Evangelista v. Attorney Gen. United States
| Decision Date | 14 October 2021 |
| Docket Number | 19-3825 |
| Parties | LOUIS EVANGELISTA, SR., AKA Luigi Evangelist, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Argued October 5, 2020
On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A012-352-319) Immigration Judge: Paul Grussendorf
Before: JORDAN, KRAUSE, and MATEY, Circuit Judges
Because Appellant Louis Evangelista remained eligible for § 212(c) relief between the time that he chose to go to trial rather than take a plea deal and the time that he was found guilty by a jury, we hold that AEDPA cannot be applied to withdraw that eligibility without violating the bar on retroactivity. Accordingly, we will grant the petition for review and remand to the Board of Immigration Appeals ("BIA") to exercise its discretion whether to reopen Evangelista's removal proceedings under the correct legal framework. See Sang Goo Park v. Att'y Gen., 846 F.3d 645, 651 (3d Cir. 2017).
Historically, § 212(c) of the Immigration and Nationality Act ("INA") permitted lawful permanent residents facing deportation to apply for a discretionary waiver of removal if they could show that (a) they had a lawful unrelinquished domicile of seven consecutive years and (b) they had not been convicted of an aggravated felony for which they served a term of at least five years' imprisonment.[1] See 8 U.S.C. § 1182(c) (1994). In 1996, however, Congress revisited § 212(c) twice in quick succession.
First, in April 1996, it passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which disqualified from § 212(c) relief any noncitizen who "is deportable by reason of having committed" an aggravated felony, regardless of sentence. Pub L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. Then, in September 1996, it passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which repealed § 212(c) altogether, Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, -597 (1996). But this repeal did not go into effect immediately, leaving § 212(c)-as amended by AEDPA-in place from April 1996 to April 1997. See IIRIRA § 309, 110 Stat. 3009-625.
Louis Evangelista, an Italian citizen who has resided in the United States since being admitted as a legal permanent resident in 1961, fell into that gap. In 1995, Evangelista was charged with various offenses, including tax evasion in violation of 26 U.S.C. § 7201, an aggravated felony. At that time, a conviction for this offense would not automatically disqualify him for a § 212(c) waiver so long as he was sentenced to less than five years' imprisonment. Following his indictment, Evangelista and the Government engaged in plea negotiations, and Evangelista, reasonably relying on the availability of § 212(c) relief, declined to enter a guilty plea and instead proceeded with a jury trial, resulting in a guilty verdict in February 1996. Evangelista was sentenced to 51 months' imprisonment in October 1996, by which time AEDPA had taken effect, disqualifying him for § 212(c) relief based on his conviction for an aggravated felony, regardless of the sentence imposed.
Against this backdrop, when the Government sought to remove Evangelista three years later, the Immigration Judge ("IJ") concluded that he was ineligible for § 212(c) relief because he was convicted of aggravated felony after AEDPA's effective date. Evangelista pursued § 212(c) relief in numerous challenges to his order of removal over the next several years, and DHS appeared to accede by granting him a series of deferrals through 2017. In 2018, however, DHS renewed its efforts to remove him, prompting Evangelista filed a motion to reopen in which he urged the BIA to reconsider its position that he was ineligible for a § 212(c) waiver. The BIA agreed that Evangelista would have been eligible to apply for § 212(c) relief at the time he elected to go to trial in February 1996 and that his case was "very sympathetic," but it nonetheless declined to exercise its sua sponte authority to reopen on the ground that, because his formal judgment of conviction was entered after AEDPA's effective date, he was statutorily ineligible for relief. This petition for review followed.
Evangelista challenges the BIA's premise that AEDPA renders him ineligible for relief under § 212(c) and argues that it would be impermissibly retroactive to subject him to a statute that went into effect only after he had declined to enter a plea and the jury had returned its verdict, i.e., after his opportunity to change his plea became irrevocable.[3] In analyzing whether a civil law applies retroactively, we first ask "whether Congress has expressly prescribed the statute's proper reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994). If so, our inquiry ends. See Matthews v. Kidder, Peabody & Co., 161 F.3d 156, 160 (3d Cir. 1998). If not, then we "must determine whether the new statute would have retroactive effect." Landgraf, 511 U.S. at 280.
The first step has been accomplished for us. In INS v. St. Cyr, the Supreme Court held that Congress did not expressly provide for AEDPA's changes to § 212(c) to be retroactive.[4] See 533 U.S. at 320; see also Atkinson v. Att'y Gen., 479 F.3d 222, 227 (3d Cir. 2007) (). We thus ask if AEDPA's changes to § 212(c) have a "retroactive effect;" that is, if they "attach[] new legal consequences to events completed before [their] enactment." St. Cyr, 533 U.S. at 321 (internal quotation marks omitted) (quoting Landgraf, 511 U.S. at 270). Here, the new consequence is clear: AEDPA makes Evangelista ineligible for § 212(c) relief when he would not have been otherwise. Our task, then, is to determine the past event to which AEDPA attached this new consequence, applying the "commonsense, functional judgment" demanded by the Supreme Court. Id. at 321.
The Government contends that the relevant event was Evangelista's formal judgment of conviction upon sentencing, which occurred six months after AEDPA was enacted and so would be subject to AEDPA's dictates without any need to consider retroactivity. It reaches this conclusion in three steps, observing that: (1) § 440(d) of AEDPA disqualified from § 212(c) relief noncitizens who were "deportable by reason of having committed" an aggravated felony, 110 Stat. at 1277; (2) a noncitizen is "deportable" once he is "convicted of an aggravated felony," 8 U.S.C. § 1251 (1996), and (3) under IIRIRA's definition of "conviction," which is expressly retroactive, see Perez, 294 F.3d at 561, a noncitizen is "convicted" when the trial court enters a formal judgment of conviction, including the sentence.[5]
But while we agree that AEDPA made eligibility for § 212(c) relief turn on conviction for an aggravated felony, [6] it also attached new legal consequences to Evangelista's decision to accept a plea deal or go to trial. "[T]he availability of discretionary relief plays a central role in many aliens' decisions regarding whether to accept a plea agreement." Ponnapula v. Ashcroft, 373 F.3d 480, 494-95 (3d Cir. 2004) (citing St. Cyr, 533 U.S. at 322-23). Indeed, such immigration consequences implicate sufficiently "weighty reliance interests" that the Constitution guarantees defendants the right to be advised of those consequences in criminal proceedings. Francisco-Lopez v. Att'y Gen., 970 F.3d 431, 439 (3d Cir. 2020) (citing Padilla v. Kentucky, 559 U.S. 356, 364 (2010)). Accordingly, where a defendant has had the option of accepting a plea bargain, both we and the Supreme Court have looked to the time of that decision to determine if a law has an impermissible retroactive effect.
In St. Cyr, for example, the Supreme Court held that AEDPA and IIRIRA attached new consequences to the decision to accept a plea bargain because "[p]rior to AEDPA and IIRIRA," aliens who took plea deals "had a significant likelihood of receiving § 212(c) relief," whereas pleading guilty after AEDPA and IIRIRA meant "facing certain deportation." 533 U.S. at 325. The Court emphasized that "a great number of [aliens] agreed to plead guilty" in reliance on "settled practice, the advice of counsel, and perhaps even assurances in open court that the entry of the plea would not foreclose § 212(c) relief," id. at 323, and thus "the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect," id. at 325.
Building on St. Cyr, we held in Ponnapula that AEDPA and IIRIRA attached new consequences not only to an alien's decision to accept a plea, but also to an alien's decision to turn down a misdemeanor plea deal because, at the time, "even if he were convicted of a felony after trial he would still be eligible for [§ 212(c) relief]." 373 F.3d at 497 (quotation omitted). We stressed that "the reliance interest of an alien who accepts a plea agreement arises at the time the choice is made to accept the agreement." Id. at 494.
The Government suggests that Evangelista must show actual reliance on the availability of § 212(c) relief when he chose to go to trial. But "[t]he Supreme Court has never required actual reliance" to establish a retroactive effect. Ponnapula, 373 F.3d at 493; see also Vartelas v. Holder, 566 U.S. 257, 273 (2012) ("[T]he presumption against retroactive application of statutes does not require a showing of detrimental reliance[.]"). Rather, as we explained in Atkinson, reliance "is an element to consider in determining whether the enactment of a new law has created a 'new disability'" or attached new legal consequences to a past event. 479 F.3d at 229; see also id. at 227-29. And in any event, as in Ponnopula, Evangelista's...
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