dissenting.
Because this Court’s opinion runs afoul of Supreme Court and Fourth Circuit precedent, and is equally puzzling as it is unpersuasive, I dissent. In light of the Court’s erroneous opinion, the Government will presumably seek rehearing en banc on the issue of whether IIRIRA is impermis-sibly retroactive as applied to Petitioner. Because I cannot participate in such proceedings, I fully set forth the reasons why, at this point, reliance remains a relevant factor in a retroactivity analysis.
The Court inappropriately propagates a substantive change in the law of retroactivity. In its effort to find IIRIRA imper-missibly retroactive in this ease, the Court broadly holds “reliance (whether subjective or objective) is not a requirement of impermissible retroactivity.” Op. at 388. In so holding, the Court chides the Government and the dissent for even suggesting reliance is a factor in the retroactivity analysis. The Court’s broad and complete dismissal of reliance, however, is unsupportable. The Court’s holding might be defensible if we were writing on a clean slate, but we are not. The Court ignores Supreme Court and Fourth Circuit precedent, and, in dismissing such a large body of law as “confusing,” the Court turns its back on the substantial implications of its opinion. I will address each proposition in turn.
A.
The Court’s opinion ignores Supreme Court precedent. Reliance undeniably plays a “central role” in the Supreme Court’s retroactivity analysis. Just this term, the Supreme Court explained the “aim of the presumption [against retroac-tivity] is to avoid unnecessary post hoc changes to legal rules on which parties relied in shaping their primary conduct.” Republic of Austria v. Altmann, — U.S. -, 124 S.Ct. 2240, 2252, 159 L.Ed.2d 1 (2004) (emphasis added). Further, the Supreme Court has repeatedly counseled that the judgment of whether a particular statute acts retroactively should be informed by “familiar considerations of fair notice, reasonable reliance, and settled expectations.” Landgraf v. USI Film Products, 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (emphasis added).
Reliance clearly predominated the Supreme Court’s analysis in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). There, the Supreme Court ultimately held “[bjecause respondent, and other aliens like him, almost certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIR-IRA has an obvious and severe retroactive effect.” Id. at 325, 121 S.Ct. 2271 (emphasis added).1 The Fourth Circuit also recognized that reliance was clearly the “key event” in St. Cyr’s retroactivity analysis. In Chambers v. Reno, 307 F.3d 284, 290 (4th Cir.2002), for example, the Fourth Circuit explained “[t]he key event in terms of St. Cyr’s analysis of whether the new statute would produce a retroactive effect was the alien’s decision to abandon his constitutional right to a trial and plead *400guilty to a deportable offense in reliance on prior law.” Further, in Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108 (4th Cir.2001), the Fourth Circuit noted that the Court in St. Cyr “heavily relied” on the fact that aliens like St. Cyr “almost certainly relied ... to their detriment” on pre-IIRIRA law.
In fact, this Court acknowledges the use of reliance is understandable in light of the Supreme Court’s “confusing treatment” of retroactivity. See Op. at 389. The Court thus recognizes the Supreme Court has utilized reliance in determining whether a statute has an impermissible retroactive effect. Unlike the Court, I do not believe we can take refuge in the statement that “confusion exists within the Supreme Court” in order to ignore binding precedent. See Op. at 390. Instead, we judges of the inferior courts must apply the law as the Supreme Court directs. See Hutto v. Davis, 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam) (noting “unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be”). This Court’s concession that the Supreme Court has utilized the reliance factor precludes it from holding otherwise.
Moreover, in its effort to discard reliance entirely, the Court suggests Justice Story’s formulation employed in Landgraf, 511 U.S. at 268-69, should be the exclusive test of impermissible retroactivity. See Op. at 393. Under this formulation, courts look to whether a statute takes away or impairs vested rights, creates a new obligation, imposes a new duty, or attaches a new disability to past transactions. See Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483. Contrary to the Court’s assertion, the Supreme Court in Hughes Aircraft Co. v. United States, 520 U.S. 939, 947, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997), specifically stated “the Court has used various formulations to describe the functional coneeptio[n] of legislative retroactivity, and made no suggestion that Justice Story’s formulation was the exclusive definition of presumptively impermissible retroactive legislation.”2
B.
The Court’s opinion ignores Fourth Circuit precedent. The Fourth Circuit has consistently used reliance as a factor in determining whether a statute has an impermissible retroactive effect. See Tasios v. Reno, 204 F.3d 544, 550-52 (4th Cir. 2000); Velasquez-Gabriel, 263 F.3d at 108; Chambers, 307 F.3d at 290.3
To begin, in Tasios, Judge Michael, writing for the court, addressed the issue of whether eliminating discretionary relief after an alien pled guilty in reliance on *401such relief was impermissibly retroactive. 204 F.Sd at 551. According to Judge Michael’s opinion for the court, reliance was a very relevant factor. He explained:
While no one could reasonably rely “on the availability of a discretionary waiver of deportation when choosing to engage in illegal drug activity,” there are at least two circumstances in which a person could reasonably modify his conduct in reliance on the prospect of § 212(c) relief. First, an alien might waive the right to trial and plead guilty to a criminal charge, banking on a lighter sentence that would preserve the availability of a § 212(c) waiver. Second, an alien might concede deportability, despite having a colorable defense, knowing that the facts of his case provide a good possibility of § 212(c) relief.... [T]he possibility of a successful defense cannot be ruled out categorically. At least one fact confirms that it was reasonable for an alien to rely on the prospect of § 212(c) relief when pleading guilty or conceding deportability: in the years immediately preceding the enactment of AEDPA, immigration judges and the BIA granted over half of the § 212(c) applications they decided.
Id. at 551 (internal quotations and citations omitted) (emphasis added). Judge Michael’s analysis in Tasios focused almost exclusively on reliance. Never once did the court indicate that consideration of reliance was improper. Further, Judge Luttig concurred in Tasios and specifically joined the court’s resolution of retroactivity. In doing so, Judge Luttig never expressed any concern with the court’s use of reliance as a relevant, if not exclusive, factor in a retroactivity analysis. See id. at 553. This Court’s ironic attempt to implicitly overrule Tasios should not go unnoticed. See Booth v. Maryland, 327 F.3d 377, 383 (4th Cir.2003) (explaining “[i]t is quite settled that a panel of this circuit cannot overrule a prior panel. Only the en banc can do that”).
The Fourth Circuit expounded on Judge Michael’s reasoning in Velasquez-Gabriel, 263 F.3d at 108. There, the Fourth Circuit explained the Supreme Court in St. Cyr “heavily relied on two factors ... (1) aliens like St. Cyr had a significant likelihood of receiving the relief they sought under the old law and (2) they almost certainly relied upon that likelihood to their detriment.” Id. at 108 (emphasis added) (internal quotation and citations omitted). The court noted that these two factors also “formed the basis of our retro-activity holding in Tasios.” Id. (emphasis added). The court in Velasquez-Gabriel ultimately concluded the petitioner’s case differed critically from St. Cyr and Tasios because he failed to demonstrate “a reasonable likelihood of success under pre-IIRIRA law nor a detrimental reliance on pre-IIRIRA law.” (emphasis added). Reliance thus played an obvious role in the analysis of whether IIRIRA was imper-missibly retroactive in Velasquez-Gabriel.4
Building again upon Judge Michael’s reasoning in Tasios, the Fourth Circuit utilized reliance as a relevant factor in Chambers, 307 F.3d at 290. In Chambers, the Fourth Circuit addressed whether IIRIRA had an impermissible retroactive effect on a plea agreement. The petitioner in Chambers pled not guilty and proceeded to trial. See id. at 290-91. Later, the petitioner argued he relied on pre-IIRIRA *402law when he pled not guilty. See id. at 290. In rejecting the petitioner’s argument, the Fourth Circuit discussed St. Cyr and explained “[t]he key event in terms of St. Cyr’s analysis ... was the alien’s decision to abandon his constitutional right to a trial and plead guilty to a deportable offense in reliance on prior law.” Id. (emphasis added). Thereafter, the court held “[b]y contrast, an alien [such as Chambers] who goes to trial does not act to preserve eligibility under INA § 212(c).” Id. at 290-91, 121 S.Ct. 2271. The court’s analysis in Chambers, therefore, clearly demonstrates reliance played an obvious role in determining whether IIRIRA retroactively effected the petitioner’s plea agreement.5
C.
The Court’s opinion not only contravenes Supreme Court and Fourth Circuit precedent, it goes well beyond the parties’ briefs in this case. Petitioner himself spends several pages in his brief discussing why he has shown a reliance interest similar to the aliens in St. Cyr and Chambers. (Aplt’s Br. at 24-32). The Court also points out that “the government vacillated in response to the pointed question of whether reliance remains a requirement after Hughes Aircraft.” Op. at 391. The Government “vacillated” because reliance is an obvious relevant factor in a retroac-tivity analysis under Supreme Court and Fourth Circuit precedent. In fact, the Government’s brief emphasized St. Cyr and Chambers and argued “[t]his case does not raise the same type of reliance concerns because Olatunji cannot seriously argue that he pled guilty in reliance on the admission procedures that were in effect at the time of his plea.” (Aple’s Br. at 31) (emphasis added). The parties in this case will be quite surprised to discover a substantial portion of their briefs were completely off-mark.
The Court’s opinion today makes an already “confusing” area of law even more “confusing.” Litigants in the Fourth Circuit will be left to wonder what is left of Tasios, Velasquez-Gabriel, and Chambers. Further, today’s opinion has the potential to significantly upset immigration law in two ways: (1), any alien who pled guilty of an offense listed in IIRIRA § 1182(a)(2) before 1996 and was denied admission may now file a successful habeas petition; and (2) the opinion supplants the executive’s and legislative’s prerogative to create and enforce immigration law by essentially writing IIRIRA § 1182(a)(2) out of the statute.
The Court’s opinion also flies in the face of the well-settled notion that a “statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Landgraf, 511 U.S. at 269, 114 S.Ct. 1483 (internal citations omitted); Tasios, 204 F.3d at 550.6 By discarding reliance *403entirely, this Court essentially holds a statute has a retroactive effect merely because an alien might have made a different choice when deciding whether to plead guilty or not guilty. This approach defies commonsense; most aliens are, of course, going to argue they would have made a different choice had they known the law was going to change. “Would have,” “could have,” or “should have” does not make a statute impermissibly retroactive.
D.
With these observations, and based upon binding Supreme Court and Fourth Circuit precedent, I would hold that Petitioner, and similarly situated aliens, did not almost certainly rely on pre-IIRIRA law when pleading guilty. Specifically, former INA § 101(a)(13) and the Fleuti doctrine did not take into consideration an alien’s criminal conviction when Petitioner pled guilty in 1994. See Rosenberg v. Fleuti, 374 U.S. 449, 460, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). Therefore, whether Petitioner was convicted via guilty plea or by jury was irrelevant to determining whether he could have briefly traveled abroad in 1994. Stated differently, Petitioner could have briefly traveled abroad in 1994 without any consequences whether he was acquitted of theft of government property, pled guilty to theft of government property, or convicted by jury of theft of government property. Petitioner’s case thus falls squarely in line with Chambers and is markedly distinguishable from St. Cyr because Petitioner “almost certainly” did not agree to plead guilty with the expectation that, “by conferring a benefit on the government, he would receive a benefit in return.” Chambers, 307 F.3d at 290; see also St. Cyr, 533 U.S. at 325, 121 S.Ct. 2271.
Furthermore, notwithstanding reliance, the outcome of Petitioner’s case would also not differ under Justice Story’s formulation of the retroactivity analysis. See Hughes Aircraft, 520 U.S. at 947,117 S.Ct. 1871. IIRIRA’s admission procedures simply do not take away or impair vested rights acquired under existing laws, create a new obligation, impose a new duty, or attach a new disability with respect to relevant past conduct, i.e., Petitioner’s decision to plead guilty. As noted, IIRIRA had no effect whatsoever on Petitioner’s plea agreement and no rights Petitioner might have obtained during plea bargaining have been eliminated. Simply, whether Petitioner could travel abroad and be readmitted without recourse was never a part of the bargaining process. Accordingly, application of IIRIRA to Petitioner simply does not have an unlawful retroactive effect. I therefore dissent.
. The Supreme Court has directed us to follow the most analogous Court precedent— obviously St. Cyr in this case — when determining what authority directly controls. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).
. The Court repeatedly belies my dissent. Reliance, in my opinion, is not the exclusive factor in a retroactivity analysis. On the con-traiy, Justice Story's formulation is equally relevant when determining whether a statute has a retroactive effect. In light of St. Cyr and Fourth Circuit precedent, however, reliance undoubtedly plays a “central role” in such analysis and, contrary to the Court's holding, cannot be discarded entirely. See St. Cyr, 533 U.S. at 323-25, 121 S.Ct. 2271; Chambers, 307 F.3d at 290-92.
. Moreover, our sister circuits have also recognized that reliance is a relevant factor in a retroactivity analysis. For example, in Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.2003), the Second Circuit explained "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 IIRI-RA.” (emphasis added). Additionally, the First Circuit noted in Dias v. INS, 311 F.3d 456, 458 (1st Cir.2002) (per curiam), that a "retroactivity analysis must include an examination of reliance in a guilty plea situation.” (emphasis added).
. The Court responds reliance was not the "sine qua non" of retroactivity in Velasquez-Gabriel. See Op. at 392. The Court misses the point. Again, I never suggest the reliance factor is exclusive. See supra at 389 n. 2. That said, the Fourth Circuit clearly considered reliance a relevant factor in Velasquez-Gabriel and never once suggested it should be discarded entirely.
. The Court suggests I have misread Chambers, but I am not alone in my reading. The Second Circuit recognized the clear import of Judge Traxler’s lucid opinion in Chambers:
Decisions from other circuits are in accordance with our holding. In Chambers v. Reno, the Fourth Circuit held in a case legally indistinguishable from those of petitioners here that IIRIRA's repeal of § 212(c) relief was not impermissibly retroactive when applied to an alien convicted after trial of an aggravated felony. Using the reasoning of the Supreme Court in St. Cyr, the court found that Chambers did not possess "a reliance interest comparable to that which was at the heart of St. Cyr."
Rankine, 319 F.3d at 101 (internal citations omitted) (emphasis added).
. The Fourth Circuit succinctly explained in Chambers, 307 F.3d at 292, that "the fact that Chambers' conviction was not a deportable offense at the time of his sentencing, but later *403became so after IIRIRA was enacted, does not cause IIRIRA ... to operate retroactively.”