Restrepo v. McElroy, Docket No. 99-2703.

• Decision Date: 01 April 2004
• Docket Number: Docket No. 99-2703.
• Citation: 369 F.3d 627
• Parties: Nevio RESTREPO, Petitioner-Appellee, v. Edward McELROY, Interim Field Office Director for the Bureau of Immigration and Customs Enforcement, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

369 F.3d 627

Nevio RESTREPO, Petitioner-Appellee, v. Edward McELROY, Interim Field Office Director for the Bureau of Immigration and Customs Enforcement, New York, Respondent-Appellant.

Docket No. 99-2703.

United States Court of Appeals, Second Circuit.

Argued: January 22, 2004.

Decided: April 1, 2004.

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Matthew L. Guadagno, Bretz & Coven, LLP (Kerry William Bretz, Jules E. Coven, on the brief), New York, NY, for Petitioner-Appellee.

Margaret Kolbe, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Varuni Nelson, Assistant United States Attorney, and Dione M. Enea, Special Assistant United States Attorney, on the brief), for Respondent-Appellant.

Before: CALABRESI, KATZMANN, B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge.

In this case, we again examine how the presumption against retroactive legislation, a principle rooted in "[e]lementary considerations of fairness," Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), applies in the context of immigration law. The government appeals from a judgment of the district court (Weinstein, J.) granting an alien's petition for a writ of habeas corpus upon finding that the Antiterrorism and Effective Death Penalty Act's elimination of section 212(c) discretionary relief was impermissibly retroactive as applied to him. We hold that the district court's rationale for this conclusion was erroneous, but that there is an alternative basis for finding impermissible retroactivity that may apply in this case. We therefore vacate the judgment and remand to the district court for further proceedings.

BACKGROUND

Petitioner Nevio Restrepo ("Petitioner"), a Colombian national, entered the United States as a lawful permanent resident in 1969. In 1992, after a jury trial in federal court, he was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and he was sentenced to a term of imprisonment.¹ On October 28, 1996, the Immigration and Naturalization Service ("INS")² served Petitioner with an Order to Show Cause, charging him with deportability as an aggravated felon under the then-effective provision of section 241(a)(2)(A)(iii) of the Immigration and Nationality Act (codified at 8 U.S.C. § 1251(a)(2)(A)(iii) (1994)). This charging document was filed with the immigration court on November 19, 1996.

At his hearing before an Immigration Judge ("IJ"), Petitioner, through counsel, conceded deportability. The IJ held that Petitioner was ineligible for any form of relief and entered a deportation order on September 9, 1997. Petitioner appealed, and the Board of Immigration Appeals ("BIA") dismissed the appeal, holding that Petitioner's aggravated felony conviction rendered him ineligible for 212(c) relief³ under section 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996),⁴ and that this was so despite the fact that Petitioner was convicted prior to the enactment of the AEDPA.⁵

Petitioner then filed a habeas petition pursuant to 28 U.S.C. § 2241 in the United District Court for the Eastern District of New York, arguing: 1) that, under Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the AEDPA's section 440(d) may not be applied retroactively to his criminal act and conviction, and 2) that section 440(d) violates equal protection principles by barring deportable aliens, but not excludable aliens, from applying for 212(c) relief.

In a September 22, 1999 order, the district court (Weinstein, J.) held that section 440(d) "may not be applied retroactively to Petitioner," a conclusion it reached on the basis of its prior rulings. See Maria v. McElroy, No. 98CV6596, 1999 WL 680370 (E.D.N.Y. August 27, 1999), superseded by 68 F.Supp.2d 206, 228-30 (E.D.N.Y.1999) (Weinstein, J.) (holding that Congress did not intend for section 440(d) to be applied retroactively and that, even if Congress's intent were ambiguous, application of section 440(d) to an alien's pre-AEDPA criminal conduct would have an impermissible retroactive effect under the second step of Landgraf's retroactivity analysis); Pottinger v. Reno, 51 F.Supp.2d 349 (E.D.N.Y.1999) (Weinstein, J.) (same).⁶ Finding it unnecessary to rule on Petitioner's equal protection claim, the district court granted the writ, thereby vacating the Petitioner's final order of deportation and directing the INS to adjudicate Petitioner's application for 212(c) relief. The government appealed.

DISCUSSION

We agree with the government that the specific ground upon which the district court granted habeas has been fatally undermined by our subsequent caselaw analyzing the AEDPA's retroactive reach under Landgraf, 511 U.S. 244, 114 S.Ct. 1483. Under Landgraf, a court determines whether a civil statute applies retroactively by first assessing whether Congress "has expressly prescribed the statute's proper reach," id. at 280, 114 S.Ct. 1483; if it has, the inquiry is over and the court must implement Congress's intent. But if Congress's intent is ambiguous, a court must proceed to the second question, which is whether, in view of the "familiar considerations of fair notice, reasonable reliance, and settled expectations," id. at 270, 114 S.Ct. 1483, the application of the statute to the case at hand would have a "retroactive effect," id. at 280, 114 S.Ct. 1483. If it would, then the court will adhere to the traditional presumption that Congress did not intend the statute to apply. Id. at 280, 114 S.Ct. 1483.

In St. Cyr I, after determining that Congress's intent on the retroactivity of the AEDPA's section 440(d) was ambiguous, we held that the elimination of 212(c) eligibility with respect to aliens who pled guilty to criminal charges before the enactment of the AEDPA would have an impermissible retroactive effect. St. Cyr v. INS, 229 F.3d 406, 420 (2d Cir.2000) ("St. Cyr I"), aff'd INS v. St. Cyr, 533 U.S. 289, 325, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("St. Cyr II").⁷ In St. Cyr I, we rejected, though only in dicta, the position that the district court appears to have adopted in the instant case — that the application of section 440(d) to such an alien is "retroactive" because it would attach a new consequence to the alien's criminal conduct. We stated that "[i]t would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation." Id. at 418 (citing Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150-51 (10th Cir.1999)).

In Domond v. INS, 244 F.3d 81 (2d Cir.2001), we adopted this dicta as a holding and ruled that section 440(d) could properly be applied to an alien whose criminal conduct preceded, but whose guilty plea came after, the enactment of the AEDPA. Id. at 86 ("[I]t cannot reasonably be argued that aliens committed crimes in reliance on a hearing that might possibly waive their deportation.").⁸ And recently, in Khan v. Ashcroft, 352 F.3d 521, 523-25 (2d Cir.2003), we held that Domond's holding survives the Supreme Court's reasoning in St. Cyr II, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347.

In the instant case, the district court based its grant of habeas on its prior decision in Maria v. McElroy, 1999 WL 680370, which broadly held that section 440(d) could not be applied to an alien whose criminal conduct preceded the AEDPA's enactment, since doing so would attach a new liability to a past act. Given Domond, it is clear that this ground is contrary to current precedent, and cannot stand.

Accordingly, the government argues that we should simply reverse the district court's judgment and hold that Petitioner is not eligible to seek 212(c) relief. We disagree. On appeal, Petitioner contends that section 440(d) may not be applied retroactively to him for another reason, a reason that the district court had no occasion to address given the broad rationale upon which it disposed of the case. Specifically, Petitioner claims that, when he was convicted in 1992, INS regulations permitted him to file an application for 212(c) relief "affirmatively," that is, before being placed in deportation proceedings. See 8 C.F.R. § 212.3(b) (providing that a 212(c) application may be filed "prior to, at the time of, or at any time after the applicant's departure from or arrival into the United States").⁹ Petitioner goes on to say that he decided to forgo this opportunity in reliance on his ability to apply for 212(c) relief at a later time, when, presumably, his 212(c) case would be stronger due to a longer record of rehabilitation and community ties, and that the AEDPA's elimination of that relief would disrupt his reasonable reliance and settled expectations.¹⁰

The crux of Petitioner's argument is correct under both the Supreme Court's and our retroactivity jurisprudence. We believe, however, that, on remand, the district court will have to make further inquiries in order to determine whether Petitioner may himself claim the benefit of his argument.

In determining whether a statute has a "retroactive effect" under the second step of Landgraf, a court must make a "commonsense, functional judgment," Martin v. Hadix, 527 U.S. 343, 357, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999), guided by "familiar considerations of fair notice, reasonable reliance, and settled expectations," id. at 358, 119 S.Ct. 1998 (internal quotation marks omitted).¹¹ Essentially, Petitioner argues that he gave up something of value (the opportunity to apply for 212(c) relief immediately after his conviction) in reliance on his ability to apply for 212(c) relief at a later time. When, moreover, one considers the factors that an immigration judge weighs in making a 21...