Ponnapula v. Atty Gen USA

Opinion

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Ponnapula v. Atty Gen USA Precedential or Non-Precedential: Precedential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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Recommended Citation "Ponnapula v. Atty Gen USA" (2004). 2004 Decisions. Paper 443. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/443

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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NY 10022 JOSHUA L. DRATEL Immigration and Nationality Act (“INA”), National Association of Criminal 8 U.S.C. § 1182(c) (repealed 1996), Defense Lawyers deportable aliens who had accrued seven Joshua L. Dratel, P.C. years of lawful permanent residence in the 14 Wall Street United States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).

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