Abdul Azim Jaghoori v. Eric Holder, Jr. , 772 F.3d 764 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1801
ABDUL AZIM JAGHOORI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 17, 2014 Decided: November 18, 2014
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Petition for review granted and case remanded by published
opinion. Judge Thacker wrote the majority opinion, in which
Judge Duncan joined. Judge Niemeyer wrote a dissenting opinion.
ARGUED: Tamara L. Jezic, LAW OFFICE OF IVAN YACUB, Woodbridge,
Virginia, for Petitioner. Lindsay M. Murphy, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Ivan Yacub, LAW OFFICE OF IVAN YACUB, Falls Church,
Virginia, for Petitioner. Stuart F. Delery, Assistant Attorney
General, Civil Division, Song Park, Senior Litigation Counsel,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
THACKER, Circuit Judge:
An alien who wishes to apply for cancellation of
removal must show, among other things, that he has continuously
resided in the United States for seven years after admission to
this country. See 8 U.S.C. § 1229b(a)(2). However, a statutory
provision known as the stop-time rule provides that the
commission of a criminal offense can cut short the alien’s
period of continuous residence. See id. § 1229b(d)(1)(B). In
the case before us, the Board of Immigration Appeals (“BIA”) has
deemed Petitioner Abdul Azim Jaghoori (“Petitioner”) ineligible
for cancellation of removal because of a crime he committed
within his first seven years of residence in the United States.
Petitioner argues the BIA should not have applied the stop-time
rule in his case because the offense and guilty plea occurred
before Congress promulgated the stop-time rule.
The inquiry into a statute’s retroactive effect is
“informed and guided by ‘familiar considerations of fair notice,
reasonable reliance, and settled expectations.’” INS v. St.
Cyr, 533 U.S. 289, 321 (2001) (quoting Martin v. Hadix, 527 U.S.
343, 358 (1999)) (internal quotation marks omitted). These
considerations militate against retroactivity here.
Accordingly, we apply our “‘traditional presumption’ against
retroactivity,” Olatunji v. Ashcroft, 387 F.3d 383, 393 (4th
Cir. 2004) (citation omitted) (quoting Republic of Austria v.
2
Altmann, 541 U.S. 677, 694 (2004)), and grant the petition for
review.
I.
The prospect of discretionary relief from removal has
long been a fixture of immigration jurisprudence. Prior to the
passage of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”), potential avenues for
relief included a waiver of deportation pursuant to section
212(c) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(c) (1994) (repealed 1996), and suspension of deportation
pursuant to 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996). To
qualify for relief under either statute, an alien had to meet
certain criteria.
Section 212(c) provided:
Aliens lawfully admitted for permanent
residence who temporarily proceeded abroad
voluntarily and not under an order of
deportation, and who are returning to a
lawful unrelinquished domicile of seven
consecutive years, may be admitted in the
discretion of the Attorney General without
regard to the provisions of subsection (a)
of this section (other than paragraphs (3)
and (9)(C)). . . . The first sentence of
this subsection shall not apply to an alien
who has been convicted of one or more
aggravated felonies and has served for such
felony or felonies a term of imprisonment of
at least 5 years.
8 U.S.C. § 1182(c). Although, by its terms, the provision
referred only to aliens seeking readmission after a temporary
3
departure, courts and the BIA came to apply the waiver in
deportation proceedings “regardless of an alien’s travel
history.” Judulang v. Holder, 132 S. Ct. 476, 480 (2011). The
class of aliens qualifying for this form of relief was
“extremely large,” and a “substantial percentage” of these
aliens succeeded in obtaining a waiver. INS v. St. Cyr, 533
U.S. 289, 295-96 (2001).
Suspension of deportation was harder to obtain. To
qualify, an alien had to show that he was a “person of good
moral character,” and that his deportation would cause “extreme
hardship” to him or his family. 8 U.S.C. § 1254(a)(1). The
statute further limited relief to aliens who, at a minimum, 1 had
been “physically present in the United States for a continuous
period of not less than seven years immediately preceding” the
application for relief. Id. Satisfying this continuous
presence requirement was a simple matter, demanding nothing more
than the passage of time; the clock continued to run even after
deportation proceedings were under way. See Appiah v. U.S. INS,
202 F.3d 704, 707 (4th Cir. 2000).
1
The number of years of continuous physical presence varied
depending on the ground of deportation. For aliens deportable
on criminal or security grounds, or for falsification of
immigration documents, the statute required ten years of
continuous physical presence. See 8 U.S.C. § 1254(a)(2)
(repealed 1996). For other aliens, the requisite period was
seven years. See id. § 1254(a)(1).
4
The 1996 enactment of IIRIRA eliminated both the
section 212(c) waiver and suspension of deportation and replaced
them with a new form of discretionary relief, dubbed
“cancellation of removal.” IIRIRA, Pub. L. No. 104-208, 110
Stat. 3009-546 (1996). The new provision, which governs here,
authorizes the Attorney General to:
cancel removal in the case of an alien who
is inadmissible or deportable from the
United States if the alien—
(1) has been an alien lawfully admitted for
permanent residence for not less than 5
years,
(2) has resided in the United States
continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated
felony.
8 U.S.C. § 1229b(a). While the second of these requirements has
analogs in the prior statutes, it does not operate the same way.
Under a provision that has come to be known as the stop-time
rule, the period of continuous residence is “deemed to end” upon
the earlier of two events, which are spelled out in subsections
(A) and (B) of the rule. Id. § 1229b(d)(1). Under subsection
(A), the clock stops when the government serves a notice to
appear for removal proceedings. Under subsection (B), it stops
when the alien has committed an offense rendering him
5
inadmissible under § 1182(a)(2) or removable under § 1227(a)(2)
or § 1227(a)(4).
Congress enacted IIRIRA on September 30, 1996. The
bulk of its provisions, though, including the stop-time rule,
did not take effect until April 1, 1997. 2 See § 309, 110 Stat.
at 3009-625.
II.
Petitioner is an Afghan citizen but has lived in the
United States for most of his life. He was born in the Ghazni
province in eastern Afghanistan. The family’s Shia Muslim faith
and Hazara ethnicity placed them within a small minority of the
Afghan population. In the early 1980s, a time of war in that
country, the family fled to Pakistan. Subsequently, at age 12,
Petitioner entered the United States as a refugee. He acquired
lawful permanent resident status on April 25, 1989.
During his stay in the United States, Petitioner has
had several run-ins with law enforcement. The first -- and, for
present purposes, most relevant -- of these was a credit card
2
For aliens placed in deportation proceedings prior to the
statute’s effective date, there was a special “transitional”
stop-time rule. See § 309(c)(5), 110 Stat. at 3009-627. This
rule, as amended, provided that the permanent stop-time rule
“shall apply to orders to show cause . . . issued before, on, or
after the date of the enactment of this Act.” Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100,
111 Stat. 2193, 2196 (1997).
6
theft committed in Virginia on February 27, 1995. Petitioner
pled guilty to this offense on July 14, 1995, and received a 90-
day suspended jail sentence. Importantly, this conviction did
not render him deportable. See 8 U.S.C. § 1251(a)(2)(A)(i)
(1994) (authorizing deportation of an alien convicted of a crime
involving moral turpitude (“CIMT”), but only if (1) the crime
occurred within five years after the alien’s date of entry, and
(2) the alien was sentenced to confinement for one year or
longer).
Petitioner’s status as a lawful permanent resident
remained secure even after Congress enacted IIRIRA in 1996.
Though his criminal record grew to include one conviction for
misdemeanor obstruction of justice and three convictions for
driving under the influence, none of these offenses rendered him
removable.
In September 2009, Petitioner traveled back to
Afghanistan to do some work for his brother, who was in the
construction business. He stayed for about a month. Upon his
return, the Department of Homeland Security (“DHS”) placed him
into removal proceedings on the basis of the 1995 credit card
theft conviction, alleging that this offense was a CIMT
rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).
7
DHS later withdrew this charge. 3 Subsequently, in August 2010, a
Virginia grand jury indicted Petitioner for attempting to pass a
fraudulent prescription for OxyContin in violation of section
18.2-258.1 of the Virginia Code. Petitioner pled guilty to this
charge and received a two-year suspended jail sentence.
The 2010 prescription fraud conviction prompted DHS to
bring two new charges of removability. The first charge alleged
that Petitioner’s 1995 credit card theft and 2010 prescription
fraud convictions were CIMTs “not arising out of a single scheme
of criminal misconduct,” thereby rendering him removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii). The second charge
alleged that the prescription fraud conviction, by itself, was
grounds for removal pursuant to § 1227(a)(2)(B)(i). 4
Petitioner, through counsel, conceded removability
pursuant to § 1227(a)(2)(A) and proceeded to file an application
3
The record does not explain why DHS brought this charge,
only to withdraw it a short time later. We observe, though,
that Petitioner’s 1995 credit card theft did not occur within
five years of his admission to the United States, as would be
required for removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)
(2006).
4
This section provides, in pertinent part, that an alien is
deportable if “at any time after admission [he] has been
convicted of a violation of . . . any law or
regulation . . . relating to a controlled substance (as defined
in section 802 of Title 21), other than a single offense
involving possession for one’s own use of 30 grams or less of
marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i).
8
for asylum, withholding of removal, and cancellation of removal.
The immigration judge (“IJ”) ordered his removal to Afghanistan.
However, in view of Petitioner’s ethnicity and religion and his
many years in the United States, the IJ granted his application
for withholding of removal. This decision allows Petitioner to
remain in the United States for the time being, but it does not
accord an opportunity to pursue citizenship, nor does it prevent
immigration authorities from removing him to a country other
than Afghanistan. See 8 C.F.R. § 1208.16(f) (2014); In re Lam,
18 I. & N. Dec. 15, 18 (BIA 1981).
Cancellation of removal would preserve Petitioner’s
opportunity to seek permanent residence, but the IJ denied
Petitioner’s application for this form of relief on the ground
that the 1995 credit card theft triggered the stop-time rule, 8
U.S.C. § 1229b(d)(1). In response, Petitioner filed an appeal
with the BIA, arguing that the stop-time rule was prospective
only and could not apply to the pre-IIRIRA credit card theft.
The BIA dismissed the appeal. Applying the stop-time rule to
Petitioner’s pre-IIRIRA credit card offense, the BIA said,
cannot produce an impermissible retroactive effect here because
Petitioner did not become removable until the 2010 prescription
fraud. Invoking the Supreme Court’s rationale in Fernandez-
Vargas v. Gonzales, 548 U.S. 30 (2006), the agency reasoned that
it was Petitioner’s “‘choice to [engage in illegal conduct]
9
after the effective date of the new law (i.e., the IIRIRA), that
subjects him to the new and less generous legal regime (i.e.,
the application of the stop-time rule).’” A.R. 16-17
(alteration in original) (quoting Fernandez-Vargas, 548 U.S. at
44). 5
III.
We have jurisdiction to review a final order of
removal pursuant to 8 U.S.C. § 1252(a)(1). Our power to review
such orders is limited by § 1252(a)(2)(B), which restricts
judicial review of decisions denying cancellation of removal,
and by § 1252(a)(2)(C), which restricts judicial review of any
final order against an alien who, like Petitioner, is removable
because of a drug offense covered in § 1227(a)(2)(B). These
restrictions, however, are of no moment here because the
permissibility of applying a statute retroactively is a “pure
question of law,” Fox v. Balt. City Police Dep’t, 201 F.3d 526,
531 (4th Cir. 2000), and therefore subject to judicial review.
See § 1252(a)(2)(D).
We review legal questions de novo. Salem v. Holder,
647 F.3d 111, 115 (4th Cir. 2011). Although we generally defer
to agency interpretations of statutes that are ambiguous, “a
5
Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.
10
statute that is ambiguous with respect to retroactive
application is construed . . . to be unambiguously prospective.”
INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001). We therefore do
not defer to the BIA’s interpretation of the stop-time rule.
IV.
Where applicable, subsection (B) of the stop-time rule
cuts off an alien’s period of continuous residence upon either
of the following: (1) the alien commits an offense that renders
him inadmissible under 8 U.S.C. § 1182(a)(2), or (2) the alien
commits an offense that renders him removable under
§§ 1227(a)(2) or 1227(a)(4). See § 1229b(d)(1)(B). The latter
cannot justify the application of the stop-time rule here
because Petitioner was not removable within seven years of his
admission to the United States. Nevertheless, because the BIA
characterized Petitioner’s 1995 credit card theft as a crime
involving moral turpitude, which would render him inadmissible
pursuant to § 1182(a)(2)(A)(i)(I), 6 we must determine whether
subsection (B) of the stop-time rule operates against him.
The retroactivity of the stop-time rule is, at bottom,
a question of congressional intent. See Olatunji v. Ashcroft,
6
This provision states that an alien who commits a crime
involving moral turpitude, other than a purely political
offense, is inadmissible, except as otherwise provided. See
§ 1182(a)(2)(A)(i)(I).
11
387 F.3d 383, 389 (4th Cir. 2004). Under Landgraf v. USI Film
Products, 511 U.S. 244 (1994), our analysis proceeds in two
steps. First, we ask “whether Congress has expressly prescribed
the statute’s proper reach.” Id. at 280. “If Congress has made
its intent clear, while acting within the limits of its power,
our inquiry is concluded.” Tasios v. Reno, 204 F.3d 544, 548
(4th Cir. 2000). If, conversely, Congress did not speak with
the requisite clarity, we proceed to Landgraf’s second step and
ask “whether the new statute would have retroactive effect.”
Landgraf, 511 U.S. at 280. Here we assess whether the statute
“attaches new legal consequences to events completed before its
enactment.” Id. at 269-70. If so, then “in keeping with our
traditional presumption against retroactivity, we presume that
the statute does not apply to that conduct.” Martin v. Hadix,
527 U.S. 343, 352 (1999) (internal quotation marks omitted).
A.
In this case, the BIA took no position on whether
Congress clearly intended for the stop-time rule to operate
retroactively. Its decision assumed arguendo that the statute
is “silent” with regard to congressional intent. A.R. 15.
Neither party argues that this was in error.
The requirement of a clear congressional directive,
necessary for disposition under Landgraf step one, is a
“demanding” one. INS v. St. Cyr, 533 U.S. 289, 316 (2001). The
12
prescriptive language in the statute must be express,
unambiguous, and unequivocal. See id.; Gordon v. Pete’s Auto
Serv. of Denbigh, Inc., 637 F.3d 454, 459 (4th Cir. 2011). We
are satisfied that Congress did not expressly and unambiguously
prescribe the proper reach of the stop-time rule, 7 and we
proceed, accordingly, to Landgraf’s second step.
B.
“A statute does not operate ‘retrospectively’ merely
because it is applied in a case arising from conduct antedating
the statute’s enactment.” Tasios, 204 F.3d at 550 (quoting
Landgraf, 511 U.S. at 269) (internal quotation marks omitted).
The question, rather, is whether the statute “would attach new
legal consequences to prior events.” Chambers v. Reno, 307 F.3d
284, 289 (4th Cir. 2002). In this regard, a statute “must be
deemed retrospective” if, as Justice Story long ago stated, it
“takes away or impairs vested rights acquired under existing
7
Three circuits examining the stop-time rule under Landgraf
step one have concluded that Congress did not expressly
prescribe the statute’s reach. See Jeudy v. Holder, 768 F.3d
595, 600-03 (7th Cir. 2014); Martinez v. INS, 523 F.3d 365, 370-
72 (2d Cir. 2008); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1199
(9th Cir. 2006). But see Heaven v. Gonzales, 473 F.3d 167, 175
(5th Cir. 2006) (reasoning that Congress must have intended for
the permanent stop-time rule to apply retroactively, since it
was clear in stating that the “transitional” stop-time rule,
Pub. L. No. 104-208, § 309(c)(5), 110 Stat. 3009-546, -627
(1996), should have a retroactive effect in exclusion and
deportation proceedings pending when IIRIRA became effective).
13
laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or
considerations already past.” Soc’y for the Propagation of the
Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814) (No.
13,156).
This inquiry into a statute’s retroactive effect
“‘demands a commonsense, functional judgment.’” St. Cyr, 533
U.S. at 321 (quoting Hadix, 527 U.S. at 357). The judgment
“‘should be informed and guided by “familiar considerations of
fair notice, reasonable reliance, and settled expectations.”’”
Id. (quoting Hadix, 527 U.S. at 358).
The circumstances presented here are remarkably
similar to those in Jeudy v. Holder, 768 F.3d 595 (7th Cir.
2014). As with Petitioner, the alien in Jeudy acquired lawful
permanent resident status in 1989. Both men pled guilty to a
crime in 1995. See 768 F.3d at 597. By the time IIRIRA took
effect in 1997, both had attained the seven years of continuous
residence required to seek discretionary relief under pre-IIRIRA
law. See id. Both, too, continued to reside in the United
States until the government initiated removal proceedings in
2009, a full 20 years after they acquired lawful permanent
resident status and more than a decade after they reached seven
years of continuous residence. See id.
14
The Jeudy court declared that applying the stop-time
rule to Jeudy’s 1995 offense and conviction “would attach a new
and serious consequence to Jeudy’s criminal conduct that was
completed before IIRIRA took effect.” 768 F.3d at 603-04. The
effect in Petitioner’s case is the same. When Petitioner pled
guilty to credit card theft in 1995, his conviction did not
foreclose his opportunity to qualify for discretionary relief.
Petitioner continued to accrue the seven years of unrelinquished
domicile necessary for a section 212(c) waiver and the seven
years of continuous physical presence necessary for suspension
of deportation. Indeed, by the time Congress enacted IIRIRA in
September 1996, Petitioner had been living in the United States
long enough to qualify for both forms of relief. A retroactive
application of the stop-time rule would not merely imperil
Petitioner’s opportunity to seek permanent relief from removal;
it would render such relief an impossibility. Absent a clear
congressional directive, we cannot assume that Congress intended
the rule to have this effect.
The Government notes that both the Second and Tenth
Circuits have identified circumstances in which the retroactive
application of the stop-time rule does not produce an
impermissible effect. See Kleynburg v. Holder, 525 F. App’x
814, 819 (10th Cir. 2013); Martinez v. INS, 523 F.3d 365, 373
(2d Cir. 2008). These cases are distinguishable from the
15
present case in two critical ways. First, in each of these
cases, the pre-IIRIRA crime rendered the alien immediately
deportable. Second, the alien had not yet accrued seven years
of continuous residence when IIRIRA took effect.
These factors were critical to the Second Circuit’s
decision in Martinez. Under the circumstances in that case, the
court said, there was nothing to prevent the government from
prosecuting the alien and securing an order of deportation
before the alien reached seven years of continuous residence.
See Martinez, 523 F.3d at 374. But for the “time required to
bring an offender to justice,” the alien would never have become
eligible for discretionary relief, and there would be no
expectation for the stop-time rule to unsettle. Id.
In this respect, the circumstances of Petitioner’s
case bear a closer resemblance to Sinotes-Cruz v. Gonzales, 468
F.3d 1190 (9th Cir. 2006). There, the alien’s pre-IIRIRA
convictions did not expose him to deportability under pre-IIRIRA
law. See id. at 1202. The alien continued to live in the
United States and, like Petitioner, was a seven-year resident
when IIRIRA became law. See id. The Ninth Circuit recognized
that the imposition of the stop-time rule would have “serious
adverse consequences” for the alien. Id. It held, therefore,
that the rule must not apply to him. See id. at 1202-03.
16
We think it important to note, too, that both here and
in Sinotes-Cruz the government procured the aliens’ pre-IIRIRA
convictions via guilty plea. The means of conviction are
relevant to our assessment of retroactive effect because, as the
Supreme Court observed in INS v. St. Cyr, an alien who decides
to plead guilty cannot help but be “acutely aware” of the
consequences of conviction. 533 U.S. at 322. In St. Cyr, an
alien pled guilty to a drug offense prior to the passage of
IIRIRA. See id. at 293. His conviction rendered him
deportable, but, under the law at that time, he remained
eligible to apply for a discretionary waiver under section
§ 212(c). See id. IIRIRA’s abolishment of the section 212(c)
waiver took this opportunity away from him. The Court, noting
that aliens under pre-IIRIRA law had a “significant likelihood
of receiving § 212(c) relief,” reasoned that aliens “almost
certainly relied” on this likelihood “in deciding whether to
forgo their right to a trial.” Id. at 325. The interference
with this expectation, the Court concluded, was an impermissible
retroactive effect. See id.
Here, the Government argues that Petitioner, unlike
the alien in St. Cyr, had no reason to concern himself with the
availability of discretionary relief at the time of his 1995
guilty plea, since that offense did not render him deportable.
This is a questionable assumption, and in any event irrelevant,
17
as we have emphatically declared that subjective reliance is not
an essential element of retroactive effect. See Olatunji, 387
F.3d at 389, 394 (“Whether 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 presumption against statutory retroactivity.”).
There can be no doubt that the right to go to trial is
a valuable one. A retroactive application of the stop-time rule
would impose new and unforeseen consequences on Petitioner’s
decision to relinquish this right. This is impermissible.
C.
The Government does not deny that the stop-time rule
imposes new legal consequences on Petitioner. It contends,
though, that Petitioner has no right to complain about those
consequences because he was not “helpless to avoid” them.
Resp’t’s Br. 6. But for his 2010 prescription fraud, it notes,
the effects of our immigration laws -- including the stop-time
rule -- would never have come to bear on him.
We cannot agree that the retroactive effect of the
stop-time rule is diminished because of actions Petitioner took
after the rule’s enactment. The question before us is whether
we may presume that a statute enacted in 1996 does not apply
retroactively to events in 1995. Petitioner’s conduct in 2010
18
gives us occasion to address this question, but it does not
change the answer.
Indeed, as Supreme Court precedent and our own case
law make clear, a statute may have an impermissible retroactive
effect on an alien even if the immigration consequences of that
statute were avoidable. See Vartelas v. Holder, 132 S. Ct.
1479, 1487-88 (2012); Olatunji, 387 F.3d at 392. The Supreme
Court was clear on this point in Vartelas v. Holder, a case
involving another alien with a criminal conviction predating
IIRIRA. The alien in Vartelas, a Greek immigrant, took a one-
week trip abroad in 2003, long after IIRIRA effectively
precluded foreign travel by aliens with criminal records like
his. The Government argued that the statute had no retroactive
effect at all, since it was the post-IIRIRA act of returning to
the United States -- and not the immigrant’s pre-IIRIRA
conviction -- that triggered the statute. The Court deemed this
argument “disingenuous,” stating:
[The immigrant’s] return to the United
States occasioned his treatment as a new
entrant, but the reason for the “new
disability” imposed on him was not his
lawful foreign travel. It was, indeed, his
conviction, pre-IIRIRA, of an offense
qualifying as one of moral turpitude. That
past misconduct, in other words, not present
travel, is the wrongful activity Congress
targeted in § 1101(a)(13)(C)(v).
132 S. Ct. at 1488-89.
19
The text of the stop-time rule, similarly, leaves no
doubt about the “wrongful activity” that Congress designed it to
target. The object of subsection (B) is to ensure that an alien
who commits an enumerated criminal offense within seven years of
admission to the United States does not go on to become eligible
for discretionary relief while immigration proceedings against
him inch slowly toward a resolution. See Ram v. INS, 243 F.3d
510, 518 (9th Cir. 2001) (explaining that Congress “enacted the
stop-time rule in response to a belief that aliens sought to
delay deportation proceedings in order to meet the continuous
physical presence requirement”). The rule is unconcerned with
the particular events that give rise to the alien’s removal;
indeed, it operates the same way no matter what brought about
the removal. The only crimes that come within its scope are
those committed before the fulfilment of the continuous-
residence requirement. In this way, the rule reserves its
effect for aliens who “abuse[] the hospitality of this country”
within a short time of being welcomed here. In re Perez, 22 I.
& N. Dec. 689, 700 (BIA 1999).
The Government likens this case to Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006), but the comparison is inapt. The
alien in that case had ample opportunity to seek an adjustment
of status before IIRIRA took that opportunity away from him.
See id. at 45. He simply neglected to take advantage of it.
20
See id. at 45-46. This rationale does not apply to Petitioner.
He did not sleep on his rights. How could he, when the law that
threatened his ability to seek relief, IIRIRA, was on the books
before his need for that relief had even arisen?
We do not hold that Petitioner had a right to commit
more crimes. He does not, and the repercussions of his conduct
have, accordingly, come to bear on him twice to date –- first
when the criminal court convicted him, and second when the IJ
issued an order of removal. We simply hold that the government
cannot use the stop-time rule to add yet one more repercussion
to that list. A lawful resident who has lived in the United
States long enough to merit consideration for relief from
removal has a settled expectation in his opportunity to request
such relief. Courts may not disturb that expectation absent
clear evidence that Congress intended that effect.
V.
For the foregoing reasons, we grant the petition for
review and remand the case to the BIA for proceedings consistent
with this opinion.
PETITION FOR REVIEW GRANTED AND CASE REMANDED
21
NIEMEYER, Circuit Judge, dissenting:
Abdul Jaghoori, a native and citizen of Afghanistan and a
lawful permanent resident of the United States since 1989, was
convicted of at least two crimes involving moral turpitude while
residing in Virginia -- a 1995 conviction for credit card theft
and a 2010 conviction for prescription fraud. He concedes that
the two convictions render him removable under 8 U.S.C.
§ 1227(a)(2)(A)(ii). Jaghoori seeks discretionary relief from
his order of removal with his application for, among other
things, cancellation of removal under 8 U.S.C. § 1229b(a). That
section authorizes the Attorney General to cancel a lawful
permanent resident’s removal if the resident:
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for
7 years after having been admitted in any status,
and
(3) has not been convicted of any aggravated felony.
8 U.S.C. § 1229b(a) (emphasis added).
The BIA denied Jaghoori’s application for cancellation of
removal because he was unable to show, as required by
§ 1229b(a)(2), that he had resided in the United States as a
lawful permanent resident “continuously for 7 years.” Under the
“stop-time rule” of § 1229b(d)(1), his 1995 conviction for
credit card fraud cut off the running of the seven-year
residency period short of seven years, because it would have
22
rendered him ineligible for admission into the United States
under 8 U.S.C. § 1182(a)(2)(A)(i)(I). Jaghoori noted, however,
that his 1995 conviction preceded the effective date of the
stop-time rule, which was enacted in 1996 as part of Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified as
amended in scattered sections of the U.S. Code). Jaghoori
maintained therefore that applying the rule in his case would
give it impermissible retroactive effect. The BIA rejected this
argument, explaining:
[W]hen assessing statutory eligibility or
discretionary merit for a grant of cancellation of
removal, we . . . necessarily look at a variety of
antecedent events, including events that are both
favorable and unfavorable to the alien, and . . . an
alien’s past criminal conduct may well impact on the
operation of the statute, but only to the extent of
defining the authority to grant discretionary relief
to removable aliens.
* * *
[W]e find that it is the respondent’s choice to engage
in illegal conduct [underlying his 2010 conviction]
after the effective date of the new law (i.e., the
IIRIRA), that subjects him to the new and less
generous legal regime (i.e., the application of the
stop-time rule), not a past act that he is helpless to
undo up to the moment the Government finds him out.
A.R. 16-17 (internal quotation marks omitted).
On appeal, Jaghoori again presses his argument that
applying the 1996 stop-time rule of § 1229b(d)(1) (effective
April 1, 1997) to his 1995 conviction in order to deny his 2011
23
application for cancellation of removal “attaches new legal
consequences to [his] 1995 guilty plea, and, as such, [the rule]
should not be applied retroactively,” citing Landgraf v. USI
Film Products, 511 U.S. 244 (1994).
Because the legal consequence on Jaghoori’s immigration
status only attached once Jaghoori committed a second crime 13
years after IIRIRA’s enactment, I believe that the BIA got it
right. Therefore, I would reject Jaghoori’s argument and affirm
the BIA’s ruling.
In Landgraf, the Supreme Court laid out a two-part test for
determining whether a statute applies retroactively. First, a
court must “determine whether Congress has expressly prescribed
the statute’s proper [temporal] reach.” Landgraf, 511 U.S. at
280. “If so, this is the end of the analysis and there is no
need ‘to resort to judicial default rules.’” Appiah v. INS, 202
F.3d 704, 708 (4th Cir. 2000) (quoting Landgraf, 511 U.S. at
280). But if the statute fails to define expressly its temporal
reach, the court must determine whether the statute would have
an “impermissible retroactive effect.” INS v. St. Cyr, 533 U.S.
289, 320 (2001). Any retroactive effect is impermissible absent
“clear congressional intent favoring such a result.” Landgraf,
511 U.S. at 280; see also St. Cyr, 533 U.S. at 316.
Because I agree with the majority that Congress did not
expressly prescribe the stop-time rule’s temporal reach, I too
24
would resolve this case under Landgraf’s second step,
determining whether the statute has a retroactive effect on
Jaghoori’s 1995 conviction.
A statute does not operate retroactively “merely because it
is applied in a case arising from conduct antedating the
statute’s enactment,” or because it “upsets expectations based
in prior law.” Landgraf, 511 U.S. at 269. Rather, a statute
has retroactive effect when it “attaches new legal consequences
to events completed before its enactment,” id. at 270, by “[1]
tak[ing] away or impair[ing] vested rights acquired under
existing laws, or [2] creat[ing] a new obligation, impos[ing] a
new duty, or attach[ing] a new disability, in respect to
transactions or considerations already past,” id. at 269
(emphasis added) (quoting Soc’y for the Propagation of the
Gospel v. Wheeler, 22 F. Cas. 756, 761 (C.C.D.N.H. 1814) (No.
13,156)). Because the Supreme Court made clear in Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 44 n.10 (2006), that
cancellation of removal is not a vested right -- i.e., “a term
that describes something more substantial than inchoate
expectations and unrealized opportunities” -- IIRIRA would only
have a retroactive effect on Jaghoori if it created a new
obligation or attached a new disability to his prior conduct.
And this judgment must “be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
25
expectations.” St. Cyr, 533 U.S. at 321 (quoting Martin v.
Hadix, 527 U.S. 343, 358 (1999)) (internal quotation marks
omitted).
The majority asserts that the stop-time rule attached a new
disability to Jaghoori’s 1995 conviction by preventing him from
accruing additional years of continuous residence. But the
seven-year period of continuous residence is significant only
for one purpose -- obtaining discretionary relief from removal.
In 1995, Jaghoori had no need for this discretionary relief, as
his 1995 conviction did not change his status as a lawful
permanent resident or render him deportable. Nor did he need
such relief on April 1, 1997, when IIRIRA went into effect,
because, as the majority acknowledges, Jaghoori’s “status as a
lawful permanent resident remained secure even after Congress
enacted IIRIRA in 1996.” Ante, at 7. His eligibility for
cancellation of removal and the attendant seven-year residency
requirement became relevant only after he committed the
prescription-fraud crime in 2010.
To be sure, IIRIRA did apply more generously to one who had
committed no crime in the past. But one who had already
committed a crime could nonetheless avoid any future deportation
simply by abiding by the law and not committing a second crime
involving moral turpitude. See Fernandez-Vargas, 548 U.S. at 44
(noting that “the alien’s choice” after enactment of a “new and
26
less generous legal regime” was the cause of his ineligibility
for discretionary relief). Thus, while the majority frames
Jaghoori’s disability from the enactment of IIRIRA in terms of
his loss of the accrual of years of continuous residence, the
disability was, in actuality, Jaghoori’s inability to commit
future crimes while remaining eligible for discretionary relief
in the event that a removal proceeding were to be instituted
against him.
Properly framed, the inability to commit a future crime
cannot be considered a new disability because Jaghoori was never
entitled to commit crimes in the first place. Jaghoori had no
greater right to commit crimes before IIRIRA was enacted than he
did thereafter. Nor did IIRIRA impose any new duties upon
Jaghoori, since he was already required to obey the law.
The Supreme Court has so far recognized only two
circumstances in which application of IIRIRA to past conduct
would amount to a new disability: (1) where it would
effectively ban an alien’s travel outside the United States,
Vartelas v. Holder, 132 S. Ct. 1479, 1487 (2012); and (2) where
it would convert deportation from a mere possibility to an
absolute certainty, St. Cyr, 533 U.S. at 323. Even if an
alien’s inability to commit future crimes without immigration
consequences could be considered a disability, it would be far
less debilitating than those categories of disability previously
27
recognized by the Supreme Court and therefore would not be
cognizable under Landgraf’s second step.
The conclusion that § 1229b(d)(1) does not impose a new
disability on Jaghoori’s 1995 conviction is inevitable when one
considers Jaghoori’s reliance interests. Although the majority
insists that whether Jaghoori relied on the availability of
discretionary relief at the time of his 1995 conviction is
“irrelevant,” ante, at 17, the Supreme Court has held to the
contrary, see Vartelas, 132 S. Ct. at 1491 (“While the
presumption against retroactive application of statutes does not
require a showing of detrimental reliance, reasonable reliance
has been noted among the ‘familiar considerations’ animating the
presumption” (citation omitted) (quoting Landgraf, 511 U.S. at
270)). Indeed, as the majority itself recognizes, reliance
played a big part in the Court’s reasoning in St. Cyr. See 533
U.S. at 325. And we have expressly held that an alien cannot
“reasonably rely ‘on the availability of a discretionary waiver
of deportation when choosing to engage in illegal . . .
activity.’” Tasios v. Reno, 204 F.3d 544, 551 (4th Cir. 2000)
(quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir. 1993));
see also LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)
(“It would border on the absurd to argue that these aliens might
have decided not to commit drug crimes . . . had they known that
if they were not only imprisoned but also, when their prison
28
term ended, ordered deported, they could not ask for a
discretionary waiver of deportation”); St. Cyr v. INS, 229 F.3d
406, 418 (2d Cir. 2000), aff’d, 533 U.S. 289; Jurado-Gutierrez
v. Greene, 190 F.3d 1135, 1150 (10th Cir. 1999).
Additionally, when “fair notice . . . and settled
expectations” are taken into consideration, Landgraf, 511 U.S.
at 270, application of the stop-time rule to Jaghoori would not
be inequitable. Indeed, the circumstances of the present case
are substantially similar to those in Fernandez-Vargas. In that
case, 21 years after Fernandez-Vargas illegally returned to the
United States, the United States sought, in 2003, to reinstate
an earlier deportation order entered against him. Fernandez-
Vargas, 548 U.S. at 35-36. Before IIRIRA’s enactment in 1996,
the reinstatement of a deportation order was subject to a
discretionary waiver. But IIRIRA changed that, mandating that
all illegal reentrants are to have their orders of removal
reinstated without any possibility of discretionary relief. Id.
at 34-35. Rejecting the claim that IIRIRA had an impermissible
retroactive effect when applied to Fernandez-Vargas, the Supreme
Court stated that it was “the alien’s choice to continue his
illegal presence, after illegal reentry and after the effective
date of the new law, that subject[ed] him to the new and less
generous legal regime, not a past act that he [was] helpless to
undo.” Id. at 44. Moreover, the Court noted, in the six-month
29
period between IIRIRA’s passage and its effective date,
Fernandez-Vargas “had an ample warning that the new law could be
applied to him and ample opportunity to avoid that very
possibility by leaving the country.” Id. at 45.
The same can be said about Jaghoori. Like Fernandez-
Vargas, Jaghoori became ineligible for discretionary relief with
IIRIRA’s enactment. But it was Jaghoori’s choice in 2010 to
commit a second crime involving moral turpitude that rendered
him removable in the first place, thus “subject[ing] him[self]
to the new and less generous legal regime.” Fernandez-Vargas,
548 U.S. at 44; see also Olatunji v. Ashcroft, 387 F.3d 383, 398
(4th Cir. 2004) (“[A] statute[] do[es] not have a retroactive
effect when a party has an opportunity to avoid all of its new
consequences”). And the 13-year period between the enactment of
IIRIRA and Jaghoori’s second crime in 2010 gave him “ample
warning” of the existence of the stop-time rule and the fact
that it could result in his removal from the United States upon
his commission of another crime.
Finally, the cases on which the majority relies are
inapposite. In Jeudy v. Holder, 768 F.3d 595, 597 (7th Cir.
2014), the petitioner’s pre-IIRIRA conviction itself rendered
him deportable. Thus, the passage of IIRIRA meant that if the
government ever got around to bringing removal proceedings, the
petitioner was helpless to obtain discretionary relief. Here,
30
the government had no basis to remove Jaghoori until he
committed a second crime involving moral turpitude after
IIRIRA’s passage. Indeed, the majority purports to distinguish
cases from two other circuits on this exact same ground. Ante,
at 16 (“[I]n each of these cases, the pre-IIRIRA crime rendered
the alien immediately deportable”). Similarly, in Sinotes-Cruz
v. Gonzales, 468 F.3d 1190, 1193 (9th Cir. 2006), IIRIRA
reclassified the petitioner’s prior crimes as crimes involving
moral turpitude in a provision that Congress explicitly made
retroactive, making the petitioner immediately removable under
§ 1227(a)(2)(A)(i) upon IIRIRA’s effective date. Again,
Jaghoori did not become removable until he committed a second
crime. Had Jaghoori been law abiding, IIRIRA’s enactment would
have produced absolutely no adverse consequences; he would have
retained his lawful permanent residence status to this day. And
finally, in Vartelas, the Court repeatedly stressed that
Vartelas “engaged in no criminal activity after IIRIRA’s
passage.” 132 S. Ct. at 1489.
Because IIRIRA’s stop-time rule imposed no new disability
on Jaghoori and thus did not have any retroactive effect, I
would deny his petition for review.
31