GOULD, Circuit Judge.
In 1988, Petitioner, Victor Saravia-Pa-guada, a legal permanent resident (“LPR”), was convicted of several felonies in California, for which he served three years and two months in prison. After his release, Petitioner conceded deportability but requested discretionary relief under former § 212(c) of the Immigration and Naturalization Act (“INA”). While his deportation proceedings were pending, in 1992 Petitioner was again convicted for felony offenses and received a sentence of six years and four months, which reflected in part a three-year recidivist enhancement. Petitioner served three years and three months of this sentence. In 2002, the Board of Immigration Appeals (“BIA”) summarily affirmed the immigration judge’s (“IJ”) pretermitting of relief under former § 212(c) because, by an intervening act of Congress, eligibility for relief was barred for any alien who has been convicted of “one or more aggravated felonies and has served for such felony or felonies” a term of imprisonment of at least five years.
See
§ 306(a)(10) of the Miscellaneous and Technical Immigration and Naturalization Amendments, Pub.L. No. 102-232, 105 Stat. 1733, 1751 (effective Dec. 12, 1991) (“Technical Amendments”) (modifying § 511(a) of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5052 (effective Nov. 29, 1990) (“IM-MACT”)).
Petitioner petitions for review of the BIA’s summary affirmance, claiming that time served pursuant to the recidivist statute should not have been counted for purposes of the IMMACT bar, and, in the alternative, that applying the IMMACT bar to the 1988 sentence had an impermis-sibly retroactive effect on the criminal conduct underlying Petitioner’s convictions. We deny the petition for review.
I
The Petitioner is a Honduran national who has been an LPR in the United States since 1966 and has returned to Honduras only once for a brief stay. Petitioner asserts that he was raised in the United States from an early age and has no appreciable ties to his native country. Petitioner also asserts that his mother, daughter and siblings are either U.S. citizens or LPRs who live in the United States.
On October 19, 1988, a jury in California convicted Petitioner of the following offenses: (1) possession of cocaine for sale in violation of California Health and Safety Code § 11351; (2) possession for sale of methamphetamine in violation of California Health and Safety Code § 11378; (3) conspiracy to sell cocaine and methamphetamine in violation of California Penal Code § 182.1 and California Health and Safety Code §§ 11352 and 11379; and (4) possession of a throwing star in violation of California Penal Code § 12020(c). The superi- or court in Santa Clara County imposed a prison term of five years and eight months, of which Petitioner served three years and two months.
On May 2,1990, the former Immigration and Naturalization Service (“INS”) initiated deportation proceedings under former § 241(a)(ll) of the INA, 8 U.S.C. § 1251(a)(ll), in connection with Petitioner’s conviction for possession of cocaine for sale. Conceding deportability, Petitioner sought discretionary relief under former § 212(c) of the INA, 8 U.S.C. § 1182(e) (1996). While the deportation proceedings were pending, however, Petitioner was
convicted on June 30, 1992, after a guilty plea, for violation of California Health and Safety Code §§ 11378 (possession for sale of methamphetamine) and 11358 (cultivation of marijuana). This time the Santa Clara County superior court imposed a sentence of six years and four months, which in part reflected a three-year sentencing enhancement pursuant to a recidivist statute, California Health and Safety Code § 11370.2, in light of Petitioner’s pri- or convictions. Petitioner served three years and three months.
On February 23, 1996, the IJ pretermit-ted § 212(c) relief because he determined that Petitioner served in aggregate six years and five months for the 1988 and 1992 aggravated felony convictions.
The IJ rested his decision on an intervening amendment to § 212(c) that barred relief for any alien who has been convicted of “one or more aggravated felonies and has served for such felony or felonies” a term of imprisonment of at least five years.
See
§ 306(a)(10) of the Technical Amendments. The IJ recited Petitioner’s convictions and acknowledged that no party disputed that the convictions were accurately characterized as aggravated felonies. The IJ also rejected Petitioner’s interpretation of § 306(a)(10) that time served pursuant to the three-year sentencing enhancement due to his 1992 convictions could not be counted toward the five-year IMMACT bar. Noting that “the enhancement itself
cannot be regarded as a conviction independent of other convictions,” the IJ concluded that it was indisputable that the “enhancement ... imposed on Mr. Saravia in 1992 was part of the sentencing for the conviction ... for the violation of California Health and Safety Code § 11378.” The BIA affirmed the IJ on March 24, 1997, but remanded the case with leave for Petitioner to file a motion to reopen under
Matter of Soriano,
21 I. & N. Dec. 516 (B.I.A.1996).
On May 30, 2002, the IJ determined that
Matter of Soriano
did not apply to Petitioner’s circumstances and ordered him deported under the previous findings from the February 26, 1996 hearing. The BIA affirmed the decision summarily on September 25, 2002. Under § 309(c)(4)(G) of IIRIRA, we then dismissed Petitioner’s initial petition for review for lack of jurisdiction.
After Petitioner was ordered to appear for deportation, he filed a petition for writ of habeas corpus on September 17, 2004 in the Northern District of California, asserting that the IJ erroneously concluded that § 212(c) relief was unavailable. The district court denied the habeas petition because Petitioner had served more than five years for his aggravated felony convictions, which, “under the plain language of the [IMMACT],” barred § 212(c) relief. After Petitioner filed a motion to amend the judgment under Federal Rule of Civil Procedure 59(e), Congress passed the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005), which required the district court to transfer the case to us for consideration of the habeas claims as a petition for review.
See
8 U.S.C. § 1252(a)(2)(D)(5);
Smolniakova v. Gonzales,
422 F.3d 1037, 1044 (9th Cir.2005).
II
Petitioner first argues that the IJ erroneously included time served pursuant to the three-year sentence enhancement under California Health and Safety Code § 11370.2, when concluding that Petitioner had served more than five years for his aggravated felony convictions.
Petitioner claims that our authority in
United States v. Corona-Sanchez,
291 F.3d 1201 (9th Cir.2002), and
Rusz v. Ashcroft,
376 F.3d 1182 (9th Cir.2004), supports his contention.
Petitioner’s reliance on
Corona-Sanchez
and
Rusz
is misplaced. In
Corona-Sanchez,
we rejected the Government’s theory that a conviction for petty theft under California Penal Code §§ 484(a) and 488, which resulted in a two-year sentence under California Penal Code § 666 (a recidivist statute), was an “aggravated felony” for purposes of increasing the penalty for a violation of 8 U.S.C. § 1326(a) (being a deported alien found in the United States).
Corona-Sanchez,
291 F.3d at 1208-09. We reached this decision because
Taylor v. United States,
495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), required a court in the context of federal sentence enhancements to “examine the prior crimes by considering the statutory definition of the crimes categorically, without reference ‘to the particular facts underlying those convictions’ ... [and] without considering separate recidivist sentencing enhancements.”
Corona-Sanchez,
291 F.3d at 1208-09 (quoting
Taylor,
495 U.S. at 600, 110 S.Ct. 2143). We recognized this distinction because “ ‘recidivism does not relate to the commission of the offense.’ ”
Id.
at 1209 (quoting
Apprendi v. New Jersey,
530 U.S. 466, 488, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000)).
In
Rusz,
we likewise declined to characterize a petty theft conviction under California Penal Code §§ 484(a) and 488 as an offense “for which a sentence of one year or longer may be imposed” under 8 U.S.C. § 1227(a)(2)(A)(i)(II), which barred appellate jurisdiction over a final order of removal, where a statutory maximum sentence of six months was enhanced td three years under § 666.
Rusz,
376 F.3d at 1183, 1185. In that case we held that the
Taylor
categorical approach required us to separate the substantive misdemeanor offense from the sentencing enhancement in considering the applicability of INA removal provisions.
Id.
at 1185.
Finally, our recent decision in
United States v. Rodriquez,
464 F.3d 1072 (9th Cir.2006), is congruent with this line of authority and does not assist Petitioner’s position. In
Rodriquez,
we considered for federal sentencing enhancement purposes whether a prior conviction for delivery of a controlled substance, in violation of Washington Revised Code § 9A.20.021(l)(c), which carried a maximum term of five years for the substantive crime, but was enhanced to ten years as a “second or subsequent offense[]” under a recidivism provision, qualified as a “serious drug offense” under the pertinent definition in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924
et seq.,
namely “ ‘an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ...
for which a maximum term of imprisonment of ten years or more is prescribed by law.’
”
Id.
at 1079 (quoting 18 U.S.C. § 924(e)(2)(A)(ii)) (emphasis in original). Following
Corona-Sanchez,
we held that Rodriquez’s prior controlled-substance violation could not be classified as a “serious drug offense,” though he received an enhanced sentence of ten years under the recidivist statute, because “recidivism does not relate to the commission of the offense.”
Id.
at 1082 (internal quotation marks omitted).
Here, unlike in
Corona-Sanchez, Rusz,
and
Rodriquez,
we do not consider whether or not Petitioner committed certain past crimes, such as an “aggravated felony” or a “serious drug offense,” the
nature
of which might give rise to adverse consequences attaching to a present conviction. For this reason, the traditional concern that recidivism should not inform the nature of an offense,
cf. Apprendi,
530 U.S. at 488, 120 S.Ct. 2348, is not at play. It is undisputed that Petitioner’s 1988 and 1992 offenses were properly characterized as “aggravated felonies.” The focus here is
on calculating the
amount
of time served
on account
of the felony convictions, which is an inquiry not related to the nature of the offense under the
Taylor
categorical approach and absent from our analysis in
Corona-Sanchez
and its progeny. The question here is straightforward: whether Petitioner “served for such felony or felonies a term of imprisonment of at least 5 years.”
See
§ 306(a)(10) of the Technical Amendments.
Having rejected the applicability of
Corona-Sanchez, Rusz,
and
Rodriquez
to this context, we recur to the plain meaning of § 306(a)(10) of the Technical Amendments.
See Altamirano v. Gonzales,
427 F.3d 586, 592 (9th Cir.2005) (“The starting point for our interpretation of a statute is always its language.... We begin by looking to the plain meaning of the terms at issue.”) (internal citation and quotation marks omitted). “If a statute is silent regarding an issue, we will defer to the interpretation of the administrative agency charged with implementing the statute.”
United States v. Lopez-Perera,
438 F.3d 932, 933 (9th Cir.2006). However, we are not obligated to accept an interpretation clearly contrary to the plain meaning of the statute.
See Chowdhury v. INS,
249 F.3d 970, 972 (9th Cir.2001).
In interpreting § 306(a)(10), the IJ here found that “the enhancement itself cannot be regarded as a conviction independent of other convictions,” concluding that the “enhancement ... imposed ... was part of the sentencing for the conviction ... for the violation of California Health and Safety Code § 11378.” Petitioner contends that this finding was in error because the prepositional phrase “for such felony or felonies” inserted into the IMMACT provision under § 306(a)(10) qualifies any time served so as to bracket out time served pursuant to an enhancement as distinct from the aspect of the sentence attributable to the substantive offense. This reading is unpersuasive.
Nothing in the language of § 306(a)(10) suggests that an enhanced sentence may not be imposed “for such felony or felonies.” As the IJ reasonably concluded, the enhancement is not separable from the sentence. Rather, the enhancement is, by definition, “an additional term of imprisonment added to the base term,”
see People v. Wims,
10 Cal.4th 293, 41 Cal.Rptr.2d 241, 895 P.2d 77, 83 (1995) (internal quotation marks and citation omitted), which is imposed because of some aggravating circumstance such as recidivism. Because the terms of the statute require a court only to determine the ultimate amount of time served, it is immaterial whether a sentencing enhancement may have increased the base term. Moreover, Petitioner’s interpretation based on a misapplication of
Corona-Sanchez
also creates practical difficulties Congress cannot have intended. Under Petitioner’s approach, an IJ, when calculating the time served, would be forbidden from examining circumstances underlying the substantive offense, including recidivist concerns and any other aggravating factors that informed the sentencing court. A requirement to prorate the “time served” based on any conceivable aggravating factors a sentencing judge might apply would be unworkable because the IJ would be forced to contrive proportionate values for each aggravating factor, then deduct those artificial values from the imposed sentence. We reject such an unwieldy approach that is contrary to § 306(a)(10)’s plain meaning.
In a related theory, Petitioner argues that the congressional act itself of amending the IMMACT under § 306(a)(10) to add the prepositional phrase “for such felony or felonies” exhibited an intent that the time served be calculated without regard
to sentencing enhancements. Petitioner’s argument runs counter to our authority in
Toia v. Fasano,
334 F.3d 917 (9th Cir.2003). In
Toia,
we acknowledged that the intent of § 306(a)(10) was to “clarify that the bar [to § 212(c) relief] applied to multiple aggravated felons whose aggregate terms of imprisonment exceeded five years,”
see id.
at 919 n. 1, rather than basing ineligibility on a prison term of at least five years pursuant to a single conviction.
See De Osorio v. INS,
10 F.3d 1034, 1037 n. 2 (4th Cir.1993) (“The language of this amendment to § 212(c) was further revised in [§ 306(a)(10)] to clarify that the five-year term could be served for multiple convictions.”). Petitioner cites no relevant authority or legislative history that the congressional intent was otherwise.
At most, Petitioner points to a proposed amendment to the INA in the Comprehensive Immigration Reform Act of 2006, which makes explicit that time served under sentencing enhancements may be considered for determining immigration consequences.
According to Petitioner, this unenacted bill reflects the fact that under the current law sentencing enhancements may not be included in calculating time served in determining the availability of § 212(c) relief. Even if § 306(a)(10) were ambiguous, this theory runs afoul the canon of construction that “[w]here ... an act is ambiguous, an amendment thereto is an indication that it is intended to clarify, rather than change, the existing law.”
See Bedoni v. Navajo-Hopi Indian Relocation Comm’n,
878 F.2d 1119, 1121 (9th Cir. 1989) (internal quotation marks and citation omitted).
Under the plain meaning of the IM-MACT provisions, we conclude that an IJ may include time served under a recidivist statute or any other sentencing enhancement when considering eligibility for relief under former § 212(c). In pretermitting relief, the IJ reasonably interpreted this statutory command and properly calculated the time served based on both the sentence attributable to the 1992 substantive offenses and the sentencing enhancement under California Health and Safety Code § 11370.2.
Ill
In his alternative claim, Petitioner argues that the IJ’s application of the IM-MACT bar to his 1988 sentence had an impermissibly retroactive effect by attaching new legal consequences to the criminal conduct underlying the convictions.
The Government claims that Petitioner waived his retroactivity argument under 8 U.S.C. § 1252(d)(1) because it was not raised before the IJ or BIA. Petitioner responds that we have jurisdiction over the
retroactivity claim because due process concerns are implicated. Alternatively, Petitioner argues that it would have been futile to assert such a claim because at the time he sought administrative review, our authority in
Samaniego-Meraz v. INS,
53 F.3d 254 (9th Cir.1995),
overruled by, Toia,
334 F.3d 917, precluded the BIA from Considering the retroactivity claim.
As a general rule, we “may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). However, “due process claims ... are exempt from this administrative exhaustion requirement.”
Garcia-Ramirez v. Gonzales,
423 F.3d 935, 938 (9th Cir.2005) (“Retroactivity challenges to immigration laws implicate legitimate due process considerations that need not be exhausted in administrative proceedings because the Board of Immigration Appeals cannot give relief on such claims.”). The Government’s exhaustion defense is thus foreclosed by
Garcia-Ramirez.
Proceeding to the merits, we are guided by our circuit’s interpretation of the analytical framework for retroactivity established in
Landgraf v. USI Film Products,
511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and as applied in the immigration context in
INS v. St. Cyr,
533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
See generally Armendariz-Montoya v. Sonchik,
291 F.3d 1116 (9th Cir.2002).
Under the test in
Landgraf,
when a statutory provision lacks an effective date, we first ask whether Congress has prescribed its temporal reach.
See
511 U.S. at 280, 114 S.Ct. 1483.
“If there is no congressional directive on the temporal reach of a statute, we determine whether the application of the statute to the conduct at issue would result in a retroactive effect.”
Martin v. Hadix,
527 U.S. 343, 352, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (internal quotation marks omitted). Absent an unmistakable congressional directive, we may determine that a statute is impermissibly retroactive if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.”
Landgraf,
511 U.S. at 269, 114 S.Ct. 1483 (internal quotation marks and citation omitted).
In the immigration context, the Supreme Court in
Si Cyr
concluded that “IIRIRA’s elimination of any possibility of § 212(c) relief for people who entered into plea agreements with the expectation that they would be eligible for such relief clearly ‘attaches a new disability, in respect to transactions or considerations already past.’” 533 U.S. at 321, 121 S.Ct. 2271 (quoting
Landgraf,
511 U.S. at 269, 114 S.Ct. 1483). Central to the
St. Cyr
analysis was the nature of the plea agreement and a petitioner’s reliance on the pre-IR-RIRA availability of § 212(c) relief:
Plea agreements involve a
quid pro quo
between a criminal defendant and the government.... In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial
resources.... There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions. ... [Preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.
Id.
at 321-23, 121 S.Ct. 2271 (internal quotation marks, citations, and footnotes omitted).
In our circuit, we have generally limited
St. Cyr
to the factual context of a guilty plea. In
Toia,
we considered a challenge by an LPR to the retroactive application of the bar to § 212(c) relief under § 511(a) of the IMMACT after the petitioner was convicted of a drug-related aggravated felony on a guilty plea in 1989 and sentenced to ten years imprisonment. 334 F.3d at 918. In that case we held that
St. Cyr
compelled making § 212(c) relief available to the alien despite the pre-IMMACT convictions because his guilty plea evinced the alien’s reliance on relief under the then-existing law.
Id.
at 921 (“Extinguishing the availability of § 212(c) relief for aliens who pleaded guilty ... upsets ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ”) (quoting
St. Cyr,
533 U.S. at 323, 121 S.Ct. 2271).
Outside of the plea bargain context, however, we have declined to invalidate retroactive elimination of § 212(e) relief. In
Armendariz-Montoya,
we held that there was no impermissibly retroactive effect in applying § 440(d) of AEDPA to a petitioner who was convicted pre-AEDPA after a jury trial for a drug-related aggravated felony, but was still in deportation proceedings when AEDPA was enacted.
See
291 F.3d at 1121-22. In that case, we reasoned that aliens who chose to go to trial “cannot plausibly claim that they would have acted any differently if they had known” about the elimination of § 212(c) relief.
Id.
at 1121. In concluding that such a claimed reliance interest is
per se
unreasonable, we reaffirmed a narrow reading of
St. Cyr
and excluded categorically claims for § 212(c) relief outside the guilty plea context.
Id.
at 1122 (“Ar-mendariz pleaded not guilty and elected a jury trial. Therefore, application of § 440(d) does not result in any retroactive effect.”).
The Government contends that
Land-graf
s second prong, as applied under
St. Cyr
and
Toia,
can be distinguished from the case here, and that the authority in
Armendariz-Montoya
forecloses Petitioner’s theory, because Petitioner did not participate in the
quid pro quo
of the plea bargain and thus cannot have reasonably relied on the availability of discretionary § 212(c) relief prior to the jury trial conviction in 1988. Disregarding the significance of a guilty plea, Petitioner replies that the IMMACT provisions have an impermissible retroactive effect because, as applied to the 1988 convictions, the statutory change subjects him to new legal consequences in regard to his past conduct, i.e. the commission of the underlying criminal acts that gave rise to his 1988 convictions. Petitioner also replies that
Armendariz-Montoya
is not controlling because that case pertained to the retroactive application of § 440(d) of AEDPA, where the alien was convicted pre-AEDPA and requested § 212(c) relief after the effective date of AEDPA. As such, Petitioner argues that
Armendariz-Montoya
did not address the theory that the bar under IMMACT cannot be retroactively applied to the 1988 convictions and the underlying criminal conduct. We agree with the Government.
First, Petitioner’s attempt to distinguish
Armendariz-Montoya
based on its varying procedural posture from the ease here is unavailing. There is no meaningful difference between Petitioner’s and Armen-dariz’s circumstances. Petitioner was convicted in 1988. On May 2, 1990, he was placed in deportation proceedings and requested § 212(c) relief. However, due to Petitioner’s 1992 convictions, his claim for § 212(c) relief could not be adjudicated until February 26, 1996, after the IM-MACT effective date, at which time his 1992 sentence pushed Petitioner over the five-year limit. Armendariz was convicted of a felony offense in September 1995, was ordered to show cause on April 5, 1996 why he should not be deported, and in April 1997 requested § 212(c) relief after the effective date of AEDPA.
Armendariz-Montoya,
291 F.3d at 1118. In both cases, eligibility for § 212(c) relief was withdrawn based on a statute retroactively applied after the aliens had committed acts that resulted first in criminal convictions and then in concessions of deportability from which both sought previously available forms of § 212(c) relief. The fact that different statutes were imposed to bar eligibility is inconsequential for retroactivity analysis so as to distinguish
Armendariz-Montoya.
Petitioner’s main contention that we must consider as past relevant conduct the commission of the underlying crime, irrespective of any specific reliance on the pre-IMMACT law, is squarely foreclosed by
Armendariz-Montoya.
Although
Armendariz-Montoya
did not expressly designate the past relevant conduct, it can be readily inferred from the decision that the past relevant conduct is an alien’s decision whether to enter a guilty plea or to proceed to trial, and not the commission of the underlying criminal conduct.
See
291 F.3d at 1121 (“If those aliens had been aware of § 440(d) at the time of plea,
they might have elected
to proceed to trial in lieu of pleading guilty.”) (emphasis added);
see also Ponnapula v. Ashcroft,
373 F.3d 480, 494 (3d Cir.2004) (“This focus [on the decision] is logical because the reliance interest of an alien who accepts a plea agreement arises at the time the choice is made to accept the agreement. Generally speaking, reliance interests (in the legal sense) arise because some choice is made evincing reliance.”) (citing
Restatement (Second) of Contracts
§ 90 (1981) (requiring “action or forbearance” to invoke promissory estoppel)).
Here, Petitioner makes only the unremarkable assertion that “pre-IMMACT alien defendants might either accept a plea or decide to go to trial” where, under the prior law, any sentence the alien received
would not be a factor for purposes of determining the availability of § 212(c) relief.
Armendariz-Montoya
negated the premise that new legal consequences arising from a change in statutory regime alone was sufficient to invalidate the retroactive application of the IMMACT provision.
See
291 F.3d at 1121 (holding that retroactive application of the bar to discretionary relief under § 440(d) of AEDPA for any aggravated felony regardless of time served was permissible
despite
§ 440(d)’s displacement of IMMACT’s five-year rule);
see also Garcia-Ramirez,
423 F.3d at 953-54 (rejecting theory that mere change in “statutory structure” could produce an impermissible retroactive effect) (Gould, J., concurring). Under the logic of
Armendariz-Montoya,
Petitioner’s claimed reliance interest is
per se
unreasonable because of the “ ‘absurd’ ” argument that aliens “ ‘might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that ... they could not ask for a discretionary waiver of deportation.’”
See Armendariz-Montoya,
291 F.3d at 1121 (quoting
LaGuerre,
164 F.3d at 1041).
Equally unpersuasive is Petitioner’s claim that the Government’s emphasis on
Armendariz-Montoya
is inapposite because that case is at odds with
Landgraf,
511 U.S. 244, 114 S.Ct. 1483, and its progeny. In addition to
Landgraf,
Petitioner relies on
Hughes Aircraft Co. v. United States ex rel. Schumer,
520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997), for the proposition that a court should only examine whether a retroactive application of the new law alters the legal consequences of past relevant conduct, without scrutinizing a particular group’s reliance on the former law. It is beyond dispute that these cases did not emphasize a reasonable reliance interest.
However, a reliance interest is not inconsistent with this Supreme Court authority.
See Landgraf,
511 U.S. at 270, 114 S.Ct. (“The conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law
and the degree of connection between the operation of the new rule and a relevant past event.”)
(emphasis added). Petitioner overlooks, moreover, that the central focus of
Hadix
and
St. Cyr,
both of which post-date
Landgraf
and
Hughes Aircraft,
was the party’s reliance interest. In
Hadix,
the Supreme Court held that an amendment that affected the hourly fee recoverable by attorneys engaged in post-judgment monitoring in prison reform suits was impermissibly retroactive where it reduced their hourly rate for work performed before the effective date of the
amendment,
see
527 U.S. at 347, 360-61, 119 S.Ct. 1998; conversely, however, the
Hadix
court rejected any impermissible effect for work performed after the effective date of the amendment where attorneys claimed only that they could not ethically withdraw from the ease.
Id.
at 361, 119 S.Ct. 1998. In acknowledging a reasonable reliance standard, the
Hadix
court reasoned: “To impose ... new standards now, for work performed before the [amendments] became effective, would upset the reasonable expectations of the parties”; whereas “[a]fter [the effective date], any expectation of compensation at the [preamendment] rates was unreasonable.”
Id.
at 360, 119 S.Ct. 1998. The Supreme Court in
St. Cyr
similarly highlighted a reliance interest in an alien’s
quid pro quo
expectations at the plea bargain. 533 U.S. at 323, 121 S.Ct. 2271. In light of this authority, we reject Petitioner’s position that our emphasis on an alien’s reasonable reliance on a prior law is inconsistent with Supreme Court precedent.
In a final effort to avoid the forbe of
Armendariz-Montoya,
Petitioner argues that the Supreme Court’s decision in
Fernandez-Vargas v. Gonzales,
— U.S. -, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006), overruled our controlling authority. In
Fernandez-Vargas,
the Supreme Court addressed the reinstatement provisions for removal orders under § 241(a)(1) of IIRI-RA, which displaced a previous statutory exemption of certain classes of illegal reen-trants and authorized the removal of any alien under a previous deportation order entered after the time of illegal reentry. 126 S.Ct. at 2426. The Supreme Court concluded that Fernandez-Vargas, who had illegally reentered the United States in 1982 well before the advent of § 241(a)(1), suffered no retroactive effect of the sterner reinstatement provisions because unlike the past, completed conduct of the
quid pro quo
plea deal in
St. Cyr,
“the alien’s choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, [is the conduct] that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out.”
Id.
at 2432. Rejecting Fernandez-Vargas’s claims that he would have had recourse to certain forms of discretionary relief but for application of § 241(a)(1), the Supreme Court stated:
These putative claims to relief are not “vested rights,” a term that describes something more substantial than inchoate expectations and unrealized opportunities .... Fernandez-Vargas’s claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary, ... it is rather that before IIR-IRA’s effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular, as St. Cyr did in making his quid pro quo agreement.
Id.
at 2432 n. 10 (internal citations and quotation marks omitted). Contrary to Petitioner’s contention, the
Fernandez-Vargas
decision thus reinforces the central premise in
Armendariz-Montoya
that an alien must demonstrate some affirmative reliance on a previously available immigration benefit to show impermissible retroac-tivity.
Under
Armendariz-Montoya,
an alien’s
decision
to enter a guilty plea or proceed to trial is the past relevant conduct for purposes of
Landgraf
analysis, not the commission of the underlying crime. We hold that application of the IMMACT provisions to time served for criminal sentences that stemmed from jury convictions pre-dating both §§ 511(a) of the IMMACT and 306(a)(10) of the Technical Amendments creates no impermissibly
retroactive effect. The IJ, therefore, did not erroneously include the three years and two months served for the 1988 convictions in concluding that § 212(c) relief was barred because of IMMACT’s rule that aliens who served five years or more for one or more aggravated felony convictions may not gain discretionary waiver of relief from deportation.
PETITION DENIED.