Petition for Writ of Certiorari — Carr v. Ashcroft

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

><> >

PHILLIP ANTHONY CARR,

Petitioner,

JOHN ASHCROFT, Attorney General of the United States; MICHAEL J.

GARCIA, Acting Assistant Secretary of U.S. Immigration and Customs

Enforcement; JAMES JOHNSTON, Field Director of the U.S. Immigration

and Customs Enforcement, New Orleans District Office; U.S. IMMIGRATION

AND CUSTOMS ENFORCEMENT; U.S. DEPARTMENT OF JUSTICE,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Kerry William Bretz

Counsel of Record

Jules E. Coven

- BRETZ & COVEN, LLP

305 Broadway, Suite 100

New York, New York 10007

(212) 267-2555

Vay

mal

i

QUESTION PRESENTED FOR REVIEW

This case involves issues left open by this Court's

decision in JNS v. St. Cyr, 533 U.S. 289 (2001), which is

whether amendments from 1996 to the Immigration and

Nationality Act should be applied retroactively to deny

an alien a defense from deportation due to criminal acts

he committed prior to the enactment of those laws. This

case involves important issues regarding decisions of

this Court relating to the retroactive application of civil

statutes, and not just immigration law. Petitioner, an

alien with lawful permanent resident status, engaged in

criminal conduct prior to the enactment of the Antiter-

rorism and Effective Death Penalty Act of 1996 (the

“AEDPA”), Pub. L. 104-132, 110 Stat. 1214 (April 24,

1996), and the Illegal Immigration Reform and Immi-

grant Responsibility Act of 1996 (the “IIRIRA”), Pub. L.

104-208, 110 Stat. 3009-546 (September 30, 1997).

AEDPA § 440(d) placed limitations on the availability of

a form of relief from deportation proceedings found in

former Immigration Nationality Act § 212(c), 3 U.S.C.

§ 1182(c) (1994) (repealed 1996). IIRIRA completely

repealed INA § 212(c). Mr. Carr committed a criminal

offense in 1995, but did not plead guilty until after the

enactment of AEDPA, but before the enactment of

IIRIRA. The Immigration Judge and the Board of Immi-

gration Appeals found that Mr. Carr was barred from

applying for 212(c) relief. Mr. Carr filed a habeas cor-

pus petition challenging his removal order. Both the dis-

trict court and the court of appeals upheld his removal

order. The question presented is:

Whether the court of appeals erred when it applied

AEDPA § 440(d) and IIRIRA § 304(b) retroactively to

ii

hold that the Petitioner, whose deportable criminal con

duct occurred prior to the statutes’ enactments, but

whose guilty plea was entered into after the enactment of

AEDPA, but before IIRIRA, is ineligible for a waiver of

deportation under INA § 212(c).

ili

PARTIES TO THE PROCEEDINGS

The Petitioner is Phillip Anthony Carr.

The Respondents are John Ashcroft, the Attorney

General of the United States; Michael Garcia, the Acting

Assistant Secretary of U.S. Immigration and Customs

Enforcement; James Johnston, Field Director of the U.S.

Immigration and Customs Enforcement, New Orleans

District Office; U.S. Immigration and Customs Enforce-

ment: and the U.S. Department of Justice.!

; The action below listed the following Respondents: Janet

Reno. the former Attorney General of the United States; Kevin D.

Rooney. the former Acting Commissioner of the Immigration and Nat-

uralization Service; Lynn Underdown, the Louisiana District Direc-

tor, Immigration and Naturalization Service; the Immigration and

Naturalization Service, and the U.S. Department of Justice. Pursuant

to Feb. R. App. P. 43(c)(2), John Ashcroft substituted Janet Reno as

the Attorney General, and James Johnston substituted Lynne Under-

down as the Louisiana District Director, however, his title is now

Field Director of U.S. Immigration and Customs Enforcement. Pur-

suant to the Homeland Security Act of 2002 (Pub. L. 107-26) (Jan-

uary 24, 2003), Michael J. Garcia, Acting Assistant Secretary of U.S.

Immigration and Customs Enforcement (“ICE”) substituted Kevin D.

Rooney, James Johnston replaced Lynne Underdown, however, his

title is now the Field Director of the U.S. ICE, and the U.S. ICE sub-

stituted for the Immigration and Naturalization Service. U.S. Depart-

ment of Justice is still a Respondent in this matter.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...... i

PARTIES TO THE PROCEEDINGS. .......5.5.06: iil

BAR GA FRESE AGG HORE BAGS oc cca ccxccnspevsceccss Vil

PETITION FOR A WRIT OF CERTIORARI ..... l

GOP APN ERPET ee GRIMOIRE co dca sennneneverccsvnnscnaneces I

Fs RUMEN ae kceh erent benbnercdesnubeseavecns l

STATUTORY PROVISIONS INVOLVED ....... l

i)

EPEC OEETeS CI ERCP osc cdcdccdnencesanss

I. STATUTORY AND CASE LAW

POP AR NED 6 oc cknveccoccasesavanness

tJ

Il. ADMINISTRATIVE PROCEEDINGS.. 5

Ill. REMOVAL PROCEEDINGS BEFORE

THE IMMIGRATION COURT AND

THE BOARD OF IMMIGRATION

gg | 8 ery rer errr err eye 6

IV. HABEAS CORPUS PETITION .......... 7

V. APPEAL OF THE DISTRICT

COURT'S HABEAS CORPUS

S| Sen re ery Ere T yr Tan 7

PAGE

VI. PETITIONS FOR A REHEARING

AND REHEARING EN BANC .......--- 7

REASONS FOR GRANTING THE WEE x avcuss 8

1. THIS COURT'S DECISION IN

INS v. ST. CYR, 533 U.S. 289 (2001),

HAS OVERRULED THE SECOND

CIRCUIT'S DECISION IN

DOMOND vy. ASHCROFT, 244 F.3d 81

(2d Cir. 2001) .....-ssccccreecrcctevceeees 8

Il. THIS COURT HAS NEVER

REQUIRED THAT THERE ONLY

BE RELIANCE IN ORDER FOR A

STATUTE TO BE IMPERMISSIBLY

RETROACTIVE. .......-csecccccesccecees 9

II]. THE SECOND CIRCUIT FAILED TO

RECOGNIZE THAT THIS COURT

ROUTINELY UTILIZES ANALYSIS

FROM EX POST FACTO CASES IN

DETERMINING WHETHER A

STATUTE IS IMPERMISSIBLY

RETROACTIVE. .......-sscccceececececes 11

IV. THE SECOND CIRCUIT FAILED ™

FOLLOW THIS COURT'S HOLDING

IN HUGHES AIRCRAFT vy. EX. REL.

SCHUMER, 520 U.S. 939 (1997)

THAT THE ELIMINATION OF A

DEFENSE IN CIVIL PROCEEDINGS

HAS AN IMPERMISSIBLE

RETROACTIVE EFFECT .....-.----++:: 13

EN DP TRE PO eee ok

V1

PAGE

V. THE SECOND CIRCUIT IGNORED

THE PLAIN LANGUAGE OF AEDPA

§ 440(d), WHICH CLEARLY

INDICATES THAT IT DOES NOT

APPLY TO PRE-ENACTMENT

GPUs 56k iS been ka ccews ce sendehons cans 14

ATEN si vhavedusdkewnaesbieasmenenekunegan 15

|

—-onesiieiaseamammaictiaiaaiientecmnannsiiiananais DLL

Vil

TABLE OF AUTHORITIES

PAGE

Federal Cases:

Beharry v. Ashcroft, 329 F.3d 51

(3G Cie. 2OD3) 6 coc neces ncessserenecesasnercens 5

Beazell vy. Ohio, 269 U.S. 167 (1925)...---seeeees 11

Carmell v. Texas, 529 U.S. 513 (2000)......-.+-- 1]

Carr v. Reno, Dkt. 01-2270, 2002 WL 24144

(2d Cir. Jan. 4, MRT oc vccdenowsnsnanseeseste |

Collins v. Youngblood, 497 U.S. 37 (1990) .....- 11

Domonad v. INS, 244 F.3d 81 (2d Cir. 2001)...-.-- passim

Francis v. INS, 532 F.2d 268 (2d Cir. 1976) ..... Z

Henderson v. INS, 157 F.3d 106 (2d Cir. 1998),

cert. denied sub nom Reno v. Navas,

526 U.S. 1004 (1999) .....-ceeeeeeeeeeerrerees 3

Hibbert v. Ashcroft, No. 02-2281, 2003

WL 21466746 (2d Cir. June 20, 2003) ....«- 5

Hughes Aircraft v. Ex. Rel. Schumer,

520 U.S. 939 (1997) ...--ceeeeeeeererserrreee 11, 13

INS y. St. Cyr, 533 U.S. FBO (2001 )....cwsccsescesss passim

Landgraf v. USI Film Prods., 511 U.S. 244

CROUEY cin perreceseereeanremenrneesnee? 9,10, 11, 13

Lindsey v. Washington, 301 U.S. 397 (1937)...-. 11

Lynce v. Mathis, 519 U.S. 433 (1997) ..--- ee eee ee 11

Vili

Maria v. McElroy, 68 F.2d 206

Sac ee Ws Na oak oa one nue ceakaw ee cwss

Martin yv. Hadix, 527 U.S. 343 (1999)........

Miller v. Florida, 482 U.S. 423 (1987).......

Mohammed vy. Reno, 309 F.3d 95

oie ns IRD as hau annaevissesedearesuens

Mohammed vy. Reno, 205 F. Supp.2d 39

(E.D.N.Y. 2002), stay vacated,

SOF B.F8 OS (28 UAE, ZED ci ccecvesessens

Pena-Rosario v. Reno, 83 F. Supp.2d 349

RR ae. Pre errr ee ry er erry

Pottinger v. Reno, 51 F. Supp.2d 349

See oes 0d OP ae ved kacasventnseniesiannets

Rankine v. Reno, 319 F.3d 93

Ce ne SD bn kins cans eles eseeeseres

Rivers v. Roadway Exp. Inc.,

BES he Oe LOE casio aewacesnicevesees

St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000),

aff'd, INS v. St. Cyr, 533 U.S. 289 (2001) ..

U.S. v. Brady, 26 F.3d 282 (2d Cir. 1994)

U.S. v. Minicone, 960 F.2d 1099 (2d Cir. 1992).

Weaver v. Graham, 450 U.S. 24 (1981)........

PAGE

cme iF:

1X

PAGE

Federal Statutory Authorities:

Antiterrorism and Effective Death Penalty

Act of 1996 (the “AEDPA”),

Pub. L. 104-132, 110 Stat. 1214

(April 24, 1996) .....-.c.eeeeeeereeeecereerere: passim

AEDPA § 440(d) .....--ecceecceeserecereeesseeenees passim

Homeland Security Act of 2002

(Pub. L. 107-296) (January 24, 2003) «nsec ill

FED. R. APP. Pz 43(C)(2)... eee e re ceeeeerecserecees lil

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (the “TIRIRA”),

Pub. L. 104-208, 110 Stat. 3009-546

(September 30, 1997)....-----eeereeeeeereree: passim

TIRIRA § 3O4(D) 0... ccccrencccccsecncvcnsoncvescns passim

Immigration and Nationality Act § 212(c),

8 U.S.C. § 1182(c) (1994)

(repealed 1996).........eeeeeseeee eee eeee tects passim

INA § 237(a)(2)(A) (iii),

8 U.S.C. § 1227(a)(2)(A) Gil)

(Supp. V WQOD) . occ nccscevessccancceccnvesness 6

INA § 237(a)(2)(B)(i),

8 U.S.C. § 1227(a)(2)(B)Q)

(Supp. V 1999) ......-eceeeceeeecceenccercecees 6

INA § 240A(a),

8 U.S.C. § 1229b(a) (Supp. V S999). cnnnsces 3

IB U.S.C. § 1254(a) ...--cccncrccccreseccncresscores l

7 oie Ree be) Perret 7

PAGE

Administrative Case Law:

Matter of Silva, 161 & N Dec. 26 (BIA 1976)... 2

Misc. Authorities:

Ba. 4 OE AN. Ast. 27s DS Lee ees sake wteweciwers 6

Pee Es a EI BEERS oie ccisstaseccdnicoeseea 6

Pes Re A BAA © LE onde cons ovecenewnssansees 6

PETITION FOR A WRIT OF CERTIORARI

Phillip Anthony Carr respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, which dismissed

Mr. Carr’s appeal (App. 1a)? and the order denying his

petition for rehearing and hearing en banc are not

reported (App. 27a). However, the dismissal of the

appeal is available on Westlaw. See Carr v. Reno, No.

01-2270, 2002 WL 24144 (2d Cir. Jan. 4, 2002). The

opinion and order of the district court is not reported.

(App. 6a). The decision and order of the Immigration

Judge (App. 24a) and Board of Immigration Appeals are

unreported (App. 19a).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(a). The judgment of the court of appeals

was entered on January 4, 2002. On February 20, 2002,

Mr. Carr timely filed a petition for rehearing and rehear-

ing en banc. The petition for rehearing and rehearing en

banc was denied on August 27, 2003.

STATUTORY PROVISIONS INVOLVED

Reprinted in the appendix to this petition are former

Immigration and Nationality Act § 212(c), 8 USL.

§ 1182(c) (1994) (repealed 1996) (App. 29a), section

440(d) of Antiterrorism and Effective Death Penalty Act

“App.” refers to the appendix attached to this petition.

eS)

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (April

24, 1996) (App. 29a-30a). former Immigration and

Nationality Act (“INA”) § 212(c), 8 U.S.C. § 1182(c)

(1997), as amended by AEDPA § 440(d) (repealed)

(App. 30a), and section 304(b) of Illegal Immigration

Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), Pub. L. 104-208, 110 Stat. 3009-546

(September 30, 1996) (App. 30a). This matter does not

involve any Constitutional provisions.

STATEMENT OF THE CASE

I. STATUTORY AND CASE LAW BACKGROUND

For decades prior to the immigration law amendments

of 1996, lawful permanent resident immigrants charged

with committing a crime had a statutory right to seek a

waiver of any resulting charge of excludability or

deportability under INA § 212(c), provided the immi-

grant had been lawfully domiciled in the United States

for seven years. See former INA 212(c), 8 U.S.C.

1182(c) (1994), as added by Immigration and National-

ity Act of 1952; see also Francis v. INS, 532 F.2d 268

(2d Cir. 1976) (holding that 212(c) relief is available in

deportation as well as exclusion proceedings); Matter of

Silva, 161 & N Dec. 26 (BIA 1976) (adopting and apply-

ing the Francis holding nationwide). The 212(c) waiver

was unavailable only for individuals convicted of

“aggravated felonies” for which they had served five or

more years in prison. See former INA § 212(c), 8 U.S.C.

1182(c) (1994).

In 1996, Congress amended the Immigration and

Nationality Act twice. First, in AEDPA § 440(d),

Congress barred 212(c) waivers for several categories of

criminal offenses. Pub. L. No. 104-132, 110 Stat. 1214

(1996). Subsequently, in IIRIRA § 304(b), Congress

3

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4

a

ed

4

:

UN i HS

3

repealed 212(c) and replaced it with a form of relief

called cancellation of removal that is unavailable for

individuals convicted of any aggravated felony, regard-

less of time served. INA § 240A(a), 8 U.S.C.

§ 1229b(a) (Supp. V 1999).

In 1998, the Second Circuit held that Congress did not

intend for AEDPA § 440(d) to be applied in deportation

cases that were pending when AEDPA was enacted. Hen-

derson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied

sub nom Reno v. Navas, 526 U.S. 1004 (1999). In

September 2000, after finding Congress’ intent unclear

with respect to the application of AEDPA § 440(d) and

IIRIRA § 304(b) to pre-enactment convictions in depor-

tation cases not yet pending on the effective dates of

these laws, the Second Circuit applied the traditional

presumption against retroactive application of a new

civil statute and held that the AEDPA and IIRIRA bars

to applying for 212(c) relief do not extend to a lawful

permanent resident who pleaded guilty or nolo con-

tendere to an otherwise qualifying crime prior to the

enactment dates of these laws. St. Cyr v. INS, 229 F.3d

406 (2d Cir. 2000), aff'd, INS v. St. Cyr, 533 U.S. 289

(2001). The Second Circuit's decision in St. Cyr

included a brief discussion, not necessary to the holding

of that case, suggesting that the AEDPA and IIRIRA

bars may otherwise be permissibly applied to pre-enact-

ment conduct. Jd. at 419. Prior to Sr. Cyr, several district

courts within the Second Circuit had concluded that

AEDPA and IJRIRA could not be applied retroactively to

criminal conduct that had occurred prior to the enact-

ment of those statutes. See Pottinger v. Reno, 51 F.

Supp.2d 349, 362 (E.D.N.Y. 1999); Maria v. McElroy, 68

F.2d 206, 229-230 (E.D.N.Y. 1999); Pena-Rosario Vv.

Reno, 83 F. Supp.2d 349, 365-66 (E.D.N.Y. 2000). On

appeal, the Supreme Court upheld the Second Circuit's

holding that the AEDPA and IIRIRA bars do not apply to

4

pre-enactment pleas, but did not address the lower

Court's dicta regarding the application of the statutes to

pre-enactment conduct. /NS v. St. Cyr, 533 U.S. 289

(2001).

In this case, the government seeks to apply AEDPA

§ 440(d) and IIRIRA § 304(b) to deny lawful permanent

residents the statutory right to seek 212(c) relief to

waive the deportation consequences of offenses com-

mitted prior to the effective dates of these laws. While

INS v. St. Cyr was pending before the Supreme Court,

the Second Circuit held in Domond v. INS, 244 F.3d 81

(2d Cir. 2001), that the AEDPA and IIRIRA bars may be

applied to individuals whose underlying criminal con-

duct occurred before the enactment of the 1996 immi-

gration law amendments, but whose convictions

occurred post-enactment. /d. at 86.

In reaching its holding, the Domond Court reasoned

that because 212(c) waivers are a form of discretionary

relief, their loss “does not impose a new legal conse-

quence on [an alien’s] pre-AEDPA criminal conduct.” /d.

at 85-86. However, the Supreme Court held in St. Cyr

that the loss of a “significant likelihood of receiving

§ 212(c) relief,” even though such relief is discretionary,

constitutes a new legal effect that is impermissibly

retroactive. 533 U.S. at 321-25. The Supreme Court's

holding directly contradicts the rationale of the Domond

decision.

The Second Circuit's decision in the case at hand was

the first case to address the viability of Domond after

this Court’s decision in St. Cyr. (App. 3a). The panel in

Carr issued a summary order, which is not a precedent

decision. The next case to address the viability of

Domond was Mohammed y. Reno, 309 F.3d 95 (2d Cir.

2002). This decision vacated a stay of removal issued by

Judge Gleeson in Mohammed v. Reno, 205 F. Supp.2d 39

5

(E.D.N.Y. 2002), stay vacated, 309 F.3d 95 (2d Cir.

2002). Judge Gleeson followed Domond, but called its

holding into question and granted a stay of removal to

Mr. Mohammed, so that he could appeal his decision.

The Second Circuit's decision in Mohammed was a deci-

sion on whether to maintain the stay. The merits of the

case were not fully briefed. The Mohammed panel held

that “at least for purposes of considering the pending

motion to lift the stay, that Domond remains binding

authority in this Circuit.” 309 F.3d at 7. Based upon the

language used, the Mohammed panel did not intend for

its decision to be the final word on this issue. The next

case, Rankine v. Reno, 319 F.3d 93 (2d Cir. 2002), cited

Mohammed without any mention of Domond. Rankine

involved a completely different issue than the case at

hand. Rankine involved whether the limitations on

§ 212(c) relief created by the AEDPA and IIRIRA could

be applied retroactively to aliens that were convicted by

trial prior to the enactment of AEDPA and IIRIRA. In its

analysis that there was no impermissible retroactive

application to aliens who went to trial, the Rankine

Court cited to Mohammed. 319 F.3d at 100. As a result

of the Rankine panel merely citing to Mohammed, the

panels in Beharry v. Ashcroft, 329 F.3d 51, 63 (2d Cir.

2003), and Hibbert v. Ashcroft, No. 02-2281, 2003 WL

21466746 (2d Cir. June 20, 2003) have cited to Rankine

for the proposition that Domond remains good law.

Il. ADMINISTRATIVE PROCEEDINGS

Petitioner, Phillip Anthony Carr, is a forty-four year

old male, native and citizen of Jamaica. He was admit-

ted to the United States as a lawful permanent resident

on September 27, 1969, when he was only ten years old.

He had permanent resident status for thirty years prior to

the issuance of his removal order. Mr. Carr’s entire fam-

6

ily is in the United States. His wife and four children are

U.S. citizens, as are his mother and seven siblings.

Mr. Carr has three criminal convictions. On March 29,

1984, Mr. Carr pleaded guilty to criminal possession of

marijuana in the fourth degree in violation of N.Y.

PENAL LAW § 221.15. He paid a $250 fine. On October

1, 1987, Mr. Carr pleaded guilty to criminal sale of mar-

ijuana in the fourth degree in violation of N.Y. PENAL

LAW § 221.40. He paid a $300 fine. On May 10, 1996,

he pleaded guilty to felony possession of marijuana in

violation of article 27, section 286 of the Annotated

Maryland Code. The criminal conduct occurred on

December 14, 1995. He was sentenced to five years

imprisonment, but he served forty months.

Ill. REMOVAL PROCEEDINGS BEFORE THE

IMMIGRATION COURT AND THE BOARD

OF IMMIGRATION APPEALS

On June 23, 1998, the Immigration and Naturalization

Service (now known as the U.S. Immigration and Cus-

toms Enforcement) issued a notice to appear (“NTA”),

charging Mr. Carr with deportability for having com-

mitted an aggravated felony based on his convictions,

“INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)

(Supp. V 1999), and for having committed a controlled

substance violation, INA § 237(a)(2)(B)(i), 8 U.S.C.

§ 1227(a)(2)(B)(i) (Supp. V 1999).

On July 22, 1999, the Immigration Judge (“IJ”) found

Mr. Carr removable from the United States based on his

criminal convictions and ordered him removed to

Jamaica. (App. 25a). Mr. Carr appealed the IJ’s decision

to the Board of Immigration Appeals (“Board”). On

February 3, 2000, the Board dismissed his appeal, hold-

ing that he is statutorily ineligible for relief from depor-

tation pursuant to INA § 212(c), 8 U.S.C. § 1182(c)

a |

pay

7

(1994) (repealed), in light of 1996 amendments to the

INA. (App. 19a).

IV. HABEAS CORPUS PETITION

Mr. Carr filed a habeas corpus petition pursuant to 28

U.S.C. § 2241 in the United States District Court for the

Eastern District of New York. The habeas corpus peti-

tion challenged the retroactive applications of section

440(d) of the AEDPA, and section 304(b) of IIRIRA, to

preclude Mr. Carr from 212(c) relief. On May 1, 2001,

the district court issued an opinion and order denying the

habeas corpus petition. (App. 6a). The district court held

that it was bound by the Second Circuit’s decision in

Domond v. INS, 244 F.3d 81 (2d Cir. 2001). (App. 14a).

V. APPEAL OF THE DISTRICT COURT’S

HABEAS CORPUS ORDER

On May 22, 2001, Mr. Carr filed an appeal with the

United States Court of Appeals for the Second Circuit.

On January 4, 2002, the Second Circuit summarily

affirmed the decision of the district court and dismissed

Mr. Carr's appeal. (App. 24).

VI. PETITIONS FOR A REHEARING AND

REHEARING EN BANC

On February 20, 2002, Mr. Carr filed with the Second

Circuit, petitions for a rehearing and rehearing en banc.

On August 27, 2003, the Second Circuit denied Mr.

Carr's petitions. (App. 27a). The instant petition for cer-

tiorari seeks review of that court of appeals judgment.

cdi

REASONS FOR GRANTING THE WRIT

I. THIS COURT’S DECISION IN INS vy. ST. CYR,

533 U.S. 289 (2001), HAS OVERRULED THE

SECOND CIRCUIT’S DECISION IN DOMOND v.

ASHCROFT, 244 F.3d 81 (2d Cir. 2001)

The Court should grant the petition for certiorari

because the decision relied upon by the Second Circuit

to deny Mr. Carr’s habeas corpus petition has been

implicitly overturned by this Court's decision in St. Cyr.

This Court held in St. Cyr that despite the discretionary

nature of section 212(c), its elimination does have legal

consequences, and thus, impermissible retroactive effect.

Id. The Supreme Court stated, “[t]here is a clear differ-

ence, for the purposes of retroactivity analysis, between

facing possible deportation and facing certain deporta-

tion.” /d.

By contrast, in Domond the Second Circuit held that

the limitations on 212(c) relief created by AEDPA

§ 440(d) do not have retroactive effect because 212({c)

relief is discretionary. 244 F.3d at 85-86. Logic dictates

that this Court’s decision in St. Cyr cannot contradict

Domond, yet not undermine Domond. In Mohammed v.

Reno, United States District Court Judge John Gleeson

of the Eastern District of New York recognized that Sr.

Cyr conflicts with Domond because this Court held that

taking away discretionary relief can have a retroactive

effect. 205 F. Supp.2d at 44-45. However, in Mohammed,

the Second Circuit gave the following rationalization as

to why Domond has not been overturned:

We think the Domond quotation has been

taken too literally. The panel was obvi-

ously aware that, prior to AEDPA, section

212(c) relief often spared an alien from

|

9

being removed from this country. The

panel's statement is properly understood to

mean only that an order for deportation

was always imposed, even though not

always carried out. In any event, the

Supreme Court's focus on the shift from

possible to certain deportation was explic-

itly tied to the alien's reliance on the prior

availability of discretionary relief in decid-

ing to plead guilty.

309 F.3d at 103.

The reasoning of the Mohammed panel is a post hoc

rationalization. Moreover, the Second Circuit's decision

in Mohammed is flawed because reliance is not the sole

determinative factor in deciding whether a statute has an

impermissible retroactive effect.

Il. THIS COURT HAS NEVER REQUIRED THAT

THERE ONLY BE RELIANCE IN ORDER FOR

A STATUTE TO BE IMPERMISSIBLY RETRO-

ACTIVE

This Court should grant the petition for certiorari

because the Second Circuit has misinterpreted this

Court’s decision in JNS v. St. Cyr. In INS v. St. Cyr, this

Court stated that, “(a)s we have repeatedly counseled,

the judgment whether a particular statute acts retroac-

tively ‘should be informed and guided by ‘familiar con-

siderations of fair notice, reasonable reliance, and settled

expectations.” ” 533 U.S. at 321 (quoting Martin v.

Hadix, 527 U.S. 343, 57-58 (1999) (in turn quoting

Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994)).

But in Domond and its progeny, the Second Circuit has

read these words as if “fair notice,” “reasonable

reliance,” and “settled expectations” were synonymous.

As a result of its misreading of Sr. Cyr, the Second Cir-

10

cuit is only considering whether there was reliance, in

order to find that a statute is impermissibly retroactive

under the second tier of the Landgraf test. Moreover, the

Second Circuit seems to be requiring that there be a quid

pro quo, as well. See e.g., Rankine v. Reno, 319 F.3d 93,

100 (2d Cir. 2002) (“If they had pled guilty, petitioners

would have participated in the guid pro quo relationship,

in which a greater expectation of relief is provided in

exchange for forgoing a trial, that gave rise to the

reliance interest emphasized by the Supreme Court in Sr.

Cyr.”). These are requirements that this Court has never

imposed. The St. Cyr Court was just observing that there

was reliance and a quid pro quo present in Mr. St. Cyr’s

case. The Court did not hold that reliance and a quid pro

quo were required, in order to show that a statute has an

impermissible retroactive effect.

The Second Circuit's requirement of a reliance and a

quid pro quo would result in a different outcome in

Landgraf, 511 U.S. 244 (1994) and Rivers v. Roadway

Exp. Inc., 511 U.S. 298 (1994). This is because there

was no reliance or guid pro quo in Landgraf and Rivers.

In both of these cases, this Court held that statutes,

which increased civil liability, could not be applied

retroactively to pre-enactment conduct. Applying the

Second Circuit's logic in Domond, it would “border on

the absurd” to believe that tortfeasors would refrain from

tortious conduct, if they knew their monetary liability

would be increased at a later date. In other words, the

outcome would be different. St. Cyr did not intend to

overrule these cases.

1]

Ill. THE SECOND CIRCUIT FAILED TO RECOG-

NIZE THAT THIS COURT ROUTINELY

UTILIZES ANALYSIS FROM EX POST FACTO

CASES IN DETERMINING WHETHER A

STATUTE IS IMPERMISSIBLY RETRO-

ACTIVE

This Court should grant the petition for certiorari

because the Second Circuit has refused to utilize Ex Post

Facto analysis in Domond and its progeny. Because of

this, the Second Circuit's retroactivity analysis is dif-

ferent from this Court’s analysis. The Second Circuit

was correct in Domond that the Ex Post Facto Clause of

the Constitution does not apply to immigration pro-

ceedings. 244 F.3d at 87. However, in doing so, the Sec-

ond Circuit ignored the fact that this Court regularly

looks to Ex Post Facto cases by analogy when deter-

mining the retroactive effect of a civil statute. See, e.g.,

Hughes Aircraft v. Ex. Rel. Schumer, 520 U.S. 939, 948

(1997) (citing Collins v. Youngblood, 497 U.S. 37 (1990)

and Beazell v. Ohio, 269 U.S. 167, 169-70 (1925));

Landgraf, 511 U.S. at 269 n.23 (citing Miller v. Florida,

482 U.S. 423 (1987)). In fact, this Court relied upon an

Ex Post Facto case, Lindsey v. Washington, 301 U.S. 397

(1937), in its decision in INS v. St. Cyr. 533 U.S. at 325.

The term “fair notice,” which is one of the three

retroactivity benchmarks mentioned in St. Cyr, origi-

nated in this Court’s Ex Post Facto cases. See, é.8.,

Lynce v. Mathis, 519 U.S. 433 (1997) (“this Court has

consistently stressed ‘lack of fair notice’ as one of the

‘central concerns of the Ex Post Facto Clause.’ ”)

(emphasis added) (quoting Weaver v. Graham, 450 U.S.

24, 30 (1981)); accord Carmell v. Texas, 529 U.S. 513,

566 (2000); Miller v. Florida, 482 U.S. 423, 430 (1987).

In fact, “fair notice” is the benchmark in the Second Cir-

cilia al

12

cuit’s Ex Post Facto cases. See e.g., U.S. v. Brady, 26

F.3d 282, 291 (2d Cir. 1994) (“One of the principal aims

of the Ex Post Facto clause is to ensure that individuals

have fair notice of what conduct is criminally pro-

scribed”). (emphasis added); U.S. v. Minicone, 960 F.2d

1099, 1111 (2d Cir. 1992) (noting that the purpose of the

Ex Post Facto clause is both reliance and fair notice).

Since this Court’s decision in St. Cyr considered one of

the three benchmarks for determining retroactivity to be

“fair notice,” this Court was essentially stating that Ex

Post Facto cases are to be looked at in determining

whether a statute is impermissibly retroactive.

This Court's retroactivity analysis in criminal Ex Post

Facto cases offers the most straight forward and func-

tional approach to determining retroactive effect. It

looks at the date of the alleged criminal conduct to ana-

lyze whether new laws have retroactive effect. The date

of conduct is an appropriate yardstick because it pro-

vides a clear and enforceable test that avoids the need

for a case by case review of the retroactivity issue.

In addressing whether AEDPA § 440(d) has an imper-

missible retroactive effect for pre-enactment conduct,

the Second Circuit in St. Cyr stated it would “border on

the absurd to argue that” aliens would not have com-

mitted crimes if they knew discretionary relief from

deportation would not be available. 229 F.3d at 418. It

would not, however, border on the absurd not to apply

AEDPA and IIRIRA retroactively under Ex Post Facto

analysis as employed by this Court. Thus, because the

Second Circuit is not properly applying this Court’s

precedents, the Second Circuit is not deciding its

retroactivity cases properly.

13

IV. THE SECOND CIRCUIT FAILED TO FOLLOW

THIS COURT’S HOLDING IN HUGHES AIR-

CRAFT vy. EX. REL. SCHUMER, 520 U.S. 939

(1997), THAT THE ELIMINATION OF A

DEFENSE IN CIVIL PROCEEDINGS HAS AN

IMPERMISSIBLE RETROACTIVE EFFECT

The Court should grant the petition for certiorari

because the Second Circuit's decision is inconsistent

with this Court’s decision in Hughes Aircraft Co. v. U.S.

ex rel. Schumer, 520 U.S. 939 (1997). In Hughes Air-

craft Co., the Court found retroactive effect when a 1986

amendment was applied to a case submitted prior to the

amendment’s adoption, causing a private party to lose a

defense against private suits for submitting a false claim

to the government. Elimination of the defense in ques-

tion technically did not increase the defendant's liabil-

ity exposure because the defense had never been

available in suits brought by government litigators. The

Court stated that “while we acknowledge that the mon-

etary liability faced by [this] defendant is the same

whether the action is brought by the Government or a

qui tam relator, the 1986 amendment eliminates a

defense to a qui tam suit—prior disclosure to the Gov-

ernment—and therefore changes the substance of the

existing cause of action. . . by ‘attaching a new dis-

ability, in respect to transactions or considerations

already past.” Id. at 948 (quoting Landgraf, 511 U.S. at

269) (emphasis added). The new disability is the depri-

vation of a prior defense.

The application of AEDPA § 440(d) or IIRIRA

§ 304(b) to a non-citizen who committed a prior crimi-

nal offense would have a retroactive effect similar to that

in Hughes Aircraft. The elimination of the right to apply

for section 212(c) relief, like the elimination of the prior

government disclosure defense in Hughes Aircraft, does

14

not change the magnitude of the Petitioner's potential

liability. It does, however, increase the likelihood that

this liability, i.e., deportation, will be imposed, and it

does so by eliminating prior available relief.

V. THE SECOND CIRCUIT IGNORED THE

PLAIN LANGUAGE OF AEDPA § 440(d),

WHICH CLEARLY INDICATES THAT IT

DOES NOT APPLY TO PRE-ENACTMENT

CONDUCT

The Court should grant the petition for certiorari

because the Second Circuit has incorrectly interpreted

AEDPA § 440(d). The Domond Court incorrectly stated

without elaboration that it is a conviction that renders an

alien ineligible for 212(c). 244 F.3d at 85-86. This goes

against the plain language of AEDPA § 440(d), which

provides that 212(c) relief is no longer available “to an

alien who is deportable by reason of having com-

mitted any criminal offense covered in_ sections

241(a)(2)(A)(iil), (B), (C), or (D) [of the INA], or any

offense covered by section 241(a)(2)(A)(ii) for which

both predicate offenses are covered by _ section

241(a)(2)(A)(i) [of the INA],” (emphasis added). The

use of the word “committed” indicates that AEDPA

should not be applied retroactively to criminal conduct

prior to AEDPA’s enactment. The use of the word, “com-

mitted,” in AEDPA § 440(d) to determine who is ineli-

gible for 212(c) is at total odds with the Second Circuit's

statement in Domond that a “conviction” determines who

is ineligible for 212(c). Since the plain language of

AEDPA § 440(d) does not apply to pre-enactment con-

duct, AEDPA is not a bar to Mr. Carr’s eligibility for

212(c) relief. Since Mr. Carr’s plea was prior to the

enactment of IIRIRA, ITRIRA should not be applied

retroactively.to Mr. Carr based upon the principles enun-

ciated by this Court in St. Cyr.

15

CONCLUSION

For the foregoing reasons, the petition for certiorarl

should be granted.

Respectfully submitted,

Kerry W. Bretz

Counsel of Record

Jules E. Coven

BRETZ & COVEN, LLP

305 Broadway, Suite 100

New York, NY 10007

(212) 267-2555

Attorneys for Petitioner