Ponnapula v. Atty Gen USA

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

7-8-2004

Ponnapula v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-1255

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PRECEDENTIAL District Judge: Honorable Sylvia H.

AMENDED Rambo

__________

Argued February 26, 2004

IN THE UNITED STATES COURT OF

APPEALS Before: RENDELL, BARRY and

FOR THE THIRD CIRCUIT BECKER, Circuit Judges

_____________

(Filed June 28, 2004 )

NO. 03-1255

_____________ DARYL F. BLOOM

Office of United States Attorney

MURALI KRISHNA PONNAPULA; Federal Building

228 Walnut Street

v. P.O. Box 11754

Harrisburg, PA 17108

JOHN ASHCROFT, Attorney General of

the WILLIAM C. MINICK (Argued)

United States of America; JAMES W. United Sates Department of Justice

ZIGLAS, Commissioner of the Office of Immigration Litigation

Immigration and Naturalization Service; P.O. Box 878

EDWARD MCELROY, New York City Ben Franklin Station

District Director of the Immigration and Washington, DC 20044

Naturalization Service;

KENNETH ELWOOD, Philadelphia Attorneys for Appellants

District Director of the

Immigration and Naturalization Service; ALEXANDER E. EISEMANN (Argued)

IMMIGRATION & 282 Katonah Ave.

NATURALIZATION SERVICE; Suite 244

UNITED STATES DEPARTMENT OF Katonah, NY 10536

JUSTICE,

Attorney for Appellee

Appellants

________ PAUL A. ENGELMAYER

CHRISTOPHER J. MEADE (Argued)

On Appeal from the United States KATHERINE R. GOLDSTEIN

District Court For Wilmer, Cutler & Pickering

The Middle District of Pennsylvania 399 Park Avenue

(D.C. No. 02-cv-01214) New York, NY 10022

JOSHUA L. DRATEL Immigration and Nationality Act (“INA”),

National Association of Criminal 8 U.S.C. § 1182(c) (repealed 1996),

Defense Lawyers deportable aliens who had accrued seven

Joshua L. Dratel, P.C. years of lawful permanent residence in the

14 Wall Street United States could request discretionary

New York, NY 10005 relief from deportation by arguing that the

equities weighed in favor of their

JONATHAN E. GRADESS, Executive remaining in the United States. Even an

Director alien deportable because he had been

MANUEL D. VARGAS, Project convicted of an aggravated felony, see 8

Director U.S.C. § 1227(a)(2)(A)(iii) (1994), was

Immigrant Defense Project eligible for such discretionary relief if he

New York State Defenders Association served a term of imprisonment less than

P.O. Box 20058 five years. See 8 U.S.C. § 1182(c).

West Village Station

Section 212(c) was repealed in

New York, NY 10014

September 1996, when Congress passed

the Illegal Immigration Reform and

Attorneys for Amici Curiae, National

Immigrant Responsibility Act (“IIRIRA”),

Association of Criminal Defense Lawyers

Pub. L. No. 104-208, 110 Stat. 3009-546

and the New York State Defenders

(codified in scattered sections of 8 U.S.C.).

Association in Support of Appellee

Section 304(b) of IIRIRA repealed §

212(c) relief entirely, replacing it with a

________________________

procedu re called “cancellation of

removal,” see 8 U.S.C. § 1229b (1996),

OPINION OF THE COURT

and providing that cancellation of removal

________________________

is not available to an alien convicted of

any aggravated felony. This provision was

BECKER, Circuit Judge. consistent with section 440(d) of the

Antiterrorism and Effective Death Penalty

This appeal centers on the question

Act (“AEDPA”), Pub. L. No. 104-132, 110

w h ether the I m m i g r a ti o n a nd

Stat. 1214 (codified in relevant part at 8

Naturalization Service (“INS”) can apply

U.S.C. § 1182 (1996)), enacted shortly

a new law retroactively in a way that will

alter the immigration consequences of an

immigrant’s decision made under prior

Homeland Security. The activity

law.1 Under former § 212(c) of the

involved in this case is now carried on by

the Bureau of Immigration and Customs

Enforcement. However, since the case

1

Since March 1, 2003, the INS has began as an INS matter, we shall

been part of the Department of continue to refer to the INS.

2

before IIRIRA, which rendered aliens “demands a commonsense, functional

convicted of aggravated felonies, judgment” that “should be informed and

regardless of the length of their sentence, guided by ‘familiar considerations of fair

ineligible for discretionary relief from notice, reasonable reliance, and settled

deportation under former § 212(c). expectations.’” Martin v. Hadix, 527 U.S.

343, 357-58 (1999) (quoting Landgraf,

In INS v. St. Cyr, 533 U.S. 289, 326

511 U.S. at 270).

(2001), the Supreme Court held that

discretionary relief under former § 212(c) In St. Cyr, the Court concluded that the

“remains available for aliens . . . whose retroactive application of IIRIRA section

convictions were obtained through plea 304(b) would have an impermissible

agreements and who . . . would have been retroactive effect on aliens—such as St.

eligible for § 212(c) relief at the time of Cyr—who had pleaded guilty prior to the

their plea under the law then in effect.” In repeal of § 212(c). The Court highlighted

St. Cyr, the Court needed to determine the quid pro quo of the criminal plea

whether IIRIRA section 304(b) applied agreement, and reasoned that because

retroactively. After concluding that aliens like St. Cyr almost certainly relied

Congress did not provide a sufficiently upon the likeliho od of rece iving

clear command with respect to the discretionary relief in deciding whether to

temporal reach of the repeal of former § forgo their right to a trial, the elimination

212(c) by IIRIRA section 304(b), the of any possibility of § 212(c) relief by

Court applied the next step of the familiar IIRIRA has an obvious and severe

principles of Landgraf v. USI Film retroactive effect. This appeal presents the

Products, 511 U.S. 244 (1994), to question whether application of IIRIRA

determine whether the repeal had an section 304(b) would have a similarly

impermissible retroactive effect. Landgraf impermissible retroactive effect on the

cataloged a history of Supreme Court petitioner, Murali Krishna Ponnapula.

precedent establishing a “presumption Ponnapula turned down a misdemeanor

against statutory retroactivity,” id. at 270, plea agreement, went to trial when former

in the absence of a clear command from § 212(c) was still in effect, and was

Congress. A statute will be impermissibly convicted of a felony by the jury; he went

retroactive when it attaches new legal to trial in reliance on the advice of his

consequences to prior events because its counsel that, even if he were found guilty,

application “would impair rights a party he would very likely not receive a sentence

possessed when he acted, increase a that would render him ineligible for §

party’s liability for past conduct, or impose 212(c) relief, because of his very minor

new duties with respect to transactions role in the offense.

already completed.” Id. at 280. The

Rejecting the position of the

question whether a new statute attaches

government that Ponnapula is precluded

new legal consequences to prior conduct

from claiming retroactive effect by reason

3

of the discussion in St. Cyr, we conclude nominal president, and submitted an

that St. Cyr is simply one application of inflated personal net worth statement over

the general principles articulated in his name. The loan was eventually

Landgraf that counsel against interpreting approved. However, the undisputed

statutes to have retroactive effect. Here, evidence established that Prasad and

with respect to an alien who reasonably Dandapani did all of this without

could have relied on the potential Ponn apula’s knowledge, and that

availability of § 212(c) relief, application Dandapani forged Ponnapula’s signature

of the Landgraf principles shows that on both the loan application and the net

I IR I R A s e c t io n 3 0 4 ( b ) h a s a n worth statement.

impe rmis s i b l e r e t ro a c t i v e ef f e c t.

Over the next year, Ponnapula and the

Moreover, on this record, where the

Manhattan District Attorney’s Office

petitioner dem onstrated clear and

engaged in plea negotiations. The District

reasonable actual reliance on the former

Attorney’s Office offered to allow him to

statutory scheme in making the decision to

plead guilty to a misdemeanor with a

go to trial, there is a fortiori an

probationary sentence. Ponnapula

impermissible retroactive effect. We

considered the offer and the immigration

begin with the facts of Ponnapula’s case.

consequences of pleading guilty versus

going to trial. His counsel advised him

that if he was convicted, he would very

I.

likely receive the minimum sentence of

A. only one to three years’ imprisonment,

which is less than the five years necessary

In 1993, a New York state grand jury

to disqualify an alien from § 212(c) relief.

indicted Ponnapula, along with several

Accordingly, Ponnapula reasonably

other defendants, for grand larceny in the

believed that even if he were convicted of

first degree, N.Y. Penal Law § 155.42, and

a felony after trial he would still likely be

falsifying business records in the first

eligible for hardship relief from

degree, N.Y. Penal Law § 175.10.

deportation pursuant to former § 212(c).

Essentially the offense involved a

In reliance on this advice, Ponnapula

fraudulent application submitted to the

decided to turn down the misdemeanor

Bank of India for a loan to generate

offer and proceeded to trial. On December

working capital, secured by a valuable

20, 1994, he was convicted of both counts

parking lot located near LaGuardia Airport

in the indictment. He was sentenced to the

in New York City. The loan application

minimum term of imprisonment— one to

was submitted by a group headed by

three years.

Ponnapula’s brother, Dr. P.S. Prasad.

Prasad and his assistant, Vijay Dandapani, The advice of Ponnapula’s counsel,

prepared a loan application in the name of and his reliance thereon, is easily

a shell company, listed Ponnapula as its understandable, for the evidence at trial

4

barely established criminality. Indeed, while the loan application contained false

Ponnapula’s participation was so limited statements, the bank was well secured, and

that the trial judge set aside the jury’s recovered $1.35 million of the $1.9 million

guilty verdict and dismissed the indictment loan amount when it ultimately sold the

as to Ponnapula, for reasons chronicled in parking lot. However, the order setting

the margin.2 It is also noteworthy that aside the conviction was eventually

reversed on appeal and the conviction

reinstated.

2

According to Judge Carruthers: Upon remand, the trial court imposed

The People presented no the mandatory minimum term of one to

evidence that Murali participated three years imprisonment on this New

in any way in the inclusion of any York State “B” felony, see N.Y. Penal

false statements contained in the Law § 155.42, but the trial judge

loan application, or that Murali recommended to the New York State

knew that the loan documents Corrections Department that it “consider

contained any false [defendant] for an early release program

representations. The People’s that encompasses work releas e .”

most important witness, Ponnapula then filed a petition for habeas

Dandapani, testified that M urali relief in the United States District Court

was not informed of for the Southern District of New York.

misrepresentations that Prasad

ordered Dandapani and Shetty to

include in the loan application and signing. Moreover, there was no

the supporting documents. Murali evidence that Murali signed the

could not have learned from the documents with knowledge that

documents themselves that Prasad Prasad intended to misapply the

was deceiving the bank. The proceeds of the loan . . . .

evidence shows that Murali never . . . . [T]he People’s key

had a chance to examine them. witness, Vijay Dandapani,

Thus, Murali was in no position to testified unequivocally that Murali

detect even the glaring never knew of the

misrepresentations concerning his misrepresentations made to the

finances that were contained in bank in the loan application. The

the loan applications. remainder of the evidence

With respect to the documents presented by the People simply

that Murali signed at the closing, fails to support the contention that

Dandapani and Krasner, the Murali was a knowing participant

bank’s attorney, each testified that in any misrepresentations made by

Murali only glanced at the papers, Prasad or his assistants with

but did not read them before regard to the loan.

5

While concluding that the evidence had 2002, pursuant to 28 U.S.C. § 2241,

been legally sufficient to sustain Ponnapula filed the habeas petition that is

petitioner’s conviction of a larceny the subject of this appeal.

involving more than one million dollars,

B.

and that he was constrained to deny federal

habeas relief, Judge Rakoff observed: In analyzing the petition for hardship

relief, the District Court reasoned that it

[ P ] e t it i o n e r’s counsel h as

was “presented with the very narrow legal

convinced me that his client was,

question of whether . . . to apply IIRIRA

for lack of a better term, the small

retroactively to [Ponnapula].” Ponnapula

fry o r— m a ybe eve n bette r

v. Ashcroft, 235 F. Supp. 2d 397, 402

term — the schnook of this

(M.D. Pa. 2002). However, it decided that

particular group of miscreants.

the exemption-stripping provision in

And though I have no power IIRIRA could not be applied, “[g]iven the

other than the power to comment factual underpinnings of this case,” id.,

on what should be done now in and it concluded that Ponnapula was

terms of his incarceration, for what entitled to apply for hardship relief. More

it’s worth, it seems to me it would specifically, the District Court found that

certainly be in the interests of the “[e]limination of any possibility of

justice for him to be released on former § 212(c) relief by IIRIRA has an

work release. obvious and severe retroactive effect on

persons like Petitioner who relied on

After Ponnapula was allowed out on

settled expectations of the immigration

work release, the INS filed a detainer and

laws in place at the time he turned down a

warrant for a removal hearing on October

plea bargain and decided to go to trial.”

2, 2000, and pursuant to New York law

Id. at 403. It also found that “A major

Ponnapula was returned to state custody.

factor in his decision not to accept the

On January 8, 2001, after a hearing, an

offer was the lack of any distinction for the

immigration judge found Ponnapula

purposes of § 212(c) relief between a

removable from the United States. On

misdemeanor and felony conviction.” Id.

appeal, the BIA affirmed, holding that St.

(internal quotation marks omitted).

Cyr could not be extended beyond

Summarizing its position, the District

defendants who had pleaded guilty. On

Court ruled that “[i]n deciding not to

May 7, 2002, after two years of

accept the plea bargain offered, but instead

incarceration on his conviction, the New

to go to trial, Petitioner conformed his

York State Department of Correctional

conduct to the settled expectation that §

Services released Ponnapula. Upon his

212(c) relief would be available.

release, the INS took him into custody and

Accordingly, the court finds that

transferred him to the Pike County,

foreclosing § 212(c) relief to Petitioner

Pennsylvania jail for detention. On May 8,

would have an impermissible retroactive

6

effect.” Id. at 406. to § 212(c), a lawful permanent resident

convicted of a deportable offense was

Because Ponnapula had lived

statutorily eligible to seek from the

continuously in the United States for seven

Attorney General discretionary relief from

years and had been sentenced to less than

d e p o r t a ti o n . S e e 8 U .S.C . §

five years’ imprisonment, he would have

1182(d)(1994). Prior to IIRIRA,

been eligible for § 212(c) relief had it not

immigrants who were deportable on the

been eliminated. Indeed, it would appear

basis of a criminal offense could apply for

from the record that he would likely have

§ 212(c) relief so long as they had lived in

been granted it: Ponnapula’s wife and two

this country continuously for seven years.

children as well as several of his brothers

On ly t ho se w ho had been

are naturalized United States citizens. All

convicted—either by plea or at trial—of a

of them live in this country. Ponnapula’s

crime that fell under the definition of an

fourteen-year-old and twenty-year-old

“aggravated felony,” see 8 U.S.C. §

daughters do not speak Telgu, the native

1101(a)(43) (1994), and who had served a

language of their parents. With the

prison term of at least five years were

exception of the first one and one-half

statutorily ineligible for discretionary

years of the older daughter’s infancy, each

relief. See 8 U.S.C. § 1182(c) (1994).

has spent a total of only six weeks in India

Even a defendant convicted of an

in their entire lives. The youngest

aggravated felony and sentenced to five or

daughter is in the ninth grade, and removal

more years’ imprisonment might have

of her father would lead to her mother

maintained eligibility for § 212(c) relief

leaving the country, and would force the

provided that he had not served five years

daughter to reside in a place where she has

of his sentence by the time of his removal

no ties and does not speak the language.

hearing.

Indeed, Ponnapula had been approved to

become a United States citizen and was There was also a strong likelihood that

planning to take the oath in 1993, but did such relief would be granted: The Attorney

not do so because he was indicted for this General granted it in over half of all cases

offense before the oath could be in which it was sought. See St. Cyr, 533

administered. U.S. at 296 & n.5. Moreover, the relief

was predictably granted where certain

factors were present, including family ties

II. within the United States, residence of long

duration in this country, evidence of

A.

hardship to the immigrant’s family as a

It will be useful to set forth a brief result of deportation, and a stable history

description of the statutory regime in place of employment. See In re Marin, 16 I&N

prior to 1996 and the passage of AEDPA

and IIRIRA. Under that regime, pursuant

7

Dec. 581, 584-85 (BIA 1978). 3 Moreover, if the repeal is applied

retroactively to immigrants such as

With IIRIRA, Congress repealed §

Ponnapula, the practical effect is that it

212(c) relief altogether and replaced it

will convert what was the mere possibility

with a provision that created a new and

of deportation into a certainty.

significantly narrower form of relief called

“cancellation of removal.” This form of B.

relief is now unavailable to any immigrant

Since the principal authority governing

who was convicted of an aggravated

this case is Landgraf, we rescribe its

felony, no matter the length of the

fundamental precepts. There the Supreme

sentence. See 8 U.S.C. § 1229b. The

Court held that, absent a clear command to

definition of “aggravated felony” has been

the contrary from Congress, there is a

retroactively expanded to include dozens

“ p r e s u m p t io n a g a i n s t s ta t u t o ry

more offenses, including misdemeanor and

retroactivity.” 511 U.S. at 270.4 Without

low-level felony offenses. See 8 U.S.C. §

such a clear statement, retroactive

1101(a)(43). Courts have upheld the

application of a statute is impermissible

application of the expanded definition of

when it “would impair rights a party

“aggravated felony” to minor offenses.

possessed when he acted, increase a

See, e.g., United States v. Pacheco, 225

party’s liability for past conduct, or impose

F.3 d 1 4 8, 15 4 (2 d C ir. 2000)

new duties with respect to transactions

(misdemeanor state theft of a video game

already completed.” Id. at 280. In Martin

valued at $10, for which immigrant

v. Hadix, the Court elaborated that the

received one-year suspended sentence, is

an aggravated felony); United States v.

Graham, 169 F.3d 787, 792 (3d Cir. 1999)

4

(misdemeanor crime of petty larceny is an See also Landgraf, 511 U.S. at 265,

aggravated felony). 271, 271 n.25, 272, 273, 275 n.29, 277,

278, 279, 286 (referring, variously, to the

The practical effect of the repeal of §

“presumption against retroactive

212(c) relief, in conjunction with several

legislation,” the “presumption against

other statutory amendments, is that a far

statutory retroactivity,” the

larger number of immigrants are now

“antiretroactivity presumption,” and the

deportable under the new law, while a

“traditional presumption against truly

much smaller number are eligible for any

‘retrospective’ application”); Hughes

form of relief from deportation.

Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939, 946, 947, 950,

951, 952 (1997) (same); Hadix, 527 U.S.

3

Section 212(c) relief is governed by at 352, 367 (same); St. Cyr, 533 U.S. at

predictable standards, “comparable to 316, 320, 324 (same); Republic of

common-law rules,” St. Cyr, 533 U.S. at Austria v. Altmann, No. 03-13, slip op. at

296 n.5. 14, 17 (U.S. June 7, 2004) (same).

8

question whether a new statute attaches considered whether applying the repeal

new legal consequences to prior conduct retroactively would be impermissible. The

“demands a commonsense, functional Court concluded that applying the repeal to

judgment” that “should be informed and aliens “who entered into plea agreements

guided by ‘familiar considerations of fair with the expectation that they would be

notice, reasonable reliance, and settled eligible for [§ 212(c)] relief” would

expectations.’” 527 U.S. at 357-58 “‘attach[] a new disability, in respect to

(quoting Landgraf, 511 U.S. at 280). Most transactions or considerations already

recently, in Republic of Austria v. past’” and produce a retroactive effect. Id.

Altmann, the Supreme Court held that the at 321 (quoting Landgraf, 511 U.S. at

Landgraf line does not apply to the “sui 269). The Court ultimately held something

generis context” of the Foreign Sovereign somewhat more expansive: “We . . . hold

Immunities Act, slip op. at 18, but that § 212(c) relief remains available for

nonetheless both the majority and dissent aliens, like respondent, whose convictions

expressly reaffirmed Landgraf’s “old and were obtained through plea agreements

well-established principle,” slip op. at 3 a nd who, notw i t h s ta n d ing th o se

(Kennedy, J., dissenting); see also slip op. convictions, would have been eligible for

at 13-18 (reaffirming but distinguishing § 212(c) relief at the time of their plea

Landgraf). The Altmann Court explained under the law then in effect.” Id. at 326.

that “the aim of the presumption is to

In reaching this conclusion, the Court

avoid unnecessary post hoc changes to

focused on an alien’s reasonable reliance

legal rules on which parties relied in

on the possibility of discretionary relief

shaping their primary conduct.” Slip op. at

under former § 212(c) as one of the most

17-18.

important factors prompting him to forego

In St. Cyr, the Court applied the trial and enter a plea agreement. “Given

principles of Landgraf in considering the frequency with which § 212(c) relief

whether IIRIRA’s repeal of discretionary was granted in the years leading up to . . .

relief under former § 212(c) would have a IIRIRA,” the Court reasoned, “preserving

retroactive effect if applied to an alien who the possibility of such relief would have

was “convicted pursuant to a plea been one of the principal benefits sought

agreement at a time when [his] plea would by defendants deciding whether to accept

not have rendered [him] ineligible for § a plea offer or instead to proceed to trial.”

212(c) relief.” St. Cyr, 533 U.S. at 320. Id. at 323. Indeed, “[t]here can be little

The Court first examined whether the doubt that, as a general matter, alien

provisions repealing former § 212(c) defendants considering whether to enter

evinced a clear Congressional intent to into a plea agreement are acutely aware of

apply the repeal retroactively. Concluding the immigration consequences of their

that there was no such clear statement, see convictions.” Id. at 322. In support of its

St. Cyr, 533 U.S. at 314-20, the Court next conclusion that aliens who accepted plea

9

agreements prior to IIRIRA had a reliance (4th Cir. 2002).5 Other Courts of Appeals

interest in § 212(c) relief, the Court have also limited St. Cyr’s retroactivity

pointed to the quid pro quo at the heart of holding to the plea-bargain context without

criminal plea agreements. Id. at 321. “In specifically invoking the quid pro quo

exchange for some perceived benefit, language from St. Cyr. See Montenegro v.

defendan ts waive several of their Ashcroft, 355 F.3d 1035 (7th Cir. 2004)

constitutional rights . . . and grant the (per curiam); Dias v. INS, 311 F.3d 456

government numerous tangible benefits.” (1st Cir. 2002); Armendariz-Montoya v.

Id. at 322 (internal quotation marks Sonchik, 291 F.3d 1116 (9th Cir. 2002);

omitted). The Court concluded that Brooks v. Ashcroft, 283 F.3d 1268 (11th

“[b]ecause [St. Cyr], and other aliens like Cir. 2002). A related argument advanced

him, almost certainly relied upon [the] by the INS and in these cases is that the

likelihood [of receiving discretionary immigrant has “rolled the dice” by going

relief] in deciding whether to forgo their to trial and thereby forfeited any claim to

right to a trial, the elimination of any certainty. See, e.g., Chambers 307 F.3d at

possibility of § 212(c) relief by IIRIRA 291-92.

has an obvious and severe retroactive

As we will explain, our interpretation

effect.” Id. at 325.

of Landgraf and its progeny differs

C. somewhat from these Courts’. But even

accepting their understanding of Landgraf,

The crux of the government’s argument

we think Ponnapula’s case distinguishable

is that the appeal is controlled by St. Cyr,

from the cases cited above, with the

which it views as resting uniquely on the

existence of the quid pro quo of criminal

plea agreements. The absence of this quid 5

We have also suggested this in two

pro quo here, the INS argues, causes

opinions, Chukwuezi v. Ashcroft, 48 Fed.

Ponnapula’s claim to fail. Of course, the

Appx. 846, 851 (3d Cir. 2002) and

unspoken premise of this argument is that

Uspango v. Ashcroft, 289 F.3d 226, 230

St. Cyr articulated the exclusive conditions

(3d Cir. 2002). Neither is binding on this

for impermissible retroactivity in this

issue on this panel, however, see Third

context.

Circuit IOP 9.1 (“Policy of Avoiding

The Courts of Appeals for the Second Intra-Circuit Conflict of Precedent”):

and Fourth Circuits have confined St. Cyr Chukwuezi is a not-precedential opinion,

to the plea-agreement context on the and the discussion in Uspango of St. Cyr

understanding that a quid pro quo is is dicta because it is not necessary to that

required. See Swaby v. Ashcroft, 357 F.3d opinion’s holding—that a removal

156, 161-62 (2d Cir. 2004); Rankine v. proceeding does not “commence,” for

Reno, 319 F.3d 93, 100 (2d Cir. 2003); purposes of 8 C.F.R. § 3.14 and

Chambers v. Reno, 307 F.3d 284, 290-91 IIRIRA’s effective-date provision, with

an alien’s petition for asylum.

10

possible exception of Swaby (with which, deportable— in reliance on the

at all events, we disagree). We first availability of the relief offered

explain why we believe that other Courts prior to IIRIRA. The petitioners

of Appeals have perhaps misapplied decided instead to go to trial, a

Landgraf in this area, and we then show decision that, standing alone, had

why, even under the constricted and no impact on their immigration

questionable (but nonetheless prevailing) status. Unless and until they were

view, Ponnapula’s somewhat unique convicted of their underlying

situation still demands that he be crimes, the petitioners could not be

considered for § 212(c) relief. deported.

***

III. Second, the petitioners have

pointed to no conduct on their part

A.

that reflects an intention to preserve

Because we disagree with other Courts their eligibility for relief under §

of Appeals’ application of Landgraf to the 212(c) by going to trial. If they had

question in this case, some background on pled guilty, petitioners would have

those Courts’ treatment of Landgraf is participated in the quid pro quo

necessary. We treat the Second Circuit’s relationship, in which a greater

opinion in Rankine as representative. expectation of relief is provided in

There, the Court laid out the Supreme exchange for forgoing a trial, that

Court’s modern retroactivity doctrine with gave rise to the reliance interest

citations to Landgraf, Hadix, and St. Cyr, emphasized by the Supreme Court

see Rankine, 319 F.3d at 98-99, much as in St. Cyr. As the Court made

we have done above, see supra Part II.B. clear, it was that reliance, and the

The Court explained that the Rankine consequent change of immigration

petitioners’ “choice to go to trial puts s t a t u s , t h a t p ro d u c e d t h e

[them] on different footing [from St. Cyr] impermissible retroactive effect of

in two crucial respects.” Rankine, 319 IIRIRA. Here, petitioners neither

F.3d at 99. did anything nor surrendered any

rights that would give rise to a

First, none of these petitioners

comparable reliance interest.

detrimentally changed his position

in reliance on continued eligibility Id. at 99-100 (citation omitted).

for § 212(c) relief. Unlike aliens

Three aspects of this opinion are

who entered pleas, the petitioners

noteworthy. First, neither in the passages

made no decision to abandon any

above, nor anywhere else in the opinion,

rights and admit guilt—thereby

immediately rendering themselves

11

does the word “presumption” appear, 6 yet from Congress that a statute is to be

the presumption against retroactivity is the applied retroactively, and will defer to

essence of the Landgraf line of cases. such a command. See, e.g., Landgraf, 511

Second, the passage above discussing a U.S. at 270. But in the absence of a clear

detrimental change in position appears to command, a consistent line of cases

require actual reliance by the party seeking e s t a b l i s h e s t h a t “‘ c o n g r e ss i o n al

to avoid retroactive application, yet the enactments and administrative rules will

Supreme Court has never required actual not be construed to have retroactive

reliance in any case in the Landgraf line. effect.’” Id. at 272 (quoting Bowen v.

Third, the Court’s objection that Georgetown Univ. Hosp., 488 U.S. 204,

“petitioners have pointed to no conduct on 208 (1988)).

their part” suggests that the party seeking

Landgraf softens this apparently

to avoid retroactive application bears an

categorical stance by recognizing that

evidentiary burden, another requirement

another line of cases holds that “in many

we are unable to locate in the Landgraf

situations, a court should ‘apply the law in

line. In the next section, we discuss in

effect at the time it renders its decision,’

detail our concern that each of these may

even though that law was enacted after the

be unfaithful to Landgraf and its progeny.

events that gave rise to the suit.” 511 U.S.

B. at 273 (quoting Bradley v. Sch. Bd., 416

U.S. 696, 711 (1974)). The Landgraf

The Second Circuit’s lack of emphasis

C o u r t c i t e d as e x a m p l e s la w s

on the presumption against retroactivity is

“authoriz[ing] . . . prospective relief,” id.,

in considerable tension with the Supreme

“ s t a tu t e s c o n f e r r in g o r o u s t i n g

C o u r t ’ s c o n sistent trea tmen t o f

jurisdiction,” id. at 274, and “[c]hanges in

retroactivity analysis. See supra note 4

procedural rules,” id. at 275. Harmonizing

(cataloging references to “presumption” in

these two lines, the Court explained:

Landgraf, Hughes Aircraft, Hadix, St. Cyr,

and Altmann). The Supreme Court’s When a case implicates a federal

framework for assessing the retroactivity statute enacted after the events in

of civil laws has been consistently applied: suit, the court’s first task is to

The Court first looks for a clear statement determine whether Congress has

expressly prescribed the statute’s

proper reach. If Congress has done

6 so, of course, there is no need to

This is not strictly accurate: The

resort to judicial default rules.

phrase “presumption against

Whe n, how ever, th e statute

retroactivity” does appear incidentally in

contains no such express command,

an extended quotation of another Court

the court must determine whether

of Appeals’ decision. See Rankine, 319

the new statute would have

F.3d at 102 (quoting Lara-Ruiz v. INS,

retroactive effect, i.e., whether it

241 F.3d 934, 945 (7th Cir. 2001)).

12

would impair rights a party Our disagreement with the courts that

possessed when he acted, increase have held that IIRIRA’s repeal of § 212(c)

a party’s liability for past conduct, relief is not impermissibly retroactive with

or impose new duties with respect respect to aliens who went to trial is that

to transactions already completed. those courts have erected too high a barrier

If the statute would operate to triggering the presumption against

retroac tively, our traditional retroactivity. This has the effect of

presumption teaches that it does not treating Landgraf as establishing a

govern absent clear congressional presumption in favor of retroactive

intent favoring such a result. application, but such a presumption would

be wrong— the Supreme Court explicitly

511 U.S. at 280.

held in Hughes Aircraft that the Court of

Moreover, in Hughes Aircraft, the Appeals had erred by concluding that

Court explained that a “conten[tion] that Landgraf evinced a “strong presumption in

only statutes with one of these effects are favor of retroactivity.” 520 U.S. at 950.

subject to our presumption against

The Second Circuit’s su btle

retroactivity” would “simply misread[] our

heightening of the showing required to

opinion in Landgraf.” 520 U.S. at 947.

t r i g g e r t h e p r e su m p t i o n a g a in s t

The Hughes Aircraft Court held that the

retroactivity is also visible in that Court’s

language quoted above “does not purport

apparent insistence that an alien show

to define the outer limit of impermissible

actual reliance to reap the benefit of the

retroactivity,” but merely describes “a

presumption against retroactivity. It is a

sufficient, rather than a necessary,

strange “presumption,” in our view, that

condition for invoking the presumption

arises only on so heightened a showing as

against retroactivity.” Id. Because the

actual reliance (though as we explain, see

Supreme Court has repeatedly couched its

infra Part IV, Ponnapula actually has made

holdings in this area in terms of a liberal

such a showing). Relatedly, the Second

presumption— albeit one that arises only

Circuit seems to require a quantum of

conditionally, on a finding of retroactive

evidence regarding the subjective intent of

effect—we read Landgraf and its progeny

the party seeking to avoid retroactive

to hold that the presumption against

application; this too strikes us as being in

retroactivity is easily triggered, though not

tension with the language of presumption

automatic.7

in Landgraf and its progeny; furthermore,

7

Parenthetically, we note that the Cyr, 533 U.S. at 325 n.55, that the

holdings and reasoning of Landgraf, retroactive application of an immigration

Hughes Aircraft, and Hadix are not law is analyzed no differently from the

somehow inapplicable to laws about retroactive application of any other civil

deportation; the Court made plain in St. statute.

13

such a requirement incorrectly focuses without reference to Hughes Aircraft’s

attention on the particular facts and conduct or expectations, see Hughes

circumstances of the party before the Aircraft, 520 U.S. at 947-52, and it is

court. again difficult to see how the defendant

could have established its actual reliance

The Supreme Court has never required

on the prior state of the law.

actual reliance or evidence thereof in the

Landgraf line of cases, and has in fact Ha dix c o n c e r n ed Co ngr e s s ’s

assiduously eschewed an actual reliance amendments to the fee provisions

requirement. Landgraf, Hughes Aircraft, applicable to post-judgment monitoring in

Hadix, and St. Cyr all establish this. In prison reform suits. The amendments

Landgraf, the question was whether the capped the hourly fee recoverable on

Civil Rights Act of 1991’s addition of behalf of attorneys performing such

compensatory and punitive damages monitoring. Attorneys for Hadix, one of

remedies to certain Title VII suits could be the named plaintiff prisoners in the suit,

applied retroactively to reach pre- claimed that the amendment was

enactment conduct. The Court concluded impermissibly retroactive because it

that the remedies could not be applied reduced their hourly rate for work

retroactively, but it reached this conclusion performed before the effective date of the

without once referring to the defendant’s amendment (because it had already been

conduct or the defendant’s actual performed) and for work performed after

expectations. In fact, the defendant (USI the effective date of the amendment

Film Products) is not even mentioned in (because the attorneys could not ethically

the pertinent section of the Court’s withdraw from the case until the prison

opinion. See Landgraf, 511 U.S. at 280- reform decree was terminated). The Court

93. Indeed, it is difficult to see how USI agreed with the former position, see

Film Products could have proven its actual Hadix, 527 U.S. at 358-60, but rejected the

reliance on the absence of a punitive latter because the attorneys “provide[d] no

damages provision. support for [their] assumption” about their

ethical duties, id. at 361.

Likewise, in Hughes Aircraft, the

particular situation or expectations of the Important for our purposes is not the

defendant were immaterial to the Court’s result, however, but the Court’s reasoning.

analysis. Hughes Aircraft was brought Hadix differs from Landgraf and Hughes

under an amendment to the False Claims Aircraft in that Hadix does in fact refer to

Act that eliminated a defense to certain qui the particular situation of the party seeking

tam suits. Hughes Aircraft argued that the to avoid retroac tive applicatio n.

elimination of the defense could not be Nonetheless, the Hadix Court’s discussion

applied retroactively, and the Court focuses not on the bona fides of the

agreed. Again, the Court evaluated the

retroactivity question in the abstract,

14

attorneys’ claimed actual reliance,8 but reasonable reliance of this class of aliens,

instead on whether reliance was (or would irrespective of the course of St. Cyr’s own

have been) reasonable. See, e.g., id. at plea negotiations.9

360 (“To impose . . . new standards now,

Moreover, the St. Cyr Court’s language

f o r work perform ed be fore th e

does not require concrete certainty about

[amendments] became effective, would

the exact historical motives and actual

upset the reasonable expectations of the

reliance and expectations of each alien

parties.”); id. (“After [the date of the

who pled guilty. We set out several

amen dmen t], an y expectation of

examples in the margin.10 On the whole,

compensation at the [pre-amendment] rates

was unreasonable.”).

St. Cyr is the most recent case in the 9

Indeed, the presence of a quid pro

Landgraf line. As with Hughes Aircraft quo is excellent support, in an

and Landgraf itself, the analytical focus of evidentiary sense, for the existence of a

the opinion is not on the facts and reliance interest, since a quid pro quo

circumstances of the party before the supplies two archetypal predicates for a

Court. The Court briefly considered the reliance interest: foregoing a right (here,

putative actual reliance of Enrico St. Cyr the right to a trial) and conferring a

and a similarly situated alien, Charles benefit (here, saving the government the

Jideonwo, but did so merely for illustrative costs and uncertainty of prosecution).

purposes. See St. Cyr, 533 U.S. at 323. St.

10

Cyr is principally concerned with the See, e.g., St. Cyr., 533 U.S. at 323

reasonable reliance interests of aliens who (“[P]reserving the possibility of [§

enter into plea agreements as a class. To 212(c)] relief would have been one of the

that end, the discussion of the quid pro quo principal benefits sought by defendants

in criminal plea agreements is directed at deciding whether to accept a plea offer . .

establishing, as a general matter, the . .” (emphasis added)); id. (“Relying

upon settled practice, the advice of

counsel, and perhaps even assurances in

8

For example, the Hadix Court did not open court that the entry of the plea

cite affidavits or other representations would not foreclose § 212(c) relief, a

from the attorneys that they actually great number of defendants in

relied on the higher hourly fee in electing Jideonwo’s and St. Cyr’s position agreed

to perform the monitoring services. For to plead guilty.” (emphasis added)); id.

that matter, it is not inconceivable that (referring to plea agreements “that were

attorneys engaged in such a practice likely facilitated by the alien’s belief in

might have performed their services with their continued eligibility for § 212(c)

or without the marginally greater relief” (emphasis added)); id. at 325

inducement of the higher pre-amendment (“[R]espondent, and other aliens like

fees. him, almost certainly relied upon [the]

15

we think the Supreme Court regarded St. example, it is unlikely that in Landgraf any

Cyr as a clear and straightforward result employer demonstrably relied on the

flowing from Landgraf; to paraphrase absence of a punitive damages remedy for

counsel for the amici curiae at oral Title VII violations, or that in Hughes

argument, St. Cyr was an easy case on the Aircraft any government contractor

retroactivity issue. purposely arranged its billing practices ex

ante to take advantage of a specific

Thus the Supreme Court has avoided

defense under the False Claims Act.

an “actual reliance” formulation in favor

Likewise, in St. Cyr, the Court found it

of a “reasonable reliance” formulation in

sufficient that the plea agreements of

its retroactivity analysis. “Reasonable

deportable aliens were “likely facilitated

reliance” is specifically highlighted in

by the aliens’ belief in their continued

Hadix, 527 U.S. at 357-58 (holding that

eligibility for § 212(c) relief.” 533 U.S. at

retroactivity analysis “should be informed

323 (emphasis added). And indeed the

and guided by ‘familiar considerations of

Court’s holding is not limited to those

fair notice, reasonable reliance, and settled

aliens who actually relied on the

expectations.’”). The likelihood that the

availability of § 212(c) relief: “We . . .

party before the court did or did not in fact

hold that § 212(c) relief remains available

rely on the prior state of the law is not

for aliens, like respondent, whose

germane to the question of retroactivity.

convictions were obtained through plea

Rather, courts are to concentrate on the

agreements and who, notwithstanding

group to whose conduct the statute is

those convictions, would have been

addressed—in Landgraf it was employers

eligible for § 212(c) relief at the time of

subject to Title VII; in Hughes Aircraft it

their plea under the law then in effect.” St.

was government contractors; in Hadix it

Cyr, 533 U.S. at 326.

was attorneys performing prison reform

monitoring services; in St. Cyr it was The holding in St. Cyr then is simply

a l i en s w h o a c cepted a ple a not subject to a qualification that the alien

agreement—with a view to determining seeking the opportunity to pursue § 212(c)

whether reliance was reasonable. relief must have accepted a plea agreement

that necessarily preserved his eligibility for

The Landgraf line also establishes that

§ 212(c) relief (i.e., a plea agreement that

a change in law can be found

provided for release from incarceration in

imperm issibly retroactive w ithout

less than five years’ time). We find this

establishing that some (or all) members of

significant because it further confirms that

the group affected by the change in law

Landgraf’s limitations on the repeal of

relied on the prior state of the law. For

former § 212(c) are construed broadly in

favor of those who had even a partial or

contingent reliance interest in the existing

likelihood [of § 212(c) relief].” state of the law—for example, an alien

(emphasis added)).

16

who accepted a plea agreement with a six- accepted plea agreements had some

year term of imprisonment that, through reliance interest in the potential

good behavior credits and the like, could availability of § 212(c) relief. The Court

be shortened to less than five years’ time.11 concentrated its discussion on the alien’s

decision whether to accept the plea

C.

agreement. This focus is logical because

We have established that the question the reliance interest of an alien who

we must answer is whether the repeal of § accepts a plea agreement arises at the time

212(c) relief is impermissibly retroactive the choice is made to accept the

with respect to aliens who elected to go to agreement. Generally speaking, reliance

trial (or some relevant subset thereof). interests (in the legal sense) arise because

Stated another way, we ask what aliens—if some choice is made evincing reliance.

any—who went to trial and were convicted Cf. Restatement (Second) of Contracts §

did so in reasonable reliance on the 90 (1981) (re quiring “action or

availability of § 212(c) relief. If forbearance” to invoke promissory

Ponnapula is among this group, we must estoppel).

affirm the District Court’s grant of habeas

Accordingly, we focus on the choice

corpus relief. We conclude that he is.

made by aliens who went to trial and were

As noted above, in St. Cyr, the convicted prior to the effective date of

Supreme Court found that all aliens who IIRIRA’s repeal of former § 212(c). 12 We

11 12

Indeed, St. Cyr himself accepted a We acknowledge that our focus here

plea that provided for a ten-year on the decision of the alien to go to trial

sentence, with execution suspended after is somewhat in tension with our holding

five years. See Brief for the Petitioner at in Perez v. Elwood, 294 F.3d 552 (3d

11 n.7, St. Cyr, 533 U.S. 289 (No. 00- Cir. 2002), that an alien whose date of

767), 2001 WL 210189. If he had conviction for an aggravated felony falls

actually served the full five-year after the effective date of IIRIRA is

unsuspended portion of his sentence, St. ineligible for § 212(c) relief on any

Cyr would have been ineligible for theory; it is virtually certain that some

discretionary relief under § 212(c). See aliens chose to go to trial before

INA § 212(c) (depriving the Attorney IIRIRA’s effective date, but were

General of the power to withhold actually convicted after the effective

deportation for “an alien who . . . has date. We cannot, of course, overrule

served . . . a term of imprisonment of at Perez. See Third Circuit IOP 9.1

least 5 years” for certain crimes). Thus, (“Policy of Avoiding Intra-Circuit

even St. Cyr himself did not accept a plea Conflict of Precedent”). The tension

that guaranteed his eligibility for § with Perez need not detain us long,

212(c) relief. however, because the parties stipulated

17

may subdivide this category into (1) aliens buttressed by the Supreme Court’s

who went to trial because they declined a recognition that the availability of

plea agreement that was offered to them, discretionary relief plays a central role in

and (2) aliens who went to trial because many aliens’ decisions regarding whether

they were not offered a plea agreement. to accept a plea agreement. See St. Cyr,

Because aliens in the latter category had 533 U.S. at 322-23. Though St. Cyr

no opportunity to alter their course in the concentrated on the many aliens who

criminal justice system in reliance on the ultimately accepted plea agreements, it is

availability of § 212(c) relief, we highly not reasonable to believe that all aliens

doubt (though do not explicitly hold, for who rejected plea agreements thereby

the issue is not before us) that such aliens disclaimed any interest in § 212(c) relief;

have a reliance interest that renders in fact, quite the contrary is true. There

IIRIRA’s repeal of former § 212(c) are many reasons to proceed to trial—the

impermissibly retroactive as to them. lack of a plea agreement that would ensure

eligibility for § 212(c) relief, the hope of

As for the former category, we hold

an acquittal, or the simple desire to

that aliens such as Ponnapula who

exercise fundamental constitutional

affirm atively turned dow n a plea

rights—but few if any of them are

agreement had a reliance interest in the

inconsistent with preserving a contingent

potential availability of § 212(c) relief.

interest in § 212(c) relief.

For many aliens, the reliance interest is

obvious and significant—P onnapula A case about aliens who accept plea

himself has such a reliance interest agreements (i.e., St. Cyr) is relatively

because the then-existing parameters for straightforward because the availability of

former § 212(c) eligibility would so § 212(c) relief was very likely a dominant

obviously factor into the decision-making factor in their decision. This case may

of someone in his position. (Specifically, seem harder because making the decision

Ponnapula needed to ensure that, however to go to trial is perhaps more complex and

the larceny charge was resolved, he would more nuanced, but we should not let that

serve less than the five years specified in obscure the fact that former § 212(c) was

former § 212(c).) This conclusion is one of a host of factors considered by

aliens who elected that course—and, per

the Court’s discussion in St. Cyr, a

below that Ponnapula’s date of significant factor at that.

conviction for IIRIRA purposes To be sure, there are aliens who would

(December 20, 1994) was prior to the appear to have had a very attenuated

effective date of IIRIRA (April 1, 1997). reliance interest in the availability of §

See Ponnapula, 235 F. Supp. 2d at 399 212(c) relief—for example, aliens charged

n.6. To accommodate Perez we simply with the most serious of crimes, carrying

limit our holding to aliens convicted the longest prison sentences, who turned

before the effective date of IIRIRA.

18

down unattractive plea agreements. Moreover, in St. Cyr itself, as we have

Preserving eligibility for discretionary discussed above, the Court extended its

withholding of deportation was probably holding to all aliens who had accepted plea

not foremost in such aliens’ minds, for agreements; some of these aliens

they had the slimmest of chances to qualify necessarily had attenuated reliance

for § 212(c) relief. But the fact that an interests in the availability of § 212(c)

interest may have been attenuated, relief (for example, consider the

however, has had little salience in the hypothetical alien described above who

Supreme Court’s analysis of other accepted a plea bargain with a six-year

retroactivity questions. For example, ex term of imprisonment, subject to good-

ante it was unlikely that Hughes time credits). The St. Cyr Court’s

Aircraft—or any given government explanation that “the fact that § 212(c)

contractor— would need to avail itself of a relief is discretionary does not affect . . .

specific defense against a qui tam action; our conclusion,” 533 U.S. at 325, is also

or that USI Film Products—or any given consistent with our understanding of how

employer subject to Title VII— would find attenuated interests are to be treated in a

itself accused of discriminatory conduct retroactivity analysis: Attenuation of this

meriting punitive damages. In neither case kind generally does not render reliance

would anyone have claimed, ex ante, that unreasonable.14

the affected companies had anything more

than a highly contingent—and thus

seriously attenuated—interest in the then- reasonable but attenuated reliance

existing state of the law.13 interests.

14

“Attenuation” as we have discussed

13

With respect to monitoring services it in the text refers to the idea of one

already performed, Hadix presents a case present consideration (among many)

at the opposite pole. There, the affected having only a minority influence on an

attorneys necessarily had an interest in actor’s ultimate decision. There is

the statute that set their maximum hourly another sense of “attenuation,”

rate. But this reveals only that Hadix however—one connoting causal

was a relatively easy case—and indeed, remoteness. For example, the Court of

the Supreme Court ruled unanimously in Appeals for the Seventh Circuit has

the attorneys’ favor on the issue of properly noted that “‘it would border on

monitoring services already performed. the absurd’ to argue that an alien would

See Hadix, 527 U.S. 343 (opinion of the refrain from committing crimes or would

Court); id. at 362 (Scalia, J., concurring contest criminal charges more vigorously

in part and concurring in the judgment); if he knew that after he had been

id. at 364 (Ginsburg, J., concurring in imprisoned and deported, a discretionary

part and dissenting in part). Hadix thus waiver of deportation would no longer be

does not speak to the question of available to him.” Lara-Ruiz, 241 F.3d

19

Finally, if it was reasonable in St. Cyr IIRIRA’s enactment date.” Id. at 421.15

for an alien to rely on the attenuated Accordingly, Ponnapula is entitled to

availability of § 212(c) relief in accepting apply for discretionary withholding of

a plea agreement, we see no reason why it deportation under former § 212(c).16

would be unreasonable for the same alien

to likewise rely in declining a plea

15

agreement. The reasonable reliance Moreover, on a practical level, the

question turns on the nature of the difference between this holding and a

statutory right and the availability of some more circumscribed one is smaller than it

choice affecting that right, not on the first appears. For some aliens sentenced

particular choice actually made. In sum, to terms of five years or longer

because aliens such as Ponnapula who (following their rejection of plea

affirmatively turned down plea agreements agreements), there is a chance of serving

had a reliance interest in the potential less than five years, and preserving

availability of § 212(c) relief, we hold that statutory eligibility for § 212(c) relief.

IIRIRA’s repeal of § 212(c) is Cf. supra note 11 (noting that St. Cyr

impermissibly retroactive with respect to would not necessarily have been

such aliens. While this statement seems statutorily eligible for § 212(c) relief).

broad, it is faithful to St. Cyr, which But the majority of aliens convicted of

painted with broad strokes: “We . . . hold lengthy sentences will find that this

that § 212(c) relief remains available for opinion removes IIRIRA’s bar to relief

aliens, like respondent, whose convictions only to leave them foundering on the

were obtained through plea agreements shoals of statutory ineligibility under

and who, notwithstanding those former § 212(c) itself.

convictions, would have been eligible for

16

§ 212(c) relief at the time of the plea under We note in passing that, in

the law then in effect.” 533 U.S. at 326. comparison to the holding in St. Cyr, the

This reflected approval of Judge Oakes’s effect of our overall holding is likely to

opinion for the Second Circuit, St. Cyr v. be small. First, the class of aliens

INS, 229 F.3d 406 (2d Cir. 2000), which affected by this ruling is constantly

adopted the same categorical approach: shrinking in size as the effective date of

“[W]e hold that the bar on applying for IIRIRA recedes into the past. Second, as

relief enacted in AEDPA § 440(d) and we note in the preceding footnote, many

IIRIRA § 304 does not apply to an alien aliens who are within the scope of this

who pled guilty or nolo contendere to an holding will nonetheless be statutorily

otherwise qualifying crime prior to ineligible for § 212(c) relief by reason of

having served five years or more in

prison. Third, many times more criminal

defendants enter into plea agreements

at 945 (quoting LaGuerre v. Reno, 164 than go to trial. See St. Cyr 533 U.S. at

F.3d 1035, 1041 (7th Cir. 1998)). 322 n.47. Thus, for the vast majority of

20

*** petitioner’s trial, Assistant District

Attorney David Steiner offered to

In this Part, we have set out our view

allow him to plead guilty to a

of the most faithful application of the

misdemeanor with a probationary

Landgraf line to the case at bar. We

sentence. Petitioner considered

recognize, however, that the other Courts

the offer and the immigration

of Appeals to address cases like

consequences of pleading guilty

Ponnapula’s have taken a rather different

and going to trial. He realized

approach to the retroactivity question.

that even if he were convicted of a

Though we stand on the foregoing

felony after trial he would still be

analysis, we will also analyze Ponnapula’s

eligible for hardship relief from

case under the rubric employed by those

deportation pursuant to section

other Courts.

212(c) of the Immigration and

Nationality Act, see 8 U.S.C. §

1182(c) (1994). Moreover, his

IV.

counsel advised him that, if

A. convicted after trial, he would

likely receive a sentence of less

We have described the background of

than five years’ imprisonment and

facts, all uncontradicted and accepted by

that he would, in all likelihood,

the District Court, which demonstrate

receive a sentence of only one to

that Ponnapula played a minor and

three years’ imprisonment.

essentially unknowing role in the

fraudulent scheme. We incorporate these In reliance on these facts,

facts by reference here. The best petitioner declined the

description of Ponnapula’s pretrial misdemeanor offer and proceeded

posture is supplied by the declaration of to trial.

his trial counsel, Alexander E. Eisemann,

App. 56-57.

Esq., in support of a motion for a

temporary restraining order in the In short, as the District Court noted:

District Court. In pertinent part,

Here, there can be no doubt that

Eisemann’s declaration states as follows:

Petitioner conformed his conduct

At one point prior to to match his settled expectations

of immigration law. Petitioner

was offered an opportunity to

removable criminal aliens, the plead guilty to a misdemeanor

retroactivity of IIRIRA’s repeal of which would have had no

former § 212(c) was settled nearly three immigration consequences, but

years ago by St. Cyr, so the decision we turned down the plea because

announce today affects a much smaller “even if he were convicted of a

group of aliens.

21

felony after trial he would still be his sentence would be less than five

eligible for hardship relief from years.18 Thus Ponnapula’s case seems

deportation pursuant to § 212(c).” distinguishable on its facts, both in that

Ponnapula has demonstrated actual

235 F. Supp. 2d at 405 (quoting

reliance where the aliens in other cases

Eisemann Decl.).

did not, and in that Ponnapula’s offense

We stress that Ponnapula actually was significantly less grave.

relied on the state of the law in rejecting

B.

the misdemeanor plea agreement and

going to trial. Notably, none of the court We must also engage the rationale of

of appeals cases treating St. Cyr as these cases. As will appear, while that

requiring a quid pro quo involved actual rationale will support the result reached

reliance by the immigrant on the then on the facts of those cases, any attempt to

state of the law. Also, in these cases the apply it to deny relief in Ponnapula’s

charges (and the sentences) facing the case falls of its own weight or at least

immigrant were far more serious than cannot survive rigorous scrutiny. We

those facing Ponnapula. For example, to treat Rankine as representative. In

recur to the cases cited supra Part II.C, arriving at its result, the Court relied

Rankine was charged with attempted principally on selected parts of the

murder, his co-petitioner Lawrence, a Supreme Court’s opinion in St. Cyr:

repeat offender, was convicted of a mid-

The [Supreme] Court focused on

level drug offense, and his co-petitioner

the fact that plea agreements are a

Eze was convicted of first degree rape.17

form of quid pro quo where, “[i]n

See Rankine, 319 F.3d at 96-97.

exchange for some perceived

Theodoropoulos was convicted of a high-

benefit, defendants waive several

level drug conspiracy. See

of their constitutional rights

Theodoropoulos v. INS, 313 F.3d 732,

(including the right to a trial) and

734 (2d Cir. 2002). Montenegro was

grant the government numerous

convicted of possession of cocaine with

tangible benefits.” [St. Cyr, 533

intent to distribute, see Montenegro, 355

U.S.] at 322 (internal quotation

F.3d at 1036, as was Armendariz-

omitted). Recognizing that §

Montoya, Armendariz-Montoya, 291

F.3d at 1118. In none of these cases does

the record reflect or even suggest a plea

18

agreement was offered, or that the Swaby was convicted of burglary and

defendant had reasonable assurance that possession of marijuana. See Swaby, 357

F.3d at158. While this case may be

closest to Ponnapula, the Swaby panel

17

Lawrence and Eze were also resident felt itself bound by Rankine and did not

aliens seeking the same relief as consider the matter de novo. See id. at

Rankine. 162.

22

212(c) relief was frequently 270) (internal citation omitted).

granted prior to the enactment of

Rankine, 319 F.3d at 99. The Court

AEDPA and IIRIRA, the Court

conceded that St. Cyr did not directly

found that “preserving the

control the outcome, but then opined

possibility of such relief would

that:

have been one of the principal

benefits sought by defendants We cannot, however, ignore the

deciding whether to accept a plea strong signals sent in those

offer or instead to proceed to opinions that aliens who chose to

trial.” Id. at 323. go to trial are in a different

position with respect to IIRIRA

The Court also highlighted the

than aliens like St. Cyr who chose

“clear difference, for the purposes

to plead guilty.

of retroactivity analysis, between

facing possible deportation and Id. We agree, for it is clear that St. Cyr

facing certain deportation.” Id. at does not control the outcome. But for

325. Because there was a reasons explained above, see supra Part

“significant likelihood” that III, we do not agree that relevant

resident aliens would receive § jurisprudence contains “strong signals”

212(c) relief prior to IIRIRA, the that aliens who go to trial are in a

Court found that aliens “almost different position from those who plead

certainly relied upon that guilty.

likelihood in deciding whether to

The wellspring of Rankine and its

forgo their right to trial,” id., and

companion cases is a concern for actual

instead to plead to sentences that

reliance. Though we have explained why

would preserve their eligibility for

we do not believe that this is the best

such relief. Without the

rendering of Landgraf, we accept that

possibility of relief, these pleas

here as a starting point for the sake of

guaranteed the aliens’ removal;

argument. What becomes critical, then,

the elimination of § 212(c),

is how to prove reliance. We agree that

therefore, changed the legal effect

the kind of quid pro quo inherent in the

of their pleas and unsettled their

acceptance of a plea agreement is one

reliance. The Court concluded

way to prove reliance; as we note above,

that “it would surely be contrary

the action and forbearance implicit in a

to ‘familiar considerations of fair

quid pro quo is strong evidence of

notice, reasonable reliance, and

reliance. But it is surely not the only way

settled expectations’ to hold that

to establish reliance, much less the

IIRIRA’s subsequent restrictions

talisman that the INS makes it out to be.

deprive them of any possibility of

An individual can rely or have settled

such relief.” Id. at 323-24

expectations about a state of affairs

(quoting Landgraf, 511 U.S. at

23

without having to enter into an exchange believing it to confer such a benefit.”

to secure or assure it. 235 F. Supp. 2d at 404.

From our discussion above of the lack We do not gainsay that the existence

of concern in the Landgraf line for actual of a quid pro quo (for a guilty plea)

reliance, it should go without saying that justified the result in St. Cyr. But to the

there is no mention of a quid pro quo or extent that the Court in St. Cyr noted that

surrender of constitutional rights in plea agreements involve a quid pro quo

Landgraf, Hughes Aircraft, or Hadix. between the criminal defendant and the

Neither is there any mention of a quid government and a waiver of several

pro quo in our decision in Mathews v. constitutional rights, see 533 U.S. at 322,

Kidder, Peabody & Co., 161 F.3d 156, these statements do not create an

164 (3d Cir. 1998): additional requirement necessary to

establish retroactive effect. In our view,

In this case, the events in question

these statements only serve to highlight

are the alleged fraudulent acts by

the obvious and severe retroactive effect

the defendants. If the RICO

of applying IIRIRA to aliens who

Amendment is applied to this

pleaded guilty; in other words, the quid

case, it would attach new legal

pro quo notion comfortably fit the case.

consequences to these events.

What Rankine and its companion cases

Before the Amendment, the legal

have done is to convert quid pro quo into

consequences included liability

a rigid baseline test, to ossify the

under the federal securities laws

language of St. Cyr into a test that the

and RICO; after the Amendment,

Supreme Court simply never mandated

the legal consequences included

and we are unwilling to create.

liability only under the securities

laws. In a variation on this theme, the

government argues that “Ponnapula’s

Focusing then on new legal

simple expectation or reliance is not the

consequences to Ponnapula himself, they

same as the heightened expectation of

surely have occurred here. Ponnapula

relief which the St. Cyr aliens bought at

relied on the advice of counsel. It is hard

the price of their constitutional rights and

to imagine that Ponnapula would not

paid for with the immediate certainty of

have accepted the misdemeanor plea

deportation.” The Rankine Court used

offer if he had known about the risk of

similar rhetoric: “The petitioners here

being ineligible for § 212(c) relief. And

assumed no similarly heightened

as the District Court concluded,

expectation from their decision to go to

“[a]defendant who goes to trial believing

trial.” 319 F.3d at 100. We find no basis

that his opportunity to seek § 212(c)

for a “heightened expectation” standard

relief is secure, is as equally disrupted in

in St. Cyr or elsewhere in the Supreme

his reasonable and settled expectations as

Court’s jurisprudence, and we reject it.

is a defendant who accepts a plea

24

We have not here reviewed in detail “rolling the dice.” In Chambers, the

each of the court of appeals cases that Court opined that the petitioner there did

have rejected extending St. Cyr to not possess “a reliance interest

immigrants who were convicted at trial comparable to that which was at the heart

before IIRIRA. Suffice it to say that the of St. Cyr,” 307 F.3d at 290, because “by

holdings in these cases are largely the rolling the dice and going to trial,

result of the courts’ failure to be Chambers actually ensured that his

convinced that immigrants who chose to eligibility for discretionary relief would

go to trial could possibly have relied on remain uncertain,” id. at 291.

the availability of 212(c) relief. As the

We find the “roll the dice” metaphor

Ninth Circuit stated in rejecting this

unhelpful, at least in this case. While

argument: “Unlike aliens who pleaded

Ponnapula may have “rolled the dice” in

guilty, aliens who elected a jury trial

terms of guilt or innocence at trial, he did

cannot plausibly claim that they would

not do so with respect to immigration

have acted any differently if they had

consequences in view of his reasonable

known [that their decision would later

expectation that there would be no

make them ineligible for 212(c) relief].”

adverse immigration consequences of

Armendariz-Montoya, 291 F.3d at

going to trial. We do not generally speak

1121(emphasis added); see also Dias,

of rolling the dice when the odds are

311 F.3d at 458 (“It follows that, having

stacked extremely heavily in one’s favor.

been convicted after a trial where there

Assuming that the metaphor is applicable

was not, and could not have been,

to someone, it does not apply to

reliance by the defendant on the

Ponnapula, because (to extend the

availability of discretionary relief,

metaphor), Ponnapula was (retroactively)

[petitioner] may not argue that the statute

deceived as to what was riding on the roll

has impermissible retroactive effect as to

of the dice. Neither do we find

him.” (emphasis added)). This argument

persuasive the arguments that Ponnapula

may be forceful given the serious charges

gave up “certainty” and should not be

facing the immigrants in those cases, see

rewarded for “guessing wrong.” These

supra Part IV.A, but it withers in

notions are inconsistent with our

Ponnapula’s case where, as we have

explanation of Landgraf.19

explained, the immigrant conformed his

conduct to the settled expectations of

immigration law that there would be no

19

adverse immigration consequences of We feel constrained to note that the

going to trial. notion that Ponnapula should be

penalized so harshly, ipso facto, for

C. going to trial, in the hopes of avoiding

Another notion that appears in the the disgrace and permanent stain of a

other court of appeals cases is that of conviction, seems to run counter to

fundamental principles of the American

25

A related argument pressed by the Courts of Appeals, we conclude that

government is that there can be no Ponnapula is entitled to pursue § 212(c)

reasonable reliance in this case because relief. Accordingly, the judgment of the

there was a risk that Ponnapula might District Court granting Ponnapula’s

have been sentenced to more than five petition for a writ of habeas corpus will

years in prison—and that, thereafter, he be affirmed.20

might have served more than five years

in prison—thereby making him ineligible

for § 212(c) relief. But Ponnapula was in

fact sentenced to a maximum of three

years in prison (and served even less),

and the fact that counsel’s advice proved

to be correct buttresses the conclusion

that it was reasonable for Ponnapula to

rely on his counsel’s advice in making

his immigration decisions. The

government would compare Ponnapula’s

risk of serving more than five years with

the risk to the immigrant in St. Cyr. In

fact, however, as we note above, see

supra note 11, St. Cyr himself faced a

greater term of imprisonment. Thus, the

government is simply incorrect when it

states that the immigrant in St. Cyr

“pursued a litigation strategy that

ensured his eligibility for section 212(c)

relief.”

V.

In sum, approaching the issue in this

case from the first principles of Landgraf

retroactivity analysis, and rejecting the

actual-reliance approach of our sister 20

We will, however, vacate the District

Court’s determination that Ponnapula is

entitled to a bond hearing. The District

constitutional polity, which encourages Court should reevaluate its holding on

citizens to assert their innocence when that issue in light of the intervening

convinced that they are not guilty of an Supreme Court decision in Demore v.

offense, and go to trial. Kim, 538 U.S. 510 (2003).

26

27