Walcott v. Chertoff

• Decision Date: 19 February 2008
• Docket Number: No. 06-5516-ag.,06-5516-ag.
• Citation: 517 F.3d 149
• Parties: Jermaine WALCOTT, Petitioner, v. Michael CHERTOFF,<SMALL><SUP>*</SUP></SMALL> Secretary, Department of Homeland Security; Michael J. Garcia, Assistant Secretary (designee), U.S. Immigration and Customs Enforcement; Edward J. McElroy, Interim New York City Field Director, U.S. Immigration and Customs Enforcement; Department of Homeland Security; U.S. Immigration and Customs Enforcement, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

517 F.3d 149

Jermaine WALCOTT, Petitioner, v. Michael CHERTOFF,^* Secretary, Department of Homeland Security; Michael J. Garcia, Assistant Secretary (designee), U.S. Immigration and Customs Enforcement; Edward J. McElroy, Interim New York City Field Director, U.S. Immigration and Customs Enforcement; Department of Homeland Security; U.S. Immigration and Customs Enforcement, Respondents.

No. 06-5516-ag.

United States Court of Appeals, Second Circuit.

Argued December 12, 2007.

Decided February 19, 2008.

Matthew L. Guadagno, Bretz & Coven, LLP, (Jules E. Coven and Kerry W. Bretz, on the brief), New York, N.Y., for Petitioner.

Andrew M. McNeela, Assistant United States Attorney for Michael J. Garcia, United States Attorney for the Southern District of New York (Ross E. Morrison, Assistant United States Attorney, on the brief), New York, N.Y., for Respondents.

Before: CARDAMONE and POOLER, Circuit Judges, and KEENAN, District Judge.^**

KEENAN, District Judge:

Introduction

Petitioner Jermaine Walcott ("Petitioner") challenges a September 23, 2002 decision of the Board of Immigration Appeals ("BIA") holding that, pursuant to § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, 1277 (Apr. 24, 1996), his aggravated felony conviction made him ineligible for discretionary relief from deportation under former § 212(c) of the Immigration and Nationality Act ("INA").¹

Petitioner claims that the application of the AEDPA to his case was impermissibly retroactive under Restrepo v. McElroy, 369 F.3d 627, 634-35 (2d Cir.2004), even though his conviction was on appeal when the AEDPA took effect. For the reasons discussed below, we find that Petitioner may assert a Restrepo claim of reliance which, if proven before an immigration judge, see Wilson v. Gonzales, 471 F.3d 111 (2006), would make AEDPA's § 440(d) impermissibly retroactive as applied to him. The BIA's decision is vacated and the matter remanded to the BIA for further remand to an immigration judge so that Petitioner can attempt to make an individualized showing of reliance.

Background

Petitioner is a thirty-four year old native and citizen of Guyana who became a lawful permanent resident of the United States in 1985. On March 8, 1996, a jury in a New York State court convicted him for the criminal sale of a controlled substance, an aggravated felony. He was sentenced to a term of imprisonment of four-and-one-half to nine years. About seven weeks after Petitioner's trial, while his conviction was on appeal, the AEDPA took effect. Section 440(d) of that Act amended the INA to eliminate § 212(c) relief for aliens convicted of certain crimes, including any aggravated felony. Petitioner's conviction remained on appeal until it was affirmed by the Appellate Division, Second Department on June 1, 1998, and the New York Court of Appeals denied his petition for leave to appeal on July 1, 1998. See People v. Walcott, 251 A.D.2d 356, 672 N.Y.S.2d 802 (2d Dep't 1998), appeal denied, 92 N.Y.2d 883, 678 N.Y.S.2d 30, 700 N.E.2d 568 (1998).

On July 26, 1996, the immigration authorities commenced deportation proceedings against Petitioner based on his March 1996 conviction and other grounds not relevant to this petition. On April 19, 2002, following a series of administrative proceedings, an immigration judge ordered Petitioner deported for the March 1996 conviction. The immigration judge also found that the Supreme Court's retroactivity holding in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), did not prohibit application of AEDPA's § 440(d) to bar Petitioner's eligibility for § 212(c) relief because St. Cyr applied only to aliens who pleaded guilty prior to the repeal of § 212(c) and not to those who, like Petitioner, were convicted at trial. The BIA affirmed the immigration judge's decision on September 23, 2002, rejecting Petitioner's argument that the holding of St. Cyr extended to aliens whose ground for deportation is a trial conviction.

Applicable Law

This case calls upon us to again consider the potential retroactive effect of the AEDPA upon an alien ordered deported for a pre-AEDPA aggravated felony conviction. As mentioned above, § 440(d) of the AEDPA barred certain aliens, including those convicted of aggravated felonies, from seeking § 212(c) relief.² Prior to the AEDPA, INA § 212(c) provided discretionary relief from deportation for aliens who could demonstrate that (1) they had been admitted to the United States as lawful permanent residents; (2) they had resided in the United. States for at least seven years; and (3) their convictions were not for aggravated felonies for which they had served terms of imprisonment of five years or longer.³ 8 U.S.C. § 1182(c) (repealed 1996); see Wilson v. Gonzales, 471 F.3d 111, 117-18 (2d Cir.2006).

St. Cyr provides the starting point for our AEDPA retroactivity inquiry. In St. Cyr, the Supreme Court applied the retroactivity analysis of Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), to assess whether the repeal of INA § 212(c) by § 304(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIIRA") had an impermissibly retroactive effect on criminal aliens who, prior to IIRIRA's enactment, had pleaded guilty to an offense rendering them deportable.⁴ See St. Cyr, 533 U.S. at 314-26, 121 S.Ct. 2271. Finding that Congress did not clearly express its intent for IIRIRA to apply retroactively, the Court applied the presumption against retroactivity. Id. at 314-20, 121 S.Ct. 2271. It then turned to the second part of the Landgraf analysis: whether the statute as applied had a retroactive effect. Id. at 320-25, 121 S.Ct. 2271,

A. statute operates retroactively where 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....'" Id. at 321, 121 S.Ct. 2271 (alteration in original) (quoting Landgraf, 511 U.S. at 269, 114 S.Ct. 1483). The determination that a statute has a retroactive effect should be guided by "`familiar considerations of fair notice, reasonable reliance, and settled expectations'" and "demands a commonsense, functional judgment about `whether the new provision attaches new legal consequences to events completed before its enactment'". Id. (quoting Martin v. Hadix, 527 U.S. 343, 357-58, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (internal quotation marks omitted)). In finding that IIRIRA would operate retroactively as to aliens who had pleaded guilty, the Court in St. Cyr emphasized the fact that plea agreements entailed a "quid pro quo" between the alien defendant and the Government. Id. at 321-22, 121 S.Ct. 2271. The alien likely surrendered his trial rights in the expectation that he would receive a reduced sentence preserving his eligibility for § 212(c) relief (i.e. a sentence of less than five years), whereas the Government received the benefit of "`promptly imposed punishment without the expenditure of prosecutorial resources.'" Id. at 321-23, 121 S.Ct. 2271 (quoting Newton v. Rumery, 480 U.S. 386, 393 n. 3, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987)). Based on substantial evidence that aliens were "acutely aware of the immigration consequences of their convictions," id. at 322, 121 S.Ct. 2271, the Court found that aliens in deciding to forgo a trial and plead guilty "almost certainly relied" on the availability of § 212(c) relief. Id. at 325, 121 S.Ct. 2271. Therefore, IIRIRA's repeal of § 212(c) had a retroactive effect as applied to aliens within this class.

In Rankine v. Reno, 319 F.3d 93 (2d Cir.2003), we held that IIRIRA's repeal of § 212(c) relief did not operate retroactively as to aliens who were convicted after a trial rather than a guilty plea. We noted in Rankine that "the issue of reliance has played a central role in the Supreme Court's and the circuit courts' reasoning with respect to the retroactivity of IIRIRA and AEDPA." Id. at 102. Unlike the decision to plead guilty, the decision to stand trial exhibited no detrimental reliance on § 212(c) relief. See id. at 99-100. In deciding to go to trial, an alien did not surrender any rights in reliance on the availability of § 212(c) relief, nor did he take any action from which he could assume a heightened expectation of receiving that relief in the future. See id. In fact, the aliens in Rankine, by standing trial, jeopardized their chances of obtaining § 212(c) relief because they risked receiving a sentence of five years or more, which would have disqualified them from such relief. See id. at 100; see also Swaby v. Ashcroft, 357 F.3d 156, 161-62 (2d Cir. 2004). Because an alien's decision to stand trial gave rise to no plausible claim that he altered his conduct in detrimental reliance on the availability of § 212(c) relief, the application of IIRIRA would have no retroactive effect.

One year later, in Restrepo, we refined our jurisprudence in this area. We held that the AEDPA did have a retroactive effect upon an alien who, following his pre-AEDPA trial conviction for an aggravated felony, decided to delay submitting an affirmative § 212(c) application in reliance on the reasonable expectation that he could file a stronger application at a later time. Restrepo, 369 F.3d at 633-38. The chances of obtaining § 212(c) relief increased with the passage of time because an alien's "proof of rehabilitation," the "nature, recency and seriousness" of his criminal record, and his "community ties" were relevant factors, among others, guiding an immigration judge's discretionary decision to grant relief. Id. at 634. Therefore, it was "perfectly understandable" that some aliens might decide to wait to apply for such relief. Id. We found that,

like the aliens in St. Cyr, who sacrificed something of value-their right to a jury trial, at which they could obtain outright...