In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2143

MILIJA ZIVKOVIC,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A017 099 761 

ARGUED SEPTEMBER 26, 2012—DECIDED JULY 31, 2013

Before EASTERBROOK, Chief Judge, and WOOD and

WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Milija Zivkovic, a Serbian who

has been in the United States since 1966, has petitioned

for review of an order of the Board of Immigration

Appeals ordering him removed from the United States.

The Board found that Zivkovic was removable because

he had committed three aggravated felonies and that
2 No. 12-2143

he was not eligible for the special relief provided by

Section 212(c) of the Immigration and Nationality Act

(INA), 8 U.S.C. § 1182(c). Before this court, Zivkovic

argues that none of the three felony convictions on

which the Board relied can support its removal order.

Even if one or more was properly counted, he continues,

the Board erred when it rejected his eligibility for

Section 212(c) relief. Finally, he complains that the Immigration Judge (IJ) should not have consulted certain

conviction records that had been submitted for purposes

of his bond proceeding when the IJ was considering

his immigration petition.

Resolution of Zivkovic’s petition might have

been straightforward, but for the fact that two of his

convictions are 35+ years old, and the immigration laws

have not remained static over that time. Zivkovic

realizes that he must knock out all three of the aggravated

felonies before his argument about Section 212(c) makes

any difference, because a conviction on one alone would

be enough to guarantee near-automatic removal. See

Immigration and Nationality Act § 237(a)(2)(A)(iii),

8 U.S.C. § 1227(a)(2)(A)(iii). But he believes that he

can do so. Our assessment of his argument requires us

to delve deeply into the history of the governing provisions of the immigration laws, and in addition to

consider what level of deference we owe to the Board’s

effort to disentangle both the meaning of those statutes

and Congress’s intent over the years to make various

changes retroactive. We conclude that the statutes

are ambiguous and that the twin presumptions

against retroactivity and implied repeal require us to
No. 12-2143 3

grant Zivkovic’s petition and to remand for further proceedings.

I

Zivkovic was admitted to the United States as a

lawful permanent resident in 1966. Ten years later, on

October 25, 1976, he pleaded guilty to the Illinois crime

of burglary, now codified at 720 ILCS 5/19-1, and

received a sentence of two to six years. In 1978, following

a jury trial, he was convicted of attempted rape, see

720 ILCS 5/8-4 (current law defining crime of attempt); 720

ILCS 5/11-1.20 (current law defining criminal sexual

assault), and was sentenced to 4 to 12 years in

prison. Years later, on November 16, 2010, he was convicted under 720 ILCS 5/19-4(a)(2) for criminal trespass

to a residence with a person present; for that crime,

he received a three-year sentence of imprisonment. On

the same day, he was convicted of aggravated battery,

where the aggravating factor was the victim’s age (over

60 years), and received a five-year sentence.

In 2004 Zivkovic received a Notice to Appear from

the Department of Homeland Security (DHS). The Notice

charged that he was removable on several grounds: first,

pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien

who has been convicted of an aggravated felony as

defined in 8 U.S.C. § 1101(a)(43)(G); second, for the

attempt or conspiracy to commit a crime defined in

8 U.S.C. § 1101(a)(43)(A) (murder, rape, or sexual abuse

of a minor); and third, under 8 U.S.C. § 1227(a)(2)(A)(ii),

as an alien who has been convicted of two crimes
4 No. 12-2143

involving moral turpitude not arising out of a single

incident. DHS temporarily closed his case in 2005 to

await the conclusion of criminal proceedings in Illinois

state court.

On February 22, 2011, with the state case resolved,

DHS restored Zivkovic’s immigration case to the calendar. This time DHS charged that Zivkovic’s 2010 residential trespass conviction was also a basis for his

removability because it qualified as a “crime of violence”

under the INA; DHS continued to assert that his 1976

and 1978 convictions for the aggravated felonies of burglary and attempted rape supported his removal. On

November 17, 2011, the IJ determined that residential

trespass is a crime of violence because, like burglary,

it involves a substantial risk that physical force may

be used. The IJ also concluded that Zivkovic‘s 1976

and 1978 convictions counted as aggravated felonies

because they are so defined in the Illegal Immigrant

Reform and Immigrant Responsibility Act of 1996

(IIRIRA). In reaching this conclusion, the IJ relied on a

decision of the BIA holding that the Immigration Act

of 1990 made “any alien who has been convicted of a

crime defined as an aggravated felony, and who was

placed in deportation proceedings on or after March 1,

1991, [] deportable regardless of when the conviction

occurred.” Matter of Lettman, 22 I. & N. Dec. 365, 366

(BIA 1998) (en banc). The IJ found that Zivkovic was not

eligible for discretionary waiver of removal because

he went to trial rather than pleading guilty to the 1978

crime, and thus he cannot demonstrate that reliance

on discretionary waiver from removal changed his response to those criminal charges.
No. 12-2143 5

On appeal, the BIA affirmed the IJ’s determinations.

Although at one point along the way, DHS had argued

that Zivkovic was also removable because he had committed two crimes of moral turpitude, see 8 U.S.C.

§ 1227(a)(2)(A)(ii), the IJ did not specifically address

that charge in his written decision. The Board also found

it unnecessary to address that point; it explicitly commented that it was not reaching the moral turpitude

ground and instead was affirming solely because of the

aggravated felonies and ineligibility for Section 212(c)

relief.

II

Because the standard of review that governs Zivkovic’s

petition is central to this case, we begin by reviewing

the governing principles. To the extent that his petition

raises questions of law, our review is generally de novo.

Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir.

2011). Nevertheless, we use the qualifier “generally”

because the BIA is an expert agency. In I.N.S. v. AguirreAguirre, the Supreme Court held that when a court of

appeals confronts questions implicating the Board’s

“construction of the statute which it administers”—here,

the INA—“the court should . . . appl[y] the principles of

deference described in Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).”

526 U.S. 415, 424 (1999).

This does not mean, however, that Chevron applies to

every issue that arises in an immigration case, for the

simple reason that some questions of law do not depend
6 No. 12-2143

on agency expertise for their resolution. The first preliminary question we must address is whether the

question before us—what counts as a “crime of violence” for purposes of INA § 101(a)(43)(F), 8 U.S.C.

§ 1101(a)(43)(F)—is one for which Chevron deference

is required. (For convenience, in the remainder of this

opinion we omit the parallel citations to the INA and

use only the citation found in Title 8.) Section 1101(a)(43)(F)

says that “a crime of violence (as defined in section 16 of

Title 18, but not including a purely political offense)

for which the term of imprisonment [is] at least one

year.” Id. (emphasis added). Section 16 of Title 18, which

addresses Crimes and Criminal Procedure, is one of

the “general provisions” collected in Chapter 1 of

the Code. No one thinks that the Board of Immigration

Appeals has the authority to set the boundaries of the

term “crime of violence” for every criminal prosecution

in the United States; the great majority of these cases

are entirely unrelated to immigration law. Nor is there

any hint that Congress intended the Board to craft a

particularized definition of this general statute for use

exclusively in immigration proceedings. Instead, Congress

elected to refer the Board to the general definition of

“crime of violence” when that becomes important for

immigration purposes. In these circumstances, one cannot

say that the Board exercises any delegated power

to interpret the governing statute—18 U.S.C. § 16—and

thus Chevron deference does not apply to that aspect of

the Board’s reasoning. See Flores v. Ashcroft, 350 F.3d

666, 671 (7th Cir. 2003).

The second preliminary question is whether we owe

Chevron deference to the Board’s decision about the
No. 12-2143 7

retroactivity of a newly added provision of the immigration laws. At first glance, this might appear to be a

closer question: after all, retroactivity (or the lack of

retroactivity) is central to the determination of the

content of the law at any given time. But in this case

we have the benefit of a Supreme Court decision that is

directly on point. In I.N.S. v. St. Cyr, 533 U.S. 289

(2001), the Court addressed the question whether certain

amendments to the INA should be applied retroactively.

The respondent, Enrico St. Cyr, pleaded guilty to

a controlled-substance offense; he entered his

plea just before the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), 110

Stat. 1214, which was quickly amended by IIRIRA, 110

Stat. 3009-546. The specific question before the Court

was whether the provisions of AEDPA and IIRIRA eliminating waivers of deportation under INA § 212(c)

applied retroactively to a person in St. Cyr’s position.

Importantly for present purposes, the Immigration and

Naturalization Service (DHS’s predecessor) had taken

the position that the new provisions were retroactive

and thus that St. Cyr was ineligible for the 212(c)

waiver. Among other things, the agency argued that the

Court should extend Chevron deference to “the BIA’s

interpretation of IIRIRA as applying to all deportation

proceedings initiated after IIRIRA’s effective date [as

St. Cyr’s was].” 533 U.S. at 320 n.45. The Supreme Court

dismissed that argument with the following comment:

We only defer, however, to agency interpretations

of statutes that, applying the normal “tools of

statutory construction,” are ambiguous. [Chevron,
8 No. 12-2143

467 U.S.] at 843, n.9; INS v. Cardoza-Fonseca, [480 U.S.

421, 447-48 (1987)]. Because a statute that is ambiguous

with respect to retroactive application is construed

under our precedent to be unambiguously prospective, Landgraf [v. USI Film Products, 511 U.S. 244, 264

(1994)], there is, for Chevron purposes, no ambiguity in

such a statute for an agency to resolve.

533 U.S. at 320 n.45. Landgraf recognized that Congress

has the power to make a statute retroactive, but it

stressed that “a requirement that Congress first make its

intention clear helps ensure that Congress itself has

determined that the benefits of retroactivity outweigh

the potential for disruption or unfairness.” 511 U.S. at 268.

In Vartelas v. Holder, 132 S. Ct. 1479 (2012), the

Supreme Court was again confronted with the question

whether a provision of the immigration laws operated

retroactively. It was a question, as the Court noted, “not

addressed by Congress: As to a lawful permanent

resident convicted of a crime before the effective date of

IIRIRA, which regime governs, the one in force at the

time of the conviction, or IIRIRA?” Id. at 1483. Noting

that Congress did “not expressly prescribe the temporal

reach of the IIRIRA provision in question, 8 U.S.C.

§ 1101(a)(13),” id. at 1487, the Court turned directly to

Landgraf, with no mention of Chevron, to answer the

question. It observed that the restraint added by IIRIRA

ranked as a “new disability” for lawful permanent

resident aliens, rejecting the dissent’s argument that this

was not the case because the legislature had attached

no disability to past conduct. Id. at 1487-88. It then reiter-
No. 12-2143 9

ated that “[t]he operative presumption . . . is that

Congress intends its laws to govern prospectively only.”

Id. at 1491. As in St. Cyr, the alien had in all likelihood relied on the law that existed at the time of his

plea of guilty (before IIRIRA). This independent assessment resulted in a finding of no retroactivity.

Interestingly, the government’s brief in Vartelas

conceded that the Second Circuit “reviews the retroactive application of statutes de novo, without Chevron

deference.” Brief for the Respondent at *9 [2009 WL

7498491], Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2009).

The Second Circuit reiterated this rule in its Vartelas

opinion, stating that it “consider[s] the issue of retroactivity de novo, without giving deference to the opinion of the

BIA, as the question . . . does not concern the sort of

statutory gap that Congress has designated the BIA

to fill, nor a matter in which the BIA has particular expertise.” 620 F.3d at 117-18 (internal quotation marks omitted). Although the dissenting Justices in Vartelas

disagreed on the merits, they did not question

the majority’s use of Landgraf as the governing standard

for analyzing the retroactivity question. To the contrary,

the dissent said that “the Court is correct that this case

is governed by our longstanding interpretive principle

that, in the absence of a contrary indication, a statute

will not be construed to have retroactive application,”

citing Landgraf. See Vartelas, 132 S. Ct. at 1492-93 (dissenting opinion of Scalia, J.).

Unlike our dissenting colleague, we see nothing in

the Court’s recent decision in Federal Communications
10 No. 12-2143

Commission v. Arlington, 133 S. Ct. 1863 (2013), that undermines this analysis. Arlington reaffirms the general principle that a court must defer to an agency’s reasonable

interpretation of the scope of its own authority, regardless

of whether that issue concerns the agency’s jurisdiction or

any other interpretation of its enabling statute. Id. at 1868

(“No matter how it is framed, the question a court faces

when confronted with an agency’s interpretation of a

statute it administers is always, simply, whether the agency

has stayed within the bounds of its statutory authority.”)

(Emphasis in original). Nothing in Arlington instructs

courts to skip the first step of the Chevron process—that is,

the assessment whether there is any ambiguity to be

addressed after applying the ordinary tools of statutory

construction. If those tools of statutory construction

point clearly to a finding of no retroactivity, that is the

end of it: the agency’s views never come into play.

Because the Supreme Court itself has provided an unambiguous legal rule for retroactivity questions, and we

have no issue before us pertaining to the boundaries of

the agency’s authority, we conclude that Arlington

does not drive our analysis here.

We conclude that this is not a situation in which

any ambiguity (which if present would trigger deference

to the agency) remains after applying the ordinary

tools of statutory construction. St. Cyr tells us that Congress is the master here, and it essentially eliminates

ambiguity from the picture by classifying all statutes as

prospective except those that Congress has clearly designated as retroactive. Our sister circuits have come to

the same conclusion. See Martinez v. I.N.S., 523 F.3d 365,
No. 12-2143 11

372-73 (2d Cir. 2008); Camins v. Gonzales, 500 F.3d 872, 880

(9th Cir. 2007); Hem v. Maurer, 458 F.3d 1185, 1189 (10th

Cir. 2006); Dinnall v. Gonzales, 421 F.3d 247, 251 (3d Cir.

2005); Sarmiento Cisneros v. U.S. Att’y Gen., 381 F.3d 1277,

1280 (11th Cir. 2004); Arevalo v. Ashcroft, 344 F.3d 1, 9-10

(1st Cir. 2003); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 300

n.53 (5th Cir. 2002); Bejjani v. I.N.S., 271 F.3d 670, 679-80

(6th Cir. 2001), abrogated on other grounds by FernandezVargas v. Gonzales, 548 U.S. 30 (2006); Velasquez-Gabriel v.

Crocetti, 263 F.3d 102, 106 n.2 (4th Cir. 2001). The

question whether Zivkovic’s crime qualified under

Section 1101(a)(43)(F) as a “crime of violence,” and the

questions whether and to what extent certain amendments to the immigration laws apply retroactively, are

all issues of law that this court must review de novo,

without the use of Chevron deference. 

III

We turn now to a detailed look at the governing law,

which has changed over the years. The INA itself was

passed in 1952 (Act of June 27, 1952, c. 477, Title I, § 101, 66

Stat. 166); it has been amended many times since then.

The first such amendment that we must consider

appeared in the Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, 102 Stat. 4181. Section 7342 of that statute

added the term “aggravated felony” to the definitions

found in 8 U.S.C. § 1101(a) through the following

new paragraph:

(43) The term “aggravated felony” means murder, any

drug trafficking crime as defined in section 942(c)(2) of
12 No. 12-2143

title 18, United States Code, or any illicit trafficking

in any firearms or destructive devices as defined in

section 921 of such title, or any attempt or conspiracy

to commit any such act, committed within the

United States.

Section 7343 of the Anti-Drug Abuse Act set out rules

for the retention in custody of aliens who had committed

aggravated felonies and specified that they were ineligible

for voluntary departure. Section 7344 read as follows:

(a) IN GENERAL.—Section 241(a)(4) (8 U.S.C.

1251(a)(4)) is amended—

(2) [sic] by inserting after the semicolon the following:

“or (B) is convicted of an aggravated felony at any

time after entry;”.

(b) APPLICABILITY.—The amendments made by

subsection (a) “8 U.S.C. 1251 note” shall apply to any

alien who has been convicted, on or after the date of

the enactment of this Act, of an aggravated felony.

(Section 1251 was later transferred to 8 U.S.C. § 1227, which

is now the section of the law describing which aliens

are “deportable.”)

It is worth noting in passing that Zivkovic did not

become deportable as of November 18, 1988 (the effective

date of the Anti-Drug Abuse Act) based on his 1974 and

1976 offenses. That is so for two independent reasons.

First is the age of the offenses: both convictions pre-dated

the “date of the enactment” of that Act, and they were

therefore excluded by Section 7344(B). Second, his crimes

of burglary and attempted rape did not fall within the
No. 12-2143 13

definition of “aggravated felony” provided by Section

7342 of the Anti-Drug Abuse Act.

In 1990, Congress passed another law amending the

INA; it called this simply the Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 4978. Among many other

things, the 1990 Act (as we shall call it, in an effort to

minimize confusing acronyms) changed the definition

of “aggravated felony” and revised the grounds for

deportation. It broadened the definition of “aggravated

felony” in a variety of ways. Section 501(a) of the 1990

Act sets out the changes to the definition:

(a) IN GENERAL.—Paragraph (43) of section 101(a)

(8 U.S.C. 1101(a)) is amended—

* * *

(2) by inserting “any illicit trafficking in any controlled

substance (as defined in section 102 of the Controlled

Substances Act), including” after “murder,”,

(3) by inserting after “such title,” the following: “any

offense described in section 1956 of title 18, United

States Code (relating to money laundering), or any

crime of violence (as defined in section 16 of title 18,

United States Code, not including a purely political

offense) for which the term of imprisonment

imposed (regardless of any suspension of such imprisonment) is at least 5 years,”,

(4) by striking “committed within the United States”,

(5) by adding at the end the following: “Such term

applies to offenses described in the previous
14 No. 12-2143

sentence whether in violation of Federal or State

law.”, and

(6) by inserting before the period of the sentence added

by paragraph (5) the following: “and also applies to

offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years”.

Section 501(b) specified the effective date of these

changes, stating that

[t]he amendments made by subsection (a) shall apply

to offenses committed on or after the date of the

enactment of this Act, except that the amendments

made by paragraphs (2) and (5) of subsection (a) shall

be effective as if included in the enactment of section

7342 of the Anti–Drug Abuse Act of 1988.

Interestingly, although the controlled substance amendments and the clarification with respect to state-law

offenses relate back to the Anti-Drug Abuse Act, subpart

(3) of the 1990 Act, which adds crimes of violence to

the definition, applies only from the date of enactment

(November 29, 1990) of the new statute.

Section 602(a) of the 1990 Act amended the law (then

8 U.S.C. § 1251, now § 1227) to restate the criminal

offenses that provided grounds for deportation. As

amended, Section 1251(a)(2)(A)(iii) provided that

“[a]ny alien who is convicted of an aggravated felony at

any time after entry is deportable.” Section 602(c) (which

is central to our analysis below) sets forth a rather

opaque set of rules for effective dates:
No. 12-2143 15

(c) SAVINGS PROVISION.—Notwithstanding the

amendments made by this section, any alien who

was deportable because of a conviction (before the

date of the enactment of this Act) of an offense

referred to in paragraph (15), (16), (17), or (18) of

section 241(a) of the Immigration and Nationality

Act, as in effect before the date of the enactment of

this Act [a series of offenses related to alien registration and wartime crimes], shall be considered to

remain so deportable. Except as otherwise

specifically provided in such section and subsection

(d), the provisions of such section, as amended by

this section, shall apply to all aliens described in

subsection (a) thereof notwithstanding that (1) any

such alien entered the United States before the date

of the enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection,

occurred before the date of the enactment of this Act.

Even though the last eight lines of this “savings provision”

might be read to make the changes retroactive, the new

definition of “aggravated felony” applied only prospectively, according to Section 501(d) of the 1990 Act. Thus,

the 1990 Act did not authorize Zivkovic’s deportation

based on his 1976 and 1978 offenses, since they did not

count as aggravated felonies thanks to Section 501(d).

The next material changes that Congress made to the

treatment of aggravated felonies appear in IIRIRA, Pub. L.

No. 104, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996). IIRIRA

did several things relevant to Zivkovic’s case. First, it

expanded the definition of “aggravated felony” to include
16 No. 12-2143

rape and burglary punishable by more than one year

imprisonment. Second—and this is the language on

which the dissent primarily rests—it includes two statements that bear on retroactivity. The first one says:

The amendments made by this section shall apply

to action taken on or after the date of enactment of

this Act regardless of when the conviction occurred.

The second appears in the hanging paragraph at the end

of Section 1101(a)(43), and says:

Notwithstanding any other provision of law (including

any effective date), the term [aggravated felony]

applies regardless of whether a conviction was entered

before, on, or after September 30, 1996 [i.e., the date

of IIRIRA’s enactment]. 

IIRIRA also repealed Section 212(c) of the INA, which

had given the Attorney General discretion to waive

removal of aliens who had resided in the U.S. for at least

seven years. In St. Cyr, the Supreme Court held that the

repeal of Section 212(c) operated only prospectively. 

We address the effect of IIRIRA on the earlier statutes

in more detail below, as we consider Zivkovic’s specific

arguments. In short, however, Zivkovic can avoid

removal only if he either can demonstrate that none of

the three convictions on which DHS relied can serve as

the basis of its removal order, or, failing that, he can

seek relief from removal under Section 212(c).
No. 12-2143 17

IV

We begin by clearing away two issues that appear

relatively straightforward to us: Zivkovic’s eligibility

for Section 212(c) relief, and the use of his 2010 conviction for criminal trespass to a residence as a basis for

his removal as an aggravated felon. We then turn to the

more difficult question, common to the 1976 and 1978

convictions, whether they can support the Board’s decision.

A. Section 212(c)

We take up this point first simply to emphasize the

importance of the legal effect of Zivkovic’s three crimes.

Because he is not eligible for Section 212(c) relief under

this circuit’s law, his case turns exclusively on the

proper treatment of those crimes.

Although the Supreme Court found in St. Cyr that

IIRIRA’s repeal of Section 212(c) relief was not retroactive, its opinion was not unqualified. Instead, the Court

distinguished the situation of “people who entered

into plea agreements with the expectation that they

would be eligible” for that relief. St. Cyr, 533 U.S. at 321. It

noted that plea agreements “involve a quid pro quo

between a criminal defendant and the government.” Id.

We have understood St. Cyr to require a demonstration

that the defendant affirmatively abandoned rights or

admitted guilt in reliance on a chance of obtaining

Section 212(c) relief. See Khodja v. Holder, 666 F.3d 415, 420

(7th Cir. 2011) (applying St. Cyr to petitioner who af-
18 No. 12-2143

firmatively abandoned his right to pursue a judicial

recommendation against deportation).

The Court’s later decision in Vartelas, however,

cautioned against placing too much weight on actual

reliance. In Vartelas, the Court had to rule on the retroactivity of a provision of IIRIRA limiting the right of a

permanent resident alien who had been convicted of a

felony to travel outside the United States and then

return as a matter of right. It decided against retroactivity.

The loss of the right to leave the country briefly and

then return, it concluded, imposed a new disability on

this class of persons. As the Court noted, “neither

[Vartelas’s] sentence, nor the immigration law in effect

when he was convicted and sentenced, blocked him

from occasional visits to his parents in Greece.” 132 S. Ct.

at 1487. Where a finding of retroactivity would saddle

the petitioner with new consequences from an old conviction, the affected person need not also demonstrate

that he relied on the absence of those new consequences.

This did not mean, however, that reliance had to be

disregarded entirely; to the contrary, the Court observed

that “[w]hile the presumption against retroactive application of statutes does not require a showing of detrimental reliance, reasonable reliance has been noted

among the ‘familiar considerations’ animating the presumption.” Id. at 1491 (quotations and citations omitted).

Based on Vartelas, the Fifth Circuit has concluded

that even people who have rejected a plea agreement

and gone to trial may take advantage of St. Cyr’s ruling.

Carranza-De Salinas v. Holder, 700 F.3d 768 (5th Cir. 2012).
No. 12-2143 19

The petitioner there had delayed appealing her conviction so that she could build a record showing rehabilitation, and then the law changed to eliminate Section

212(c) relief. St. Cyr’s general holding about the nonretroactivity of the repeal of Section 212(c), along with

petitioner’s demonstrated “likelihood of reliance on

prior law,” were enough to convince the Fifth Circuit to

hold that the petitioner was entitled to pursue Section

212(c) relief. Id. at 773-74. Zivkovic does not point to a

similar record, and so we are inclined to save for another

day the question whether we should revisit the role

that reliance has played in this court’s law. We focus

instead on the point that was central to Vartelas—the fact

that retroactive application of the travel restrictions

would have imposed a significant new legal disability on

the petitioner entirely apart from the consequences of

a criminal conviction on a person’s eligibility for

relief under Section 212(c). In Zivkovic’s case, the only

disabilities on the table are the criminal convictions

themselves, not a right to travel, to work, or the like. It

is true that IIRIRA, by adding his offenses to the ranks

of “aggravated felonies,” changed the consequences

for removability, but we do not understand that to be

the kind of additional legal disability that Vartelas was

addressing.

To the extent that reliance remains relevant, we note

as well that there is no way that Zivkovic could have

relied on Section 212(c) when either his 1976 or his 1978

criminal cases were adjudicated, for the simple reason

that the law did not provide for removal based on

those felonies at all. Thus, unlike St. Cyr, who prevailed
20 No. 12-2143

on a retroactivity challenge because of the loss of a

chance to avoid removal based on an offense that had

supported removal since 1988 (sale of a controlled substance), Zivkovic presents a case in which the underlying offenses were not even on the aggravated felony

list until 18 and 20 years after his convictions for them.

He is thus in the strange position of seeking relief

under Section 212(c) based on offenses that did not

become aggravated felonies until the passage of the very

statute that repealed Section 212(c).

We conclude that Section 212(c) relief is not available

in this unusual situation. We do so both because

Zivkovic did not incur a new legal disability in the

sense that Vartelas used, nor did he rely on the availability

of Section 212(c) relief. The Board thus correctly found

that Zivkovic is ineligible as a matter of law for relief

under Section 212(c). This means that his petition for

review can be granted only if none of the three convictions on which the Board relied could support his

removal as an aggravated felon.

B. The 2010 Conviction: Residential Trespass

As it reads today, the INA provides that “[a]ny alien

who is convicted of an aggravated felony at any time

after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).

Turning back to the definitions section of the Act, 8 U.S.C.

§ 1101, we find an extensive list of crimes that Congress

has identified as aggravated felonies. Id. § 1101(a)(43)(A)

through (U). The only one that applies to Zivkovic is

subpart (F), which (as we already have noted) identifies
No. 12-2143 21

“a crime of violence (as defined in section 16 of Title

18, but not including a purely political offense) for

which the term of imprisonment [is] at least one year.”

Title 18, section 16, provides that

The term “crime of violence” means–

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against

the person or property of another, or

(b) any other offense that is a felony and that, by

its nature, involves a substantial risk that physical

force against the person or property of another may

be used in the course of committing the offense. 

18 U.S.C. § 16. This is a familiar test: subpart (a) relies on

the formal elements of the offense, while subpart (b) turns

on the existence of a substantial risk of physical force.

The Illinois felony of residential trespass found in

720 ILCS 5/19-4(a)(2) is committed 

when, without authority, [the person] knowingly

enters the residence of another and knows or has

reason to know that one or more persons is present

or he or she knowingly enters the residence of

another and remains in the residence after he or

she knows or has reason to know that one or more

persons is present.

Id. All parties agree that this crime does not include

as an element the attempted or threatened use of

physical force against the person or property of another.

It therefore does not qualify as a crime of violence
22 No. 12-2143

under 18 U.S.C. § 16(a). The more difficult question is

whether residential trespass is a crime involving a substantial risk that physical force will be used against

the person or property of another for purposes of 18

U.S.C. § 16(b).

In construing Section 16(b) in an immigration case,

the Supreme Court has taken a categorical approach. See

Leocal v. Ashcroft, 543 U.S. 1 (2004). We know this

because the underlying facts in Leocal left no doubt

that physical force actually had been used against

another: the petitioner there was convicted of driving

under the influence of alcohol, and the underlying

facts showed that he had crashed and caused serious

injury to someone. The Court confirmed that the

language of Section 16 “requires us to look to the

elements and the nature of the offense of conviction,

rather than to the particular facts relating to petitioner’s

crime.” Id. at 7. See Jimenez-Gonzalez v. Mukasey, 548

F.3d 557, 561 (7th Cir. 2008). Applying that test, it explained that even though driving under the influence

of alcohol is physically dangerous, that is not enough.

Section 16(b) does not encompass all negligent misconduct, nor does it cover all offenses that create a substantial risk that injury will result from the person’s

conduct. 543 U.S. at 10. A mens rea higher than “the

merely accidental or negligent conduct involved in a

DUI offense” is necessary. Id. at 11. “[R]eckless disregard

in § 16(b),” the Court explained, “relates not to the

general conduct or to the possibility that harm will

result from a person’s conduct, but to the risk that the

use of physical force against another might be required
No. 12-2143 23

in committing a crime.” Id. at 10 (first emphasis in

original, second emphasis added). The Court added that

the phrase “crime of violence” suggests “a category of

violent, active crimes,” and cautioned against blurring

the distinction between the “violent crimes Congress

sought to distinguish for heightened punishment and

other crimes.” Id. at 11.

In Zivkovic’s case, the BIA began appropriately by

applying Leocal’s “categorical approach.” In determining

that “residential trespass” is a violent crime, it analogized

that crime to burglary, which the Supreme Court has

recognized as a “classic” example of a crime meeting

the requirements of Section 16(b). Id. at 10. The BIA also

relied on this court’s ruling that “residential entry” is a

crime of violence under Section 4B1.2 of the U.S. Sentencing Guidelines; that section calls for enhanced penalties

for offenses “involv[ing] conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a)(2); see United States v. Gardner, 397 F.3d 1021,

1023 (7th Cir. 2005) (emphasis added). In Gardner, the

relevant statute said that “[a] person who knowingly or

intentionally breaks and enters the dwelling of

another person commits residential entry, a Class D

felony.” Ind. Code § 35-43-2-1.5 (1993). Id. at 1023.

That crime, we concluded, qualifies as a crime of violence

under Section 4B1.2 of the Guidelines and perhaps

even 18 U.S.C. § 16(b), on which the government had

relied by analogy. Id. at 1023-24. In the course of breaking

and entering, there is a “serious risk that an occupant

could be injured.” Id. at 1024 (emphasis added).
24 No. 12-2143

Gardner differs from the present case, however, in

ways that the BIA failed to recognize. First, the definition

of “crime of violence” under Section 4B1.2 of the sentencing guidelines is significantly different from the one found

in Section 16(b). The guidelines require only a “potential

risk of physical injury,” while Section 16(b) requires a

“substantial risk that physical force” may be used. (Emphasis added.) The level of risk is therefore different. In

addition, a risk of “physical injury” (Section 4B1.2) is not

the same as the risk that the offender will apply “physical

force” (Section 16(b)) to the victim. Physical force may

or may not result in injury, depending on how severe it

is. Cf. Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct.

1265, 1270-71 (2010) (holding that the term “physical

force” in 18 U.S.C. § 924(e)(2)(B)(i) “means violent

force—that is, force capable of causing physical pain or

injury to another person”) (emphasis in original). The

Court’s analysis in Leocal illustrates the difference

between these two standards. Driving under the

influence presents a “risk of physical injury,” but the

Court found that this was not the same as the intentional,

active “use of physical force” described in Section 16(b).

In Gardner, the crime of “residential entry” required

knowing or intentional breaking and entering the

dwelling of another. Gardner, 397 F.3d at 1023. This kind

of breaking and entry offense closely resembles burglary,

and it is logical to assume that there is a substantial

risk that physical force at least against the property of

another will be used in the commission of the offense.

We recognize that since Gardner, the Supreme Court

has concluded that attempted burglary qualifies as a
No. 12-2143 25

crime of violence under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e). See James v. United States, 550

U.S. 192 (2007). In our view, however, James does not

undermine Leocal’s holding; indeed, the majority did not

even cite Leocal. James involved ACCA, which like the

guidelines defines a crime of violence as an offense

“involv[ing] conduct that presents a serious potential

risk of physical injury to another.” § 924(e)(2)(B). The

standard under ACCA thus differs materially from the

one under 18 U.S.C. § 16(b): the latter requires active use

of physical force, while the former looks only for

potential risk of physical injury.

The residential trespass crime that Zivkovic

committed requires only entry or remaining in a house,

with the knowledge that another person is present; it

says nothing about “breaking” or any other force. It thus

is quite different from the crimes in Gardner and James,

where the offenses necessarily involved the intentional

violation of the will of the property owner. In contrast,

the Illinois statute that Zivkovic violated says that the

entry (or remaining) must be “without authority”; it

does not say that the person had to know that the entry

(or act of remaining) was unauthorized. A person

could commit residential trespass by walking through

a neighbor’s open door under the mistaken belief that

she is hosting an open house, a party, or a garage sale.

People v. Davis, 968 N.E.2d 682, 685-86 (Ill. App. Ct. 2012)

(holding that the “without authority” element of Section

19-4(a)(2) need not be knowing). Importantly, Illinois has

a crime of “home invasion” that is more serious than

residential trespass but less serious than burglary. “Home
26 No. 12-2143

invasion” is residential trespass plus either physical

injury, use of force, or threats to use force. 720 ILCS 5/19-

6(a)(4). This crime, which does contemplate the use

of force, is closer to the Indiana crime of residential

entry at issue in Gardner or to the generic crime of burglary. We conclude that the BIA erred by characterizing the Illinois residential trespass crime as a “crime

of violence” for purposes of the aggravated felony provision of the INA.

C. The 1976 and 1978 Convictions

There is no question that Zivkovic’s old convictions

meet the current definition of a “crime of violence” under

18 U.S.C. § 16, and thus under the INA, 8 U.S.C.

§ 1101(a)(43)(F). The 1976 conviction was for burglary,

and the 1978 conviction was for attempted rape, and

Zivkovic received substantial sentences for each one

(two to six years and four to twelve years). The issue here

is retroactivity: does the net effect of the changes in the

INA that we described in Part III of this opinion allow

the Board to rely on those convictions to support removal?

Our dissenting colleague believes that this is a simple

question to answer. He points to the language in the

hanging paragraph to 8 U.S.C. § 1101(a)(43), which as we

noted above provides that “[n]otwithstanding any other

provision of law (including any effective date), the term

[aggravated felony] applies regardless of whether a

conviction was entered before, on, or after [IIRIRA’s

effective date].” (Emphasis added.) We agree with him
No. 12-2143 27

that this clearly makes the new definition applicable to

all prior convictions. But it is one thing to define

conduct as an aggravated felony, and a distinct thing

to conclude that the sections of the statute prescribing

grounds for removal have also been amended.

We are not the first to make this observation. Both

the Supreme Court and the BIA have consistently distinguished between definitions and consequences. See

8 C.F.R. § 316.10(b)(1); St. Cyr; and Matter of A-A-, 20

I. & N. Dec. 492 (BIA 1997). Recognizing that distinction

here does not deprive either the amended definition of

“aggravated felony” or the hanging paragraph of force.

To the contrary, there are many immigration consequences from being an aggravated felon other than

removability, and no one has argued that IIRIRA

does not apply with full force to most of them. For example, someone defined as an aggravated felon pursuant

to IIRIRA is ineligible for any discretionary waiver of

removal (either the cancellation of removal otherwise

possible for legal permanent residents or a discretionary

waiver of inadmissibility for those guilty of a crime of

moral turpitude); he is ineligible for any discretionary

immigration benefit that requires a showing of good

moral character, such as seeking U.S. citizenship; he

may not seek asylum or withholding of removal based

on the threat of persecution in the country of removal;

if removed on other grounds, an aggravated felon

may not reenter the country legally without a special

waiver; and an aggravated felon is ineligible for

voluntary departure. See generally IMMIGRATION
28 No. 12-2143

POLICY CENTER, Aggravated Felonies: An Overview,

http://www.immigrationpolicy.org/just-facts/aggravatedfelonies-overview (last visited July 26, 2013). The point is

that each consequence must be evaluated independently,

to see if Congress intended to import the new definition

(reaching all aggravated felonies, no matter when committed) into that part of the statute.

The Board has taken the position that the 1990 Act

created a comprehensive new statutory framework,

which consolidated the grounds for deportation and

repealed by implication a variety of earlier scattered

statutory provisions, including Section 7344(b) of the AntiDrug Abuse Act of 1988. See Matter of Lettman, 22 I. & N.

Dec. 365 (BIA 1998) (en banc). In Lettman, a majority of

the Board permitted use of a pre-1988 conviction for

murder (a crime defined as an aggravated felony in the

Anti-Drug Abuse Act of 1988) to support the alien’s

removal. It did so despite the fact that the Anti-Drug

Abuse Act, which had added for the first time the term

“aggravated felony,” also highlighted the prospective

nature of this change in Section 7344(b). The Board

relied on the language providing that the amendments

“shall apply to any alien who has been convicted,

on or after the date of the enactment of this Act, of an aggravated felony.” Three members of the Board dissented.

Initially, the Eleventh Circuit ruled that the Board

had erred in Lettman, see 168 F.3d 463 (11th Cir. 1999), but

upon reconsideration the court decided to give Chevron

deference to the Board’s understanding of the effective

date of the changes made by the 1990 Act. 207 F.3d 1368,
No. 12-2143 29

1370 (11th Cir. 2000). The court did so in reliance on

I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999), which

had commanded such deference to the Board’s interpretation of the term “serious nonpolitical crime” for

purposes of 8 U.S.C. § 1253(h)(2)(C). But the Eleventh

Circuit failed to note that the question of retroactivity

before it is quite different from the question how to

interpret a particular phrase unique to the immigration

laws. We have already explained why we do not believe,

in light of St. Cyr and Vartelas, that Chevron deference

applies to retroactivity determinations, even though it

does apply to run-of-the-mill questions of interpretation that are unique to the immigration statutes and

thus within the Board’s expertise, such as the one in

Aguirre-Aguirre.

The absence of Chevron deference does not mean that

we must disregard the Eleventh Circuit’s underlying

reasons for upholding the result in Lettman; it means

only that we evaluate the Board’s position in Lettman

with an open mind, bearing in mind the more flexible

principles of Skidmore v. Swift & Co., 323 U.S. 134 (1944),

and United States v. Mead Corp., 533 U.S. 218 (2001). In

reviewing the Board, the Eleventh Circuit began with

the proposition that the 1990 Act redesignated the aggravated felony ground but did not expressly either

enact or re-enact any corresponding date restriction.

The only help with respect to dates comes from

Section 602(c) of the 1990 Act, set forth above. Unfortunately, the second sentence of that provision is practically

indecipherable:
30 No. 12-2143

Except as otherwise specifically provided in such

section and subsection (d), the provisions of such

section, as amended by this section, shall apply

to all aliens described in subsection (a) thereof notwithstanding either that the alien entered the United

States before the 1990 Act took effect or that the

grounds for deportation occurred before the date of

the enactment of this Act.

(Emphasis added.) The Board recognized that it is

difficult at best to know what Congress was talking

about when it said “such section” twice. Does this

passage apply to the aggravated felony ground in the

form that it originally had in 1988—date restriction and

all? If so, that particular ground (which was new to the

law in 1988) would remain prospective as of 1988. (No

one is arguing for any earlier starting point, and so we

disregard that possibility.) Or does “such section” mean

the 1988 aggravated felony ground without the date

restriction? In that case, the date restriction on the underlying acts would disappear and the 1990 Act would

be fully retroactive on this point. This is, as the Eleventh

Circuit recognized, purely a question of statutory construction. As the Supreme Court held in Mulcahey v.

Catalanotte, 353 U.S. 692 (1957), Congress has the

authority to pass a law requiring deportation regardless

of when the supporting facts took place. The question

is only what did it do in the set of statutes we are considering.

The Eleventh Circuit was persuaded by several of

the reasons that the BIA offered when it chose the
No. 12-2143 31

second of those interpretations—that is, full retroactivity. It thought that full retroactivity better reflected Congress’s desire in 1990 to simplify the immigration laws,

because this reading eliminated the need to check earlier

versions. In addition, the Eleventh Circuit had already

adopted this reading as it related to the former firearms

ground for deportation (which appears in a different

part of the Anti-Drug Abuse Act). See Lopez-Amaro v.

INS, 25 F.3d 986 (11th Cir. 1994); see also Lewis v. INS, 194

F.3d 539, 545-46 (4th Cir. 1999) (also deferring to

the Board’s Lettman decision). The Eleventh Circuit

rejected Lettman’s argument that the firearms ground

was materially different because it was amended substantively in the 1990 Act, while the aggravated

felony ground was carried forward unchanged and

was merely re-codified.

In Bell v. Reno, 218 F.3d 86 (2d Cir. 2000), the Second

Circuit took a different approach to Lettman. It found

that Chevron deference to the Board’s view was not appropriate, writing that the Board’s interpretation was

“not sustainable because it runs afoul of the longstanding presumption against the retroactive application of ambiguous statutory provisions.” Id. at 93 (citing

Landgraf, 511 U.S. at 265). The court pointed out that in

Lettman the Board had not conducted a retroactivity

analysis under Landgraf. Had it done so, the court said,

“it would have been compelled to conclude that § 602(c)

cannot be construed to apply to convictions that pre-date

the [Anti-Drug Abuse Act],” since both the majority

and the dissent in Lettman acknowledge that the provision is ambiguous. Id. at 94. The Second Circuit
32 No. 12-2143

turned instead to the effective date provision of the

1990 Act, Section 602(d), which states that the amended

definition of “aggravated felony” should apply only to

deportation proceedings initiated after March 1, 1991. The

court understood that language to mean that it should

apply the deportation consequences to any aggravated

felon no matter when the qualifying felony was

committed, so long as the proceeding itself was

initiated after March 1, 1991. Id. at 94-96.

In Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir.

2010), the Ninth Circuit rejected the approaches of both

the Eleventh Circuit and the Second Circuit. There, petitioner Ledezma-Galicia was a lawful permanent

resident alien. He was convicted in September 1988 of

sodomy, for sexually assaulting a minor. That crime is

now defined as an aggravated felony by 8 U.S.C.

§ 1101(a)(43)(A), and thus (putting retroactivity to one

side) it currently is a ground for removal under 8 U.S.C.

§ 1227(a)(2)(A)(iii). But at the time Ledezma-Galicia

was convicted of his state crime, he could not have

been removed for that or any other aggravated

felony, because this was before November 18, 1988, when

the Anti-Drug Abuse Act added the category of “aggravated felony” to the INA.

The Ninth Circuit focused on two central questions:

“First, did § 602 of the 1990 [Act] preserve or override

[the Anti-Drug Abuse Act] § 7344(b), the [Anti-Drug

Abuse Act’s] temporal limitation on aggravated felony

deportations? Second, if [the Anti-Drug Abuse Act]

§ 7344(b) survived the [1990 Act], did IIRIRA in 1996
No. 12-2143 33

eliminate its temporal limitation?” 636 F.3d at 1066.

Like us, the Ninth Circuit recognized that Chevron deference does not apply to the question whether a statute

should be applied retroactively. Turning to the Board’s

Lettman decision, the Ninth Circuit concluded that the

Board “took a fundamentally wrong turn in its analysis”

when it decided to concentrate on the “except” clause of

the 1990 Act, Section 602(c). Id. at 1068. In the Ninth

Circuit’s view, whether the “except” clause referred to the

pre-1990 Act or post-1990 Act version of INA Section 241(a)

was of no importance. That is because Section 7344(b) (part

of the Anti-Drug Abuse Act of 1988) was never part of

Section 241 to begin with; only Section 7344(a) amended

Section 241. That meant, the court reasoned, that Section

7344(b) “was always an entirely free-standing temporal

limitation provision.” Id. at 1069. Because Section 7344(b)

was never part of 241, it was unaffected by Section

602(c)’s references to “such section.” Finally, the Ninth

Circuit concluded that nothing in the 1990 Act (or any

other legislation) has repealed Section 7344(b), either

explicitly or by implication. Indeed, the court found,

repeal of Section 7344(b) would have produced odd

results. Id. at 1072. Like the Anti-Drug Abuse Act, the

1990 Act treated the definition of aggravated felony as

something distinct from the aggravated-felony ground

for deportation. This made sense, because otherwise

why would Section 501 of the 1990 Act have separately

specified the temporal reach of the new definitions? If

Section 7344(b) had been impliedly repealed by the 1990

Act, the provision in the 1990 Act itself specifying that

certain of the amendments in Section 501(a) would be
34 No. 12-2143

effective from the date of the 1988 Anti-Drug Abuse

Act would have been pointless. Id. at 1073. The court

was also influenced in its decision by the presumptions

against retroactivity and implied repeals.

IIRIRA did not affect the Board’s decision in Lettman,

because those proceedings began well before the

statute’s 1996 date of enactment. In Ledezma-Galicia,

however, the Ninth Circuit had to consider its impact,

because it was IIRIRA that added “sexual abuse of a

minor” to the list of aggravated felonies in the INA. IIRIRA

also made its amended definition applicable to all

aliens, regardless of their date of conviction. As it had

done earlier, the court rejected the argument that the

definition automatically dictated the immigration consequences. Instead, the court found it necessary to

look at the particular consequence (removal) and see if

it should be applied retroactively. The court concluded

that Ledezma-Galicia was not removable by reason of

being an aggravated felon, because the removal provision of the statute does not apply to convictions

that occurred prior to November 18, 1988.

Judge Bybee dissented from the majority’s opinion,

but his opening line makes a telling point. He wrote:

“There is no polite way to say this: The statutory scheme

we are required to parse in this case is a mess. It is a

model of ambiguity and misdirection.” 636 F.3d at 1080.

That said, he would have deferred to the BIA’s understanding of the interactions among all of these statutes

and would have denied the petition for review. But

Judge Bybee’s statement illustrates the exact problem
No. 12-2143 35

that the St. Cyr Court identified as precluding any such

deference in light of the Landgraf presumption against

retroactivity—where the statute is admittedly “a model

of ambiguity,” Congress has not made the necessary

clear statement of retroactive intent.

Where, then, does all of this leave Zivkovic? If we were

to follow Ledezma-Galicia, the conclusion would be

that neither his 1976 nor his 1978 conviction (each of

which now falls within the definition of “aggravated

felony”) may form the predicate for removal, because

the commission of an aggravated felony did not become

a ground for removal until 1988. If, on the other hand,

we were to follow the Eleventh and Fourth Circuits

(which followed the Board’s reasoning in Lettman), the

result would be to say that Section 602(c) of the 1990

Act not only placed the definition of aggravated felony

in a different part of the statute, but it also cryptically

wiped away any temporal limitations on use of such

a conviction for purposes of removal. Were we to

follow the Second Circuit, we would permit the use

of Zivkovic’s two old felonies not because we would

be deferring to the Board, but because his removal proceedings were initiated after March 1, 1991. Finally,

our dissenting colleague proposes yet another approach, bypassing the 1990 Act as ambiguous but

instead finding a clear rule for retroactive removability

in IIRIRA.

It appears to be common ground that neither the

1990 Act nor any other statute passed after the Anti-Drug

Abuse Act of 1988 has expressly repealed Section 7344(b),
36 No. 12-2143

the provision stating that the deportation consequences

of the newly defined group of aggravated felonies

operate prospectively as of the effective date of the 1988

Act. A finding of retroactivity would thus need to rest

on implied repeal, a topic on which the Supreme

Court provided useful guidance in National Association of

Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007):

While a later enacted statute (such as the [Endangered

Species Act]) can sometimes operate to amend or

even repeal an earlier statutory provision (such as

the [Clean Water Act]), “repeals by implication are

not favored” and will not be presumed unless the

“intention of the legislature to repeal [is] clear and

manifest.” Watt v. Alaska, 451 U.S. 259, 267 (1981)

(internal quotation marks omitted). We will not infer

a statutory repeal unless the later statute ‘expressly

contradict[s] the original act’ ” or unless such a construction “is absolutely necessary . . . in order that

[the] words [of the later statute] shall have any meaning at all.

Id. at 662 (some internal quotations omitted). We do not

find any irreconcilable conflict among the Anti-Drug

Abuse Act, the 1990 Act, and IIRIRA, nor did either of

the later statutes comprehensively replace the underlying

INA. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 154

(1976). Instead, what we find is the confusion that

Judge Bybee described. 

Out of that mess, we can extract a number of observations.
No. 12-2143 37

• Section 7344(b) of the 1988 Anti-Drug Abuse Act

applies only to one of many categories of deportable

criminal offenses listed in the 1990 Act, which sets

out thirty grounds for deportation and fourteen

categories of deportable criminal offenses. 

• There is no clear signal in the text of the 1990 Act

indicating that it is repealing Section 7344(b) of the

1988 statute.

• When Section 7344(b) was enacted, the INA already

contained a provision nearly identical to the one in

the 1990 Act—that is, one that applied the INA’s

grounds for deportation regardless of when the

facts occurred. This means that the Anti-Drug

Abuse Act was creating an exception to an understood rule.

• The 1990 Act added several new crimes to the definition of “aggravated felony.” It provided that

three of these crimes would be grounds for deportation only if they were based on post-1990 Act convictions; the other two would be “effective as if

included” in Section 7342 of the 1988 Act. 

• IIRIRA also did no more than to expand the definition of aggravated felony. The new grounds it provided for deportation are of no importance to

Zivkovic’s case.

We conclude that the statutes are wholly unclear on

the point whether Section 7344 survives both the 1990

Act and IIRIRA. As we have just pointed out, judges

addressing this issue have taken four distinct and
38 No. 12-2143

often contradictory approaches: (1) deference to Lettman

(Eleventh and Fourth Circuits plus Ninth Circuit dissent); (2) no deference to Lettman, but reliance on

Section 602(d) of the 1990 Act (Second Circuit); (3) the

IIRIRA amendments to 8 U.S.C. § 1101(a)(43) (dissenting

judge in this case); and (4) no retroactive consequences of

expanded definition for removability (Ninth Circuit

majority). This level of ambiguity cannot overcome the

presumptions against implied repeal and retroactivity.

As the Supreme Court reminded us in Vartelas, because

“[s]everal provisions of the Constitution . . . embrace the

doctrine” against retroactivity, we need a clear statement of intent from Congress before we will take such

an important step. 132 S. Ct. at 1486. Because Zivkovic’s

aggravated felony convictions were more than a decade

old before the 1988 statute took effect, they cannot be

used as a ground for removal (although they can be

used for many other purposes under the statute). Before

closing, we state the obvious: we are only construing

the law as it now stands. Congress has broad powers

in this area, and it may change the rules in the future,

either prospectively or, with the necessary clear statement, retrospectively.

V

This leaves two loose ends to tie up, one of which is

relatively unimportant and the other of which is significant. Zivkovic argued that the IJ should not have considered evidence from his bond proceedings during
No. 12-2143 39

the removal proceedings, because the judges are

supposed to maintain separate records for the two types

of cases. We find no merit in this argument. The IJ is

quite able to keep separate records while at the same

time taking into account relevant evidence that arises

in either proceeding. Zivkovic’s conviction documents

would have been admitted in a flash in each set of proceedings if the government had introduced them separately. We have no desire to make the system even

more inefficient than it already is.

The other question relates to the proper disposition

of Zivkovic’s case. We are granting his petition for

review, but that means only that the case will be

returned to the Board for further proceedings. Earlier,

the Board had no occasion to consider his removability

for moral turpitude, but that ground remains in the

record, and the Board may wish to remand to an IJ for

further proceedings on that or other points that the government has properly preserved. 

The petition for review is GRANTED and the case

is returned to the Board for further proceedings consistent with this opinion. 
40 No. 12-2143

EASTERBROOK, Chief Judge, dissenting. My colleagues

have written a complex opinion in a simple case. Zivkovic

wants a waiver of inadmissibility under 8 U.S.C. §1182(c).

He is ineligible if even one of his convictions is an “aggravated felony” as defined in 8 U.S.C. §1101(a)(43).

I disregard Zivkovic’s conviction for residential trespass. It is enough if either burglary or attempted rape is

an “aggravated felony.”

Section 1101(a)(43)(G) says that burglary is an

aggravated felony if the sentence was a year or more, as

Zivkovic’s was. Section 1101(a)(43)(A) says that rape is

an aggravated felony, and §1101(a)(43)(U) adds that “an

attempt or conspiracy to commit an offense described

in this paragraph” likewise is an aggravated felony.

(“[T]his paragraph” refers to all of (a)(43): lettered parts

of a section are “subsections” and the numbered

parts of subsections are “paragraphs.” See Office of the

Legislative Counsel, United States Senate, Legislative

Drafting Manual §112 (1997).) This leaves only the question

whether §1101(a)(43) applies to convictions rendered

during the 1970s. The answer is yes. The final, hanging

sentence of §1101(a)(43) reads: “Notwithstanding any

other provision of law (including any effective date),

the term [aggravated felony] applies regardless of

whether the conviction was entered before, on, or after

September 30, 1996.”

A plainer declaration of retroactivity is hard to imagine—and the Supreme Court said exactly this in INS v.

St. Cyr, 533 U.S. 289, 295 & n.4 (2001), when stating that

the definition of aggravated felonies in §1101(a)(43)
No. 12-2143 41

applies “without regard to how long ago they were committed.” To drive the point home, the Court repeated

this observation, quoting from the hanging sentence, 533

U.S. at 319 & n.43, and adding that this shows that Congress knows how to make a change retroactive. Id. at 320.

My colleagues today nonetheless hold that, even if

the full list of “aggravated felonies” consolidated in

§1101(a)(43) applies to pre-1996 convictions, those older

convictions do not carry the statutorily prescribed consequences of aggravated felonies—and this despite

contrary conclusions of the responsible agency, Matter of

Letterman, 22 I&N Dec. 365 (1998) (en banc), and three

other courts of appeals. Bell v. Reno, 218 F.3d 86 (2d Cir.

2000); Lewis v. INS, 194 F.3d 539, 544–46 (4th Cir. 1999);

Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000). Today’s

decision follows a divided panel in the Ninth Circuit.

Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010). But

it is contrary to the language of §1101(a)(43), the view

of the Supreme Court, and the holdings of three

other circuits.

The majority opinion is so long and complex because

it tries to sort out the relation among the 1988, 1990, and

1996 Acts (sometimes dubbed ADAA, IMMAct, and

IIRIRA) by using tools other than the language of the

statute now in force. If we want to know whether the

current definition of “aggravated felony” applies to pre1996 convictions (and thus pre-1988 and pre-1990 convictions) we need not go beyond the hanging sentence

at the end of §1101(a)(43). No backstory is needed.
42 No. 12-2143

The presumption against retroactivity tells us how to

deal with ambiguity, but the hanging sentence is pellucid.

St. Cyr said as much. The 1988 and 1990 Acts survive in

part in §1101(a)(43), but their effective dates are history;

the hanging sentence tells us how the date of convictions

matters today. As for “implied repeal”: the 1988 Act said

that it was not retroactive, and the 1990 Act was ambiguous about retroactivity. Neither was “repealed” by the

statement in 1996 that the definition as amended is retroactive. The 1988 statement “this Act is not retroactive”

is 100% compatible with the 1996 declaration “Ah, but

this Act is retroactive.” Neither modifies the other. It’s

not as if the 1988 Act said: “Any statute enacted later

will not make these substantive changes apply to older

convictions.” Then the 1996 Act would have repealed

that part of the 1988 Act. But that’s not what happened.

There is no “repeal” when a more recent Congress

declares that the current definition applies whether or

not the date mattered under a predecessor statute. (Recall

that the hanging sentence begins: “Notwithstanding

any other provision of law (including any effective date) ...” (emphasis added).) Section 7344(b) of the

1988 Act, and §602 of the 1990 Act, tell us the temporal

reach of those Acts; they are not part of the United

States Code and do not control the temporal reach of

§1101(a)(43) as amended in 1996 and later.

The hanging sentence of §1101(a)(43) decides this

case. Once we conclude that the 1996 Act’s changes to

§212(c) apply to Zivkovic (I agree with Part IV.A of the

majority’s opinion), everything else becomes irrelevant.
No. 12-2143 43

My colleagues reach a different conclusion because

they agree with Ledezma-Galicia that, although the definitions in §1101(a)(43) apply to older convictions, the consequences of those definitions are not necessarily retroactive. I don’t get it—nor did Judge Bybee, dissenting in

Ledezma-Galicia. 636 F.3d at 1080–92. Congress has addressed through §1101(a)(43) which criminal convictions

count as aggravated felonies. Other parts of the statute

specify the effects of that label. In the main, an alien

convicted of an aggravated felony is removable and

ineligible for discretionary relief. Particular parts of the

Immigration and Nationality Act outside §1101(a)(43)

may or may not be retroactive, but not because of anything in the 1988 and 1990 Acts.

The only part of immigration law plausibly limiting

today’s consequences of pre-1996 convictions that count

as aggravated felonies under §1101(a)(43) would be

§212(c), 8 U.S.C. §1182(c), the subject of St. Cyr. But all

three members of this panel conclude that Zivkovic—

whose convictions for burglary and attempted rape

predate the legislation authorizing waiver of inadmissibility for such crimes, and who therefore cannot have

relied on the pre-1996 version of §212(c) when making

choices in the criminal prosecutions—does not get any

benefit from St. Cyr’s limitation on how §212(c) applies

to pre-1996 convictions. See Part IV.A of the

majority opinion.

If §1101(a)(43) applies to all pre-1996 convictions, and

§212(c) thus forecloses a waiver of inadmissibility, then

what statute is it that withholds the “consequences” of
44 No. 12-2143

Zivkovic’s conviction? My colleagues do not say, and

neither did Ledezma-Galicia.

Our opinion in Alvarado-Fonseca v. Holder, 631 F.3d 385

(7th Cir. 2011), left open the possibility of distinguishing

definitions from consequences, while hinting that it

doubted the Ninth Circuit’s hair-splitting. The panel

in Alvarado-Fonseca refrained from a definitive conclusion, however, because the alien had failed to raise

before the BIA an argument based on this elusive distinction.

The reason to get the Board’s view is that its understanding of the relation among the 1988, 1990, and 1996

Acts deserves substantial weight in resolving disputes

about their interaction. See Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), and, e.g.,

Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012);

Negusie v. Holder, 555 U.S. 511, 516–17 (2009); INS v.

Aguirre-Aguirre, 526 U.S. 415, 424–26 (1999). To resolve

Zivkovic’s application for a waiver, the Board had to

decide whether the 1996 decision that §1101(a)(43)

applies to all older convictions leaves any room for a

conclusion that some aliens who have “aggravated felonies” (thus defined) on their records nonetheless are

spared the normal consequences. My colleagues think

that issue cloudy and wrestle with it at length. Ambiguity

in an agency’s organic statute is the core of Chevron’s

domain, and this is true even if the dispute concerns the

agency’s authority. Arlington v. FCC, 133 S. Ct. 1863 (2013).

Although my colleagues point out that the Supreme

Court did not use Chevron when resolving retroactivity
No. 12-2143 45

issues in Vartelas v. Holder, 132 S. Ct. 1479 (2012), it was

not asked to do so. Issues not presented by the parties

are not resolved. Chevron was argued in St. Cyr and

addressed in a footnote, 533 U.S. at 320 n.45, which observes that Chevron matters only when other tools do

not provide an answer. That’s Chevron’s Step One. St. Cyr

said that the rule requiring clear language to warrant

retroactivity was such a tool, leaving no gap for the

agency to fill. My colleagues conclude from this

that Chevron is irrelevant to all questions related to retroactivity. Yet the hanging sentence of §1101(a)(43), which

makes the amended definition retroactive, supplies

what was missing in St. Cyr—as the Court itself observed,

533 U.S. at 295 & n.4, 319–20 & n.43.

On my colleagues’ understanding that definitions

and consequences must be analyzed separately, there is

a knotty question about the relation among the 1988,

1990, and 1996 Acts. St. Cyr does not address that subject,

which concerns Chevron’s Step Two—and for reasons

I have given is not within the scope of the presumption

against retroactivity. The agency’s views therefore

should be respected, not thrown into the trash.

Unanimous panels of three courts of appeals, one judge

on the Ninth Circuit’s panel, and one judge on

this circuit’s panel agree with the Board either after

independent review or through the lens of Chevron; and

of the four other judges (two on the Ninth Circuit and

two on this circuit) none has concluded that answer is

too clearly against the Board’s views to admit of debate.

As Judge Bybee put it: “so twisted and complex are

the provisions at issue here that—short of spitting in a
46 No. 12-2143

bucket—the BIA could have concluded almost anything

in this case and been reasonable. There is nothing ‘plain’

about these statutes. If Chevron means anything, this is a

classic case for deferring to the agency.” 636 F.3d at

1080–81 (dissenting opinion). And if Chevron falls out, we

still have Mead-Skidmore deference. See United States v.

Mead Corp., 533 U.S. 218 (2001); Skidmore v. Swift & Co., 323

U.S. 134 (1944). Yet my colleagues give the Board’s views

no weight. If (as I doubt) there is a distinction between

definitions and consequences, the Board’s views should

prevail.

7-31-13