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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
DEAN ALPHONSO CHAMBERS,
Petitioner-Appellant,
v.
JANET RENO, Attorney General of
the United States; DORIS MEISSNER,
Commissioner, Immigration and
Naturalization Service; RICHARD
CATERISANO, Acting District
Director, Immigration and
Naturalization Service; U.S.
IMMIGRATION & NATURALIZATION
SERVICE; UNITED STATES
DEPARTMENT OF JUSTICE,
Respondents-Appellees.No. 00-6364
DEBORAH ANKER; LENNI B. BENSON;
CAROLYN PATTY BLUM; RICHARD
BOSWELL; ERWIN CHERMERINSKY;
MICHAEL J. CHURGIN; SARAH H.
CLEVELAND; DAVID COLE; MICHAEL
G. HEYMAN; KEVIN R. JOHNSON;
DANIEL KANSTROOM; STEVEN H.
LEGOMSKY; M. ISABEL MEDINA;
GERALD L. NEUMAN; JOHN SCANLAN;
PETER H. SCHUCK; ANDREW
SILVERMAN; IRWIN P. STOTZKY;
MICHAEL J. WISHNIE; LARRY W.
YACKLE,
Amici Curiae.
------------------------------------------------*
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-99-3412-DKC)
Argued: June 3, 2002
Decided: October 15, 2002
Before WIDENER and TRAXLER, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.
____________________________________________________________
Affirmed by published opinion. Judge Traxler wrote the majority
opinion, in which Judge Widener joined. Judge Goodwin wrote a dis-
senting opinion.
____________________________________________________________
COUNSEL
ARGUED: Christopher J. Meade, WILMER, CUTLER & PICKER-
ING, New York, New York, for Appellant. Papu Sandhu, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF:
Paul A. Engelmayer, Katherine R. Goldstein, WILMER, CUTLER &
PICKERING, New York, New York; Shanta Ramson, RAMSON &
ASSOCIATES, L.L.C., Burtonsville, Maryland; Lee Gelernt, Lucas
Guttentag, Immigrants' Rights Project, AMERICAN CIVIL LIBER-
TIES UNION FOUNDATION, New York, New York, for Appellant.
David W. Ogden, Acting Assistant Attorney General, Emily Anne
Radford, Assistant Director, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellees. Lenni B. Benson, NEW YORK LAW
SCHOOL, New York, New York, for Amici Curiae.
____________________________________________________________
OPINION
TRAXLER, Circuit Judge:
We are asked to decide whether IIRIRA's1 repeal of discretionary
____________________________________________________________
1 IIRIRA is the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546.
2
relief for aggravated felons who have been ordered to be deported can
be applied to appellant Dean Chambers, who was convicted at trial of
an aggravated felony prior to the enactment of IIRIRA. We hold that
IIRIRA's repeal of discretionary relief may be applied to Chambers.
Accordingly, we affirm the decision of the district court.
I.
Chambers, a native and citizen of Jamaica, entered and began
residing in the United States in 1978, when he was two years old. In
1994, at the age of 17, Chambers was convicted of robbery with a
deadly weapon after a trial in the Circuit Court for Prince George's
County, Maryland. He received a prison sentence of four years, all but
18 months of which was suspended.
Under the Immigration and Nationality Act (INA), an "alien who
is convicted of an aggravated felony at any time after admission is
deportable." 8 U.S.C. § 1227(a)(2)(A)(iii) (2000). At the time of
Chambers' conviction and sentencing, however, his crime did not
qualify as an "aggravated felony" within the meaning of the INA and
therefore did not render Chambers deportable. Under the pre-IIRIRA
version of the INA in effect at the time of Chambers' trial, a "crime
of violence" such as robbery with a deadly weapon did not constitute
an "aggravated felony" unless it resulted in a prison term of at least
five years. 8 U.S.C. § 1101(a)(43)(F) (1994). IIRIRA amended the
INA so that a "crime of violence" qualifies as an "aggravated felony"
if "the term of imprisonment [is] at least one year." 8 U.S.C.
§ 1101(a)(43)(F) (2000); see also INS v. St. Cyr, 533 U.S. 289, 295-
96 n.4 (2001) (explaining that "aggravated felony" is a "term [that]
includes any `crime of violence' resulting in a prison sentence of at
least one year (as opposed to five years pre-IIRIRA)").
On April 22, 1997, after IIRIRA took effect, the INS began
removal proceedings against Chambers on the grounds that his con-
viction qualified as an aggravated felony because it was a crime of
violence under 8 U.S.C. § 1101(a)(43)(F) for which he had received
a sentence of at least one year. Chambers contended that he was not
deportable. The immigration judge, however, concluded that Cham-
bers' conviction constituted an aggravated felony and ordered him to
be removed from the United States under INA § 237(a)(2)(A)(iii). See
3
8 U.S.C. § 1227(a)(2)(A)(iii). The immigration judge also determined
that Chambers could not apply for a discretionary waiver of deporta-
tion under INA § 212(c), a form of relief that was repealed by IIRIRA
§ 304(b).2 Under pre-IIRIRA law at the time of Chambers' convic-
tion, he would have been eligible to apply for a discretionary waiver
of deportation by the Attorney General under former INA § 212(c)
because he received a prison sentence of less than five years. See 8
U.S.C. § 1182(c) (1994). IIRIRA, however, repealed INA § 212(c).
See IIRIRA § 304(b), 110 Stat. 3009-597.3 Thus, discretionary relief
under INA § 212(c) was available at the time of Chambers' trial, con-
viction, and sentencing, but not at the time that his removal proce-
dures began. The immigration judge applied the repeal of INA
§ 212(c) to Chambers' case and concluded that his application for
relief under that section was "pretermitted." J.A. 22. The Board of
Immigration Appeals affirmed the decision of the immigration judge
that Chambers was removable and not eligible for any form of relief
from removal.
Chambers then sought to challenge the Board's ruling by filing an
application for habeas relief under 28 U.S.C.A. § 2241 (West 1994).
Chambers contended that the BIA's application of IIRIRA's repeal of
INA § 212(c) produced an impermissible retroactive effect. Thus,
Chambers contended that he was still eligible for discretionary relief
under the version of INA § 212(c) that was in effect at the time of his
conviction. Quoting Tasios v. Reno, 204 F.3d 544, 552 (4th Cir.
2000), the district court rejected Chambers' argument and held that
the application of the repeal of INA § 212(c) would not "upset `rea-
sonable, settled expectations and change the legal effect of prior con-
duct.'" J.A. 48.
____________________________________________________________
2 The immigration judge also concluded that Chambers was not eligible
for "cancellation of removal," a new form of relief under IIRIRA. 8
U.S.C. § 1229b(a) (2000). This particular form of relief is not an issue
in this appeal.
3 Under the current version of the INA, the Attorney General has the
authority to cancel removal for certain inadmissible or deportable aliens,
but not for aliens "convicted of any aggravated felony." 8 U.S.C.
1229b(a)(3); see also INS v. St. Cyr, 533 U.S. 289, 297 (2001).
4
Chambers then brought this appeal, which we held in abeyance for
the Supreme Court's decision in St. Cyr. The Supreme Court has
issued its decision in St. Cyr and provided guidance on the retroactive
application of IIRIRA § 304(b). Having received supplemental briefs
from the parties on the impact of St. Cyr on this appeal, we now
address Chambers' contention that IIRIRA § 304(b) cannot be applied
in his case.4 In St. Cyr, the Supreme Court held that discretionary
relief under INA § 212(c) "remains available for aliens . . . whose
convictions were obtained through plea agreements and who . . .
would have been eligible for § 212(c) relief at the time of their plea
under the law then in effect." 533 U.S. at 326. We are presented with
the very narrow question of whether the fact that Chambers was con-
victed at trial rather than by guilty plea pursuant to a plea agreement
changes the result dictated by St. Cyr. We conclude that, in Cham-
bers' case, it does.
II.
In St. Cyr, the Supreme Court affirmed its two-part analytical pro-
cess for considering potentially retroactive statutes. First, a court must
decide "whether Congress has directed with the requisite clarity that
the law be applied retrospectively." Id. at 316; see also Landgraf v.
USI Film Prods., 511 U.S. 244, 280 (1994) ("When a case implicates
a federal statute enacted after the events in suit, the court's first task
is to determine whether Congress has expressly prescribed the stat-
ute's proper reach."). We may not apply a statute retroactively "absent
a clear indication from Congress that it intended such a result." St.
Cyr, 533 U.S. at 316. "Requiring clear intent assures that Congress
itself has affirmatively considered the potential unfairness of retroac-
tive application and determined that it is an acceptable price to pay
____________________________________________________________
4 St. Cyr also definitively answered (in the negative) the question of
whether Congress repealed habeas jurisdiction under § 2241 in cases
such as this one. See 533 U.S. at 314. In view of that portion of the St.
Cyr decision, the government abandoned its challenge to the district
court's assumption of habeas jurisdiction under § 2241. We note, how-
ever, that the district court correctly rejected the government's jurisdic-
tional challenge based on contrary circuit precedent. See Tasios v. Reno,
204 F.3d 544, 547 (4th Cir. 2000); Bowrin v. INS, 194 F.3d 483, 486-89
(4th Cir. 1999) (per curiam).
5
for the countervailing benefits." Landgraf, 511 U.S. at 272-73. If
Congress has expressly commanded that the statute must, or must not,
be applied retrospectively, "our inquiry is concluded." Tasios, 204
F.3d at 548. However, when Congress has not spoken with the requi-
site clarity, the next step in the retroactivity analysis is to determine
whether the application of the statute "produces an impermissible
retroactive effect." St. Cyr, 533 U.S. at 320. "If so, then in keeping
with our traditional presumption against retroactivity, we presume
that the statute does not apply to [the conduct at issue]." Martin v.
Hadix, 527 U.S. 343, 352 (1999) (internal quotation marks omitted).
A.
St. Cyr established that Congress did not provide a sufficiently
clear command with respect to the temporal reach of the repeal of
INA § 212(c) by IIRIRA § 304(b). See St. Cyr, 533 U.S. at 320
(rejecting "the conclusion that, in enacting § 304(b), Congress itself
has affirmatively considered the potential unfairness of retroactive
application and determined that it is an acceptable price to pay for the
countervailing benefits" (internal quotation marks omitted)). Lacking
such express instructions from Congress, we move directly to the
question of whether applying the repeal of INA § 212(c) to Chambers
produces an impermissible retroactive effect.
B.
A new statute does not produce a retroactive effect "merely
because it is applied in a case arising from conduct antedating the
statute's enactment." Landgraf, 511 U.S. at 269. The question instead
is "whether the new provision attaches new legal consequences to
events completed before its enactment." Id. at 270. A statute would
attach new legal consequences to prior events if its application
"would impair rights a party possessed when he acted, increase a
party's liability for past conduct, or impose new duties with respect
to transactions already completed." Id. at 280. The question of
whether a new statute attaches new legal consequences to prior con-
duct "demands a commonsense, functional judgment" that "should be
informed and guided by familiar considerations of fair notice, reason-
able reliance, and settled expectations." Martin, 527 U.S. at 357-58
(internal quotation marks omitted).
6
In St. Cyr, the Court considered whether IIRIRA's repeal of discre-
tionary relief under INA § 212(c) would have a retroactive effect if
applied to an alien who was "convicted pursuant to a plea agreement
at a time when [his] plea would not have rendered [him] ineligible for
§ 212(c) relief." St. Cyr, 533 U.S. at 320. The Court concluded that
applying the repeal to aliens "who entered into plea agreements with
the expectation that they would be eligible for[§ 212(c)] relief"
would "attach[ ] new legal consequences to events completed before
its enactment" and produce a retroactive effect. Id. at 321 (emphasis
added) (internal quotation marks omitted).
In reaching this conclusion, the Court focused on an alien's reason-
able reliance on the possibility of discretionary relief under INA
§ 212(c) as one of the most important factors prompting him to forego
trial and enter a plea agreement. "Given the frequency with which
§ 212(c) relief was granted in the years leading up to . . . IIRIRA,"
the Court reasoned that "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 323. Indeed, "[t]here 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 convic-
tions." Id. at 322. The Court held that"[b]ecause [St. Cyr], and other
aliens like him, almost certainly relied upon [the] likelihood [of
receiving discretionary relief] in deciding whether to forgo their right
to a trial, the elimination of any possibility of § 212(c) relief by
IIRIRA has an obvious and severe retroactive effect." Id. at 325.
1.
Chambers suggests that under the reasoning of St. Cyr, he pos-
sesses similar reliance interests that would cause the application of
IIRIRA § 304(b) in his case to operate retroactively. An alien in
Chambers' position, however, does not have a reliance interest com-
parable to that which was at the heart of St. Cyr. The alien in St. Cyr
made his decisions in the context of the quid pro quo relationship
established by a plea agreement where, "[i]n exchange for some per-
ceived benefit, defendants waive several of their constitutional rights
(including the right to a trial) and grant the government numerous tan-
gible benefits, such as promptly imposed punishment without the
7
expenditure of prosecutorial resources." Id. at 322 (internal quotation
marks omitted). The "perceived benefit" of the plea agreement was
the very real possibility of § 212(c) relief: "Relying upon settled prac-
tice, the advice of counsel, and perhaps even assurances in open court
that the entry of the plea would not foreclose § 212(c) relief, a great
number of defendants in . . . St. Cyr's position agreed to plead guilty."
Id. at 323. The Court concluded that the application of IIRIRA
§ 304(b) to St. Cyr "would surely be contrary to familiar consider-
ations of fair notice, reasonable reliance, and settled expectations"
because the new statute would deprive St. Cyr of the benefit he
sought in exchange for pleading guilty while the government still
enjoyed "the benefit of the[ ] plea agreement[ ], [an] agreement[ ] that
[was] likely facilitated by the alien['s] belief in [his] continued eligi-
bility for § 212(c) relief." Id. (internal quotation marks omitted).
Thus, in order to obtain the benefit of continued eligibility for relief
under INA § 212(c), St. Cyr entered a guilty plea pursuant to the
terms of a plea agreement - a decision that resulted in an immediate
and detrimental change of position with respect to his immigration
status. The key event in terms of St. Cyr 's analysis of whether the
new statute would produce a retroactive effect was the alien's deci-
sion to abandon his constitutional right to a trial and plead guilty to
a deportable offense in reliance on prior law. See St. Cyr, 533 U.S.
at 325. In reliance on the continued availability of INA § 212(c), St.
Cyr pled guilty - a decision that immediately changed his status
from non-deportable to deportable. See Velasquez-Gabriel v. Crocetti,
263 F.3d 102, 109 (4th Cir. 2001) ("In contrast to the aliens in St. Cyr
and Tasios, Velasquez-Gabriel posits no way in which his marriage
in "reliance" on preexisting law weakened his immigration status
under the new law or hurt his chances of remaining in this country.").
In light of our reading of St. Cyr, Chambers' argument that an
immigrant may go to trial in reliance on the availability of § 212(c)
relief is flawed for at least two reasons. First, it is not likely that aliens
who go to trial to challenge the underlying crime do so primarily
because they hope to obtain discretionary relief. The reliance interest
in pleading guilty arises because of the quid pro quo exchange that
characterizes a plea agreement but not trial. St. Cyr recognized that
the reason an alien would agree to plead guilty and thereby acquire
"deportable" status is the expectation that, by conferring a benefit on
8
the government, he would receive a benefit in return - a reduced
sentence that would ensure continued eligibility for discretionary
relief. See id. at 323-24. By contrast, an alien who goes to trial does
not act to preserve eligibility under INA § 212(c). In fact, by rolling
the dice and going to trial, Chambers actually ensured that his eligibil-
ity for discretionary relief would remain uncertain. Charged with an
offense carrying a maximum prison sentence of 20 years, Chambers
was offered a plea agreement whereby he would receive a sentence
of four years,5 which at the time would have kept him eligible for dis-
cretionary relief. See 8 U.S.C. § 1182(c) (1994). By going to trial,
Chambers rejected the certainty of eligibility by risking a sentence of
more than five years in the event he was unable to successfully defend
against the underlying charge. The fact that Chambers ended up with
a shorter prison term than that offered by the government - one that
was safely below the five-year eligibility threshold for § 212(c) relief
at the time of sentencing - does not change the fact that Chambers
proceeded to trial fully aware of the risk that he would be convicted
and sentenced to a prison term that would disqualify him under INA
§ 212(c).
Second, in contrast to aliens who plead guilty, Chambers made no
decision that adversely impacted his immigration status. See
Velasquez-Gabriel, 263 F.3d at 109. An alien cannot (and could not
at the time of Chambers' trial) be deported for an aggravated felony
without first being convicted of a crime that qualifies as a deportable
offense. Thus, an alien who enters a guilty plea to a qualifying crime
acquires "deportable alien" status, thereby weakening his immigration
status and taking a substantial step towards actual deportation. The
decision to go to trial, however, does not render an alien deportable
or subject him to certain deportation. Really, the opposite is true -
aliens who go to trial act to preserve, not weaken, their immigration
status by challenging the underlying crime.
We also reject Chambers' suggestion that he detrimentally relied
on prior law because his offense was not even deportable at the time
of his conviction and therefore he "wrongly believ[ed] there [was] no
immigration benefit to negotiating to a plea." Supp. Brief of Appel-
____________________________________________________________
5 These facts are drawn from the representations of the parties at oral
argument.
9
lant at 6. IIRIRA § 321(a)(3) expanded the definition of "aggravated
felony" to include "crimes of violence" resulting in a prison term of
at least one year. See 8 U.S.C. § 1101(a)(43)(F) (2000). At the time
of Chambers' trial, a "crime of violence" did not qualify as an "aggra-
vated felony" - for which an alien could be deported - unless the
resulting term of imprisonment was at least five years. Chambers con-
tends the state of the law with respect to potential immigration conse-
quences gave him no incentive to negotiate a plea agreement; hence,
he unwittingly "focus[ed] on the criminal justice aspects of whether
to go to trial or negotiate a plea." Supp. Brief of Appellants at 7.
Again, Chambers makes an argument that is misguided on at least two
counts. First, Chambers' decision not to plead guilty did have immi-
gration implications even then. Although Chambers' conviction did
not render him deportable at the time of his sentencing, Chambers
was, at the time he made the decision to go to trial, charged with a
violent offense carrying a maximum sentence that far exceeded the
five-year threshold necessary for an offense to qualify as an "aggra-
vated felony." That is, at the time of trial, Chambers was facing a
charge that could potentially render him deportable. Chambers went
to trial in the face of this risk, gambling that, if convicted, he would
not receive such a high sentence that he would be rendered deport-
able. That Chambers ultimately received a sentence that did not ren-
der him deportable at the time is inconsequential, as far as goes the
calculus Chambers used in determining whether to risk trial or not.
Accordingly, it is simply not true that Chambers had no immigration
incentive to negotiate a plea on the underlying charge. Second, this
argument is essentially an indirect attack upon the retroactive applica-
tion of the new, more expansive definition of "aggravated felony" as
amended by IIRIRA § 321(a)(3). Chambers, of course, does not
directly contend that IIRIRA § 321 cannot be retroactively applied to
him because Congress has unambiguously instructed that the
amended definition of "aggravated felony" applies to qualifying con-
victions entered before, on or after IIRIRA's enactment. See IIRIRA
§ 321(b), 110 Stat. 3009-628; St. Cyr, 533 U.S. at 318-19. In short,
the fact that Chambers' conviction was not a deportable offense at the
time of his sentencing, but later became so after IIRIRA was enacted,
does not cause IIRIRA's repeal of discretionary relief to operate retro-
actively with respect to Chambers.6
____________________________________________________________
6 We note that the result reached by our decision is in accord with that
reached by other circuit courts of appeal considering virtually the same
issue. See Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121 (9th
Cir. 2002); Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001).
10
2.
Chambers contends that detrimental reliance is not a sine qua non
for retroactive operation of a new statute. Despite the central role
played by the element of reliance in St. Cyr, Chambers urges us to
apply an analytical formula that does not include reliance as a consid-
eration. Specifically, Chambers relies on Hughes Aircraft Co. v.
United States ex rel. Schumer, 520 U.S. 939 (1997), as support for the
proposition that he need not demonstrate reliance upon prior law for
the new statute to operate retroactively.
As a general matter, we agree that the Supreme Court has not lim-
ited its examination of a statute's retroactive effect to one single, rigid
test. In recent years, the Court has reiterated its adherence to Justice
Story's "influential definition" of a retroactive statute as one "which
takes away or impairs vested rights acquired under existing laws, or
creates a new obligation, imposes a new duty, or attaches a new dis-
ability, in respect to transactions or considerations already past."
Landgraf, 511 U.S. at 268-69 (internal quotation marks omitted); see
St. Cyr, 533 U.S. at 321; Hughes Aircraft, 520 U.S. at 947. However,
these decisions have also reminded us that Justice Story's definition
"`does not purport to define the outer limit of impermissible retroac-
tivity'" and merely "describes several ` sufficient,' as opposed to `nec-
essary,' conditions for finding retroactivity." St. Cyr, 533 U.S. at 321
n.46 (quoting Hughes Aircraft, 520 U.S. at 947). Rather, "the Court
has used various formulations to describe the functional conception
of legislative retroactivity." Hughes Aircraft, 520 U.S. at 947 (internal
alteration and quotation marks omitted); see Landgraf, 511 U.S. at
269. Of course, as the Supreme Court has "repeatedly counseled, the
judgment whether a particular statute acts retroactively should be
informed and guided by familiar considerations of fair notice, reason-
able reliance, and settled expectations." St. Cyr, 533 U.S. at 321
(internal quotation marks omitted).
In view of these observations by the Court about retroactivity, we
have acknowledged that an alien's failure to demonstrate reliance on
pre-IIRIRA law might not foreclose a claim that the post-IIRIRA ver-
sion of the INA operates retroactively. See Velasquez-Gabriel, 263
F.3d at 109 (citing Hughes Aircraft for the proposition that the appli-
cation of newly enacted INA § 241(a)(5) might operate retroactively
11
even though the alien was unable to demonstrate any reliance upon
the prior version of the INA). Even if that is so, Hughes Aircraft,
upon which Chambers relies, does not aid him. In Hughes Aircraft,
the Court applied Justice Story's definition and, without discussing
reliance, held that an amendment to the False Claims Act operated
retroactively because it eliminated a defense to a qui tam action based
on pre-amendment conduct. See 520 U.S. at 951-52. IIRIRA's repeal
of the discretionary relief provision, however, unlike the amendment
at issue in Hughes Aircraft, does not "take[ ] away or impair[ ] vested
rights acquired under existing laws, or create[ ] a new obligation,
impose[ ] a new duty, or attach[ ] a new disability," id. at 947 (inter-
nal quotation marks omitted), with respect to the relevant past con-
duct, i.e., Chambers' decision to go to trial. Nor, as Chambers
suggests, does the repeal "attach[ ] new legal consequences to events
completed before [IIRIRA's] enactment," Martin, 527 U.S. at 357-58
(internal quotation marks omitted), or give "a quality or effect to acts
or conduct which they did not have or did not contemplate when they
were performed," Union Pac. R.R. Co. v. Laramie Stock Yards Co.,
231 U.S. 190, 199 (1913), because IIRIRA did not change the impact
of Chambers' decision to go to trial on his immigration status. As we
have already noted, Chambers' decision to go to trial did not render
him deportable or subject him to certain deportation, regardless of
whether pre- or post-IIRIRA law is applied.
III.
The application of IIRIRA § 304(b), which repealed discretionary
relief from deportation formerly available under INA § 212(c), is not
impermissibly retroactive as to Chambers. Accordingly, we affirm the
decision of the district court.
AFFIRMED
GOODWIN, District Judge, dissenting:
The majority concludes that IIRIRA's repeal of discretionary relief
under § 212(c) does not attach a new disability to Chambers's past
conduct. This is because the majority considers Chambers's decision
to go to trial to be the "relevant past conduct," ante at 12, for the pur-
pose of determining a retroactive effect. I part company with the
12
majority simply because I find the relevant conduct to be Chambers's
crime of conviction rather than his decision to go to trial. My logic
is simple. Whether before or after amendment, the only statutory con-
sequences were those flowing from Chambers's criminal conduct.
Without IIRIRA § 304(b)'s repeal of § 212(c) waivers, an alien who
committed armed robbery faced imprisonment and possible deporta-
tion. With IIRIRA § 304(b), an alien committing armed robbery faces
imprisonment and certain deportation.1 To my mind, this change
impermissibly "attaches new legal consequences to events completed
before" the enactment of IIRIRA, and therefore has a retroactive
effect. Landgraf v. USI Film Prods., 511 U.S. 244, 270 (1994).
Accordingly, I respectfully dissent. I will first explain why I believe
that we must focus on Chambers's underlying criminal conduct when
determining whether this change in the law has a retroactive effect.
With that focus in mind, I will then explain why this change in the
law has a retroactive effect as applied to Chambers.
I.
The majority, in determining whether the repeal of § 212(c) has an
impermissible retroactive effect, considers Chambers's conduct at
trial but not his underlying primary conduct, that is, the criminal con-
duct which lead to his conviction. While the Supreme Court in St. Cyr
did consider the alien's secondary conduct - his decision to plead
guilty - the Court did not suggest that the alien's guilty plea was the
only relevant past conduct for the purposes of determining retroactive
____________________________________________________________
1 I say "without IIRIRA § 304(b)" and "with IIRIRA § 304(b)" rather
than "prior to IIRIRA" and "after IIRIRA" because, as the majority
explains, prior to IIRIRA Chambers's armed robbery conviction and sen-
tence did not render him deportable at all. IIRIRA changed the law in
two relevant respects to the detriment of aliens like Chambers. First, it
expanded the definition of "aggravated felony" so that Chambers's armed
robbery conviction now constitutes an aggravated felony and renders him
eligible for deportation. Second, it eliminated § 212(c) waivers for aliens
convicted of aggravated felonies. This first change clearly applies to
Chambers, because, as the majority explains, Congress explicitly said so.
See ante at 10. Thus, when considering whether § 304(b)'s elimination
of § 212(c) waivers has a retroactive effect by changing the legal land-
scape prior to IIRIRA, one must treat the expansion of the "aggravated
felony" definition as part of that pre-IIRIRA legal landscape.
13
effect.2 A defendant's underlying, primary conduct has always served
as the starting point for a retroactivity analysis. For example, in
Domond v. INS, 244 F.3d 81 (2d Cir. 2001), which involved the very
issue presented in this case, the Second Circuit focused on whether
the elimination of § 212(c) altered "the punishment for the [alien's]
underlying criminal conduct." Id. at 86 (emphasis added).3 See also
Tasios v. Reno, 204 F.3d 544, 551 (4th Cir. 2000) ("In considering
whether § 212(c) would alter the legal effect of conduct that predates
AEDPA's enactment, we do not limit our analysis to the conduct that
resulted in the felony conviction.") (emphasis added).
When determining whether to apply a new rule of law to a pending
case, courts often draw a distinction between procedural and substan-
tive rules, a distinction that turns on what type of conduct is regulated
by the new rule. "The relevant rule is that statutes which change pri-
mary (out of court) duties, for example statutes that impose new tort
liabilities, are applied prospectively, while statutes that change merely
procedures are applied retroactively." LaGuerre v. Reno, 164 F.3d
1035, 1041 (7th Cir. 1998). The logic behind this approach is that
"[b]ecause rules of procedure regulate secondary rather than primary
conduct, the fact that a new procedural rule was instituted after the
____________________________________________________________
2 I use the term "primary conduct" to refer to the conduct that is the
subject of the regulation in question and the term "secondary conduct"
to refer to subsequent conduct that is not the direct subject of the regula-
tion, such as decisions in the course of judicial proceedings.
3 The Domand court went on to conclude that "loss of the Section
212(c) hearings, while clearly a hardship, does not impose a new legal
consequence on Domond's pre-AEDPA criminal conduct." Id. at 86.
Because "waivers from Section 212(c) hearings were [always] purely
discretionary," the court reasoned that their loss did not constitute a new
legal consequence. Soon after Domand was decided, the Supreme Court
stated that "the fact that § 212 relief is discretionary does not affect the
. . . conclusion [that § 304(b) has a retroactive effect]. There is a clear
difference, for the purposes of retroactivity analysis, between facing pos-
sible deportation and facing certain deportation." INS v. St. Cyr, 533 U.S.
289, 325 (2001). Thus the court in Domond properly asked whether the
revocation of § 212(c) waivers imposed a new legal consequence on the
underlying criminal conduct, as opposed to simply the alien's conduct at
trial, but then mistakenly concluded that the cancellation of a discretion-
ary form of relief imposed no new legal consequences on that conduct.
14
conduct giving rise to the suit does not make the application of the
rule at trial retroactive." Landgraf, 511 U.S. at 275. The § 212(c)
waiver, and the corresponding elimination of that waiver by IIRIRA
§ 304(b), are clearly both substantive laws that regulate primary con-
duct, not merely procedural rules that regulate subsequent conduct
such as litigation decisions. The conduct being regulated by § 212(c)
(and its elimination by § 304(b)) is, first and foremost, the underlying
criminal conduct leading to a conviction that rendered the alien sub-
ject to deportation and therefore in need of a § 212(c) waiver. Accord-
ingly, it is counterintuitive to only consider the effect of this
substantive legal change on Chambers's prior secondary conduct, as
opposed to its effect on his prior criminal conduct.
In this case, the majority focuses on Chambers' secondary conduct
to the exclusion of considering his primary conduct, the crime itself.
While the "relevant past conduct" for even a substantive legal change
(such as the elimination of § 212(c) waivers) may sometimes include
secondary conduct, the main focus should be on the underlying crimi-
nal conduct. With this focus on Chambers's underlying criminal con-
duct in mind, I will now turn to consider whether IIRIRA's
elimination of § 212(c) relief from deportation has an impermissible
retroactive effect.
II.
As the Supreme Court explained in St. Cyr,"[t]here is a clear dif-
ference, for the purposes of retroactivity analysis, between facing pos-
sible deportation and facing certain deportation." INS v. St. Cyr, 533
U.S. 289, 325 (2001). Prior to IIRIRA, an alien committing an aggra-
vated felony was faced with imprisonment and possible deportation.
After IIRIRA's elimination of § 212(c) waivers, an alien committing
those same aggravated felonies faces imprisonment and certain deporta-
tion.4 This change "attaches new legal consequences to events com-
____________________________________________________________
4 As noted above, supra n.1, Chambers's armed robbery conviction did
not constitute an "aggravated felony" prior to IIRIRA. But because Con-
gress explicitly instructed that IIRIRA's expanded definition of "aggra-
vated felony" would apply to crimes committed prior to IIRIRA's
enactment, we must (for the limited purpose of determining the retroac-
tive effect of § 340(b)) treat Chambers's armed robbery as an "aggra-
vated felony" from the moment it was committed.
15
pleted before" the enactment of IIRIRA, and therefore has a
retroactive effect. Landgraf, 511 U.S. at 270. Accordingly, IIRIRA's
repeal of § 212(c) should not be applied retroactively to Chambers.
I agree with the majority's rejection of Chambers's argument that
he relied on the availability of § 212(c) when he decided to go to trial.
This is not a case, like St. Cyr, where the unfairness of retroactively
applying the rule stems from reliance concerns. As the majority
acknowledges, however, reliance is merely one way to prove an
unfair retroactive effect; it is by no means the only test of unfair retro-
activity. See Hughes Aircraft Co. v. United States ex rel. Schumer,
520 U.S. 939, 947 (1997); Velasquez-Gabriel v. Crocetti, 263 F.3d
102, 109 (4th Cir. 2001). Detrimental reliance is simply one manifes-
tation of the unfairness that can result from instability in the law. But
the presumption against retroactivity is grounded in broader and more
fundamental concerns. As Justice Scalia has explained, there is "time-
less and universal human appeal" to the notion that "the legal effect
of conduct should ordinarily be assessed under the law that existed
when the conduct took place." Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827, 855 (1990) (Scalia, J., concurring). Apart
from reliance, the presumption against retroactivity reflects the more
basic concern that people "should have an opportunity to know what
the law is and to conform their conduct accordingly." Landgraf, 511
U.S. at 265. This concern "relates to concepts of governmental legiti-
macy." Nancy Morawetz, Rethinking Retroactive Deportation Laws
and the Due Process Clause, 73 N.Y.U. L. Rev. 97, 136 (1998).
"[T]he government engenders greater respect for its laws and its law-
making institutions if it can commit to the stability of its laws." Jill
E. Fisch, Retroactivity and Legal Change: an Equilibrium Approach,
110 Harv. L. Rev. 1055. 1106 (1997). That is, the government oper-
ates with greater fairness, and thus greater legitimacy, when it does
not change the rules midway through the game. Thus the presumption
against retroactivity, like the various constitutional protections against
retroactive legislation, serves to "limit[ ] the sovereign's ability to use
its lawmaking power to modify bargains it has made with its sub-
jects." Lynce v. Mathis, 519 U.S. 433, 440 (1997).5 Regardless of
____________________________________________________________
5 The presumption against retroactivity does not place absolute limits
on Congress's power to enact retroactive legislation, as does, for exam-
16
whether a particular individual actually relies to his detriment on the
legal regime, the government must at least give individuals the
opportunity to know the law and behave accordingly.
It is instructive to compare Chambers's situation to that of the
defendant in Hughes. In Hughes, the question before the Court was
whether the elimination of a defense to statutory qui tam actions had
a retroactive effect, such that the change should only apply prospec-
tively. Hughes, 520 U.S. at 941. Between 1982 and 1986, the False
Claims Act required dismissal of qui tam actions that were based on
evidence or information that was already in the possession of the gov-
ernment when the action was brought. Id. at 945. In 1986 Congress
changed the FCA to remove this limitation except in certain circum-
stances. Id. at 946. The qui tam plaintiff argued that this amendment
had no retroactive effect because it did not create a new cause of
action or impose liability where none had existed previously. Id. at
948. Even under the pre-1986 version of the FCA, the plaintiff
argued, an FCA defendant faced monetary liability for false claims
against the government because the United States could pursue the
claim against the defendant regardless of whether a qui tam plaintiff
could bring the claim. Id. at 948-49. The 1986 version of the FCA
simply meant that, in cases where the evidence of a false claim was
in the possession of the government, a false claims lawsuit could be
brought by a qui tam plaintiff as well as by the United States. A unan-
imous Supreme Court rejected this argument, noting that while "mon-
etary liability faced by an FCA defendant is the same whether the
action is brought by the Government or by a qui tam relator, the 1986
amendment eliminates a defense to a qui tam suit . . . and therefore
changes the substance of the existing cause of action for qui tam
defendants by `attach[ing] a new disability, in respect to transactions
or considerations already past.'" Id. at 948.
____________________________________________________________
ple, the Ex Post Facto clause or the Due Process Clause. See Lynce, 519
U.S. at 439-40. Nonetheless, it forces Congress to bear the political
weight of the perceived unfairness of retroactive legislation by requiring
Congress to explicitly and clearly state that the legislation will be applied
retroactively. Thus, while the presumption is not an absolute barrier, it
does place a constraint on retroactive legislation by permitting retroactiv-
ity only when Congress is willing to say so explicitly.
17
There was no suggestion in Hughes that the 1986 amendment to
the qui tam statute raised reliance concerns - that is, that the defen-
dant had submitted a false claim to the government in reliance on the
fact that only the government, not a qui tam plaintiff, could bring an
action based on that false claim. Such a claim of reliance would have
been as implausible as a claim of reliance in this case - that when
Chambers committed robbery with a deadly weapon, he relied on the
fact that he would only be subject to imprisonment and possible
deportation rather than imprisonment and certain deportation. Hughes
reflects the view that, apart from whether an individual actually relies
on the preexisting legal regime, courts should not presume that Con-
gress meant to change the rules midway through the game. Hughes
illustrates how "[e]ven when the conduct in question is morally repre-
hensible or illegal, a degree of unfairness is inherent whenever the
law imposes additional burdens based on conduct that occurred in the
past." Landgraf, 511 U.S. at 282 n.35. Chambers's armed robbery
was illegal at the time it was committed, and he has been imprisoned
accordingly. The repeal of the § 212(c) waiver, however, "imposes
additional burdens on conduct that occurred in the past." Id. Accord-
ingly, we should not, as a matter of judicial presumption, apply this
change retroactively unless explicitly instructed to do so by Congress.
Chambers's situation can also be contrasted with that of the alien
in Velasquez-Gabriel v. Crocetti, 263 F.3d 102 (4th Cir. 2001).
Velasquez-Gabriel was an alien who had illegally reentered the
United States while under a prior order of removal. Id. at 103-04.
After his illegal reentry, the law changed so as to require reinstate-
ment of his prior order of removal without the opportunity to reopen
or obtain review of that prior order. Id. at 104. The court held that this
change in the law did not operate in an impermissibly retroactive
manner. The court first explained that Velasquez-Gabriel had not
taken any actions in reliance on the old law; thus, the law was not
retroactive for that reason. Id. at 109. The court then noted that even
absent proof of reliance, the change in the law might still have a retro-
active effect. Another concern underlying retroactivity, the court
noted, is that persons subject to the law have an "opportunity to know
what the law [was] and to conform [his] conduct accordingly." Id. at
109-10 (quotations and citations omitted). Velasquez-Gabriel, the
court explained, had seven months to apply for adjustment of status
before the new law was enacted and another six months after that to
18
apply for adjustment of status before the new law went into effect. Id.
at 109. Thus, Velasquez-Gabriel had had over a year during which he
could have taken affirmative action to request adjustment of status
under the old legal regime before the law changed and deprived him
of that opportunity. The court explained that "Velasquez-Gabriel's
failure to apply to adjust his resident status before the new law took
effect fatally undermines his contention that § 241(a)(5)'s application
to him `attaches new legal consequences to events completed before
its enactment.'" Id. at 110 (quoting St. Cyr, 533 U.S. at 321) (empha-
sis omitted). Here, in contrast, Chambers' fate was out of his hands
once he had committed the armed robbery. After that act, Chambers
faced imprisonment and, once Congress mandated that his crime was
an aggravated felony, the possibility of deportation unless he was
granted a § 212(c) waiver. He had no further opportunity, as
Velasquez-Gabriel did, to "know what the law was and to conform his
conduct accordingly." Id. at 109-10 (quotations and alterations omit-
ted). From the time of the robbery on, he was at the mercy of the gov-
ernment both in his criminal prosecution and in his subsequent
deportation proceedings.
I agree with the majority's characterization of the law except inso-
far as it fails to consider any retroactive effect to Chambers's underly-
ing criminal conduct. Applying the majority's analysis on pages
11-12 of its opinion to that underlying primary conduct, I would con-
clude that IIRIRA's repeal of the discretionary relief provision does
"attach[ ] a new disability," Hughes, 520 U.S. at 947, with respect to
the relevant past conduct, i.e., Chambers's commission of the armed
robbery. The repeal "attaches new legal consequences to events com-
pleted before [IIRIRA's] enactment," Martin v. Hadix, 527 U.S. 343,
357-58 (1999) (internal quotation marks omitted), and gives "a qual-
ity or effect to acts or conduct which they did not have or did not con-
template when they were performed," Union Pac. R.R. Co. v. Laramie
Stock Yards Co., 231 U.S. 190, 199 (1913), because IIRIRA changed
the impact of Chambers's commission of armed robbery on his immi-
gration status. Because "the legal effect of [Chambers's criminal]
conduct is determined by subsequently enacted law, that law operates
retroactively." Tasios, 204 F.3d at 551. Absent a clear Congressional
indication that this change in the law should retroactively deprive
Chambers of the possibility of relief from otherwise certain deporta-
tion, the traditional presumption against retroactivity should bar the
19
retroactive loss of the § 212(c) waiver in this case. Accordingly, I
would reverse the decision of the district court.
20