[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-10197

________________________

Agency No. A043-024-298

CARLOS EDUARDO RENDON,

 Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(July 14, 2020)

Before MARTIN, NEWSOM, and BALDOCK,

∗ Circuit Judges.

MARTIN, Circuit Judge:

∗ Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting 

by designation.

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Carlos Rendon began living in the United States as a lawful permanent 

resident in 1991. Then in 1995, he pled guilty to resisting a police officer with 

violence. Under immigration law this offense qualifies as a crime involving moral 

turpitude (“CIMT”). At the time, Mr. Rendon’s sentence of 364 days in state 

custody did not affect his status as a lawful permanent resident. But Congress later 

changed the law. In 1996, the Antiterrorism and Effective Death Penalty Act 

(“AEDPA”) made him deportable based on his CIMT conviction. And in 1997, 

the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) 

created the “stop-time rule,” which meant people convicted of certain crimes were 

no longer eligible for a discretionary form of relief known as cancellation of 

removal. Approximately 25 years after his guilty plea, an immigration judge found 

Mr. Rendon removable and ruled he was no longer eligible for cancellation of 

removal on account of the stop-time rule. On appeal, Mr. Rendon now argues that 

it was error to retroactively apply the stop-time rule to his pre-IIRIRA conviction. 

After careful review, we conclude that Mr. Rendon is right. We reverse the 

decision of the Board of Immigration Appeals and remand for further proceedings. 

I.

Mr. Rendon is a native and citizen of Colombia who was admitted to the 

United States as a lawful permanent resident on June 5, 1991. On February 15, 

1995, Mr. Rendon was arrested and charged under Florida law with one count of 

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burglary with assault; three counts of battery on a law enforcement officer; two 

counts of battery; and one count of resisting an officer with violence. On July 17, 

1995, Mr. Rendon pled guilty to all charges and was sentenced to 364-days 

imprisonment. On February 3, 1995, Mr. Rendon was arrested for possession of 

cannabis. He was convicted of that possession offense on January 10, 1996. 

On July 19, 2013, the Department of Homeland Security served Mr. Rendon 

with a notice to appear (“NTA”). The NTA charged him with being removable 

based on his conviction for a CIMT within five years of his admission, 8 U.S.C. 

§ 1227(a)(2)(A)(i), and his conviction for possessing a controlled substance, 8 

U.S.C. § 1227(a)(2)(B)(i). Mr. Rendon conceded removability as to his controlled 

substance offense and denied removability as to his CIMT conviction. 

On January 14, 2016, the immigration judge (“IJ”) sustained the charge of 

removability for Mr. Rendon’s CIMT conviction. Mr. Rendon then told the IJ he 

was seeking cancellation of removal under 8 U.S.C. § 1229b(a). The government 

opposed Mr. Rendon’s request for cancellation of removal, arguing that he was 

ineligible for this relief because, under the stop-time rule, 8 U.S.C. § 1229b(d)(1), 

his convictions terminated his accrual of the continuous presence required for him 

to be eligible for this relief. On September 8, 2016, the IJ issued an oral decision 

ordering Mr. Rendon removed to Colombia. Mr. Rendon appealed to the Board of 

Immigration Appeals (“BIA”). He argued that applying the stop-time rule to his 

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1995 convictions was an impermissible retroactive application of IIRIRA, which 

did not come into effect until April 1, 1997. 

The BIA remanded Mr. Rendon’s case to the IJ for a full written decision. 

On January 29, 2018, the IJ issued a written decision denying Mr. Rendon’s 

application for cancellation of removal. The IJ found Mr. Rendon’s conviction for 

resisting an officer with violence was a CIMT which, under the stop-time rule, 

prevented him from accruing the seven years of continuous presence required to be 

eligible for cancellation of removal. Mr. Rendon again appealed to the BIA, 

challenging only the IJ’s application of the stop-time rule to his 1995 conviction. 

The BIA affirmed the ruling of the IJ and dismissed Mr. Rendon’s appeal. Mr. 

Rendon timely petitioned this Court for review.

II.

We review de novo our jurisdiction to review a petition for review of a BIA 

decision. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th 

Cir. 2006) (per curiam). We review de novo legal and constitutional questions. 

Cole v. U.S. Att’y Gen., 712 F.3d 517, 523 (11th Cir. 2013), abrogated on other 

grounds by Nasrallah v. Barr, 590 U.S. ___, 140 S. Ct. 1683 (2020).

III.

This case presents a single legal question. That is whether applying the 

stop-time rule to Mr. Rendon’s conviction from before the rule was enacted would 

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be impermissibly retroactive. But before turning to that question, we must first 

address whether we have jurisdiction to consider Mr. Rendon’s petition for review. 

The government says 8 U.S.C. § 1252(a)(2)(C) strips us of jurisdiction to review 

Mr. Rendon’s petition. Despite the government’s argument, we conclude that we 

do have jurisdiction over the issues raised in Mr. Rendon’s petition. 

Section 1252(a)(2)(C) strips appellate courts of jurisdiction to review any 

final order of removal against a noncitizen who is removable for a controlled 

substance offense. See Lopez v. U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir. 

2019); Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Mr. Rendon 

conceded removability based on his controlled substance conviction, so the 

government is correct to say that § 1252(a)(2)(C) narrows our review of his 

removal order.

But the government is wrong to say that § 1252(a)(2)(C) limits our review 

only to legal questions that implicate constitutional rights. This limitation has not 

existed since the enactment of the REAL ID Act of 2005, Pub. L. No. 109-13, 119

Stat. 231. In relevant part, the REAL ID Act amended 8 U.S.C. § 1252 by adding

§ 1252(a)(2)(D). Real ID Act § 106(a)(1)(A)(iii). That subsection restored the

jurisdiction of appellate courts to review “constitutional claims or questions of 

law,” even where review would otherwise be barred by § 1252(a)(2)(C). See id.; 

Malu v. U.S. Att’y Gen., 764 F.3d 1282, 1289 (11th Cir. 2014); Chacon-Botero v. 

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U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam).

1

 And for Mr. 

Rendon’s case, the question of whether a statute should be given retroactive effect

is a question of law. Goldsmith v. City of Atmore, 996 F.2d 1155, 1159 (11th Cir. 

1993). For that reason, under § 1252(a)(2)(D) we retain jurisdiction over Mr. 

Rendon’s petition for review. See Malu, 764 F.3d at 1289 (explaining that under

§ 1252(a)(2)(D), this Court retains jurisdiction to review “the application of an 

undisputed fact pattern to a legal standard” in cases governed by § 1252(a)(2)(C)

(quotation marks omitted)). 

IV.

Mr. Rendon challenges the BIA’s holding that the stop-time rule makes him 

ineligible for cancellation of removal. He argues that because he pled guilty before 

the stop-time rule was enacted, applying the stop-time rule retroactively to his 

conviction is impermissible. To begin, we find no clear congressional statement 

that the stop-time rule should be applied retroactively to pre-IIRIRA plea 

agreements like Mr. Rendon’s. And we hold that in the circumstances presented 

here—specifically, where Mr. Rendon’s pre-IIRIRA plea agreement did not render 

him immediately deportable—applying the stop-time rule to Mr. Rendon’s 1995 

1 The cases on which the government relies in support of its position pre-date the passage 

of the REAL ID Act and so are unpersuasive on this point. See Br. of Resp’t at 18 (citing 

Balogun v. U.S. Att’y Gen., 304 F.3d 1303, 1311 (11th Cir. 2002), Oguejiofor v. U.S. Att’y 

Gen., 277 F.3d 1305, 1309 (11th Cir. 2002) (per curiam), and Tefel v. Reno, 180 F.3d 1286, 

1301–02 (11th Cir. 1999)).

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conviction would have an impermissibly retroactive effect. For these reasons, we 

conclude that the BIA erred by applying the stop-time rule to Mr. Rendon’s preIIRIRA conviction. 

A.

We find it helpful at the outset to briefly review the development of the law 

governing cancellation of removal. Permanent residents who, like Mr. Rendon, are

found to be removable may apply for and be eligible to receive cancellation of 

their removal, which allows them to remain in the United States despite being 

removable. See 8 U.S.C. § 1229b(a). Congress created cancellation of removal in 

IIRIRA, replacing similar forms of relief known as waiver of deportation and 

suspension of deportation. See Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 304(a)(3), 110 

Stat. 3009; Innab v. Reno, 204 F.3d 1318, 1319 & n.1 (11th Cir. 2000). But in 

substance, cancellation of removal is little more than “a new name for essentially 

unchanged discretionary relief from immigration sanctions.” Jeudy v. Holder, 768 

F.3d 595, 604 (7th Cir. 2014). And this type of discretionary relief has “been a

fixture of immigration law in different forms since 1917.” Id. (citing INS v. St. 

Cyr, 533 U.S. 289, 293–96, 121 S. Ct. 2271, 2275–77 (2001)); see also 143 Cong. 

Rec. S12,266 (daily ed. Nov. 9, 1997) (explanatory memorandum submitted by 

Sens. Mack, Graham, Abraham, Kennedy, and Durbin) (noting that the standards 

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for cancellation of removal “generally echo the standards for suspension of 

deportation that had been in effect until IIRIRA”).

A permanent resident can qualify for cancellation of removal by showing

(1) that he has been lawfully admitted to the United States for permanent residence 

for at least five years; (2) that he has resided in the United States continuously for 

seven years after having been admitted in any status; and (3) that he has not been 

convicted of an aggravated felony. 8 U.S.C. § 1229b(a). Yet, even if he makes 

these three showings, the stop-time rule can still bar his eligibility. Under the stoptime rule, a noncitizen stops accumulating time towards the required years of 

continuous presence if and when (1) he is served with a notice to appear in removal 

proceedings or (2) he commits an offense that renders him inadmissible under 8 

U.S.C. § 1182(a)(2).2

 8 U.S.C. § 1229b(d)(1). Like cancellation of removal itself, 

the stop-time rule was added to the Immigration and Nationality Act (“INA”) by 

IIRIRA § 304 and became law on April 1, 1997. 

B.

With this background in mind, we turn to whether the stop-time rule can be 

retroactively applied to Rendon’s 1995 conviction. We know that, so long as 

2 Qualifying criminal offenses only trigger the stop-time rule once the noncitizen is 

convicted of or admits to committing a qualifying crime. See Barton v. U.S. Att’y Gen., 904 

F.3d 1294, 1301 (11th Cir. 2018) (citing 8 U.S.C. § 1182(a)(2)(A)(i)(I)), aff'd sub nom. Barton v. 

Barr, 590 U.S. ___, 140 S. Ct. 1442 (2020). After a conviction or admission, the stop-time date 

is then back-dated to the day the offense was committed. See id. at 1302. 

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Congress stays within constitutional limits, it has the power to enact laws that act

retroactively. St. Cyr, 533 U.S. at 316, 121 S. Ct. at 2288. However,

“congressional enactments will not be construed to have retroactive effect unless 

their language requires this result.” St. Cyr, 533 U.S. at 315–16, 121 S. Ct. at 2288

(alteration adopted) (quotation marks omitted). This is because “the presumption 

against retroactive legislation is deeply rooted in our jurisprudence, and embodies 

a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods., 

511 U.S. 244, 265, 114 S. Ct. 1483, 1497 (1994). When we require a clear 

expression of congressional intent before giving statutes retroactive effect, we 

assure ourselves that Congress has “affirmatively considered the potential 

unfairness of retroactive application and determined that it is an acceptable price to 

pay for the countervailing benefits.” St. Cyr, 533 U.S. at 316, 121 S. Ct. at 2288 

(quotation marks omitted). In the context of immigration, the presumption against 

retroactivity is further buttressed by “the longstanding principle of construing any 

lingering ambiguities in deportation statutes in favor of the alien.” Id. at 320, 121 

S. Ct. at 2290 (quotation marks omitted). 

To determine whether the stop-time rule may be applied retroactively to preIIRIRA plea agreements, we apply the two-step test described in Landgraf. See

Sarmiento Cisneros v. U.S. Att’y Gen., 381 F.3d 1277, 1280 (11th Cir. 2004)

(applying Landgraf, 511 U.S. at 280, 114 S. Ct. at 1505). First, we must

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“determine whether Congress has expressly prescribed the statute’s proper reach.” 

Landgraf, 511 U.S. at 280, 114 S. Ct. at 1505. This is a “demanding” test that 

requires “statutory language that [is] so clear that it could sustain only one 

interpretation.” St. Cyr, 533 U.S. at 316–17, 121 S. Ct. at 2288 (quotation marks 

omitted). If the statute “contain[s] an express command as to the temporal reach of

the statute,” thus satisfying Landgraf’s first step, the inquiry ends and we give 

effect to Congress’s express wishes. Sarmiento Cisneros, 381 F.3d at 1280. But 

where there is no express command, we proceed to the second step, which requires 

us to determine “whether the statute would have an impermissible retroactive 

effect as applied.” Id. (citing Landgraf, 511 U.S. at 280, 114 S. Ct. at 1505). Step 

two “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, 121 S. Ct. at 2290 (quotation marks 

omitted). 

We address these steps in turn. 

1.

Applying the first step of the Landgraf test, we find no clear indication that 

Congress intended the stop-time rule to be applied retroactively to guilty pleas 

entered before the effective date of IIRIRA. Nothing in the text of the stop-time 

rule or the surrounding statutory text clearly indicates that Congress intended this 

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rule to have retroactive effect. See 8 U.S.C. § 1229b(d)(1); St. Cyr, 533 U.S. at

316–18, 121 S. Ct. at 2288–89. Indeed, there is no temporal language of any kind 

in the stop-time rule. This dearth of congressional expression on the topic weighs 

heavily against finding that Congress clearly intended the rule to have retroactive 

effect. 

We find it significant that several other provisions of IIRIRA do include 

express language mandating their retroactive application. For example, IIRIRA’s 

amendment of the definition of “aggravated felony” states that it applies to 

“conviction[s] . . . entered before, on, or after” the statute’s enactment date. 

IIRIRA § 321(b) (codified at 8 U.S.C. § 1101(a)(43)). There is no such language 

in the stop-time rule. When considering the retroactive effect of another provision 

of the cancellation of removal statute, the Supreme Court told us that “the fact that 

Congress made some provisions of IIRIRA expressly applicable to prior 

convictions, but did not do so in regard to § 304(b), is an indication that Congress 

did not definitively decide the issue of § 304’s retroactive application to preenactment convictions.” St. Cyr, 533 U.S. at 319–20, 121 S. Ct. at 2289–90

(quotation marks omitted). Just so here. The absence of language compelling 

retroactivity in the stop-time rule, coupled with the presence of express language 

calling for retroactive application of other sections of IIRIRA, precludes us from 

holding that Congress clearly intended the stop-time rule to have retroactive effect. 

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As far as we are concerned, this ends our inquiry into the first step of the Landgraf

test. We therefore join several of our sister circuits in holding that the statute lacks 

a clear indication that Congress intended the stop-time rule to have retroactive 

effect. See Jaghoori v. Holder, 772 F.3d 764, 770 (4th Cir. 2014); Guzman v. 

Att’y Gen. U.S., 770 F.3d 1077, 1084 (3d Cir. 2014); Jeudy, 768 F.3d at 603; 

Martinez v. INS, 523 F.3d 365, 372 (2d Cir. 2008); Sinotes-Cruz v. Gonzales, 468 

F.3d 1190, 1199 (9th Cir. 2006).

But before proceeding to Landgraf step two we respond to the government’s 

arguments that the statute clearly requires retroactive application of the stop-time 

rule. 

a. Neither IIRIRA § 309(a) nor § 309(c)(5) mandates retroactivity.

The government first argues that IIRIRA § 309(a)—which sets forth the 

statute’s effective date—expressly gives retroactive effect to all provisions of 

IIRIRA in removal proceedings commenced after the effective date. This is just 

not so. The Supreme Court rejected this argument in St. Cyr, holding that § 309(a) 

merely promulgates an effective date for the statute, which “does not even 

arguably suggest that [the statute] has any application to conduct that occurred at 

an earlier date.” 533 U.S. at 317, 121 S. Ct. at 2288–89 (quoting Landgraf, 511 

U.S. at 257, 114 S. Ct. at 1493). 

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The government next argues that IIRIRA § 309(c)(5) requires retroactive 

application of the stop-time rule. Section 309(c)(5), which sets out the 

“Transitional Rule with Regard to Suspension of Deportation,” addresses the 

application of the stop-time rule to applications for suspension of deportation that 

were filed in deportation proceedings commenced before the passage of IIRIRA. 

See IIRIRA § 309(c)(5); see also Tefel, 180 F.3d at 1289 (“Shortly after the 

enactment of IIRIRA, the BIA held that the new ‘stop-time’ rule applied to aliens 

who had applied for suspension of deportation prior to IIRIRA’s enactment.”). 

Section 309(c)(5) provides that the stop-time rule “shall apply to notices to appear 

issued before, on, or after the date of the enactment of this Act.”3

 In Tefel, this 

Court confirmed that the transitional rule of § 309(c)(5) requires the retroactive 

application of the stop-time rule to removal proceedings that were pending at the 

time IIRIRA took effect. See 180 F.3d at 1302. The government asks that we join 

the Fifth Circuit in holding that the retroactivity provision of the transitional rule 

also extends to the permanent rule. See Heaven v. Gonzales, 473 F.3d 167, 175 

(5th Cir. 2006) (“[I]t would be incongruous . . . to not apply the same rule to aliens 

3 The transitional rule’s reference to “notices to appear” was a mistake. NTAs did not 

exist before IIRIRA, so the transitional rule could not have applied to NTAs issued prior to the 

effective date of the Act. This error was corrected in the Nicaraguan Adjustment and Central 

American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160 (1997), which, among other things, 

replaced “notices to appear” with “orders to show cause,” the pre-IIRIRA functional equivalent 

of NTAs. See id. § 203(a)(1).

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whose proceedings were initiated after the effective date of the IIRIRA.” 

(quotation marks omitted)).

4

We reject the idea that the retroactivity provision of the transitional rule

extends to the permanent stop-time rule. Were we to do so, we would effectively 

treat the transitional rule as the permanent rule. And we see no authority for 

treating cases that, like Mr. Rendon’s, are indisputably governed by the permanent 

rule as if they were transitional rule cases. To the contrary, the fact that the 

transitional rule contains language expressly mandating retroactivity shows that 

“when Congress wanted the stop-time provision to apply retroactively to a limited 

category of cases—deportation cases pending when IIRIRA took effect—it said so 

clearly.” Martinez, 523 F.3d at 371 (alteration adopted) (quotation marks omitted). 

As with the inclusion of express retroactive language in other portions of the 

statute, Congress chose not to include temporal language in the permanent stoptime rule. This weighs heavily against finding that Congress intended the rule to 

operate retroactively. 

4 The Ninth Circuit also reached a similar, albeit more limited holding as relates to the 

transitional rule’s effect on the retroactive application of the “90/180-day rule.” See GarciaRamirez v. Gonzales, 423 F.3d 935, 940–41 (9th Cir. 2005) (per curiam). This rule states that a 

noncitizen’s physical presence in the United States ends if the noncitizen departs from the United 

States for any period in excess of 90 days or for any periods that, in the aggregate, exceed 180 

days. Id. at 938. But in a later case the Ninth Circuit held that this reasoning does not extend to 

the portion of the stop-time rule that is triggered by criminal offenses. Sinotes-Cruz, 468 F.3d at 

1199. 

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Even if we were to accept that the retroactivity provision of the transitional

rule could be read as extending to the permanent stop-time rule, it still would not

apply to the stop-time rule’s criminal-offense trigger. The transitional rule 

expressly mentions only one of the two triggering events for the stop-time rule: the 

service of a notice to appear or order to show cause. See IIRIRA § 309(c)(5). 

Nowhere does it refer to the separate criminal-offense trigger. Thus, by its plain 

terms the transitional rule mandates only the retroactive application of the portion 

of the stop-time rule triggered by the initiation of removal proceedings. This 

limitation does not appear to have been a mere oversight. Congress enacted this 

portion of IIRIRA in order “to prevent [noncitizens] from satisfying the continuous 

residence rule by stalling in their pending immigration proceedings.” Jeudy, 768 

F.3d at 603; see also Sinotes-Cruz, 468 F.3d at 1201 (holding that the transitional 

rule does not apply to the criminal conduct trigger when the respondent pled guilty 

to a crime committed prior to the passage of IIRIRA). We understand this 

reasoning, but it has no application in the context of the criminal offense trigger. 

Our circuit has not held that the transitional rule applies retroactively to the 

criminal-offense trigger.

5

 For this reason, in order for the government to prevail 

5 Tefel did not discuss the criminal offense trigger and addressed only a class of 

immigrants who had been placed in removal proceedings before the enactment of IIRIRA. See

180 F.3d at 1288. 

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on its argument that § 309(c)(5) mandates retroactivity, it would have to show both 

that: (1) the retroactivity provision transitional rule implicitly extended to the 

criminal conduct trigger and (2) this retroactivity provision implicitly extended to 

the permanent rule. Neither of these concepts are supported by the transitional rule 

or the permanent stop-time rule. And in any event this language is certainly not 

“so clear that it could sustain only one interpretation.” St. Cyr, 533 U.S. at 316–

17, 121 S. Ct. at 2288. 

b. The BIA’s interpretation of the stop-time rule does not warrant 

Chevron deference.

The government argues that Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984), requires us to defer to 

the BIA’s interpretation of § 1229b(d)(1) as mandating retroactive application.

6

 

But we need not defer to an agency’s interpretation of a statute that is ambiguous 

about whether it applies retroactivity. “[A] statute that is ambiguous with respect 

to retroactive application is construed under our precedent to be unambiguously 

prospective,” so there is “no ambiguity in such a statute for an agency to resolve.” 

St. Cyr, 533 U.S. at 320 n.45, 121 S. Ct. at 2290 n.45; accord Sarmiento Cisneros, 

6 The BIA has held that the stop-time rule is retroactive in at least three precedential 

decisions. See Matter of Jurado-Delgado, 24 I. & N. Dec. 29, 32 (BIA 2006); Matter of RoblesUrrea, 24 I. & N. Dec. 22, 27 (BIA 2006); Matter of Perez, 22 I. & N. Dec. 689, 691 (BIA 1999). 

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381 F.3d at 1280. For this statute, we are not called upon to defer to the BIA’s 

interpretation of the retroactive effect of the stop-time rule. 

Because we are not persuaded that the text of the INA clearly mandates the 

retroactive application of the stop-time rule we, proceed to the second step of the 

Landgraf test to determine whether applying the rule to Mr. Rendon’s case would

have impermissible retroactive effect. 

2.

At the second step of Landgraf we determine whether applying the stop-time 

rule to Mr. Rendon’s pre-IIRIRA conviction would have an impermissible 

retroactive effect. We conclude that giving retroactive effect to the stop-time rule 

in Mr. Rendon’s case would attach a new and serious legal consequence to his 

decision to plead guilty to resisting an officer with violence, so it is impermissible 

for us to do so. See Landgraf, 511 U.S. at 269–70, 114 S. Ct. at 1499.

St. Cyr largely resolves this inquiry. In that case, Enrico St. Cyr pled guilty, 

prior to the enactment of IIRIRA, to a deportable offense. St. Cyr, 533 U.S. at 293,

121 S. Ct. at 2275. Under pre-IIRIRA law, he would have been eligible to apply 

for a waiver of deportation under INA § 212(c). Id. at 314–15, 121 S. Ct. at 2287. 

Again, however, IIRIRA replaced waiver of deportation with cancellation of 

removal, and Mr. St. Cyr was not eligible for cancellation of removal because of

his guilty plea. Id. at 297, 121 S. Ct. at 2277. The Supreme Court held that 

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denying Mr. St. Cyr the opportunity to receive § 212(c) waiver of deportation 

“attache[d] a new disability, in respect to transactions or considerations already 

past” and was thus impermissibly retroactive. Id. at 321–23, 121 S. Ct. at 2290–91

(quotation marks omitted). The Court reasoned that noncitizen defendants who 

plead guilty to crimes waive constitutional rights, from which the government 

gains “numerous tangible benefits.” Id. at 322, 121 S. Ct. at 2291 (quotation marks 

omitted). When pleading guilty, noncitizens are generally “acutely aware” of the 

immigration consequences of their conviction and sentence. Id. And preserving 

eligibility for immigration relief is “one of the principal benefits sought by 

[noncitizen] defendants deciding whether to accept a plea offer or instead to 

proceed to trial.” Id. at 323, 121 S. Ct. at 2291. Given that plea agreements are

often facilitated by the noncitizens’ belief in their continued eligibility for waiver 

of deportation, the Supreme Court held that “it would surely be contrary to familiar 

considerations of fair notice, reasonable reliance, and settled expectations to hold 

that IIRIRA’s subsequent restrictions deprive them of any possibility of such 

relief.” Id. at 323–24, 121 S. Ct. at 2292 (citation and quotation marks omitted). 

Mr. Rendon’s case is similar. When he pled guilty to resisting an officer 

with violence on July 17, 1995, he would likely have known that his guilty plea 

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would not render him immediately deportable.7 And but for the later enactment of 

the stop-time rule, that guilty plea also would not have cut off his accumulation of 

continuous presence towards eligibility for waiver of deportation under INA 

§ 212(c).8

Thus, by pleading guilty, Mr. Rendon gave up constitutionally protected 

rights with the reasonable expectation that his resulting sentence would not affect 

his ability to remain present in this country. Applying the stop-time rule 

retroactively would add a new and unforeseen consequence to his guilty plea by 

rendering him ineligible for cancellation of removal. See Sinotes-Cruz, 468 F.3d 

7 When Mr. Rendon pled guilty to these crimes, INA § 241(a)(2)(A)(i)(II) rendered 

deportable a noncitizen convicted of a CIMT and sentenced to a period of confinement of one 

year or longer. See Matter of Fortiz-Zelaya, 21 I. & N. Dec. 1199, 1202 (BIA 1998). AEDPA

expanded the scope of INA § 241(a)(2)(A)(i)(II) to include offenses “for which a sentence of one 

year or longer may be imposed.” Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 

No. 104-132, § 435(a), 110 Stat. 1214, 1274 (codified as amended at 8 U.S.C. 

§ 1227(a)(2)(A)(i)(II)) (emphasis added). Because Mr. Rendon was actually sentenced to less 

than the one year of actual confinement necessary to trigger deportability, his guilty plea to a 

CIMT did not render him deportable under the pre-AEDPA statutory scheme. And while 

AEDPA expressly made this amendment apply retroactively to noncitizens against whom 

deportation proceedings were commenced after the Act’s passage, id., at the time he pled guilty 

Mr. Rendon could reasonably have expected that his guilty plea would not render him 

deportable. 

8 At the time Mr. Rendon pled guilty, the basic eligibility requirements for § 212(c) 

waiver of deportation were that the noncitizen (1) have accrued seven years of continuous 

presence in the United States and (2) not have served more than five years imprisonment for one 

or more aggravated felony offenses. See Ferguson v. U.S. Att’y Gen., 563 F.3d 1254, 1260 

(11th Cir. 2009); Matter of Abdelghany, 26 I. & N. Dec. 254, 257 (BIA 2014). Mr. Rendon was 

sentenced to only 364 days in custody, well under the five years required by § 212(c). So, even 

after his guilty plea, Mr. Rendon would have been eligible for waiver of deportation once he 

accumulated the required seven years of continuous presence. 

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at 1201 (applying similar analysis to the criminal-offense trigger of the stop-time 

rule); Jaghoori, 772 F.3d at 772 (“A retroactive application of the stop-time rule 

would impose new and unforeseen consequences on Petitioner’s decision to 

relinquish [the right to a criminal trial].”); cf. Guzman, 770 F.3d at 1087 (holding 

that retroactively applying the stop-time rule was permissible where a petitioner’s 

guilty plea rendered him immediately deportable, since after pleading guilty he 

preserved only “a hope and speculation” that he would not be served with an NTA 

before accumulating the required seven-years of presence).9

 

Both St. Cyr and Vartelas v. Holder, 566 U.S. 257, 132 S. Ct. 1479 (2012), 

tell us that retroactively removing a noncitizen’s eligibility for discretionary 

immigration relief attaches a new disability to past conduct and is therefore 

impermissible under Landgraf’s second step. See Vartelas, 566 U.S. at 273, 132 S. 

Ct. at 1491 (assuming that respondent “likely relied on then-existing immigration 

law” in shaping his conduct); St. Cyr, 533 U.S. at 325, 121 S. Ct. at 2293 (holding 

that because the respondent “almost certainly relied upon [the] likelihood [of 

receiving § 212(c) relief] in deciding whether to forgo [his] right to a trial, the 

9 As our sister circuits’ decisions demonstrate, whether a petitioner’s pre-IIRIRA 

conviction rendered him immediately deportable plays an important role in determining whether 

retroactive application of the stop-time rule is permissible. See, e.g., Jaghoori, 772 F.3d at 772 

(distinguishing Kleynburg v. Holder, 525 Fed. App’x 814 (10th Cir. 2013), and Martinez v. INS, 

523 F.3d 365, 373 (2d Cir. 2008)—both of which held that applying the stop-time rule to a preIIRIRA conviction did not have an impermissibly retroactive effect—on the ground that “in each 

of these cases, the pre-IIRIRA crime rendered the alien immediately deportable”).

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elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and 

severe retroactive effect”). After all, while cancellation of removal is a 

discretionary form of relief, “[t]here is a clear difference, for the purposes of 

retroactivity analysis, between facing possible deportation and facing certain 

deportation.” St. Cyr, 533 U.S. at 325, 121 S. Ct. at 2293. Thus, applying the 

stop-time rule to Mr. Rendon’s pre-IIRIRA guilty plea to render him ineligible for 

cancellation of removal would be impermissibly retroactive. 

The government argues this case is distinguishable from St. Cyr because the 

stop-time rule is triggered by the commission of a crime, rather than by a 

conviction resulting from a guilty plea. In the government’s view, because people

are not understood to commit crimes based on a careful weighing of their 

immigration consequences, the “quid pro quo” nature of plea bargains at the core 

of the Supreme Court’s reasoning in St. Cyr is not present in this case. But this 

argument misconstrues the operation of the stop-time rule. 

Merely committing a qualifying crime does not trigger the stop-time rule. 

As our Court explained in Barton, qualifying criminal offenses only trigger the 

stop-time rule after the noncitizen is convicted of or admits to committing a 

qualifying crime. 904 F.3d at 1301. Once a conviction or admission of a 

qualifying crime renders the noncitizen inadmissible, his continuous residence 

period is then back-dated and deemed to have terminated on the date he committed 

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that offense. Id. at 1301 & n.3. Therefore, in this case the triggering event was not 

Mr. Rendon’s commission of the crime, but his entry of a guilty plea in July 1995. 

The reasoning of St. Cyr applies with full force to his circumstance. 

Further, as the government correctly acknowledges, to prevail Mr. Rendon 

need not show detrimental reliance on the future availability of discretionary relief. 

Vartelas, 566 U.S. at 273–74, 132 S. Ct. at 1491. This is because in deciding

whether a statute has impermissible retroactive effective effect, the “essential 

inquiry . . . is whether the new provision attaches new legal consequences to events 

completed before its enactment.” Id. at 273, 132 S. Ct. at 1491 (quotation marks 

omitted). So while the question of whether Mr. Rendon may have relied on his 

understanding of the immigration consequences of his guilty plea informs our 

retroactivity analysis, he is not required to make this showing. The central 

question remains whether applying the stop-time rule to that plea would add new 

and unforeseen legal consequences. For the reasons we have discussed, it clearly 

would. 

Still the government argues that retroactive application of the stop-time rule 

could not possibly add new legal consequences to past conduct because the rule 

only affects Mr. Rendon’s eligibility for cancellation of removal, a form of relief 

that was not available before the enactment of IIRIRA. 

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This argument succeeds only by blinding itself to the fact that cancellation 

of removal merely replaced § 212(c) relief and added additional, more exacting 

eligibility restrictions. See Jeudy, 768 F.3d at 604. Mr. Rendon was eligible for 

§ 212(c) relief when he pled guilty in July 1995. By replacing § 212(c) relief with 

cancellation of removal and adding the additional bar of the stop-time rule, IIRIRA 

made Mr. Rendon ineligible for a form of discretionary relief he otherwise would 

have qualified for. Taken together, these changes add a significant and legal 

consequence to Mr. Rendon’s decision to plead guilty. Applying them 

retroactively to render Mr. Rendon ineligible for cancellation of removal is not 

permitted.

10 

V.

The BIA’s holding that Mr. Rendon is not eligible for cancellation of 

removal based on the stop-time rule gives an impermissible retroactive effect to 

that rule, and it was error. We therefore REVERSE that decision and REMAND

this matter for further proceedings consistent with this decision. 

10 The government requests that, if we do find that the stop-time rule lacks a clear 

statement of retroactivity, we remand for the BIA to consider Landgraf step two in the first 

instance. As we previously discussed, retroactivity is a question of law that we review de novo. 

See Goldsmith, 996 F.2d at 1159. Remand for further analysis from the BIA is therefore 

unnecessary.

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