Dias v. Immigration & Naturalization Service

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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