# Petition for Writ of Certiorari — Carr v. Ashcroft

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1162

## Text

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§ 1182(c) (1994) (repealed 1996).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repealed INA § 212(c).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

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UN i HS

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0745%3A1. Public record. Not legal advice.