Dissenting:
Because I find Congress’s intent plain on the face of the statute not to permit withholding of deportation or, in the parlance of the.new law, cancellation of removal to aliens in appellee’s position, I respectfully dissent.
There is no doubt that it is within Congress’s power to redefine what will subject an alien to removal, see Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), and that Congress may effect such changes to require removal of an alien who would not have been subject to removal of an alien who would not have been subject to removal before the changes became effective,1 see United States v. Koziel, 954 F.2d 831, 834 (2d Cir.1992) (upholding retroactive repeal of Judicial Recommendations Against Deportation for certain criminal aliens); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (permitting deportation based on conviction that would not have been a basis for deportation when the crime was committed). Indeed, there is a long tradition of Congress retroactively changing the qualifications for aliens’ continued residence in the United States. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 68 L.Ed. 549 (1924); Bugajewitz v. Adams, 228 U.S. 585, 592, 33 S.Ct. 607, 57 L.Ed. 978 (1913). While there is little doubt that Congress may alter the requirements for continued residence in this country, identifying when Congress has chosen to exercise its power retroactively has proven a more difficult problem and it *422is here that my views diverge from those of my colleagues.
The majority’s opinion has correctly identified the nature of the inquiry that we must undertake. See supra at 412 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). The threshold question in the Landgraf framework is whether Congress has expressly provided for a statute’s retroactive application. If so, our inquiry is at an end. See id.; Martin v. Hadix, 527 U.S. 343, 352, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999). The majority has found ambiguity in the temporal reach of Congress’s repeal of § 212 (c) relief for criminal aliens. I disagree.
I believe that Congress’s intent is clear on the face of the statute and that IIRI-RA, Pub.L. No. 104-208, 110 Stat. 3009-546 et seq. (1996), has removed the availability of § 212 (c), or equivalent relief, from criminal aliens like the petitioner here, regardless of when they entered their guilty pleas. This plain congressional intent is evident from IIRIRA’s general statutory framework and its comprehensive method of implementation. See Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“The plainness or ambiguity of statutory language is to be determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” (emphasis added)).
IIRIRA § 309 fixed April 1, 1997 as IIRIRA’s effective date. See 110 Stat. at 3009-625. While § 309 contains a general savings clause listing those aliens for whom IIRIRA does not apply as of its effective date, none of those exceptions are relevant here. See § 303(b)(2), 110 Stat. at 3009-586; § 242(g), 8 U.S.C. § 1252(g); § 306(c), 110 Stat. at 3009-612; §§ 308(d)(2)(D) & (d)(5), 110 Stat. at 3009-617, 619. Moreover, Congress, intending that IIRIRA be a complete break from the past, enacted transitional provisions that would operate during a phase-in period ending on IIRIRA’s effective date. See Calcano-Martinez v. I.N.S., 232 F.3d 328 (describing IIRIRA’s transitional rules). This legislative scheme of transitional provisions followed by permanent legislation can be reduced to one essential point relevant to IIRIRA’s repeal of § 212(c): Congress intended the whole of IIRIRA’s permanent provisions to apply to every alien as of April 1, 1997, except where it expressly exempted those provisions that were not meant to apply as of that date. The provision repealing § 212(c) was not one of them. Included in the provisions generally effective as of April 1, 1997 is § 304(b), repealing § 212(c), and § 304(a), replacing § 212(c) with new provisions entitled “Cancellation of Removal.” See § 304, 110 Stat. at 3009-594-97. The new cancellation of removal proceedings exclude specified classes of criminal aliens, including the petitioner here, from seeking discretionary relief.
Congress could not have been more express about its intent to have IIRIRA apply to all aliens against whom deportation or removal proceedings were not yet pending as of April 1, 1997. See generally § 309. If, as petitioner necessarily concedes, it is IIRIRA and not the old INA that subjects him to removal, then it is IIRIRA’s provisions that provide for the limits of judicial review and for cancellation of removal proceedings. I need look no farther to find that Congress made express its intention to disallow the relevant aliens against whom removal proceedings were filed after April 1, 1997 from seeking the protection of § 212(c) relief. Because petitioner falls generally within IIRIRA’s provisions, he is subject to IIRI-RA’s “Cancellation of Removal” proceedings- — from which, because of his criminal past, he is expressly excluded — and does not have access to § 212(c) relief.
The majority discounts this argument, suggesting that it is based on nothing more than the statute’s effective date and *423that such reasoning is impermissible because of the pronouncement in Landgraf that “[a] statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.” Landgraf, 511 U.S. at 257, 114 S.Ct. 1483. But the Court’s statement in Landgraf is inapplicable here. Changes to the Civil Rights Act of 1991, at issue in Landgraf, created new rights of employees “to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964,” id. at 247, 114 S.Ct. 1483, and the Court had to decide only whether a Title VII plaintiff whose suit was on appeal when the 1991 Act was enacted should be retroactively entitled to the Act’s punitive damages provisions. In that context, the fact that the 1991 Act was enacted on November 21, 1991 did not help the Court to decide whether it was intended to apply to claims predating the Act. But here, where the entirety of the new IIRIRA applies generally to the petitioner — indeed, if it did not, he would not be subject to removal at all— IIRIRA’s complex provisions governing its effective dates are squarely relevant to determining the extent of IIRIRA’s application as to him. In my view, these provisions plainly provide that petitioner is not entitled to § 212(c) relief.
The awkward statutory patchwork sewn together by the majority from scraps of IIRIRA and the former INA reveals that Congress could not have intended the majority’s conclusion. The majority’s opinion faces insurmountable hurdles even on a linguistic level. The petitioner here is subject to removal under the new IIRIRA. With this opinion, the majority has permitted petitioner access to a waiver of deportation hearing under § 212(c) that was part and parcel of a statutory scheme that no longer exists. Under IIRIRA, there is no such thing as deportation that can be waived. In order to reach the result they want, the majority has effectively taken a provision that they like from a statute that has been substantially replaced, and grafted it onto the replacement.
Insofar as the Landgraf presumption against retroactivity is a canon of construction that permits us to divine the intent of Congress, I cannot concur in a conclusion that flies so indisputably in the face of Congress’s express denial of cancellation of removal hearings for this alien. Combined with what I think are compelling expressions of Congress’s actual intent to repeal § 212(c) retroactively as to the broader class of criminal aliens described in IIRIRA § 304, I respectfully dissent from my colleagues’ view that § 304 may only be applied prospectively to pleas antedating IIRIRA’s enactment.
Because Congress’s intent is plain on the face of the statute, I see no reason to reach the second step of the Landgraf analysis which requires us to determine whether IIRIRA’s provisions governing cancellation of removal have genuine retroactive effect. Nevertheless, if I were to reach Landgraf s second step, I would conclude that provisions denying cancellation of removal do not operate retroactively. I believe that analysis of this question should be governed by cases arising in the context of the substantially analogous 1990 amendment to the INA.
The 1990 amendment limited the relief afforded by § 212(c)’s waiver of deportation by excluding aggravated felons who were sentenced to terms of imprisonment of at least five years. In holding that the 1990 amendment did not have a retroactive effect, the Ninth Circuit persuasively held that “[cjongressional repeal of a discretionary power to relieve an alien from deportation does not attach any new legal consequences to the pre-enactment events.” Samaniego-Meraz v. INS, 53 F.3d 254, 256 (9th Cir.1995). As in the present case, “the consequences of petitioner’s criminal conduct were clear, at the time of that conduct and they remain unchanged today. He was subject to possible criminal sanctions and deportation.” Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.1996). “In *424general, the concern regarding retroactive application of statutes is the deprivation of rights without notice and fair warning; such concerns are not present in this case.... In this case, Congress did not attach additional consequences [to past criminal activity] but merely withdrew a previously available form of discretionary relief.” Id. (quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993)) (alterations in original). True retroactivity would occur- if IIRIRA revoked § 212(c) relief from those who had received it prior to IIRI-RA’s effective date. IIRIRA § 304(b), like the 1990 amendment, “is not made retroactive merely because it applies to convictions for aggravated felonies before that time. The past aggravated felony conviction is only the prerequisite for the prospective denial of discretionary relief.” De Osorio, 10 F.3d at 1042.
As of IIRIRA’s April 1, 1997 effective date, Congress plainly changed the category of aliens who thereafter may seek cancellation of removal, and I disagree that the new scheme has a genuinely retroactive effect. Accordingly, I would conclude that the Landgraf presumption against retroactivity has no effect on our analysis. In the absence of any such presumption against retroactivity, our more traditional tools of construction apply, including the usual deference afforded to agency interpretations under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, even were I to agree that the temporal reach of § 304(b) is ambiguous, I still believe that petitioner here would not be entitled to withholding of deportation or cancellation of removal proceedings.
. The majority hints that removing 8 U.S.C. § 1182(c) (" § 212(c)”) relief retroactively would raise "a profound constitutional question." Supra at 416 n. 6. I share no such concern. Congress’s plenary power to define the conditions of aliens’ continued residence in this country gives Congress the authority to remove § 212(c) relief, as advocated by the INS. I do not dispute the general presumption against the retroactive application of congressional enactments, especially where the rights of "an unpopular group or individual” are affected. Id. But this is not an issue of constitutional dimension. Accordingly, I share the view of the majority, as expressed in the body of its opinion, that our inquiry here is governed by retroactivity analysis and not by the canon of construction requiring us to avoid constitutional questions.