusi on tha t ali ens who accepted pl ea10

agree men ts prior

to II RIRA had a reli ance interest in § 212(c) rel ie f, the Cou rt poin ted to the quid pro quo at theheart of criminal plea agr eem ents

. Id. at 321. “In exchange for s om e perc eived bene fit, defe ndan ts waive severa l of thei r consti tuti onal right s . . . and grant t he governmentnum e rou s tan gib le be nef its.” Id. at 322 (interna l q u otati on marks

om it ted ). The Court conclude d that “[ b ]ecause [St. Cy r], and other a liens like hi m, almo st certain ly reli ed upon [the] likel ihood [of recei ving d i scretionary reli ef] in deci ding whethe r to forg o their right to a tri al, the el imination of any poss ibility of § 21 2(c ) re li ef b y II RIRA has an obvious and s eve re ret roacti ve effect. ” Id. at 325.
C.
The crux of th e govern ment’s argument is that the appe al is con troll ed by St. Cyr , which it views as r esti ng uniquely on the existence of the quid p ro q uo of crimi nal pleaagree men ts. The abse nce o f this quid pro quo here, t

he INS argues, causes Ponnapula’ s cla im to fai l. Of cours e, the unspoken prem ise of th is argu men t is that St. Cyr arti culat ed the excl usive condi tions for impe rmissib le retr oa ctivity in this conte xt.
The Co urts of Appeals for t he Second and F ourth Circu its have confined St. Cyr to the ple a -agreement context on the underst anding that a quid pro quo is required. See S wa by v. A shcro ft , 357 F.3d 156, 161 -62 (2d Cir. 2004) ; Rankine v. Reno , 319 F.3d 93, 100 (2d Cir. 2003 ); Cham bers v. Reno , 307 F.3d 284, 290-91 (4th Cir. 2002 ). 5 Oth er Co urts of A ppea ls have also l imit ed St. Cyr ’s retroa ctivity hol ding to the plea- bargain c ontext wit hout spec ifically invo king th e qu id pro quo language fr om St. Cyr. See Montenegro v. Ash croft , 355 F.3d 1035 ( 7th Cir. 2004) (percuriam ); Dia s v . I NS , 311 F.3d 4 56 (1stC ir. 2002 ); Armendariz-Montoya v. Son chik , 291 F.3d 1 116 (9th Cir. 2002 ); Brooks v. Ash croft , 283 F.3d 1 268 (11th Ci r

. 2002). A rel ated ar gument advanced by the INS and in t

hese cases is that the immigrant

has “rol led t he dice” bygoing to tria l an d t he re by f or fe ite d a ny claim to

ce rta in ty. See, e.g. , Cham bers 307 F.3d at 291-92.
As we will expl ain, our interpret ation of Land graf

and its proge ny differs somewhat fr om thes e Cou rt s’ . Bu t ev en accepti ng their

un derst and ing of Landgraf , we think Pon napula’s case d istingu ishab le fr om the case s cited above, wit h t h e

5 We ha ve al so su gge st ed th is in two opi nio ns, Ch ukw uezi v. A shcro ft , 48 Fed. Appx. 846, 851 (3d Cir . 2002) and Usp ang o v. A shcro

ft , 289 F.3d 226, 230 (3d C ir. 2002 ). Neith er is bin ding on th is issu e on this p ane l, ho we ver , see Third Circuit IOP 9.1 (“Pol icyof Avoiding Intra-C ircuit C onf lict of P reced ent”): Chukw uezi is a not -precede ntialopinion, and the di scussi on in Uspango of St. Cyr is di cta becaus e it i s not neces saryto that opinion’ s holdi ng—that a removal proceedi ng does not “commence, ” for purposes of 8 C. F.R. § 3. 14 and IIRIR A’s e ffec tive-da te prov ision, w ith

an a li en’ s pe ti ti on f

oras y lu m.11

possibl e excepti on of Swaby (with which, at all e vents, we disagr ee). We first

ex plain why we belie ve that other Cour t s of App eals have p erh ap s misappl ied Landgraf in this are a, and we then show

w hy, even u nder t he constricte d and ques tionab le (but nonet heless prevail ing) vi ew, Ponnapula’s so m ewhat unique situationstil l demands that he be considered for § 212(c) reli ef.

III.
A.
Because we disagree with other C ourts of Appeals’ appl ication of Landgraf to the questi on in th is cas e, som e background on those Courts’ t

reatment of Landgra

f is

nec e ss ar y. We treat the Secon d Circuit’s opinion in Ran k ine as repr esentat ive. There, the Court l aid out t he S upre me Cou rt’s mo dern retroac tivity doctrine with citations to Landgraf

, Ha dix , and St. Cyr , see Rankine , 319 F.3d at 98-99, much as

we hav e do ne a bov e, se e supra Part I I. B. The Co urt exp lained th at the Rankine petiti oners’ “cho ice to g o to trial p uts [them] on di fferent

footing [f rom S t. Cyr] in two crucia l res pects. ” Rankine , 319 F.3d at 99. First, none of these p et itioners de t rimen tally changed his pos iti on in reli ance on c ont inued eligibility for § 21 2(c ) relie f. U n like a liens who entere d ple as, the petitioners made no decisi on t o abandon any rights and a d mit gui lt—thereby imm ediate ly renderi ng themselve s depo rtable— in reli ance on the avail abi lit y of the re lief offered prior to IIRIRA . The petitioners decided i nst ead to g o to trial, a decisi on that, standi ng alone, had

no imp act

on thei r i mm i grati on status. Unless a nd until they were convict ed o f their

underly ing crimes, the petition ers co uld not be deported.
* * * Second, the petiti oners have pointedto no con duct on the ir part that reflec ts an inte ntion to preserve thei r eligibilityfor relief und er § 212(c) by going to trial. If theyhad pled guil ty , petiti oners would have parti cipat ed in the quid pro quo rel ations hip, in which a gre ater expectation of relief is pro vi ded in exchange f o r forgoi ng a tri al, that gave rise to t he reliance interest emphasized by the Suprem e Cou rt in St. Cyr . As the Court made clear, it was t

hat rel iance, and the

c onsequentchange of immigration status, that pr oduced t h e impe rmissib le retr oacti ve effec t of II RIR A. He re, petitio ne rs nei ther did anyt hing nor sur

rendered any rights that would gi ve ris e to a

com parab le relianc e intere st.
Id. at 99-100 (citation omitted).
Three aspe cts of th is opin io n are
no tew or th y. First , nei therin the pa ssages above, nor any wher e e lse i n the opini on,12

does the w ord “presumpti on” appear, 6 yet the presumpti on against retr oacti vity

is the

e ssence of the Landgraf line of cases. Second, the pa s sage above di scussi ng a detrim enta l chan ge in p osition appe ars to require actualreli ance by the part y se eking to avoid ret

roacti ve applic ation, yet the Supreme Co urt has never required actual reli ance in an y case in the Landgraf line. Third, the C ourt’ s object ion tha t “petitioners have point ed to no conduct on t hei r part” s uggests t

hat the partyseeking to avoid retr oacti ve appli cati on bears an

ev i dentiary burden, anot her requi rement

we are unabl e to loc ate i n the Landgraf line. In the n ext sec ti on, we discu ss in detail our concern t

hat each of

these may be unfaithful to Landgraf and its pr og en y.
B.
The Secon d Circuit’s lackof em phas is

on the presumption against retroac tivity is in considerab le tension w ith the Supre m e Cou rt’s con sistent trea tmen t o f retroac tivity ana lysis. See su pra note 4 (cata loging refere nces to “pres um ption” in Landgraf

, Hu ghes Aircr aft , Ha dix , St. Cyr , and Altmann ). The Su preme C ourt’s framew ork for as sessing the retro activity of ci vi l l aws has been consistently applie d: The Court fir st l ooks fora clear statement fro m Congress that a st atute is t o b e

applie d re t roactiv ely, and w ill defer to such a co mm and

. See, e.g. , Landgraf , 511 U.S. at 270. But in the absence of a cl ear command, a consis tent l ine of ca ses establi she s that “ ‘congres siona l

enac tmen ts and a dm inistrative rules w ill not be constr

ued to have r etroac tive effect.’” Id. at 2 72 (qu oting Bowen v. Geo rget own Univ. Hosp. , 488 U.S. 204, 208 (19 88)). Landgraf

s oftens this appa rently categorical stance by re cog nizing t hat another line of cases hol ds that

“in many situati ons, a court s hould ‘appl y the law in effectatth e t ime it ren der s its d ecis ion ,’

even though that

law was enacted after

the

even ts that ga ve ris e to thesuit .” 511 U.S. at 273 (qu oting Bradley v. Sch. Bd. , 416 U.S. 696, 711 (1974) ). The Landgraf Cou rt c ited a s examples l aw s “authori z[ing]

. . . pros pecti ve reli ef,” id ., “stat utes conferri ng or o ustin g juris dicti on,” id. at 274 , and “ [c]ha nges in proceduralrules ,” id. at 275. Harmonizing these two lines, the Court e xplaine d:
When a cas e impli cates a federal statute enacted after the e vent s in suit, the court’s firs t task is to determi ne wh e ther Congres s has expr essly prescribed the statute’s properreac h. If Congress has done
so, of course, there is no nee d to resort to judicialdefault rules. Whe n, how ever, th e statu t e contai ns no suc h express c ommand, th e court must

determi ne whether the new statute would have retr oacti ve eff ect, i.e

. , wh ether it 6 This is not st

rictly accurat e: The phrase “presumption against retroac tivity” does appe ar incid entally in an extend ed quo tation of ano ther Cou rt of A ppe als’ d ecis ion

. See Rankine , 319 F.3d at 102 ( quoting Lar a- Ruiz v . I

NS , 241 F .3d 934, 94 5 (7th C ir. 2001)).13

wo uld impair rights a par ty possesse d when he acted, i ncr e ase
a part y’ s liability for p ast con duct,

or impose new d uties wit h respect to trans acti ons alr eady c o m plete d. If the statu te wo uld oper ate retroac tiv ely, our tr aditi ona l presumpti on teaches that i t does not govern absent cl ear congre ssional intent f avor ing su ch a re sult.
511 U.S. at 280.
Mo reover, in Hu ghes Aircr aft , the Cou rt explai ned that

a “conten[tion] t

hat only statutes with one of these effects a r e subject to our pr esumption against

re tro ac tiv ity” wo uld “s imply m is rea d[] our opinion in Landgraf

.” 520 U.S. at 947. The Hu ghes Aircr aftCourt held t hat the language quoted above “does n o t purport to defin e the o uter lim it of im perm issib l e retro activ ity,” but merel y des cribes “a suff icie nt , ra ther t han a necessary , conditi on for invoki ng the p re sumption againstretr oacti vity .” Id. B ecause the Supreme Court has repeat edlycouched its holdings in this area in term s of a liber al presu mp tion— albeit one th at arises o nly

co nd itio na lly, on a findi ng of retr oacti ve ef fe ct —we read Landgraf

and its progeny to hold that the presumption against retroac tivity is easil y t

riggered, though not automati c. 7 O ur disag reem ent w ith the c ourts th a t have held that IIRIRA’s repea l of § 212(c) reli ef is not im perm issibly retr oacti ve with

re spect to ali ens who went to trial i s that those courts have erected too high a barri er to tri gge r ing the presumption against

re tro ac tiv ity. This has t he effect of treat ing Landgraf

as esta bli sh ing a presumpti on in favor of retroacti ve applic ation, but su ch a p resum ption w ould be wro ng— the S upre me C ourt ex plicitly held in Hughe s A ircraft that t he Court of Appeal s had erred by concludi ng that Landgraf

evinc ed a “ str ong pres umption in favor of retr oacti vity .” 520 U.S. at 950.
The Se con d Ci rcuit’s su btl e heig ht ening of the show ing req uired to t rigger the pres umption agai ns t retroac tiv ity is also visible in that Cou rt’s apparent insi stence t

hat an al ien show actualreli ance to r e ap the benefi t of the presu m ption against retroactivity . It i s a st rang e “presumpti on,” i n our view, t hat aris es only on so heightened a showing as actualreli ance (t

hou gh a s we exp lain, see infra Part I V, Ponnapula act ually has made such a s how ing). Relatedl y, the Second Cir c uit seems to r equire a quantum of evidence regardi ng the subj ecti ve inte nt of the partyseeking to avoid ret roac tiv e ap p lication; this too strikes u s as be ing in tensi on with the language of presu mp ti on in Landgraf

and its progeny ; furt

hermore,

7 Parenthet

ical ly , we note that the holdings and reasoni ng of Landgraf , Hu ghes Aircr aft , and Ha dix are not somehow inapplic able t o laws about deportat ion; t he Court made plai n in St. Cyr , 533 U.S. at 325 n.55, that t he retr oacti ve appli cati on of an immigration law is anal yzed no di fferently from the retroac tive ap plication of an y other civ il statu te.14

such a req uir ement incor rectl y focus es atte ntion on the part icu la r fact s and circ ums tances of the party before the

cour t.
The Supreme Court has never required actualreli ance or evi dence ther eof i n the Landgraf

line of cases, and has in fa ct

a ssiduo usly eschewed an actualreli ance requ ireme nt. Landgraf , Hu ghes Aircr aft , Ha dix , and St. Cyr

all es tabli sh th is. I n Landgraf

, the question was whether t he Civi l Rights Act of 1991’ s addition of

c omp ensatory and puniti ve damag e s remedies to certa in Title V II suits co uld be applie d re tro ac tiv ely t o reach pre

enactment

conduct. The Court conclude d that the remedi es could not be a p plied

re tro ac tiv ely, but it rea ched th is conc lu sion withoutonce referrin g to the defen dant’s

con duct or t he defendant’ s actua l expectations. In fa ct, the d efenda nt ( USI Film Produc ts) is not

even mentioned i n the pe r tinent section of the Cou rt’s opinion. See Landgraf , 5 11 U

. S. at 280- 93. Inde e d, i t i s di ffic ult to s ee how USI Film Products could have prov en its actual

r eliance on the absenc e of a pun itiv e damages provis ion. Likewise, in Hu ghes Aircr aft , the parti cular

situation or e x pectations of the defendantwere immateri al to t he Cou rt’s

an al ysi s. Hu ghes Aircr aft was brought under an a mend me nt to th e Fa ls e Cl ai ms Act that elim inated a def ense to certain qui
tam suits

. Hughes Aircraft argued that the elimi nationof the de fense could not be applie d retr oacti vely , and t he Co urt agreed. Again, the Court eval uated the retroac tivity q ue stion in the ab stract, withoutreference to Hug hes A ircraft’s conductor e xpe ctatio ns, see H u ghes Aircr aft , 520 U.S . at 947 -52, an d it is again diffi cult to see how th e defendant could ha ve e stabl ished i ts act ual rel iance on t he pr io r s tate of

th e l aw.
Ha dix concerne d Co ngre ss’ s
amen dm ents to the f ee provis ion s applic able to post -judgment mo nitoring in prisonref

or m suits. Th e am endm ents capped the hourly fee reco vera ble on beha lf of attorneys performing s uch

mo ni tori ng. Attorney s for Hadix, one of the na me d plain tiff priso ners in the su it, clai med that th e a men dme nt wa s impe rmissib ly retr oact iv e bec ause it reduced their hourly rate for wo rk performed befor e the effecti ve date of t he amendment (because i t had al readybeen performed) and for work performed after the effec tive date of the amendment (because the atto rneys co uld n ot ethic ally withdraw from the cas e untilthe pri son reform decree was term inate d). The C ourt agreed with the f

ormer pos ition , see Ha dix , 527 U.S. at 358-60, but rejec ted the latter because the attorney s “provi de[d] no support for [their] assum ption” abou t their ethic al du ties, id. at 361. Important

for our purposes is not the result, however, but

the Court’ s reasoni ng. Ha dix differ s fr om Landgraf and Hughes Aircr aft in that Ha dix does in fac t refer to the parti cular s ituat

ion of the party seeking to avoid retroac tiv e appli ca tion

. Nonetheless, the Ha dix Cou rt’s discuss ion fo cuses not on the bona fidesof the15

attorney s’ clai med actual reliance, 8 but inst ead on w hethe r relianc e w as (or w ould have b een) reaso nab le

. See, e. g. , id. at 360 (“ T o i mpo se

. . . n ew s ta ndard s n ow, for work perform ed be fore th e [amendm ents] beca me e ffec tive, w ould upsetthe rea sonable expe ctations of the pa rties.”); id. (“After [t he date of t

h e
amen dmen t], an y expectat ion o f compensati on at the [pre- amen dmen t] rate s
was u nreasona ble.”).
St

. Cyr is the most rece nt case i n the Landgraf

line. As with Hu ghes Aircr aft and Landgraf

its elf, the analy tica l focus of the opin io n is not

on the fact s and circumst ances of the party before the Co urt. The C o urt b riefl y cons idered t he putati ve actua l rel ian ce of En ric o S t. C yr and a s imil arlysituated al ien, Charles Jideonwo, but did s o merelyfor il lust rati ve purposes. See St. Cyr , 533 U. S. at 32 3. St. Cyr is pri ncipal ly co nce rned with t he

reaso nable relianc e intere sts of ali ens who enter into ple a agre eme nts a s a c la ss. To that end, the discus sion of

the quid pro quo in crimin al plea agree men ts is d irected at establ ishi ng, as a g en eral matter, the reaso nable rel i ance of this class of ali ens, irr especti ve of the course of St . C y r’ s o wn plea negotiations. 9

Mo reover, th e S t. Cyr Court’s l anguage d oe s not requi re concre te certaint y about the exac t h ist oricalmotives and a ctual reli ance and e xpec tati ons of each ali en who pl ed gu ilt

y. We set out seve ral examples in the mar gin. 10 On the whole,

8 For example, the Ha dix Court did not cite affidavi ts or ot

her repr esentat

ions from the atto rneys tha t they actua lly reli ed on the hi gher hourl y fee i n electing to perform the monitoring services. For that matter, it i s not i nconceivabl e that attorneys engaged in suc h a practice migh t have perfo rmed their serv ices w ith

or w ithout the margi nally greate r inducement of t

he higher pre-amendment fees. 9 Indeed, t he presence of a quid pro quo is excel lent s upport, in an evidentiarysense, for the e xist ence of a reli ance interest , si nce a quid pro quo supplies tw o archetypal predica tes for a reli ance interest : foregoi ng a right (here, the ri ght to a t

rial ) and conferring a benefit (here, saving t

he government t

he

cos ts an d un certa inty of pro sec utio n).

10 See, e. g. , St. Cyr ., 533 U. S. at 323 (“[P]r eservi ng the possibili ty of [§ 212(c)] reli ef would have been one of the princip al ben efits so ugh t by defe ndan ts dec idin g w heth er to acc ept a plea off er . . . .” (emp hasis a dded )); id. (“Rely ing upon settled prac tice , the advice of counsel, and perhaps even assura nces in open court t

hat the entryof the pl ea
wo uld not for eclo se § 212 (c) re lief, a great number of defendants in Jideonwo’s and St . Cyr ’s posi tion agreed to plea d gu ilty.” (emph asis ad ded) ); id. (referring to plea ag reemen ts “that were like ly facilitated by the alien ’s belief in their continue d eligibili ty for § 212(c) relief” ( emp hasis a dded )); id. at 325 (“[R]espondent , and other ali ens li ke him , alm ost cer tainly reli ed upon [the]16

we thi nk the Su prem e Court regarded St. C yras a cle ar and st

raightforward r esul t flowing fr o m Landgraf ; to paraphrase counsel for the amici curi ae a t ora l argu men t, St. Cyr

was an easy case on the retr oacti vity

issue.
Thus the Supreme Court has a voided

an “act ual reli ance” formulation i n favor of a “reason ab le relianc e” fo rmu lation in it s retr oacti vity

analy sis. “Reasonab l e reli an ce ” is spec ifically high lighted in Ha dix , 5 27 U.S. at 357- 58 (holdi ng that retroac tivity analy sis “s hould be inf ormed and guided by‘famil iar cons iderat ion s of fair notice , reas onable re lianc e, and settled expe ctatio n s.’”). The likel ihood that the party before the court did or di d not in fa ct rely on th e prio r state of the l aw is not germane to the q uesti on o f r etr oa cti vi ty. Ra ther, courts are to c oncentrate on th e group to w hose cond uct the statute is addresse d—in Landgraf it was em ployers subject to Title VII; in Hu ghes Aircr aft it

was gov ernm ent co ntr acto rs; i n Ha dix it

was attorney s performing priso n reform

mo nito ring servi ces; i n St. Cyr it was alie n s who ac c epted a ple a agree men t— with a view to det ermining whether rel iance was re asonable.
The Landgraf

line also establ ishes t

hat

a cha n ge in la w can be foun d imperm issibly retro acti ve withou t establ ishi ng that som e (or all) members of th e grou p aff ected by the ch ange in la w reli ed on the pri or state of the la w . For example, it is unlikel y that in Landgraf any employe r demonstrabl y r elie d o n the absence of

a puniti ve damages remedy f or Tit le VII viol ations , or t hat in Hughes Airc raft any government contr act or purposely arr anged its bill ing practices ex ante to take advantage of a sp ecif ic defense und er the F alse C laims A ct. Likewise, in St. Cyr , the C ourt fo und it suffici ent th atth e pl ea a gr eeme nts of depo rtable al ie ns we re “ likely facil itated by the ali en s’ bel ief i n their continue d eligibility for § 212(c) reli ef.” 533 U.S. at 32 3 (emphasis added). And inde ed th e Cou rt’s holding is not limited t o those alie ns wh o a ctuall

y reli ed on the availa bility of § 212(c) r elie f: “W e . . . hold that § 2 12(c ) relief re main s ava ilable for alie ns, l ike r espo nden t, whos e convictions were obtai ned through pl ea agree men ts a n d who, notwiths tanding thos e convictions, would have been eligible for § 212 (c) reli ef a t the t ime of their pleaund er the la w th en in effect. ” St. Cyr , 533 U.S. at 326.
The ho ld ing in St. Cyr

then is s imply not subject

to a qual ific ationthat t

he alie n seeking the opportuni ty to pursue § 212(c) reli ef must have accepted a pleaagreement th at necessa ril y pr eserved hi s eli gibil ity for § 212(c ) rel ief (i .e. , a pl ea agreement that providedfor rel ease from incarc erati on in less than f ive years’ tim e). W e find this signi ficant

because i t furt

her confi rms that Landgraf

’s limi tations on the repe al of former § 21 2(c) ar e con str ued broa dly in favor of those w ho had even a p art ial or continge nt reli ance interest in the e xisting state of t he law—for example, an al ien likel iho od [ of § 212 (c) re lief] .” (emph asis added )).17

who accepted aplea agr eement with a si xyear term o f imp risonm ent t hat, through goo d beha vior cr edits an d the lik e, cou ld be shortened to less t

han five years’ time. 11

C.
W e have establish ed tha t the qu esti o n
we must answer i s whether the repealof § 212(c) relief is i mpermissi bly retr oacti ve with respe ct to alien s wh o elec ted to go to tri al (or some relevant subse t thereof). Stat e d anoth er w ay, we a sk w hat alien s— if any—who went to trial and were convicted did so in re asonable reliance on the

av ailability of § 212 (c) re lief. I f Pon napu la is among thi s group, we m ust affirm the Dist

rict Court’s gr ant of habeas corpus relief. We conclude that he is.
As noted abo ve, in St. Cyr , the Supreme Co urt fou nd th at all alie ns who acceptedpl ea a gr eeme nt s ha d so me reli ance i nteres t in t he pot entia l

ava ila bility of § 21 2(c) relief. The C ourt

concen tra ted its discussion on the alien’s decisi on whether to a ccept the plea agree men t. This focus i s l ogical because the reli ance interest

of a n ali en who

acce pts a plea agreement ar is es atth e t ime the choice is made to a ccept the agree men t. Generall y spe aking, reli ance interest s (in the legalsense) arise because

som e choice i s made evinci ng reli ance. Cf. Restate ment (Second) of Contracts § 9 0 (1981) (re quiri ng “acti on o r forbea rance” to invoke pr omissor y estoppel).
A cc or di ng ly, we foc us on the choi ce made by al iens who went to trial and were convict ed pri or to t

he effecti ve date of IIRIRA ’s repeal of fo rmer § 212(c). 12 We

11 Indeed, St . Cyr

himself a ccepted a plea that provi ded for a t en-y ear sentence , with e xecuti on suspended after five years. See Brief for t he Petit ioner at 11 n .7, St. Cyr , 533 U.S. 289 ( No. 00- 767), 2001 WL 210189. If he ha d actual ly served the full five-y ear
unsu spen ded p ortion o f his se ntenc e, St. Cyr would have be en inel igibl e for disc retio nar y relief und er § 212 (c). See INA § 212(c) (depri ving the Attorney Ge neral o f the p ow er to w ithhold deportat ion for “a n alie n who . . . has served . . . a

term of i mprisonment of at least 5 y ears” for certain crimes). Thus, even St. Cyr hi mself did not accept a pl ea that guarantee d his eligibility for § 212(c) r elie f. 12 We ackno wledg e that our foc us here on the deci sion of the ali en to go to t rial is somewhat i n tensi on with our hol ding in Perez v. Elwood , 294 F.3d 552 ( 3d Cir. 2002) , that an al ien whose date of

conv iction f or an aggr avate d felo ny falls after th e eff ective date o f IIR IRA is ineli gible f

or § 212(c) reli ef on any th eory ; i t i s virtual lycerta in th atsom e aliens chose to go to trial before IIRIRA ’s effective da te, but were actual ly convict ed after the effect

ive date. W e can not, of cour se, ov errule Perez

. See Th ird C ircu it IO P 9 .1 (“Po licy of A void ing In tra-Circ uit Conflict of Precedent ”). The tension with Perez need not det ain us l ong, however, becaus e the parties sti pulate d18

may subdivide th is category into (1) al iens who went to trial be cause the y decl ined a ple a agr eeme ntth atwas o ffe re d t o them, and (2) alie ns who w ent to tri al because theywere not offer ed a pl ea ag reem ent. Because alie ns in the latter cat egory had

no opportun it y t o alte r thei r course in the criminal justice s yst em in rel iance on the availa bility of § 21 2 (c) relief , we h ighly dou bt (tho ugh do n ot ex plici tly hold , fo r the issue is not before us) that s uch ali ens have a r eli ance interest that rend ers IIRIRA ’s rep ea l of former § 212(c) imp er mis si bl y re tr oac ti ve a s t o them.
As fo r the form er cate gory, w e hold that aliens su c h as Ponnapula who affirm atively turned dow n a ple a agreementhad a rel iance interest i n the potenti al availa bili t y of § 212( c) rel ief. For many al iens, the rel iance interest is obvious and signi ficant—P on n apul a hims elf has such a r e liance interest because the the n-ex istin g parameter s for former § 21 2(c) elig ibil it y would so obv iously factor

into t he decisi on-making of someone in hi s position. (S pe cif ica lly, Pon napu la needed to ensur e that , however the larcen y charge wa s resolv ed, he wo uld

serve less than the fiv e years sp ecified in former § 21 2(c).) T his co nclus ion is b uttressed by the Suprem e Cou rt ’ s recog nit ion that t

he avail abili ty of discr etionar y rel ief pla ys a centra l role in many alie ns’ deci sions regarding whether to accept a pl ea agree me nt. See St. Cyr , 533 U.S. at 32 2-2 3. Though St. Cyr

co ncen trated on the many alie ns who ultima tely acce pte d p lea ag reem ents, it is not reasonabl e to bel ieve that al l ali ens who rejec ted ple a agreements thereby dis clai med any i nteres t in § 212( c) rel ief; in fa ct, quite t

he contrary is t

rue. Ther e
are many rea sons to proc eed to trial—the lackof a plea agr eement that wou ld ensure eligibility for § 212(c) reli ef, the hope of

an acquittal, or the s imple de sire to exercise fundamental c onsti tuti ona l right s—but few if any of them are inconsi stent

with pres erving a c ontingent interest i n § 212(c) r elie f.
A case about

alie ns who accept pl ea agree men ts (i.e., St. Cyr) is relati vel y straightforw ard beca use th e ava ilability of § 212(c) r elie f

was v ery likel y a dominant factor in their deci sio n. This c ase may
seem harder because making the decisi o n to go to trial is perhaps more compl ex and

more nuanced, but

we should not l et that

o bscure the fact

that f ormer § 212(c) was
one of a ho st of factors co nsidere d by alie ns wh o ele cte d that c ourse—and, per the Court’s di scussi on in St. Cyr , a signif icant f actor a t that.
To be sure, there are ali ens wh o w ould appearto have had a very attenu ate d reli ance interest in the av ailabil it y of § 212(c) reli ef—for example, al iens charged with the most seriou s of cri m es, car ry ing the long est priso n sen tence s, wh o tu rne d below that

Ponnapula’s date of conviction for I IRIRA purposes (December 20, 1994) was prior to the eff ectiv e da te of IIR IRA (A pril 1 , 199 7). See P onn apu la , 235 F. Supp. 2d at 399 n.6. To acc ommodate Perez we simp ly limi t our hol ding to al iens convi cted be fo re th e e ff

ec ti ve da te of

II RIR A.19

d own u nattrac tive ple a agre eme nts

. Preservi ng eligibili ty for dis cr et ionary

w ithhol ding of deportation was pr obabl y not for emo st in such al iens’ minds, for theyhad the sl immest of chances to quali fy for § 212(c ) r elie f. But the fact that an interest may ha ve be en att e nuated, how ever, has ha d l ittle sal ience i n the Supreme Cou rt’ s analy sis of ot her retroac tivity questi ons. For e xample, e x ante it was unli kel y that Hughes Aircraft —or an y given governmen t contra ctor— wo uld need to ava il itself of a spec ific defense agai nst a qui tam acti on;
or that U SI Film Pro ducts—or any gi ven employe r subje ct to T itle VII— wo uld find itself accused of discrimina tory c onduct meriti ng punitive damages. In neither case

wo uld an yone hav e cla ime d, ex an te , that the affected c omp anies had a nything more than a highly

continge nt—and t hus seriou sly atte nuated—intere st i n the thenex is ti ng s tate of

th e l aw. 13 Mo reover, in St. Cyr its elf, as we have discuss ed above, the C ourt ex tende d its holding to all alie ns who had accepted pl ea agre ements; some of these a l ien s
nece ssarily had atte nuated reli anc e interests in the a vailab ili ty of § 212(c) reli ef (for exampl e, consi der th e hypo t hetic al alie n descri bed above who accepteda plea barg ain with a si x-y ear term of impris onment, subj ect t o goodti me credit s). The St. C yrCou rt’s explanation that “the fact that § 212( c) reli ef is discre tionary do es no t affe ct

. . . our con clus ion ,” 53 3 U .S. a t 325, is al so consistent with our under standi ng of ho w atte nuated interests are to be t reate d in a ret roactiv ity analysis: A ttenua tion of this kind general ly does not r ender rel iance unreasonabl e. 14

13 With respec t to moni tori ng servi ces alrea dy pe rfo rme d, Ha dix presents a case at the opposit e pole. There, t he affecte d attorne ys neces sarily had a n intere st in the statu te that se t their m axim um hou rly rate. B ut this rev eals on ly that Ha dix was a relat

ively easy case—and indeed, the S upre me C ourt ru led un anim ously in the attorney s’ favor

on the is sue of

mo nito ring serv ices alrea dy pe rfo rme d. See H adix , 527 U.S. 343 ( opinion of t he Co urt); id. at 362 (Scal ia, J., concurri ng in part and co ncurring in the judgm ent); id. at 364 (Gin sburg , J., conc urring in par t and diss entin g in par t). Ha dix thus does not spe ak to the questi on of reasonabl e but attenuat ed reli ance interest s.

14 “Attenuation” as we have di scussed it i n the te xt refe rs to t

he idea of one pr es en t co ns id er ati on (a m on g m an y) having only

a minorit

y i nfluence on an actor’s ultima te dec ision. T here is

ano ther sen se o f “a ttenu ation ,” however—one connoting causal remoteness . For exampl e, the Court of Appeals for t

he Seventh Cir cuit ha s properl y not ed that

“‘it would border on the ab surd’ to argu e that a n alien wo uld refrain from com mitting crime s or w ould conte st crimin al cha rges m ore v igoro usly if he knew that

after he had been imprisoned and de ported, a discretiona ry waiver of deport ation would no l onger be avail able t o him.” Lara -Ruiz , 241 F.3d20

Fi na lly, if it was reaso nab le in St. Cyr for an ali en to rel y on t he att enuated availa bility of

§ 212(c) r elie f in accepti ng
a plea agree men t, we s ee no reaso n w hy it

wo uld be unreasonabl e for the same ali en to likewis e rely

in decli ning a ple a agree men t. The reasonabl e reli ance questi on turns on t

he nat ure o f the statutory ri ght

andth e av ai labi li tyof s ome choice affecti ng that right, not on th e pa rti cu larcho ic e ac tu al lymade . I n su m, because a liens such as Ponnapul a who affirmativel y turned dow n pl ea ag reem ents had a reli ance int erest in the potentia l availa bility of § 212(c) r elie f, we hold that II RI RA ’s repeal of § 212(c) i s impe rmissib ly retr oacti ve with r esp ect to

su ch alien s. 

### Whil e thi s stat ement seems broad, it is fa

ithf ul to St. Cyr , which paintedwith broad strokes: “We .

. . hold th at§ 212(c) relief remainsavaila ble for aliens, like respond ent, whose convicti ons
were obtai ne d throug h plea agreements

an d who, notwithst anding thos e conviction s, would have been eligible for § 212(c) relief at

the tim e of the plea under thelaw then in effe ct.” 533 U. S. at 326. Th is reflected approval of Judge Oakes’s opinionfor the Seco nd Circuit, St. Cyr v. INS , 229 F.3d 406 (2d C ir . 2000), which adopted the sa me ca

tegoric al approa

ch: “[W]e h old that t

he bar on appl

ying for relief enacted in AEDPA § 440(d) a nd IIRIRA § 3 04 do es no t a pp ly to an alien who pl ed gu il ty or n olo conten dere to an other wise qualifying crime prior to IIRIRA’s enactment date .” Id. at 421. 15 A cc or di ng ly, Pon napu la is entitled to apply for di scretionarywithholdi ng of deportation u nder form er § 212 (c). 16

at 945 (quoting LaGuerre v. Reno , 164 F.3d 10 35, 1041 (7th Cir. 1998 )). 15 

### Moreover, on a pract ical level, t

he differenc e between this holding and a more circumscribed on e is smaller than it first appears. For som

e aliens sentenced to terms of five y

ears or longer (following their rejection of plea agreem ents), there i s a chanc e of serving less t han five y

ears, and prese

rving statutory eligibility for § 212(c) relief

. Cf. supra no te 11 (n ot in g t ha t S t. Cyr would not necessarily

have been statutorily eligible for § 2 12(c) relief). But the majority

of aliensconvicted of lengthy sentences will fin d that this opinion removes IIRIRA’s bar to relief only to leave them founde

ring on the shoals of statutory

ineligibility

under form er § 21 2(c) its elf.

16 We note in passin g that, in comparison to the holdi ng in St. Cyr , the effe ct of o ur ov erall ho lding is likely to be small. First , the class of ali ens affe cted b y this ruling is cons tantly shrinki ng in si ze as the effecti ve date of IIRIRA recedes i nto the pa st. Second, as we note in the precedi ng footnote , many aliens w ho ar e w ithin the scop e of th is hold ing w ill none theless be statu torily ineli gible f

or § 212(c) reli ef by reason of havin g serv ed fiv e years or mo re in prison. Third, many ti mes more crimi nal defe ndan ts enter in to plea agree men ts than go t o tria l. See St. Cyr 533 U.S. at 322 n.47. Thus, for the va st majority of21 * * *
In this Part , we have set out our view of the most faithfulapp lic ation of the Landgraf

l in e t o the ca se at

bar

. We recogniz e, how ever, th at the o ther C ourts of Appeals to ad dress c ases lik e Ponna pula ’s have taken a r ather di fferent

a pp roach to the retroac tivi ty questi on. Though we stand on t he foregoi ng analysi s, we will also analyze Po nnapu la’s

case un de r th e r ub ric em pl oye d b y t hose other Courts.

IV.

A.
We have described t

he background of facts, all unc ontradi cted and acc epted by the D istrict Co urt, w hich d emo nstrate that Ponnapul a play ed a minor and essentiall y unknowing r ole in t he fraudulent scheme. We incorporate these facts by reference here. The best descri ption of Ponnapul a’s pre tri al posture is suppl ied bythe decl arati on of his t rialcounsel, Alexander E. Ei semann, Esq., in supp ort of a m otion for a temporary

restraini ng order i n the Distric t Cou rt. In pertin ent pa rt, Eisem ann’ s dec laration states as follow s:
At o ne po int prior to petit ioner’ s tri al, Assist ant Dist rict Atto rney D avid S teiner o ffere d to allow him t o plead gui lty to a misdem eanor w ith a probationa ry sentence . Peti tioner

considered the offer and the i mmigrati on
cons eque nces of p leadin g gu ilty and going to t

rial . He real ized that e ven if he were convi cted of a felonyafter

tri al he would stillbe eligible for hardship relie f from deportat ion pursuant to s ecti on 212(c) of t

he Immigration and Na tion ality A ct, see 8 U .S.C . § 118 2(c) (1 994 ). M oreo ver, his

coun sel adv ised h im tha t, if

conv icted a fter trial, he wo uld likelyreceive a sentence of less than fi ve years’ i mprisonment and that he would, in a ll l ikeli hood, receiv e a sen tence of o nly one to thre e year s’ im priso nm ent. In reliance on these facts, petit ioner dec lined t

he misdemeanor offer

and proceeded to trial. App. 56-57.
In short , as t

he District Court

noted: Here, the re can be no doubt that Petitioner conf

ormed his conduct to match hi s settled expect ations of immigration law. Petitioner

wa s off ered a n op portu nity to plead gui lty

to a misdemeanor which would have had no immigration consequenc es, but turned down the plea because “even if he were c onvicte d of a removable criminalalie ns, the retr oacti vity

of IIRIRA’s repeal of former § 212(c) was settled nearly three yea rs a go by St. Cyr , s o the de ci si on w e announce todayaffects a much smaller group of aliens.22

felonyafter

tri al he would stillbe eligible for hardship relie f from dep orta tion pur sua nt to § 21 2(c ).” 235 F. Supp. 2d at

405 (quoti ng Eisema nn D ecl.).
We stress tha t Pon napu la actu ally reli ed on the st ate of the law in re jecting the misdemeanor

plea agr eement and going to trial. Notab ly, none of the cou rt of appeals cases t

reati ng St. Cyr as requiring a quid pro quo involved a ctual reli ance by the immigr ant on the then state of the l aw. Also, i n these ca ses the charges ( and the sentences) fac ing the immigrant

were far more ser

ious than those facin g Po nnap ula. Fo r exam ple, to recur t o the case s cited supra Part I I. C, Rankine was charged wit h atte mpted

mu rde r, his c o-p etitio ner La wr enc e, a repeat offender, was convicte d of a midlevel drug offense, and his co- petit ioner Eze was convicte d of firs t degree rape. 17 See Rankine , 319 F.3 d at 9 6-9 7. Theodoropoulos was convi cted of a hi ghleve l dru g co nsp iracy. See The odo rop oul os v . I

NS , 313 F.3d 732, 734 (2d Cir. 2002). Montenegro was

conv icted o f po ssessio n of coca ine w ith inten t to d istrib ute, see Montenegro , 355 F.3d at 1036, as was ArmendarizM ont oya, Armendariz-Montoya , 291 F.3d at 1118. In none of the se cases does the rec ord refl ect or e ven suggest a plea agreement was offered, or t hat the defendant had reasonable assuranc e that his sentence would be les s than fi ve years. 18 Thus Ponn apu la ’s cas e s eems distinguis hable on i ts fact s, both in that Ponnapula has demonst rated a ctual reli ance where the al iens i n other ca ses did not, and in that Ponnapula’s offense was signif

icantly less gr ave.

B. We must also engage t

he rati onale of these ca ses. As will appear , while that rati onale wil l support

the res ult reached on th e fac ts of th ose c ases, an y attemp t to apply it to deny relief in Ponna pula’s case falls of it s own w eight or at l east

ca nn ot su r vi ve r i go r ou s s cruti ny

. We treat Rankine as representative. In arri ving at i ts re sult , the Court rel ied princi pally

on selected parts of the Supreme Court’s opinion i n St. Cyr : The [Supreme] Court focus ed on the fact that pl ea agreement s are a form of quid pro quo whe re, “[i]n exchange for some perceived benefit , defendant s waive sever al of the ir cons titutional rig hts (incl uding the right to a tri al) and grant t he government numerous tangibl e benefit s.” [ St. Cyr , 533 U.S.] at 322 (internal quot ation

om itted). R ecog nizing that §

17 Lawrence and Eze were also resident alie ns seeki ng the same re lief as Rankine. 18 Swaby was convicted of burglary and pos sess ion of m ariju ana

. See Swaby , 357 F.3d at158. While thi s case maybe closes t to Ponnapul a, the Swaby panel fe lt it se lf b ou nd by Rankine and did not consider the m atter de novo

. See id. at 162.23

212 (c) relief wa s freq uently granted prior t o the enactment of AE DP A an d IIRIR A, the C ourt found that

“preserving the poss ibility of suc h relief wo uld have been one of theprinci pal bene fits sou ght b y defen dants decidi ng whether to a ccept a pl ea offe r or inste ad to p rocee d to tri al. ” Id . at

323.
The Court als o highli ghted the “clear differe nce, for

the purpos es of retr oacti vity

analy sis, between facing poss ible de portation and facing certain de portation.” Id . at 325. Because there was a “signi ficant

likel ihood” that resi dent al iens would r eceive § 212(c) r elie f prior

to II RIRA, the Court found that aliens “almost certainly reli ed upon that likeliho od in decid ing w hethe r to forgo their ri ght to t

rial ,” id ., and inst ead to pl ead to sentences that would preserve thei r eli gibil ity for such rel ief. Without the possibi lit y of r elie f, the se pleas guar antee d the a liens’ rem oval; the elimination o f § 212 (c), theref ore, changed the l egal effec t of the ir pleas a nd u nsettled their reli ance. The Court

concluded that “it would su rely be contrary to ‘fam iliar con sidera tions o f fair notice , reas onable re lianc e, and settled expect ations ’ to hol d that IIRIRA’s subseque nt res tri ctions deprive t hem of any poss ibil ity

of such rel ief. ” Id. at 323-24 (quoti ng Landgraf

, 511 U.S. at 270) (internal citation om itted).
Rankine , 319 F.3d at 99. The Cou rt

conc eded that St. Cyr did n ot direc tly controlthe outc ome, but then opined that: We cannot, however, ignore t he strong signals sent

in those opin ions th at aliens wh o cho se to go to trial are in a di fferent pos itio n wi th re spe ctto II RIRA than aliens li ke St. Cyr who chose to pl ea d g ui lty.
Id. We agree , for it is clea r that St. Cyr does not cont

rol t he outcome. But

for

reas ons exp laine d ab ove , see supra Part III, we do not agree that rel evant jurisprudence contains “st rong signals” that a liens who go to tri al are in a differe nt posi tion from those who plead gu ilty. The wellspri ng of Rankine and its companion cases is a conce rn for act ual reli ance. Though we have explained why we do no t believe that

this is the best renderi ng of Landgraf

, we accept t

hat here as a s tarting point

for the s ake of argument. What becomes crit ical , the n, is how to provereli ance. We agree t hat the kind of quid pro quo inherent in the acceptanc e of a plea agreement is one way to pr ove reli ance; as we note above, the action and forbe arance i mplici t in a quid pro quo is st

rong evidenc e of reli ance. But i t is surel y not the only way to est ablis h reli ance, much l ess the talism an th at the IN S m ake s it ou t to b e. An individualcan rel y or have settled expectations a bout a state of affairs24

without havi ng to ente r int o an exchange to secu re or as sure it.
From our discus sion above of t he lack of concern i n the Landgraf line f or actua l reli ance, i t shoul d go without s ayi ng that there i s no mention of a quid pro quo or
surren der o f con stitutiona l rights in Landgraf

, Hu ghes Aircr aft , or Ha dix

. Neither i s ther e any mention of a quid pro quo in our deci sion i n Mathews v. Kidder, Peabody & Co. , 161 F.3d 156, 164 (3d Cir. 1998 ):
In thi s case, the event s in quest ion are the alle ged fraudul ent act s by th e de fen dan ts . I f the RI CO Am endm ent is ap plied to this case, i t would att ach new legal

con seq uen ces to th ese eve nts. Before the Amendment, t he legal

cons eque nces includ ed liab ility und erth e f

ed er al se cu ri ti es la ws and R ICO ; after th e A men dm ent, the le gal conseque nces included liabi lit y onl y under

the securiti es law s. Focusing then on new legal consequences to Ponnapula himsel f, the y surely ha ve oc curred here. P onn apula relied on the ad vice of co unsel. It is hard to imagi ne that

Ponnapula would not have accept ed the misde meanor plea offer if he had known about the risk of being ine ligible for § 212( c) rel ief. And as the Dis tri ct Court c oncluded, “[a]defendant

who goes to trial be lievi ng that hi s opportuni ty to seek § 212( c) relief is se cure, is a s equ ally disrupte d in his re asonable and settled expect ations as is a defe ndant who accepts a plea belie ving it to confer

such a benefi t.” 235 F. Supp. 2d at

404. We do not gainsaythat t he existence of a quid pro quo (for a gui lty plea) justifie d the res ult i n St. Cyr . But t o the extent that t he Court in St. Cyr noted that plea agr eements i nvolve a quid pro quo between the criminaldefendant and t he government and a waive r of sever al

con stitutio nal r igh ts, see 533 U.S. at 322, these s tate ments do not create an additio nal req uirem ent ne cessa ry to

es tabl is h r etro ac ti ve ef

fe ct . I n ou r v ie w, these s tate ments only

serve t o highli ght the obvious and severe retroac tive e ffect of apply ing II RIRA to aliens who pleaded gui lty ; in ot

her words, t

he quid pro quo not ion com for tably f it the cas e. Wh at Rankine and its companion cases have don e is to co nver t quid pro quo into a rigi d baseli ne test , to os sifythe language of St. Cyr

into a test t

hat the Supreme Court si mply neve r mandated and we are unwill ing to create.
In a vari ation on t

his theme, the govern ment arg ues that “Po nnapu la’s simple expe ctation or r eliance is not the same as the he ightene d expectation of reli ef which the St. Cyr alie ns brought at the pri ce of thei r constitutional rights and paid for wit

h the immediate certaint y of deportat ion.” The Rankine Court used similar rhetoric: “The petitioners here assumed no simi larl y hei ghtened expe ctation from their de cision to go to trial.” 319 F.3d at 100 . We find n o bas is for a “he ightened e xpectation” stan dard in St. Cyr orel se wher e i n the S upr eme Co urt’s jurisp rude nce, a nd w e rejec t it.25

We have not h ere rev iewe d in d etail each of the cour

t of appeal s cases t

hat have rej ected extending St. Cyr to immigrant s who were convicte d at trial before II RIRA. Suffice it to saythat t

he holdings in thes e cases are large ly the resul t of the courts ’ failure to be

conv inced that im migra nts w ho ch ose to go to trial c ould possibly have rel ied on the avai labil ity

of 212(c) r elie f. As the Nin th Circ uit stated in rejec ting this argument: “Unlike al iens who pleade d guilt y, alie ns who electe d a jurytri al

ca nno t p la us ib ly clai m that the y wou ld have acted a ny di fferently if the y had known [that their dec isi on would late r make them inel igibl e for 212(c) reli ef].” Armendariz-Montoya , 291 F.3d at 112 1(em phas is add ed); see als o Dias , 311 F.3d at 458 ( “It fol lows that , havi ng been conv icted a fter a trial where there was not, and coul

d not have been , reli ance by the defendant on the avail abili ty of discr etionary reli ef, [petition er] m ay not arg ue tha t the statu te has im perm issible re troactiv e eff ect as to him.” ( emphasis added) ). Thi s argument may be for ceful gi ven the serious char ges fac ing the im mig ran ts in th ose cas es, see supra Part IV .A, bu t it withe rs in Ponnapula’s case where, as we have expla ined, th e imm igrant c onf orm ed his conduct t o the set

tled e xpectations of immigration law that there would be no adverse i mmigrati on consequences of goin g to trial.
C.
Another noti on that appears i n the other cour

t of appeal s cases i s that of “roll ing the di ce.” I n Cham bers , the

Co urt op ined th at the p etitioner there d id not possess “a reliance i nterest comp arable to that w hich w as at the heart of St. Cyr ,” 307 F.3d at 290, be cause “by rolling th e dice and g oing to trial, Ch amb ers actu ally ensure d that h is eligibility for d iscretion ary relief w ould remain uncertain, ” id. at 291.
We find the “rol l the di ce” metaphor unh elpfu l, at least in th is case . Wh ile Pon napu la ma y have “ rolled th e dice ” in terms of g uilt or inn ocen ce at trial, h e did not do so with respect

to immigr ation

cons eque nces in view of h is reaso nable expectation that

there would be no adverse i mmigrati on consequences of going to t

rial . We do not general ly speak of rolling the dice whe n the odd s are stac ked extr em ely he avily in one ’s fa vor

. Ass um ing tha t the m etaph or is ap plicab le to som eone , it does n ot app ly to Ponnapula, because (to extend the

m eta ph or ), P on na pu la w as (re tro ac tiv ely) dece ived a s to w hat w as ridin g on the roll of the di ce. Neit

her do we find persu asive th e argu men ts that P onn apula gave up “cert ainty ” and should not be rewarded for “guessing w rong.” These notions are inc onsistent with our explanation of Landgraf

. 19

19 We feel constr ained t o note that the notion t hat Ponnapula

should be pen alize d so har shly, ipso fa cto , for going to t

rial , in t he hopes of avoi ding the dis grace and permanent stain of a

conv iction, se ems to run coun ter to fundamental principl es of the Ameri can26

A relate d argument pre ssed bythe government i s that

there c an be no reasonable reliance i n this case because there was a risk that Ponnapula might have been sent enced to more t han five year s in pri son—and that, t hereaft er, he might ha ve served more tha n five years in priso n— thereb y makin g him ineligib le for § 212 (c) relief . But P onn apula wa s in fact se ntenced t o a maximum of three years in prison (and se rved eve n less), and the fact

that c ounsel’ s advice proved to be correct buttres ses the conclusi on that it w as reas onab le for P onn apula to relyon his counse l’s a dvice i n making his i mmigrati on decisi ons. The govern ment w ould com pare Po nnapu la’s risk of servin g m ore tha n five years w ith the ri sk to the immigrant in St. Cyr . In fac t, ho we ver , as w e no te ab ove , see supra note 11, St. Cy r himsel f faced a greate r term of imprisonment . Thus, t he gov ernm ent is sim ply incorre ct wh en it states that

the immigr ant in St. Cyr “pursued a l iti gation s trategy t hat ensured his el igibi lit

y for secti on 212(c) relie f.”

V.
In sum , appro achin g the iss ue in th is case from the firs t pri nciple s of Landgraf retr oacti vity

analy sis, and reje cting t he actual -rel iance appr oach of our si ster Courts of Appeals , we conclude t hat Ponnapula is entitled to pur sue § 212(c) reli ef. Accordi ngly , the judgment of t he District Cou rt granting Pon napula’s petition for a w rit of ha beas corp us w ill be affirmed. 20

consti tuti onal poli ty , which encour ages citi zens to as sert

their innocence when convinced that the y ar e not guil ty of an offe nse, an d go to trial. 20 We will, however, vacate t he District Co urt’s de termin ation th at Po nnap ula is entitled to a

bond hearing. The Distri ct Court shoul d reeval uate i ts hol ding on that i ssue in l ight of t

he inte rvening Supreme Court deci sion i n Demore v. Kim , 538 U .S. 510 (200 3).27