United States Court of Appeals
For the First Circuit
No. 02-2074
ANTONIO VICENTE DIAS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Joseph F. Dugan on Petition for Review of an Order of The
Board of Immigration Appeals for petitioner.
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, Christopher C. Fuller, Senior Litigation Counsel, Office
of Immigration Litigation, and Brenda M. O'Malley, Trial Attorney,
Office of Immigration Litigation, Civil Division, Department of
Justice, on Respondent's Motion to Dismiss Petition for Review for
Lack of Jurisdiction and Opposition to Petitioner's Motion for a
Stay of Removal for respondent.
November 27, 2002
Per Curiam. In 1995, petitioner Dias was convicted in
the trial court for the Commonwealth of Massachusetts of a
violation of the drug laws of that state. At the time of the
conviction, petitioner was eligible for a discretionary waiver
of deportation pursuant to former § 212(c) of the Immigration
and Nationality Act. In 1996, § 440(d) of the Antiterrorism and
Effective Death Penalty Act (AEDPA) restricted the availability
of § 212(c) relief for aliens convicted of a number of
felonies, including petitioner's controlled substance offense.
The issue presented by this petition for review is
whether application of the new law to petitioner would have an
impermissible retroactive effect. Relying on INS v. St. Cyr,
533 U.S. 289 (2001), petitioner argues that it would. In St.
Cyr, the Court held that, because new legal consequences would
attach to events completed before its enactment, application of
AEDPA to alien criminal defendants who pled guilty prior to
AEDPA would constitute an "impermissible retroactive effect."
Id., at 321. However, the decision in St. Cyr relied on the
Court's recognition that (1) plea agreements generally involve
a quid pro quo between a defendant and the government and (2)
that aliens often attach much importance to the immigration
consequences of the decision whether or not to enter into an
agreement. "Preserving the client's right to remain in the
United States may be more important to the client than any
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potential jail sentence." St. Cyr, 533 U.S. at 322 (citation
omitted). Therefore, the potential for unfairness to one who
pled guilty in reliance on immigration law as it existed at the
time of the plea would be significant if the new law were
applied retroactively. For this reason, the Court held that
alien criminal defendants who pled guilty prior to AEDPA are
eligible to apply for discretionary relief under former §
212(c) of the INA.
In contrast, those alien criminal defendants who
chose to go to trial, prior to the change wrought by AEDPA,
were not relying on immigration law as it existed at the time
in making that decision. The inquiry into retroactive
application of a statute requires a "commonsense, functional
judgment" about the new legal consequences that attach to
events completed before its passage. St. Cyr, 533 U.S. at 321.
Although predating St. Cyr, our decision in Mattis v.
Reno, 212 F.3d 31 (1st Cir. 2000), foreshadowed the correct
outcome of this case. In Mattis we held that the retroactivity
analysis must include an examination of reliance in a guilty
plea situation. It follows that, having been convicted after
a trial where there was not, and could not have been, reliance
by the defendant on the availability of discretionary relief,
Dias may not argue that the statute has impermissible
retroactive effect as to him.
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We now join the Seventh and Ninth Circuits in ruling
that application of the new statutory limitations on
discretionary relief does not have an impermissible retroactive
effect on those aliens who would have been eligible for
discretionary relief when they were convicted of a felony after
trial. See Armendariz v. Sonchik, 291 F.3d 1116, 1121 (9th Cir.
2002)("aliens who elected a jury trial cannot plausibly claim
that they would have acted any differently if they had known
about § 440(d)"); LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th
Cir. 1998).
Affirmed.
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