Hem v. Maurer

F IL E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 18, 2006
U N IT E D ST A T E S C O U R T O F A P PE A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

BOVY HEM ,

Petitioner,
v.

DOUGLASS M AURER, Interim Field No. 05-9555
Director, United States Immigration
and Customs Enforcement, UN ITED
STA TES IM M IG RA TIO N A N D
CU STOM S ENFORCEM ENT,

Respondents.

Petition for R eview
(B IA N o. A 25 172 699)
O n T ransfer of a P etition for a W rit of H abeas C orpus
from the U nited States D istrict C ourt
for the D istrict of C olorado
(D .C . N o. 04-M K -2467)

Laura L. Lichter, Lichter & Associates, Denver, Colorado, for the Petitioner.

Donald E. Keener, Deputy Director, United States D epartment of Justice, Civil
Division, Office of Immigration Litigation (Alison M arie Igoe, Senior Litigation
Counsel, with him on the brief), W ashington, D.C., for the Respondents.

Before H E N R Y , H O L LO W A Y , and L U C E R O , Circuit Judges.

L U C E R O , Circuit Judge.
 Bovy Hem first entered this country as a Cambodian refugee in 1981 and

has been a legal resident ever since. In 1990, Hem w as involved in a car accident

which left him a paraplegic. Four years later, he was convicted of assaulting a

police officer when he refused to let go of a traffic sign and grabbed the officer’s

shirt, tearing it as he fell from his wheelchair to the ground. In 1999, the

Immigration and Naturalization Service (“INS”) began removal proceedings

against him. Hem protested his removal and sought relief under § 212(c) of the

Immigration and Nationality Act (“INA”). 8 U .S.C. 1182(c). Section 212(c),

which has since been repealed, granted the Attorney General discretion to stay

deportation proceedings brought to remove an alien who has been convicted of an

“aggravated felony.” An Immigration Judge (“IJ”) granted Hem a w aiver of

inadmissibility under § 212(c), but was subsequently reversed by the Board of

Immigration Appeals (“BIA”).

In the interim of H em’s conviction and the removal proceedings, Congress

passed the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996

(“IIRIR A”). Section 304(b) of IIRIRA repealed § 212(c) discretionary relief.

Shortly thereafter, the Attorney General interpreted § 304(b) to apply

retroactively, and authorized the INS to institute removal proceedings against

aliens like H em, whose aggravated assault convictions pre-dated IIRIRA’s

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effective date. This w as followed by I.N.S. v. St. Cyr, 533 U.S. 289 (2001), in

which the Supreme Court held that application of IIRIRA § 304(b) would be

impermissibly retroactive to aliens whose aggravated felony convictions followed

from guilty pleas.

St. Cyr left unansw ered a key question: is § 304(b) impermissibly

retroactive to aliens whose aggravated felony convictions followed from jury

trials? This issue has now been addressed by numerous low er courts. These

courts have diverged on whether, and to what extent, litigants must show they

relied on pre-IIRIRA law to sustain an IIRIRA retroactivity claim. The Third,

Fourth, and Sixth Circuits require that a reasonable litigant could have

“objectively relied” on the availability of § 212(c) in a given situation. The First,

Second, and Eleventh Circuits demand that litigants demonstrate they actually

relied on the availability of such relief. Because the former interpretation is a far

more persuasive reading of the Supreme Court’s retroactivity cases, we conclude

that an objective showing of reliance is the appropriate rule. Applying that rule,

we disagree with the majority of circuits that have concluded that litigants who

proceed to trial have not suffered retroactive effects under IIRIRA’s repeal of

§ 212(c). Instead, we conclude that a defendant who proceeds to trial but forgoes

his right to appeal when § 212(c) relief was potentially available has suffered

retroactive effects under IIRIRA. W e therefore R EV ER SE the B IA’s

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determination that St. Cyr is inapplicable to Hem because he did not plead guilty

and R E M A N D .

I

Hem is a native of Cam bodia w ho was adm itted to the U.S. as a refugee in

1981 when he was seven years old and thereafter becam e a perm anent resident.

On April 26, 1994, Hem, a paraplegic, was approached by a police officer as he

was “horsing around” with a traffic sign. After being told that he would be

ticketed if he did not let go of the traffic sign, Hem wheeled away from the

officer, but the officer chased Hem and pulled him from his w heel chair. W hile

Hem was being pulled from his chair, he grabbed the officer’s shirt to steady

him self, ripping his uniform in the process. He was thereafter indicted on two

counts of aggravated assault in South Dakota. Each count carried a maxim um

sentence of fifteen years. S.D. Codified Laws § 22-6-1. Following a jury trial,

H em w as convicted of one count of aggravated assault in violation of S.D.

Codified Laws § 22-18-1.1(3). 1 He received a suspended sentence of three

years, but violated the conditions of suspension, and served almost three years in

prison. Had Hem been convicted on either count, he faced a maxim um sentence

1
S.D. Codified Laws § 22-18-1.1(3) then provided:
Any person who . . . [a]ttempts to cause or knowingly causes any
bodily injury to a law enforcement officer or other public officer
engaged in the performance of the officer’s duties . . . is guilty of
aggravated assault. A ggravated assault is a Class 3 felony.

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of fifteen years. Hem did not appeal his conviction.

O n Septem ber 22, 1999, the IN S began rem oval proceedings against H em ,

charging him as being subject to removal under 8 U.S.C. § 1227(a)(2)(iii), which

m andated removal of aliens who have been convicted of an “aggravated felony”

(a “crime of violence” for w hich the term of im prisonm ent was at least one year).

Hem appeared before an imm igration judge and conceded that his

aggravated assault conviction qualified him for removal. He sought relief on

several grounds: withholding of (now “restriction on”) rem oval under 8 U.S.C.

§ 1231(b)(3); relief from rem oval under the Convention against Torture (“CAT”);

and a “§ 212(c) w aiver” of inadm issability under 8 U.S.C. § 1182(c). 2

The IJ ruled that Hem’s offense did not involve a crim e which was

“particularly serious,” thus establishing Hem ’s eligibility for § 1231(b)(3)

withholding, and relief from removal under CAT. In denying the application for

withholding of rem oval under § 1231(b)(3), the IJ found that the harm Hem

suffered did not rise to the level of persecution. Hem’s application for relief from

removal under CAT was also denied by the IJ on the basis that Hem had not

shown that it was m ore likely than not he would be tortured if returned to

Cam bodia.

2
Section 212(c) was repealed by IIRIRA § 304(b), and was replaced with a
new form of discretionary relief called cancellation of removal, codified at 8
U.S.C. § 1229b.

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 In addressing the § 212(c) w aiver, w hich w as available to H em at the tim e

he was convicted, the IJ noted that although such relief was eliminated by IIRIRA

in 1996, the Supreme Court had held that application of IIRIRA to defeat an

alien’s preexisting eligibility for a § 212(c) waiver would be imperm issibly

retroactive under the principles of Landgraf v. USI Film Products, 511 U.S. 244

(1994), and its progeny. See I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Crediting

that St. Cyr involved an alien w ho had pled to the underlying removable offense

rather than being found guilty at trial (as H em was), the IJ nevertheless refused to

rule the distinction dispositive due to constitutional m isgivings about m aking

unfavorable distinctions based on a defendant’s exercise of his right to jury trial.

After considering Hem ’s extensive fam ily ties to the U.S., his long residence in

the country, and his physical circumstances, the IJ granted the § 212(c) waiver,

allowing Hem to stay in the U.S.

On appeal of the § 212(c) determ ination to the BIA, the INS argued that

because the underlying conviction was obtained by trial rather than by plea, St.

Cyr w as inapplicable, and thus that H em’s case raised no retroactivity concerns.

The BIA agreed, reversed the IJ’s grant of § 212(c) relief, and ordered Hem

removed to Cambodia. Hem sought review of the BIA’s decision by way of a 28

U.S.C. § 2241 petition filed in district court. That court, however, did not rule on

the petition. Instead, it transferred the petition to this court in accord with the

recent REAL ID Act amendments elim inating habeas review of BIA removal

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decisions. 3

In his habeas petition before the district court, Hem argued that St. Cyr

controls his case, and thus, he is entitled to seek § 212(c) relief. Under former

§ 212(c) of the INA, deportable aliens who had accrued seven years of lawful

permanent residence in the United States could request discretionary relief from

deportation by arguing that the equities weighed in favor of their remaining in the

United States. Even an alien deportable because he had been convicted of an

aggravated felony, see 8 U.S.C. § 1227(a)(2)(A )(iii), was eligible for this

discretionary relief if he served a term of imprisonment less than five years. See

8 U.S.C. § 1182(c). There was also a strong likelihood that this relief would be

3
The REAL ID Act, inter alia, shifted certain immigration disputes
formerly raised through habeas corpus in the district courts to the courts of
appeals and converted them into petitions for review. Pub. L. No. 109-13, 119
Stat. 231 (2005). Congress added a new provision codified at 8 U.S.C. §
1252(a)(5). Subsection (a)(5), entitled “Exclusive M eans of Review,” provides:

Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of title 28, United States Code, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, a petition for
review filed with an appropriate court of appeals in accordance with this
section shall be the sole and exclusive means for judicial review of an order
of removal entered or issued under any provision of this chapter, except as
provided in subsection (e) of this section.

Thus, this section makes a petition for review to an appellate court the sole means
of review of an order of removal issued under the INA, and specifically excludes
review under the habeas statutes. The Act applies to “cases in which the final
administrative order of removal, deportation, or exclusion was issued before, on,
or after the date of the enactment of this division.” 8 U.S.C. § 1252.

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granted; indeed, the Attorney General granted it in over half of all cases in which

it was sought. See St. Cyr, 533 U.S. at 296 & n.5. Factors deemed favorable for

granting relief include family ties within the United States, residence of long

duration in this country, evidence of hardship to the immigrant’s family as a result

of deportation, and a stable history of employment. See In re M arin, 16 I & N

Dec. 581, 584-85 (BIA 1978).

Section 304(b) of IIRIRA repealed § 212(c) relief entirely, replacing it with

a procedure called “cancellation of removal.” See 8 U.S.C. § 1229b. This

narrower form of relief is not available to an alien convicted of any aggravated

felony. IIRIRA also retroactively expanded the definition of “aggravated felony”

to include dozens more offenses, including misdemeanor and low-level felony

offenses. See 8 U.S.C. § 1101(a)(43).

In its opposition to Hem’s petition for relief under § 212(c), the

government argues that St. Cyr’s bar against retroactive application of § 304(b) of

IIRIRA does not apply to petitioners w ho, like H em, had been convicted in a jury

trial and not pursuant to a guilty plea. W e ordered supplemental briefing on the

role of reliance on prior law in the Landgraf retroactivity analysis. In his

supplemental brief, Hem urges that we follow the Fourth Circuit in Olatunji v.

Ashcroft, 387 F.3d 383 (4th Cir. 2004), and conclude that no reliance on prior law

is necessary for a statute to have an impermissible retroactive effect. Hem argues

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alternatively that we should follow the Third Circuit in Ponnapula v. Ashcroft,

373 F.3d 480 (3rd Cir. 2004), to conclude that only objectively reasonable

reliance on prior law is necessary to assert a retroactivity claim. The Government

asks us to follow the majority of other circuits that have concluded St. Cyr does

not apply to defendants whose “aggravated felony” convictions resulted from jury

trials and not guilty pleas.

Hem also argues that the IJ incorrectly failed to apply a presumption that

his life and liberty would be threatened upon his return because he suffered

“persecution” in the past. 8 C.F.R. § 208.16(b)(1)(I).

W e conclude that Landgraf, St. Cyr, and the Supreme Court’s other

retroactivity cases require only objective, and not subjective, reliance to sustain a

retroactivity claim, and that litigants who proceed to trial but abandon their right

to appeal when § 212(c) relief is available have objectively relied on pre-IIRIRA

law. W e do not reach the other grounds on appeal because our noted reversal

reinstates the IJ’s grant of § 212(c) relief.

II

W hen a statute is ambiguous, we defer to an agency’s statutory

interpretation. Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843

(1984). W hen determining questions of retroactivity, however, our review is de

novo. St. Cyr, 533 U.S. at 320 n.45. “Because a statute that is ambiguous w ith

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respect to retroactive application is construed under our precedent to be

unambiguously prospective, there is, for Chevron purposes, no ambiguity in such

a statute for an agency to resolve.” Id. (citations and quotations marks omitted);

see also Arevalo v. Ashcroft, 344 F.3d 1, 10 (1st Cir. 2003) (explaining that

“courts, rather than agencies, are best equipped to make the constitutionally

tinged judgment calls inherent in retroactivity determinations”); Sarmiento

Cisneros v. United States Attorney General, 381 F.3d 1277, 1280 (11th Cir. 2004)

(same); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 300 n.53 (5th Cir. 2002)

(same).

A

As Justice Story observed, the Supreme Court has long disfavored

retroactive statutes because “[r]etrospective law s are, indeed, generally unjust;

and, as has been forcibly said, neither accord with sound legislation nor with the

fundamental principles of the social compact.” Eastern Enterprises v. Apfel, 524

U.S. 498, 533 (1998) (quoting 2 J. Story, Commentaries on the Constitution §

1398 (5th ed. 1891)). Retroactive legislation “presents problems of unfairness

that are more serious than those posed by prospective legislation, because it can

deprive citizens of legitimate expectations and upset settled transactions.”

General M otors Corp. v. Romein, 503 U .S. 181, 191 (1992). Thus, due process

“protects the interests in fair notice and repose that may be compromised by

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retroactive legislation.” Landgraf, 511 U.S. at 266. Retroactivity is sufficiently

disfavored in the law that “a justification sufficient to validate a statute’s

prospective application under the [Due Process] Clause may not suffice to warrant

its retroactive application.” Id. (internal quotation and citation omitted).

Landgraf established a two part test for determining whether a statute

applies retroactively. First, we ask “whether Congress has expressly prescribed

the statute’s proper [temporal] reach.” Id. at 280. Second, if the court cannot

ascertain congressional intent, we consider whether the statute has a retroactive

effect. Id. If a retroactive effect exists, “our traditional presumption teaches that

it does not govern absent clear congressional intent favoring such a result.” Id.

Under Landgraf, a provision has a retroactive effect if it “would impair

rights a party possessed when he acted, increase a party’s liability for past

conduct, or impose new duties with respect to transactions already completed.”

Id.; see also Hughes Aircraft Co. v. United States ex. rel. Schumer, 520 U.S. 939,

947 (1997) (stating that the above list is illustrative but not exhaustive).

However, “[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. Rather, the court must determine whether the new provision

attaches new legal consequences to events completed before its enactment.”

Landgraf, 511 U.S. at 269-70 (internal citations omitted). In making this

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determination, courts should be guided by “familiar considerations of fair notice,

reasonable reliance, and settled expectations.” Landgraf, 511 U.S. at 270.

In IN S v. St. Cyr, the Court applied Landgraf’s tw o part retroactivity

analysis to IIRIRA’s § 304(b), the section that repealed former INA § 212(c).

Addressing the first step of Landgraf, the C ourt concluded section § 304(b) –

which simply states that “Section 212(c) (8 U.S.C. § 1182(c)) is repealed” – did

not show Congress’s unequivocal intent to apply the repeal retroactively to aliens

like St. Cyr who had pleaded guilty before the repeal of § 212(c). St. Cyr, 533

U.S. at 320. Proceeding to the second step, the Court determined that retroactive

application of § 304(b) would have an “impermissible retroactive effect for aliens

who, like [St. Cyr], were convicted pursuant to a plea agreement at a time when

their plea would not have rendered them ineligible for § 212(c) relief.” Id.

Specifically, the Court held:

IIRIRA’s elimination of any possibility of § 212(c) relief for people
who entered into plea agreements with the expectation that they
would be eligible for such relief clearly “attaches a new disability, in
respect to transactions or considerations already past.” Landgraf,
511 U.S. at 269. Plea agreements involve a quid pro quo between a
criminal defendant and the government. In exchange for some
perceived benefit, defendants waive several of their constitutional
rights (including the right to a trial) and grant the government
numerous tangible benefits, such as promptly imposed punishment
without the expenditure of prosecutorial resources. There can be
little doubt that, as a general matter, alien defendants considering
whether to enter into a plea agreement are acutely aware of the
immigration consequences of their convictions.

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Id. at 321-22 (some internal quotation marks and citations omitted).

B

Since St. Cyr, lower courts have split over two questions essential to this

case: whether reliance must be established objectively, subjectively, or even at

all, and whether petitioners w ho proceed to trial have suffered retroactive effects

under § 304(b) of IIR IR A. Following the Third, Fourth, and Sixth Circuits, w e

conclude that only objectively reasonable reliance on prior law is necessary to

sustain a retroactivity challenge. For that reason, on the second issue we disagree

with the majority of circuits that have concluded St. Cyr does not apply to aliens

who challenged their aggravated felony convictions by exercising their right to

jury trial. W e conclude that just as foregoing or exercising a right to jury trial

can demonstrate objectively reasonable reliance, those who proceed to trial but

forgo their right to appeal have suffered impermissible retroactive effects under

IIRIRA § 304(b).

Following the Supreme Court’s analysis in St. Cyr, the Third, Fourth, and

Sixth Circuits have held that determining whether a statute has retroactive effects

does not entail an inquiry into litigants’ actual subjective reliance on prior law ,

but rather, a review of what reasonable litigants would consider in a given

situation. See, e.g., Olatunji, 387 F.3d at 396 (holding in the context of a non-

§ 212(c) IIRIRA retroactivity challenge that, if reliance were required, “w e would

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insist at most upon objectively reasonable reliance [and not] subjective reliance”);

Thaqi v. Jenifer, 377 F.3d 500, 504 n.2 (6th Cir. 2004) (“not[ing] that, under St.

Cyr, the [alien] need not demonstrate actual reliance upon the immigration law s in

order to demonstrate an impermissible retroactive effect”); Ponnapula v. Ashcroft,

373 F.3d 480, 493 (3d Cir. 2004) (“the Supreme Court has avoided an ‘actual

reliance’ formulation in favor of a ‘reasonable reliance’ formulation in its

retroactivity analysis”); see also Garcia-Ramirez v. Gonzales, 423 F.3d 935, 943-

44 (9th Cir. 2005) (two-judge concurrence in panel decision disposed of on other

ground; holding in the context of a non-§ 212(c) IIRIRA retroactivity challenge

that objectively reasonable reliance on prior law is sufficient). For these circuits,

retroactivity analysis centers on whether the relevant circumstances gave rise to

interests upon which it would have been objectively reasonable to rely on the state

of prior law, and not on whether actual reliance on prior law has been

demonstrated. This analysis “turn[s] on the state of the law” and not on

“subjective expectations.” Garcia-Ramirez, 423 F.3d at 944 n.1.

Abandoning the Supreme Court’s consistent use of objective reliance in the

context of retroactivity analysis, the First, Second, and Eleventh Circuits have

required that the petitioner demonstrate his own, individual reliance on the

availability of § 212(c) relief. See Swaby v. Ashcroft, 357 F.3d 156, 161-62 (2d

Cir. 2004) (holding that IIRIRA’s repeal of IN A § 212(c) w as not impermissibly

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retroactive because, unlike St. Cyr, the petitioner chose to proceed to trial instead

of agreeing to a plea and therefore did not “detrimentally rely on the availability

of § 212(c) relief”); Rankine v. Reno, 319 F.3d 93, 100 (2d Cir. 2003) (same);

Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002) (holding that IIRIRA’s repeal of

§ 212(c) was not impermissibly retroactive to petitioners who did not rely on

pre-IIRIRA law because the “retroactivity analysis must include an examination

of reliance”) (citing M attis v. Reno, 212 F.3d 31, 38 (1st Cir. 2000) (Alien must

have “actually and reasonably relied” on availability of relief for IIRIRA’s repeal

of § 212(c) to have retroactive effect); Brooks v. Ashcroft, 283 F.3d 1268, 1274

(11th Cir. 2002) (holding that the repeal of § 212(c) was not impermissibly

retroactive because, unlike St. Cyr, petitioner “did not so choose to rely upon the

agreed upon terms of a plea” and because his case did not present “the same

concerns of quid pro quo, benefit for an exchange, between a defendant and the

government”). As discussed in Section II.C below, a requirement that a petitioner

demonstrate that he actually relied on § 212(c) turns the historic presumption

against retroactive application of statutes on its head.

The Fourth and Seventh Circuits have also rejected retroactivity challenges

to IIRIRA’s repeal of § 212(c), but have done so by elevating the quid pro quo of

the plea bargain into a prerequisite to an IIRIRA retroactivity challenge. See

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C ham bers v. R eno, 307 F.3d 284 (4th Cir. 2002) (discussed infra in Part II.D) 4 ;

M ontenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per curiam). This

analysis too, is overly constrained, ignoring Landgraf’s direction that we consider

whether a new statute “would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new duties with respect to

transactions already completed.” Landgraf, 511 U.S. at 280.

C

The facts of Landgraf itself belie any notion that the Supreme Court

requires a showing of actual reliance as a prerequisite to sustain a retroactivity

challenge. Landgraf concerned the potential retroactivity of the Civil Rights Act

of 1991. 511 U.S. at 247. Landgraf, the plaintiff, sued her former employer for

4
W e recognize that there is tension between Olatunji and Chambers, but
observe that they construe different provisions of the IN A. As discussed more
fully below, Chambers concluded that IIRIRA § 304(b) – the provision at issue in
this case – is not impermissibly retroactive to aliens whose aggravated felony
convictions followed jury trials and not guilty pleas. 307 F.3d at 290. Olatunji,
decided two years later, concluded that IIRIRA’s redefinition of “admission”
under INA §101(a)(13), was impermissibly retroactive with regard to aliens, like
Olatunji, who had previously pled guilty with the expectation that their guilty plea
w ould not prevent them from taking brief trips abroad. 387 F.3d at 397. As
discussed below, Olatunji so concluded by construing Landgraf and its progeny to
impose no reliance requirement whatsoever. This broad repudiation of reliance is
potentially in conflict with the reasoning of Chambers, which gives reliance a
central role in its analysis of IIRIRA § 304(b). However, because we do not rely
on the law of the Fourth Circuit as persuasive authority, but merely cite these
cases as illustrative of different approaches to reliance and retroactivity, we do
not pursue the matter further.

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constructive discharge, arguing that sexual harassment against her created a

hostile w ork environment. Id. at 248. Her suit was dismissed because, despite

the district court’s finding that Landgraf demonstrated sexual harassment, that

harassment did not result in any concrete effect on her employment status. Id. at

254. The Civil Rights Act of 1991 came into effect while Landgraf’s appeal was

pending in the Fifth Circuit. Id. at 249. Section 102 of the 1991 Act created a

right to recover compensatory and punitive damages for intentional discrimination

violative of Title VII. Id. at 253. This new legislation also permitted a plaintiff

to recover damages w here there had been unlawful discrimination in the “‘terms,

conditions, or privileges of employment,’ even though the discrimination did not

involve a discharge or a loss of pay.” Id. at 255. On appeal, Landgraf sought to

have her case remanded for a determination of compensatory damages under

§ 102 of the 1991 Act. The Fifth Circuit rejected Landgraf’s argument and the

Supreme Court affirmed, finding the 1991 Act did not apply retroactively. Id. at

249.

Before applying the now-familiar two part test, the Court noted that

retroactivity analysis must always be informed by a presumption against giving

statutes retroactive effect:

[P]rospectivity remains the appropriate default rule. Because it
accords w ith widely held intuitions about how statutes ordinarily
operate, a presumption against retroactivity will generally coincide
with legislative and public expectations. Requiring clear intent

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 assures that Congress itself has affirmatively considered the potential
unfairness of retroactive application and determined that it is an
acceptable price to pay for the countervailing benefits. Such a
requirement allocates to Congress responsibility for fundamental
policy judgments concerning the proper temporal reach of statutes,
and has the additional virtue of giving legislators a predictable
background rule against which to legislate.

Id. at 272-73. Because Congress did not explicitly provide for the temporal reach

of the relevant portions of the 1991 Act, the Court proceeded to the second step

of Landgraf. Application of the 1991 Act to pre-1991 behavior would have

impermissible retroactive effect, the Court concluded, because retroactive

application of the new compensatory damage provisions would “attach an

important new legal burden” to Title VII defendants. Id. at 283.

In its single reference to the defendant’s possible reliance upon pre-1991

law, the C ourt observed that “[t]he introduction of a right to compensatory

damages is also the type of legal change that would have an impact on private

parties’ planning.” Id. at 282. Yet, in a footnote immediately following this

sentence, the Court was careful to observe that “concerns of unfair surprise and

upsetting expectations are attenuated in the case of intentional employment

discrimination, which has been unlawful for more than a generation.” Id. at 282

n.35 (emphasis added). The “attenuated” role reliance played in Landgraf can

thus not be plausibly read to erect a reliance prerequisite to sustaining a

retroactivity claim.

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 Hughes Aircraft Co. v. United States ex rel. Schumer, the Court’s next

major civil retroactivity decision, similarly failed to impose any reliance

requirement on retroactivity challenges. 520 U.S. 939 (1997). There, the C ourt

considered whether the elimination of certain defenses to qui tam suits under the

False Claims Act (“FCA”) could be applied retroactively to Hughes Aircraft.

Prior to 1986, a qui tam suit was barred if the information upon which it was

based was already in the government’s possession. Id. at 945. That bar was

partially removed by the 1986 FCA amendment which now permitted “qui tam

suits based on information in the Government’s possession, except where the suit

was based on information that had been publicly disclosed and was not brought by

an original source of the information.” Id. (citing 31 U.S.C. § 3730(e)(4)(A)).

Schumer, a qui tam relator, filed suit in 1989 against Hughes Aircraft claiming

that the defense company had misled the government with certain accounting

practices. Id. at 943. Hughes won dismissal on summary judgment by persuading

the district court that the 1986 FCA amendment was not retroactive and that it had

fully disclosed its accounting practices to the government. Id. at 943-44. After

the Ninth Circuit reversed the district court’s retroactivity holding, the Supreme

Court granted certiorari and reversed the Ninth Circuit. Id. at 945.

Applying the first step of the Landgraf test, the Court observed that the

statute did not reveal a clear Congressional intent to apply the 1986 amendment

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retroactively. Id. at 946. Applying the second step, the Court concluded that the

statute had retroactive effect because prior to the 1986 amendment, any qui tam

action would have been barred by Hughes’ disclosures to the government about

the claim submissions. “The 1986 amendment would revive that action,

subjecting Hughes to previously foreclosed qui tam litigation.” Id. at 950.

Application of the 1986 amendment to pre-1986 conduct thus satisfied Justice

Story’s definition of retroactive effect because it “would alter the substantive

rights of a party and increase a party’s liability.” Id. (quoting Chenault v. United

States Postal Service, 37 F.3d 535, 537, 539 (9th Cir. 1994)). It is critical to

note, as the Fourth Circuit observed in Olatunji, that the Court “so held without

even a single word of discussion as to whether Hughes Aircraft – or, for that

matter, similarly situated government contractors – had relied on the eliminated

defense to its detriment.” 387 F.3d at 391.

Although reliance played a central role in M artin v. Hadix – the next major

retroactivity case decided by the Court – M artin nevertheless failed to elevate

actual reliance into a prerequisite to sustain a retroactivity challenge. 527 U.S.

343 (1999). M artin followed two successful class action suits brought by

prisoners under 42 U.S.C. § 1983 challenging the conditions in the M ichigan

prison system in 1977 and 1980. Id. at 347. The prisoners w ere successful in

both actions, and the federal trial court ordered the semi-annual payment of

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attorneys’ fees, at the prevailing market rate, for post-judgment monitoring of

compliance with the court’s decrees in both cases. Id. at 348. By 1998, the

prevailing market rate for attorneys was $150 per hour. Id. Fees paid to the

prisoners’ attorneys was called into question by the enactment of the Prison

Litigation Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321.

Section 803(d)(3) of the PLRA capped attorneys’ fees in prison litigation suits to

no greater than 150% of the hourly rate permitted under federal law for

court-appointed counsel. Because court-appointed attorneys in the Eastern

District of M ichigan were paid a maximum of $75 an hour, the PLRA permitted

payment of no more than $112.50 for attorneys’ fees in prison litigation suits in

that district. M artin, 527 U.S. at 350.

After concluding that the statute did not expressly authorize retroactive

application of the new fee structure, the Court considered whether the PLRA

would have retroactive effect. Id. at 353. The Court observed that the prisoners’

attorneys “had a reasonable expectation that work they performed before

enactment of the PLRA in monitoring petitioners’ compliance with the court

orders would be compensated at the pre-PLRA rates as provided in the stipulated

order.” Id. at 358 (emphasis added). This reasonable expectation would be upset

by application of the PLRA to “w ork performed before its effective date [because

it] would alter the fee arrangement post hoc by reducing the rate of

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compensation.” Id. Thus, applying the PLRA after the fact would have

retroactive effect by “attach[ing] new legal consequences to completed conduct.”

Id. (citation omitted).

M artin does not focus on whether the prisoners’ attorneys actually relied

upon pre-PLRA rates; rather, it considers whether reliance by similarly situated

lawyers on pre-PLRA rates would have been reasonable. This focus on

“reasonable reliance” persisted in the Supreme Court’s next major civil

retroactivity case, St. Cyr itself.

In St. Cyr, the C ourt considered whether “the restrictions on discretionary

relief from deportation contained in [AEDPA and IIRIRA] . . . apply to removal

proceedings brought against an alien who pled guilty to a deportable crime before

their enactment.” 533 U.S. at 293. The Court applied Landgraf’s two part

retroactivity analysis to IIR IR A’s § 304(b), the section that repealed former INA

§ 212(c), concluding first that because § 304(b) simply states “Section 212(c) (8

U.S.C. § 1182(c)) is repealed,” Congress did not show its unequivocal intent to

apply the repeal retroactively to aliens like St. Cyr who had pleaded guilty before

the repeal of § 212(c). Having decided that Congress did not unambiguously state

its intention to make the repeal of § 212(c) retroactive, the Court went on to the

second step of determining whether the rule w ould have an “impermissible

retroactive effect for aliens who, like [St. Cyr], were convicted pursuant to a plea

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agreement at a time w hen their plea would not have rendered them ineligible for

§ 212(c) relief.” Id. at 320.

St. Cyr leaves little doubt that the Supreme Court has never insisted upon

actual reliance as a prerequisite to sustaining a retroactivity claim. In discussing

the reliance interest frustrated by IIRIRA’s repeal of § 212(c) to petitioners who

took guilty pleas, the Court observed: “[P]reserving the possibility of [§ 212(c)]

relief would have been one of the principal benefits sought by defendants

deciding whether to accept a plea offer . . . .” St. Cyr, 533 U.S. at 323 (emphasis

added). The Court’s inquiry into the possible motives faced by a class of

petitioners similarly situated to Enrico St. Cyr continued: “Relying upon settled

practice, the advice of counsel, and perhaps even assurances in open court that the

entry of a plea would not foreclose § 212(c) relief, a great number of defendants

in Jedeonwo’s and St. Cyr’s position agreed to plead guilty.” Id. (emphasis

added). This language, as the Third Circuit observed, “does not require concrete

certainty about the exact historical motives and actual reliance and expectations

of each alien who pled guilty.” Ponnapula, 373 F.3d at 492. Far from it, St. Cyr

explicitly refers to the class of potential defendants affected by the elimination of

§ 212(c). See St. Cyr, 533 U.S. at 321, 323 (“IIRIRA’s elimination of any

possibility of § 212(c) relief for people who entered into plea agreements”, “The

potential for unfairness in the retroactive application of IIRIRA § 304(b) to

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people like Jideeonwo and St. Cyr is significant and manifest.”)

Both Ponnapula and Olatunji provide an extensive discussion of the

objective analysis in the context of IIRIRA’s repeal of § 212(c). Both emphasize

that “[t]he Supreme Court has never required actual reliance or evidence thereof

in the Landgraf line of cases, and has in fact assiduously eschewed an actual

reliance requirement.” Ponnapula, 373 F.3d at 491; see also Olatunji, 387 F.3d at

391 (“neither Landgraf’s holding nor subsequent Suprem e Court authority

supports a subjective reliance requirement”). Language used throughout St. Cyr

reflects consideration of the reasonableness and likelihood of reliance on prior

law, but it nowhere requires aliens to establish “concrete certainty about the exact

historical m otives and actual reliance and expectations of each alien who pled

guilty.” Ponnapula, 373 F.3d at 492 & n.10 (citing several passages from St.Cyr).

Again, this follows from the basic thrust of retroactivity analysis: “W hether the

particular petitioner did or did not subjectively rely upon the prior statute or

scheme has nothing whatever to do with Congress’ intent – the very basis for the

presum ption against statutory retroactivity.” O latunji, 387 F.3d at 394. In

contrast, a m ore generalized concern for objective reliance interests likely

affected by a new law is som ething aptly attributed to Congress when it decides to

m ake a statute (non-)retroactive. See generally St. Cyr, 533 U.S. at 316

(describing Congress’ decision to m ake change in law retroactive as process of

“consider[ing] the potential unfairness of retroactive application and

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determ in[ing] that it is an acceptable price to pay for the countervailing benefits”

(quoting Landgraf, 511 U.S. at 272-73)).

D

In light of our review of the Court’s retroactivity cases, we cannot follow

our sister circuits that impose a requirement of subjective/actual reliance.

Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003) is illustrative of the subjective

reliance cases. The court rejected a retroactivity challenge to IIRIRA’s repeal of

§ 212(c) because “petitioners did not detrimentally rely on the availability of

discretionary relief when exercising their right to trial.” Because petitioners

chose to go to trial, the court distinguished them from petitioners w ho took guilty

pleas in two respects:

First, none of these petitioners detrimentally changed his position in
reliance on continued eligibility for § 212(c) relief. Unlike aliens
who entered pleas, the petitioners made no decision to abandon any
rights and admit guilt – thereby immediately rendering themselves
deportable – in reliance on the availability of the relief offered prior
to IIRIRA . . . . The claim that [aliens choosing to go to trial] relied
on the availability of § 212(c) relief in making the decision to go to
trial is therefore somewhat hollow: in fact, they decided to go to
trial to challenge the underlying crime that could render them
deportable and, had they succeeded, § 212(c) relief would be
irrelevant.

Second, the petitioners have pointed to no conduct on their part that
reflects an intention to preserve their eligibility for relief under
§ 212(c) by going to trial . . . . Here, petitioners neither did anything
nor surrendered any rights that would give rise to a comparable
reliance interest.

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Rankine, 319 F.3d at 99-100 (citation omitted).

The Third Circuit made three observations concerning these passages w ith

which we agree. See Ponnapula, 373 F.3d at 489-90. First, with the exception of

a single passing reference to another case, Rankine never once mentions the

presumption against retroactivity. As the Court made clear in Landgraf and its

progeny, however, this presumption informs every step of the Landgraf inquiry.

Second, the particular strategic decisions of the individual petitioners are given

dispositive weight in the retroactivity analysis, not whether they, as a class, faced

“new legal consequences to [their] completed conduct,” M artin v. Hadix, 523

U.S. at 353. Finally, Rankine appears to turn the presumption against

retroactivity on its head by demanding that petitioners “point[] to . . . conduct on

their part that reflects an intention to preserve their eligibility for relief under

§ 212(c) by going to trial.” Rankine, 319 F.3d at 100.

Nor can we agree with those circuits following Chambers v. Reno, 307 F.3d

284 (4th Cir. 2002), which seem to elevate the distinctive quid pro quo of the plea

bargain into the sine qua non of an IIRIRA retroactivity challenge. Chambers

held that petitioners w ho challenge their underlying convictions through jury

trials fail to possess the “reliance interest [present] in pleading guilty [which]

arises because of the quid pro quo exchange that characterizes a plea agreement

but not trial.” Id. at 290. This terse application of Landgraf to the IIRIRA

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retroactivity context suffers from many of the same flaws that afflict Rankine and

its progeny. As with Rankine, Chambers mentions the presumption against

retroactivity only once. Similarly, the particular strategic decisions of the

petitioner are given dispositive weight:

In fact, by rolling the dice and going to trial, Chambers actually
ensured that his eligibility for discretionary relief would remain
uncertain. Charged with an offense carrying a maximum prison
sentence of 20 years, Chambers was offered a plea agreement
whereby he would receive a sentence of four years, which at the time
would have kept him eligible for discretionary relief. By going to
trial, Chambers rejected the certainty of eligibility by risking a
sentence of more than five years in the event he was unable to
successfully defend against the underlying charge. The fact that
Chambers ended up with a shorter prison term than that offered by
the government – one that was safely below the five-year eligibility
threshold for § 212(c) relief at the time of sentencing – does not
change the fact that Chambers proceeded to trial fully aware of the
risk that he would be convicted and sentenced to a prison term that
would disqualify him under INA § 212(c).

Id. at 291 (citation omitted). Nowhere in this analysis does any consideration

apart from detrimental reliance exert influence on the retroactivity analysis. As

we discussed above, in none of the recent retroactivity cases – neither Landgraf,

Hughes Aircraft, nor M artin – did the Supreme Court confer dispositive weight

upon the petitioner’s actual strategic decisions. And, although St. Cyr gives

reliance a central role in its retroactivity analysis, the Court there conspicuously

applies its holding to all petitioners who took guilty pleas before the effective

date of IIRIRA – irrespective of any showing that St. Cyr himself actually relied

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on the availability of § 212(c) relief. As Judge Goodwin explained in his

Chambers dissent: “Detrimental reliance is simply one manifestation of the

unfairness that can result from instability in the law. But the presumption against

retroactivity is grounded in broader and more fundamental concerns.” Chambers,

307 F.3d at 295-96.

W e now hold, for three reasons, that objectively reasonable reliance on

prior law is sufficient to sustain a retroactivity claim. First, this rule is more

directly tied to the basic aim of retroactivity analysis: in determ ining whether it

is appropriate to presum e Congress concluded that the benefits of a new law did

not warrant disturbance of interests existing under prior law, it m akes sense to

look at the objective group-based interests that Congress could practically have

assessed ex ante. Second, this rule is consistent with the Suprem e Court’s

analyses in Landgraf and its progeny, none of w hich required actual reliance.

Third, and most im m ediately pertinent here, the objective approach is consistent

with the actual holding in St. Cyr – the Court’s m ost reliance-focused decision –

which precluded retroactive application of IIRIRA’s elim ination of § 212(c)

eligibility to all aliens who reasonably could have relied on prior law when

pleading guilty, rather than to just those aliens who actually did so rely.

The Supreme Court’s most recent discussions of Landgraf confirm that the

objective reliance view rests on a sound reading of its retroactivity jurisprudence.

In Republic of Australia v. Altmann, 541 U.S. 677 (2004), the Court considered

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whether petitioners could use the Foreign Sovereign Immunities Act of 1976

(“FSIA”) to recover paintings allegedly taken by the Nazis and held by the

Austrian government since 1948. Landgraf did not directly apply, the Court held,

because the preamble to the FSIA clearly expressed Congress’ intent that the Act

would apply to “all postenactment claims of sovereign immunity.” Altmann, 541

U.S. at 697. Given that Austria’s claim of sovereign immunity post-dated the

FSIA, there was no retroactivity problem. Altmann did briefly discuss Landgraf,

however, and although it explained the purpose of the presumption against

retroactive application by speaking of reliance – the “aim of the presumption is to

avoid unnecessary post hoc changes to legal rules on which parties relied in

shaping their primary conduct,” A ltmann, 541 U.S. at 696, it nevertheless stuck to

the historic formulations of the “Landgraf default rule”:

W hen, however, the statute contains no such express command the
court must determine whether the new statute would have retroactive
effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed. If the statute
would operate retroactively, our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such a
result.

Altmann, 541 U.S. at 694 (quoting Landgraf, 511 U.S. at 280). “Reliance,” let

alone any notion of actual reliance, is conspicuously absent from this 2004

articulation of the Landgraf default rule.

M ost recently, in Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422 (2006),

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the Court considered whether IIRIRA § 241(a)(5) – which enlarged the class of

illegal reentrants whose orders may be reinstated and limited the possible relief

from a removal order available to them – could be retroactively applied to a

petitioner who unlawfully reentered prior to IIRIRA’s effective date. In 1982,

Humberto Fernandez-Vargas, a M exican citizen, unlawfully reentered the United

States. Id. at 2427. After remaining undiscovered for over two decades, he

applied to change his status to that of a law ful permanent resident. Id. This

application led the G overnment to reinstate his 1981 deportation order under

§ 241(a)(5). Id. Fernandez-Vargas appealed the deportation order to the Tenth

Circuit, arguing that applying § 241(a)(5) to conduct occurring before its effective

date, viz., his unlaw ful reentry, would be impermissibly retroactive. Id. This

court rejected that argument, and the Supreme Court affirmed.

The problem with Fernandez-Vargas’ Landgraf argument, the majority

reasoned, was that § 241(a)(5) did not affect his past conduct. Specifically, “[i]t

is . . . the alien’s choice to continue his illegal presence, after illegal reentry and

after the effective date of the new law, that subjects him to the new and less

generous legal regime, not a past act that he is helpless to undo up to the moment

the Government finds him out.” Fernandez-Vargas, 126 S.Ct. at 2432. Consistent

with our reading of the Landgraf cases, the Court never converts “detrimental

reliance” on prior law into a prerequisite for sustaining a retroactivity claim.

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Rather, the retroactivity inquiry remains the two part inquiry established in

Landgraf, together with a strong presumption against retroactive application, see

Fernandez-Vargas, 126 S. Ct. at 2428, with no discussion of reliance even

appearing until the Court summarizes the pertinent facts of St. Cyr. Given the

Court’s long history of using the objective reliance approach to retroactivity

analysis, we are confident that following that approach in determining whether

the repeal of § 212(c) has retroactive effects is the correct one.

III

Determining that an objective approach to reliance is appropriate does not

end our inquiry; we must also identify the class of persons whose objective

reliance interests prior to the repeal of § 212(c) should be analyzed. St. Cyr

addressed the question of retroactivity as applied only to those in situations

similar to St. Cyr himself – aliens who have pled guilty to crimes who were later

made deportable by IIRIRA. St. Cyr, 533 U.S. at 321, 324. As noted, by taking

this approach, the Court established an objective, categorical scheme for

determining if a statute has impermissible retroactive effects. The Court

generalized to a category of affected aliens from the facts of the case before it,

asking whether the repeal of § 212(c) would have an “impermissible retroactive

effect for aliens who, like [St. Cyr], were convicted pursuant to a plea agreement

at a time when their plea would not have rendered them ineligible for § 212(c)

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relief.” St. Cyr, 533 U.S. at 320. The Third Circuit describes the Supreme

Court’s categorical approach as requiring “courts . . . to concentrate on the group

to whose conduct the statute is addressed . . . with a view to determining whether

reliance was reasonable.” Ponnapula, 373 F.3d at 493 (noting that “in Landgraf it

was employers subject to Title VII; in Hughes Aircraft it was governm ent

contractors;” and “in St. Cyr it was aliens who accepted a plea agreement”); see

also Thaqi, 377 F.3d at 504 n.2.

Applying St. Cyr’s objective approach, we must now generalize a class of

persons sim ilar to Hem, and determ ine whether application of IIRIRA § 304(b)

would have im perm issible retroactive effects. As we described above, Hem

proceeded to trial on two counts of aggravated assault, was convicted of one of

those counts, and received a suspended sentence of three years’ incarceration.

Hem’s record does not indicate whether he, like Ponnapula, was offered a plea

agreem ent prior to deciding to exercise his right to trial; the record does reveal,

however, that Hem decided not to appeal his single conviction. W hy he would

choose not to do so from the perspective of a law ful perm anent resident is clear:

if Hem appealed successfully, he would have been at risk of being sentenced to a

sentence longer than 5 years (indeed, up to 15 years) making him ineligible for

§ 212(c) relief. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 719 (1969)

(“the guarantee against double jeopardy im poses no restrictions upon the length of

a sentence im posed upon reconviction.”); State v. Grey Owl, 316 N.W .2d 801,

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803-04 (S.D. 1982) (sam e). Hem’s failure to challenge his aggravated assault

conviction could thus have reasonably been motivated by the availability of

§ 212(c) relief. Abstracting the salient features from these facts for the purposes

of retroactivity analysis yields the following class: Aliens who gave up their right

to appeal their aggravated felony conviction when a successful appeal could have

deprived them of § 212(c) eligibility.

W e must now determine whether this class of persons suffers impermissible

retroactive effects under IIR IR A § 304(b). As discussed above, Landgraf

provides that a statute has a retroactive effect if, am ong other possibilities, it

“w ould impair rights a party possessed when he acted.” 511 U.S. at 280. There

is no doubt that the right of appeal Hem possessed when he elected not to

challenge his aggravated assault conviction has been im paired retroactively by

IIRIRA § 304(b): W hen a defendant, like Hem, proceeds to trial, is convicted,

chooses not to pursue an appeal when that appeal could result in the loss of

§ 212(c) relief, and subsequently loses the availability of § 212(c) relief following

the A ttorney G eneral’s decision to apply IIRIRA § 304(b) retroactively, his right

to appeal has been retroactively im paired.

Applying “familiar considerations of fair notice, reasonable reliance, and

settled expectations,” Landgraf, 511 U.S. at 270, only strengthens this conclusion.

First, Hem, and others sim ilarly situated, had no notice of the coming elim ination

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of § 212(c) relief. Second, such persons reasonably relied on the availability of

§ 212(c) relief when they elected not to challenge their aggravated felony

convictions. Given the heavy weight of im m igration consequences in the minds

of alien defendants, a decision not to pursue such an appeal very likely rests on

the potential risk to § 212(c) relief. See St. Cyr, 533 U.S. at 323 (“Preserving the

client’s right to remain in the United States m ay be more im portant to the client

than any potential jail sentence”) (quotation and citation om itted).

This conclusion is consistent with language from the majority cases cited

above. In M ontenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004) (per

curiam), the Seventh Circuit held that IIRIRA’s repeal of INA § 212(c) relief was

not im perm issibly retroactive as applied to aliens who “did not abandon rights or

adm it guilt in reliance on continued eligibility for § 212(c) relief.” See also

Rankine, 319 F.3d at 99. W e agree that aliens who have chosen to go to trial but

foregone their rights to appeal, have in fact abandoned im portant rights. W e also

agree w ith the Second Circuit in Rankine that it is the conviction – not the crim e

– that makes the alien eligible for deportation. Id. at 101. Yet, this only

strengthens our analysis given that the conviction itself is not final until an appeal

has been resolved or the tim e for filing an appeal has passed. United States v.

Prows, 448 F.3d 1223 (10th Cir. 2006); United States v. Short, 947 F.2d 1445,

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1460 (10th Cir. 1991). 5

IV

Landgraf, Hughes A ircraft, M artin, and St. Cyr clarify that the appropriate

focus in retroactivity analysis is on whether the class of persons affected by

retroactive application of a statute had an objectively reasonable interest in the

previous state of the law. Aliens, like Hem, who were in a position in which the

availability of § 212(c) relief would reasonably inform their decision to forego a

constitutional right, would suffer “new legal consequences to events completed

before [the statute’s] enactment,” Landgraf, 511 U.S. at 269-70, under IIRIRA

§ 304(b). That section is thus impermissibly retroactive to aliens like Hem. The

BIA’s categorical determ ination that St. Cyr does not apply to aliens who

contested their previous “aggravated felony” convictions at trial is

5
W e also respectfully disagree with Ponnapula’s skepticism that there
m ight be a reliance interest for those w ho continued to trial in the absence of a
plea agreement. See Ponnapula, 373 F.3d at 494 (“Because aliens in the latter
category had no opportunity to alter their course in the crim inal justice system in
reliance on the availability of § 212(c) relief, we highly doubt (though do not
explicitly hold, for the issue is not before us) that such aliens have a reliance
interest that renders IIRIRA’s repeal of former § 212(c) im perm issibly retroactive
as to them.”) W hat the Third Circuit failed to consider is the possibility of giving
up rights in reliance on § 212(c) after trial has been com pleted – that is, giving up
the right to appeal because of the possibility that an appeal might lead to
conviction on additional counts or a higher sentence and render § 212(c) relief
unavailable. There is no basis for distinguishing between a decision to give up a
right to trial in favor of the possibility of im m igration relief and a decision to
forego the right to appeal in favor of such a possibility.

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R E V E R S E D . W e R E M A N D for proceedings consistent with this opinion. 6

Because our reversal of the BIA reinstates the IJ’s grant of § 212(c) relief, we do

not reach the other grounds on appeal.

6
In its return to Hem’s habeas corpus petition, the Government asked that
the petition be dismissed because only Hem’s counsel signed the petition. See 28
U.S.C. § 2242 (an application for a writ of habeas corpus “shall be in writing
signed and verified by the person for whose relief it is intended or by someone
acting in his behalf”). W e are not obligated, however, to dismiss the petition, and
decline to do so. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990)
(“the defect [of an unverified petition] is one that the district court may, if it sees
fit, disregard.”).

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