Milija Zivkovic v. Eric Holder, Jr. , 724 F.3d 894 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2143
M ILIJA Z IVKOVIC,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A017 099 761
A RGUED S EPTEMBER 26, 2012—D ECIDED JULY 31, 2013
Before EASTERBROOK, Chief Judge, and WOOD and
WILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Milija Zivkovic, a Serbian who
has been in the United States since 1966, has petitioned
for review of an order of the Board of Immigration
Appeals ordering him removed from the United States.
The Board found that Zivkovic was removable because
he had committed three aggravated felonies and that
2 No. 12-2143
he was not eligible for the special relief provided by
Section 212(c) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1182(c). Before this court, Zivkovic
argues that none of the three felony convictions on
which the Board relied can support its removal order.
Even if one or more was properly counted, he continues,
the Board erred when it rejected his eligibility for
Section 212(c) relief. Finally, he complains that the Immi-
gration Judge (IJ) should not have consulted certain
conviction records that had been submitted for purposes
of his bond proceeding when the IJ was considering
his immigration petition.
Resolution of Zivkovic’s petition might have
been straightforward, but for the fact that two of his
convictions are 35+ years old, and the immigration laws
have not remained static over that time. Zivkovic
realizes that he must knock out all three of the aggravated
felonies before his argument about Section 212(c) makes
any difference, because a conviction on one alone would
be enough to guarantee near-automatic removal. See
Immigration and Nationality Act § 237(a)(2)(A)(iii),
8 U.S.C. § 1227(a)(2)(A)(iii). But he believes that he
can do so. Our assessment of his argument requires us
to delve deeply into the history of the governing provi-
sions of the immigration laws, and in addition to
consider what level of deference we owe to the Board’s
effort to disentangle both the meaning of those statutes
and Congress’s intent over the years to make various
changes retroactive. We conclude that the statutes
are ambiguous and that the twin presumptions
against retroactivity and implied repeal require us to
No. 12-2143 3
grant Zivkovic’s petition and to remand for further pro-
ceedings.
I
Zivkovic was admitted to the United States as a
lawful permanent resident in 1966. Ten years later, on
October 25, 1976, he pleaded guilty to the Illinois crime
of burglary, now codified at 720 ILCS 5/19-1, and
received a sentence of two to six years. In 1978, following
a jury trial, he was convicted of attempted rape, see
720 ILCS 5/8-4 (current law defining crime of attempt); 720
ILCS 5/11-1.20 (current law defining criminal sexual
assault), and was sentenced to 4 to 12 years in
prison. Years later, on November 16, 2010, he was con-
victed under 720 ILCS 5/19-4(a)(2) for criminal trespass
to a residence with a person present; for that crime,
he received a three-year sentence of imprisonment. On
the same day, he was convicted of aggravated battery,
where the aggravating factor was the victim’s age (over
60 years), and received a five-year sentence.
In 2004 Zivkovic received a Notice to Appear from
the Department of Homeland Security (DHS). The Notice
charged that he was removable on several grounds: first,
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien
who has been convicted of an aggravated felony as
defined in 8 U.S.C. § 1101(a)(43)(G); second, for the
attempt or conspiracy to commit a crime defined in
8 U.S.C. § 1101(a)(43)(A) (murder, rape, or sexual abuse
of a minor); and third, under 8 U.S.C. § 1227(a)(2)(A)(ii),
as an alien who has been convicted of two crimes
4 No. 12-2143
involving moral turpitude not arising out of a single
incident. DHS temporarily closed his case in 2005 to
await the conclusion of criminal proceedings in Illinois
state court.
On February 22, 2011, with the state case resolved,
DHS restored Zivkovic’s immigration case to the calen-
dar. This time DHS charged that Zivkovic’s 2010 resi-
dential trespass conviction was also a basis for his
removability because it qualified as a “crime of violence”
under the INA; DHS continued to assert that his 1976
and 1978 convictions for the aggravated felonies of bur-
glary and attempted rape supported his removal. On
November 17, 2011, the IJ determined that residential
trespass is a crime of violence because, like burglary,
it involves a substantial risk that physical force may
be used. The IJ also concluded that Zivkovic‘s 1976
and 1978 convictions counted as aggravated felonies
because they are so defined in the Illegal Immigrant
Reform and Immigrant Responsibility Act of 1996
(IIRIRA). In reaching this conclusion, the IJ relied on a
decision of the BIA holding that the Immigration Act
of 1990 made “any alien who has been convicted of a
crime defined as an aggravated felony, and who was
placed in deportation proceedings on or after March 1,
1991, [] deportable regardless of when the conviction
occurred.” Matter of Lettman, 22 I. & N. Dec. 365, 366
(BIA 1998) (en banc). The IJ found that Zivkovic was not
eligible for discretionary waiver of removal because
he went to trial rather than pleading guilty to the 1978
crime, and thus he cannot demonstrate that reliance
on discretionary waiver from removal changed his re-
sponse to those criminal charges.
No. 12-2143 5
On appeal, the BIA affirmed the IJ’s determinations.
Although at one point along the way, DHS had argued
that Zivkovic was also removable because he had com-
mitted two crimes of moral turpitude, see 8 U.S.C.
§ 1227(a)(2)(A)(ii), the IJ did not specifically address
that charge in his written decision. The Board also found
it unnecessary to address that point; it explicitly com-
mented that it was not reaching the moral turpitude
ground and instead was affirming solely because of the
aggravated felonies and ineligibility for Section 212(c)
relief.
II
Because the standard of review that governs Zivkovic’s
petition is central to this case, we begin by reviewing
the governing principles. To the extent that his petition
raises questions of law, our review is generally de novo.
Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir.
2011). Nevertheless, we use the qualifier “generally”
because the BIA is an expert agency. In I.N.S. v. Aguirre-
Aguirre, the Supreme Court held that when a court of
appeals confronts questions implicating the Board’s
“construction of the statute which it administers”—here,
the INA—“the court should . . . appl[y] the principles of
deference described in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842 (1984).”
526 U.S. 415, 424 (1999).
This does not mean, however, that Chevron applies to
every issue that arises in an immigration case, for the
simple reason that some questions of law do not depend
6 No. 12-2143
on agency expertise for their resolution. The first pre-
liminary question we must address is whether the
question before us—what counts as a “crime of vio-
lence” for purposes of INA § 101(a)(43)(F), 8 U.S.C.
§ 1101(a)(43)(F)—is one for which Chevron deference
is required. (For convenience, in the remainder of this
opinion we omit the parallel citations to the INA and
use only the citation found in Title 8.) Section 1101(a)(43)(F)
says that “a crime of violence (as defined in section 16 of
Title 18, but not including a purely political offense)
for which the term of imprisonment [is] at least one
year.” Id. (emphasis added). Section 16 of Title 18, which
addresses Crimes and Criminal Procedure, is one of
the “general provisions” collected in Chapter 1 of
the Code. No one thinks that the Board of Immigration
Appeals has the authority to set the boundaries of the
term “crime of violence” for every criminal prosecution
in the United States; the great majority of these cases
are entirely unrelated to immigration law. Nor is there
any hint that Congress intended the Board to craft a
particularized definition of this general statute for use
exclusively in immigration proceedings. Instead, Congress
elected to refer the Board to the general definition of
“crime of violence” when that becomes important for
immigration purposes. In these circumstances, one cannot
say that the Board exercises any delegated power
to interpret the governing statute—18 U.S.C. § 16—and
thus Chevron deference does not apply to that aspect of
the Board’s reasoning. See Flores v. Ashcroft, 350 F.3d
666, 671 (7th Cir. 2003).
The second preliminary question is whether we owe
Chevron deference to the Board’s decision about the
No. 12-2143 7
retroactivity of a newly added provision of the immigra-
tion laws. At first glance, this might appear to be a
closer question: after all, retroactivity (or the lack of
retroactivity) is central to the determination of the
content of the law at any given time. But in this case
we have the benefit of a Supreme Court decision that is
directly on point. In I.N.S. v. St. Cyr, 533 U.S. 289(2001), the Court addressed the question whether certain
amendments to the INA should be applied retroactively.
The respondent, Enrico St. Cyr, pleaded guilty to
a controlled-substance offense; he entered his
plea just before the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 110
Stat. 1214, which was quickly amended by IIRIRA, 110
Stat. 3009-546. The specific question before the Court
was whether the provisions of AEDPA and IIRIRA elimi-
nating waivers of deportation under INA § 212(c)
applied retroactively to a person in St. Cyr’s position.
Importantly for present purposes, the Immigration and
Naturalization Service (DHS’s predecessor) had taken
the position that the new provisions were retroactive
and thus that St. Cyr was ineligible for the 212(c)
waiver. Among other things, the agency argued that the
Court should extend Chevron deference to “the BIA’s
interpretation of IIRIRA as applying to all deportation
proceedings initiated after IIRIRA’s effective date [as
St. Cyr’s was].” 533 U.S. at 320 n.45. The Supreme Court
dismissed that argument with the following comment:
We only defer, however, to agency interpretations
of statutes that, applying the normal “tools of
statutory construction,” are ambiguous. [Chevron,
8 No. 12-2143
467 U.S.] at 843, n.9; INS v. Cardoza-Fonseca, [480 U.S.
421, 447-48 (1987)]. Because a statute that is ambiguous
with respect to retroactive application is construed
under our precedent to be unambiguously prospec-
tive, Landgraf [v. USI Film Products, 511 U.S. 244, 264
(1994)], there is, for Chevron purposes, no ambiguity in
such a statute for an agency to resolve.
533 U.S. at 320 n.45. Landgraf recognized that Congress
has the power to make a statute retroactive, but it
stressed that “a requirement that Congress first make its
intention clear helps ensure that Congress itself has
determined that the benefits of retroactivity outweigh
the potential for disruption or unfairness.” 511 U.S. at 268.
In Vartelas v. Holder, 132 S. Ct. 1479 (2012), the
Supreme Court was again confronted with the question
whether a provision of the immigration laws operated
retroactively. It was a question, as the Court noted, “not
addressed by Congress: As to a lawful permanent
resident convicted of a crime before the effective date of
IIRIRA, which regime governs, the one in force at the
time of the conviction, or IIRIRA?” Id. at 1483. Noting
that Congress did “not expressly prescribe the temporal
reach of the IIRIRA provision in question, 8 U.S.C.
§ 1101(a)(13),” id. at 1487, the Court turned directly to
Landgraf, with no mention of Chevron, to answer the
question. It observed that the restraint added by IIRIRA
ranked as a “new disability” for lawful permanent
resident aliens, rejecting the dissent’s argument that this
was not the case because the legislature had attached
no disability to past conduct. Id. at 1487-88. It then reiter-
No. 12-2143 9
ated that “[t]he operative presumption . . . is that
Congress intends its laws to govern prospectively only.”
Id. at 1491. As in St. Cyr, the alien had in all likeli-
hood relied on the law that existed at the time of his
plea of guilty (before IIRIRA). This independent assess-
ment resulted in a finding of no retroactivity.
Interestingly, the government’s brief in Vartelas
conceded that the Second Circuit “reviews the retroac-
tive application of statutes de novo, without Chevron
deference.” Brief for the Respondent at *9 [2009 WL
7498491], Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2009).
The Second Circuit reiterated this rule in its Vartelas
opinion, stating that it “consider[s] the issue of retroactiv-
ity de novo, without giving deference to the opinion of the
BIA, as the question . . . does not concern the sort of
statutory gap that Congress has designated the BIA
to fill, nor a matter in which the BIA has particular exper-
tise.” 620 F.3d at 117-18 (internal quotation marks omit-
ted). Although the dissenting Justices in Vartelas
disagreed on the merits, they did not question
the majority’s use of Landgraf as the governing standard
for analyzing the retroactivity question. To the contrary,
the dissent said that “the Court is correct that this case
is governed by our longstanding interpretive principle
that, in the absence of a contrary indication, a statute
will not be construed to have retroactive application,”
citing Landgraf. See Vartelas, 132 S. Ct. at 1492-93 (dissent-
ing opinion of Scalia, J.).
Unlike our dissenting colleague, we see nothing in
the Court’s recent decision in Federal Communications
10 No. 12-2143
Commission v. Arlington, 133 S. Ct. 1863 (2013), that under-
mines this analysis. Arlington reaffirms the general princi-
ple that a court must defer to an agency’s reasonable
interpretation of the scope of its own authority, regardless
of whether that issue concerns the agency’s jurisdiction or
any other interpretation of its enabling statute. Id. at 1868(“No matter how it is framed, the question a court faces
when confronted with an agency’s interpretation of a
statute it administers is always, simply, whether the agency
has stayed within the bounds of its statutory authority.”)
(Emphasis in original). Nothing in Arlington instructs
courts to skip the first step of the Chevron process—that is,
the assessment whether there is any ambiguity to be
addressed after applying the ordinary tools of statutory
construction. If those tools of statutory construction
point clearly to a finding of no retroactivity, that is the
end of it: the agency’s views never come into play.
Because the Supreme Court itself has provided an unam-
biguous legal rule for retroactivity questions, and we
have no issue before us pertaining to the boundaries of
the agency’s authority, we conclude that Arlington
does not drive our analysis here.
We conclude that this is not a situation in which
any ambiguity (which if present would trigger deference
to the agency) remains after applying the ordinary
tools of statutory construction. St. Cyr tells us that Con-
gress is the master here, and it essentially eliminates
ambiguity from the picture by classifying all statutes as
prospective except those that Congress has clearly desig-
nated as retroactive. Our sister circuits have come to
the same conclusion. See Martinez v. I.N.S., 523 F.3d 365,
No. 12-2143 11
372-73 (2d Cir. 2008); Camins v. Gonzales, 500 F.3d 872, 880
(9th Cir. 2007); Hem v. Maurer, 458 F.3d 1185, 1189 (10th
Cir. 2006); Dinnall v. Gonzales, 421 F.3d 247, 251 (3d Cir.
2005); Sarmiento Cisneros v. U.S. Att’y Gen., 381 F.3d 1277,
1280 (11th Cir. 2004); Arevalo v. Ashcroft, 344 F.3d 1, 9-10
(1st Cir. 2003); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 300
n.53 (5th Cir. 2002); Bejjani v. I.N.S., 271 F.3d 670, 679-80
(6th Cir. 2001), abrogated on other grounds by Fernandez-
Vargas v. Gonzales, 548 U.S. 30 (2006); Velasquez-Gabriel v.
Crocetti, 263 F.3d 102, 106 n.2 (4th Cir. 2001). The
question whether Zivkovic’s crime qualified under
Section 1101(a)(43)(F) as a “crime of violence,” and the
questions whether and to what extent certain amend-
ments to the immigration laws apply retroactively, are
all issues of law that this court must review de novo,
without the use of Chevron deference.
III
We turn now to a detailed look at the governing law,
which has changed over the years. The INA itself was
passed in 1952 (Act of June 27, 1952, c. 477, Title I, § 101, 66
Stat. 166); it has been amended many times since then.
The first such amendment that we must consider
appeared in the Anti-Drug Abuse Act of 1988, Pub. L. No.
100-690, 102 Stat. 4181. Section 7342 of that statute
added the term “aggravated felony” to the definitions
found in 8 U.S.C. § 1101(a) through the following
new paragraph:
(43) The term “aggravated felony” means murder, any
drug trafficking crime as defined in section 942(c)(2) of
12 No. 12-2143
title 18, United States Code, or any illicit trafficking
in any firearms or destructive devices as defined in
section 921 of such title, or any attempt or conspiracy
to commit any such act, committed within the
United States.
Section 7343 of the Anti-Drug Abuse Act set out rules
for the retention in custody of aliens who had committed
aggravated felonies and specified that they were ineligible
for voluntary departure. Section 7344 read as follows:
(a) IN GENERAL.—Section 241(a)(4) (8 U.S.C.
1251(a)(4)) is amended—
(2) [sic] by inserting after the semicolon the following:
“or (B) is convicted of an aggravated felony at any
time after entry;”.
(b) APPLICABILITY.—The amendments made by
subsection (a) “8 U.S.C. 1251 note” shall apply to any
alien who has been convicted, on or after the date of
the enactment of this Act, of an aggravated felony.
(Section 1251 was later transferred to 8 U.S.C. § 1227, which
is now the section of the law describing which aliens
are “deportable.”)
It is worth noting in passing that Zivkovic did not
become deportable as of November 18, 1988 (the effective
date of the Anti-Drug Abuse Act) based on his 1974 and
1976 offenses. That is so for two independent reasons.
First is the age of the offenses: both convictions pre-dated
the “date of the enactment” of that Act, and they were
therefore excluded by Section 7344(B). Second, his crimes
of burglary and attempted rape did not fall within the
No. 12-2143 13
definition of “aggravated felony” provided by Section
7342 of the Anti-Drug Abuse Act.
In 1990, Congress passed another law amending the
INA; it called this simply the Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978. Among many other
things, the 1990 Act (as we shall call it, in an effort to
minimize confusing acronyms) changed the definition
of “aggravated felony” and revised the grounds for
deportation. It broadened the definition of “aggravated
felony” in a variety of ways. Section 501(a) of the 1990
Act sets out the changes to the definition:
(a) IN GENERAL.—Paragraph (43) of section 101(a)
(8 U.S.C. 1101(a)) is amended—
***
(2) by inserting “any illicit trafficking in any controlled
substance (as defined in section 102 of the Controlled
Substances Act), including” after “murder,”,
(3) by inserting after “such title,” the following: “any
offense described in section 1956 of title 18, United
States Code (relating to money laundering), or any
crime of violence (as defined in section 16 of title 18,
United States Code, not including a purely political
offense) for which the term of imprisonment
imposed (regardless of any suspension of such im-
prisonment) is at least 5 years,”,
(4) by striking “committed within the United States”,
(5) by adding at the end the following: “Such term
applies to offenses described in the previous
14 No. 12-2143
sentence whether in violation of Federal or State
law.”, and
(6) by inserting before the period of the sentence added
by paragraph (5) the following: “and also applies to
offenses described in the previous sentence in viola-
tion of foreign law for which the term of imprison-
ment was completed within the previous 15 years”.
Section 501(b) specified the effective date of these
changes, stating that
[t]he amendments made by subsection (a) shall apply
to offenses committed on or after the date of the
enactment of this Act, except that the amendments
made by paragraphs (2) and (5) of subsection (a) shall
be effective as if included in the enactment of section
7342 of the Anti–Drug Abuse Act of 1988.
Interestingly, although the controlled substance amend-
ments and the clarification with respect to state-law
offenses relate back to the Anti-Drug Abuse Act, subpart
(3) of the 1990 Act, which adds crimes of violence to
the definition, applies only from the date of enactment
(November 29, 1990) of the new statute.
Section 602(a) of the 1990 Act amended the law (then
8 U.S.C. § 1251, now § 1227) to restate the criminal
offenses that provided grounds for deportation. As
amended, Section 1251(a)(2)(A)(iii) provided that
“[a]ny alien who is convicted of an aggravated felony at
any time after entry is deportable.” Section 602(c) (which
is central to our analysis below) sets forth a rather
opaque set of rules for effective dates:
No. 12-2143 15
(c) SAVINGS PROVISION.—Notwithstanding the
amendments made by this section, any alien who
was deportable because of a conviction (before the
date of the enactment of this Act) of an offense
referred to in paragraph (15), (16), (17), or (18) of
section 241(a) of the Immigration and Nationality
Act, as in effect before the date of the enactment of
this Act [a series of offenses related to alien registra-
tion and wartime crimes], shall be considered to
remain so deportable. Except as otherwise
specifically provided in such section and subsection
(d), the provisions of such section, as amended by
this section, shall apply to all aliens described in
subsection (a) thereof notwithstanding that (1) any
such alien entered the United States before the date
of the enactment of this Act, or (2) the facts, by rea-
son of which an alien is described in such subsection,
occurred before the date of the enactment of this Act.
Even though the last eight lines of this “savings provision”
might be read to make the changes retroactive, the new
definition of “aggravated felony” applied only prospec-
tively, according to Section 501(d) of the 1990 Act. Thus,
the 1990 Act did not authorize Zivkovic’s deportation
based on his 1976 and 1978 offenses, since they did not
count as aggravated felonies thanks to Section 501(d).
The next material changes that Congress made to the
treatment of aggravated felonies appear in IIRIRA, Pub. L.
No. 104, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996). IIRIRA
did several things relevant to Zivkovic’s case. First, it
expanded the definition of “aggravated felony” to include
16 No. 12-2143
rape and burglary punishable by more than one year
imprisonment. Second—and this is the language on
which the dissent primarily rests—it includes two state-
ments that bear on retroactivity. The first one says:
The amendments made by this section shall apply
to action taken on or after the date of enactment of
this Act regardless of when the conviction occurred.
The second appears in the hanging paragraph at the end
of Section 1101(a)(43), and says:
Notwithstanding any other provision of law (including
any effective date), the term [aggravated felony]
applies regardless of whether a conviction was entered
before, on, or after September 30, 1996 [i.e., the date
of IIRIRA’s enactment].
IIRIRA also repealed Section 212(c) of the INA, which
had given the Attorney General discretion to waive
removal of aliens who had resided in the U.S. for at least
seven years. In St. Cyr, the Supreme Court held that the
repeal of Section 212(c) operated only prospectively.
We address the effect of IIRIRA on the earlier statutes
in more detail below, as we consider Zivkovic’s specific
arguments. In short, however, Zivkovic can avoid
removal only if he either can demonstrate that none of
the three convictions on which DHS relied can serve as
the basis of its removal order, or, failing that, he can
seek relief from removal under Section 212(c).
No. 12-2143 17
IV
We begin by clearing away two issues that appear
relatively straightforward to us: Zivkovic’s eligibility
for Section 212(c) relief, and the use of his 2010 convic-
tion for criminal trespass to a residence as a basis for
his removal as an aggravated felon. We then turn to the
more difficult question, common to the 1976 and 1978
convictions, whether they can support the Board’s deci-
sion.
A. Section 212(c)
We take up this point first simply to emphasize the
importance of the legal effect of Zivkovic’s three crimes.
Because he is not eligible for Section 212(c) relief under
this circuit’s law, his case turns exclusively on the
proper treatment of those crimes.
Although the Supreme Court found in St. Cyr that
IIRIRA’s repeal of Section 212(c) relief was not retroac-
tive, its opinion was not unqualified. Instead, the Court
distinguished the situation of “people who entered
into plea agreements with the expectation that they
would be eligible” for that relief. St. Cyr, 533 U.S. at 321. It
noted that plea agreements “involve a quid pro quo
between a criminal defendant and the government.” Id.We have understood St. Cyr to require a demonstration
that the defendant affirmatively abandoned rights or
admitted guilt in reliance on a chance of obtaining
Section 212(c) relief. See Khodja v. Holder, 666 F.3d 415, 420
(7th Cir. 2011) (applying St. Cyr to petitioner who af-
18 No. 12-2143
firmatively abandoned his right to pursue a judicial
recommendation against deportation).
The Court’s later decision in Vartelas, however,
cautioned against placing too much weight on actual
reliance. In Vartelas, the Court had to rule on the retro-
activity of a provision of IIRIRA limiting the right of a
permanent resident alien who had been convicted of a
felony to travel outside the United States and then
return as a matter of right. It decided against retroactivity.
The loss of the right to leave the country briefly and
then return, it concluded, imposed a new disability on
this class of persons. As the Court noted, “neither
[Vartelas’s] sentence, nor the immigration law in effect
when he was convicted and sentenced, blocked him
from occasional visits to his parents in Greece.” 132 S. Ct.
at 1487. Where a finding of retroactivity would saddle
the petitioner with new consequences from an old con-
viction, the affected person need not also demonstrate
that he relied on the absence of those new consequences.
This did not mean, however, that reliance had to be
disregarded entirely; to the contrary, the Court observed
that “[w]hile the presumption against retroactive ap-
plication of statutes does not require a showing of detri-
mental reliance, reasonable reliance has been noted
among the ‘familiar considerations’ animating the pre-
sumption.” Id. at 1491 (quotations and citations omitted).
Based on Vartelas, the Fifth Circuit has concluded
that even people who have rejected a plea agreement
and gone to trial may take advantage of St. Cyr’s ruling.
Carranza-De Salinas v. Holder, 700 F.3d 768 (5th Cir. 2012).
No. 12-2143 19
The petitioner there had delayed appealing her convic-
tion so that she could build a record showing rehabilita-
tion, and then the law changed to eliminate Section
212(c) relief. St. Cyr’s general holding about the non-
retroactivity of the repeal of Section 212(c), along with
petitioner’s demonstrated “likelihood of reliance on
prior law,” were enough to convince the Fifth Circuit to
hold that the petitioner was entitled to pursue Section
212(c) relief. Id. at 773-74. Zivkovic does not point to a
similar record, and so we are inclined to save for another
day the question whether we should revisit the role
that reliance has played in this court’s law. We focus
instead on the point that was central to Vartelas—the fact
that retroactive application of the travel restrictions
would have imposed a significant new legal disability on
the petitioner entirely apart from the consequences of
a criminal conviction on a person’s eligibility for
relief under Section 212(c). In Zivkovic’s case, the only
disabilities on the table are the criminal convictions
themselves, not a right to travel, to work, or the like. It
is true that IIRIRA, by adding his offenses to the ranks
of “aggravated felonies,” changed the consequences
for removability, but we do not understand that to be
the kind of additional legal disability that Vartelas was
addressing.
To the extent that reliance remains relevant, we note
as well that there is no way that Zivkovic could have
relied on Section 212(c) when either his 1976 or his 1978
criminal cases were adjudicated, for the simple reason
that the law did not provide for removal based on
those felonies at all. Thus, unlike St. Cyr, who prevailed
20 No. 12-2143
on a retroactivity challenge because of the loss of a
chance to avoid removal based on an offense that had
supported removal since 1988 (sale of a controlled sub-
stance), Zivkovic presents a case in which the under-
lying offenses were not even on the aggravated felony
list until 18 and 20 years after his convictions for them.
He is thus in the strange position of seeking relief
under Section 212(c) based on offenses that did not
become aggravated felonies until the passage of the very
statute that repealed Section 212(c).
We conclude that Section 212(c) relief is not available
in this unusual situation. We do so both because
Zivkovic did not incur a new legal disability in the
sense that Vartelas used, nor did he rely on the availability
of Section 212(c) relief. The Board thus correctly found
that Zivkovic is ineligible as a matter of law for relief
under Section 212(c). This means that his petition for
review can be granted only if none of the three convic-
tions on which the Board relied could support his
removal as an aggravated felon.
B. The 2010 Conviction: Residential Trespass
As it reads today, the INA provides that “[a]ny alien
who is convicted of an aggravated felony at any time
after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii).
Turning back to the definitions section of the Act, 8 U.S.C.
§ 1101, we find an extensive list of crimes that Congress
has identified as aggravated felonies. Id. § 1101(a)(43)(A)
through (U). The only one that applies to Zivkovic is
subpart (F), which (as we already have noted) identifies
No. 12-2143 21
“a crime of violence (as defined in section 16 of Title
18, but not including a purely political offense) for
which the term of imprisonment [is] at least one year.”
Title 18, section 16, provides that
The term “crime of violence” means–
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against
the person or property of another, or
(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical
force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 16. This is a familiar test: subpart (a) relies on
the formal elements of the offense, while subpart (b) turns
on the existence of a substantial risk of physical force.
The Illinois felony of residential trespass found in
720 ILCS 5/19-4(a)(2) is committed
when, without authority, [the person] knowingly
enters the residence of another and knows or has
reason to know that one or more persons is present
or he or she knowingly enters the residence of
another and remains in the residence after he or
she knows or has reason to know that one or more
persons is present.
Id. All parties agree that this crime does not include
as an element the attempted or threatened use of
physical force against the person or property of another.
It therefore does not qualify as a crime of violence
22 No. 12-2143
under 18 U.S.C. § 16(a). The more difficult question is
whether residential trespass is a crime involving a sub-
stantial risk that physical force will be used against
the person or property of another for purposes of 18
U.S.C. § 16(b).
In construing Section 16(b) in an immigration case,
the Supreme Court has taken a categorical approach. See
Leocal v. Ashcroft, 543 U.S. 1 (2004). We know this
because the underlying facts in Leocal left no doubt
that physical force actually had been used against
another: the petitioner there was convicted of driving
under the influence of alcohol, and the underlying
facts showed that he had crashed and caused serious
injury to someone. The Court confirmed that the
language of Section 16 “requires us to look to the
elements and the nature of the offense of conviction,
rather than to the particular facts relating to petitioner’s
crime.” Id. at 7. See Jimenez-Gonzalez v. Mukasey, 548
F.3d 557, 561 (7th Cir. 2008). Applying that test, it ex-
plained that even though driving under the influence
of alcohol is physically dangerous, that is not enough.
Section 16(b) does not encompass all negligent mis-
conduct, nor does it cover all offenses that create a sub-
stantial risk that injury will result from the person’s
conduct. 543 U.S. at 10. A mens rea higher than “the
merely accidental or negligent conduct involved in a
DUI offense” is necessary. Id. at 11. “[R]eckless disregard
in § 16(b),” the Court explained, “relates not to the
general conduct or to the possibility that harm will
result from a person’s conduct, but to the risk that the
use of physical force against another might be required
No. 12-2143 23
in committing a crime.” Id. at 10 (first emphasis in
original, second emphasis added). The Court added that
the phrase “crime of violence” suggests “a category of
violent, active crimes,” and cautioned against blurring
the distinction between the “violent crimes Congress
sought to distinguish for heightened punishment and
other crimes.” Id. at 11.
In Zivkovic’s case, the BIA began appropriately by
applying Leocal’s “categorical approach.” In determining
that “residential trespass” is a violent crime, it analogized
that crime to burglary, which the Supreme Court has
recognized as a “classic” example of a crime meeting
the requirements of Section 16(b). Id. at 10. The BIA also
relied on this court’s ruling that “residential entry” is a
crime of violence under Section 4B1.2 of the U.S. Sentenc-
ing Guidelines; that section calls for enhanced penalties
for offenses “involv[ing] conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2); see United States v. Gardner, 397 F.3d 1021,
1023 (7th Cir. 2005) (emphasis added). In Gardner, the
relevant statute said that “[a] person who knowingly or
intentionally breaks and enters the dwelling of
another person commits residential entry, a Class D
felony.” Ind. Code § 35-43-2-1.5 (1993). Id. at 1023.
That crime, we concluded, qualifies as a crime of violence
under Section 4B1.2 of the Guidelines and perhaps
even 18 U.S.C. § 16(b), on which the government had
relied by analogy. Id. at 1023-24. In the course of breaking
and entering, there is a “serious risk that an occupant
could be injured.” Id. at 1024 (emphasis added).
24 No. 12-2143
Gardner differs from the present case, however, in
ways that the BIA failed to recognize. First, the definition
of “crime of violence” under Section 4B1.2 of the sentenc-
ing guidelines is significantly different from the one found
in Section 16(b). The guidelines require only a “potential
risk of physical injury,” while Section 16(b) requires a
“substantial risk that physical force” may be used. (Empha-
sis added.) The level of risk is therefore different. In
addition, a risk of “physical injury” (Section 4B1.2) is not
the same as the risk that the offender will apply “physical
force” (Section 16(b)) to the victim. Physical force may
or may not result in injury, depending on how severe it
is. Cf. Johnson v. United States, 559 U.S. 133, 140, 130 S. Ct.
1265, 1270-71 (2010) (holding that the term “physical
force” in 18 U.S.C. § 924(e)(2)(B)(i) “means violent
force—that is, force capable of causing physical pain or
injury to another person”) (emphasis in original). The
Court’s analysis in Leocal illustrates the difference
between these two standards. Driving under the
influence presents a “risk of physical injury,” but the
Court found that this was not the same as the intentional,
active “use of physical force” described in Section 16(b).
In Gardner, the crime of “residential entry” required
knowing or intentional breaking and entering the
dwelling of another. Gardner, 397 F.3d at 1023. This kind
of breaking and entry offense closely resembles burglary,
and it is logical to assume that there is a substantial
risk that physical force at least against the property of
another will be used in the commission of the offense.
We recognize that since Gardner, the Supreme Court
has concluded that attempted burglary qualifies as a
No. 12-2143 25
crime of violence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). See James v. United States, 550
U.S. 192 (2007). In our view, however, James does not
undermine Leocal’s holding; indeed, the majority did not
even cite Leocal. James involved ACCA, which like the
guidelines defines a crime of violence as an offense
“involv[ing] conduct that presents a serious potential
risk of physical injury to another.” § 924(e)(2)(B). The
standard under ACCA thus differs materially from the
one under 18 U.S.C. § 16(b): the latter requires active use
of physical force, while the former looks only for
potential risk of physical injury.
The residential trespass crime that Zivkovic
committed requires only entry or remaining in a house,
with the knowledge that another person is present; it
says nothing about “breaking” or any other force. It thus
is quite different from the crimes in Gardner and James,
where the offenses necessarily involved the intentional
violation of the will of the property owner. In contrast,
the Illinois statute that Zivkovic violated says that the
entry (or remaining) must be “without authority”; it
does not say that the person had to know that the entry
(or act of remaining) was unauthorized. A person
could commit residential trespass by walking through
a neighbor’s open door under the mistaken belief that
she is hosting an open house, a party, or a garage sale.
People v. Davis, 968 N.E.2d 682, 685-86 (Ill. App. Ct. 2012)
(holding that the “without authority” element of Section
19-4(a)(2) need not be knowing). Importantly, Illinois has
a crime of “home invasion” that is more serious than
residential trespass but less serious than burglary. “Home
26 No. 12-2143
invasion” is residential trespass plus either physical
injury, use of force, or threats to use force. 720 ILCS 5/19-
6(a)(4). This crime, which does contemplate the use
of force, is closer to the Indiana crime of residential
entry at issue in Gardner or to the generic crime of bur-
glary. We conclude that the BIA erred by charac-
terizing the Illinois residential trespass crime as a “crime
of violence” for purposes of the aggravated felony provi-
sion of the INA.
C. The 1976 and 1978 Convictions
There is no question that Zivkovic’s old convictions
meet the current definition of a “crime of violence” under
18 U.S.C. § 16, and thus under the INA, 8 U.S.C.
§ 1101(a)(43)(F). The 1976 conviction was for burglary,
and the 1978 conviction was for attempted rape, and
Zivkovic received substantial sentences for each one
(two to six years and four to twelve years). The issue here
is retroactivity: does the net effect of the changes in the
INA that we described in Part III of this opinion allow
the Board to rely on those convictions to support removal?
Our dissenting colleague believes that this is a simple
question to answer. He points to the language in the
hanging paragraph to 8 U.S.C. § 1101(a)(43), which as we
noted above provides that “[n]otwithstanding any other
provision of law (including any effective date), the term
[aggravated felony] applies regardless of whether a
conviction was entered before, on, or after [IIRIRA’s
effective date].” (Emphasis added.) We agree with him
No. 12-2143 27
that this clearly makes the new definition applicable to
all prior convictions. But it is one thing to define
conduct as an aggravated felony, and a distinct thing
to conclude that the sections of the statute prescribing
grounds for removal have also been amended.
We are not the first to make this observation. Both
the Supreme Court and the BIA have consistently distin-
guished between definitions and consequences. See
8 C.F.R. § 316.10(b)(1); St. Cyr; and Matter of A-A-, 20
I. & N. Dec. 492 (BIA 1997). Recognizing that distinction
here does not deprive either the amended definition of
“aggravated felony” or the hanging paragraph of force.
To the contrary, there are many immigration con-
sequences from being an aggravated felon other than
removability, and no one has argued that IIRIRA
does not apply with full force to most of them. For exam-
ple, someone defined as an aggravated felon pursuant
to IIRIRA is ineligible for any discretionary waiver of
removal (either the cancellation of removal otherwise
possible for legal permanent residents or a discretionary
waiver of inadmissibility for those guilty of a crime of
moral turpitude); he is ineligible for any discretionary
immigration benefit that requires a showing of good
moral character, such as seeking U.S. citizenship; he
may not seek asylum or withholding of removal based
on the threat of persecution in the country of removal;
if removed on other grounds, an aggravated felon
may not reenter the country legally without a special
waiver; and an aggravated felon is ineligible for
voluntary departure. See generally I MMIGRATION
28 No. 12-2143
P OLICY C ENTER , Aggravated Felonies: An Overview,
http://www.immigrationpolicy.org/just-facts/aggravated-
felonies-overview (last visited July 26, 2013). The point is
that each consequence must be evaluated independently,
to see if Congress intended to import the new definition
(reaching all aggravated felonies, no matter when com-
mitted) into that part of the statute.
The Board has taken the position that the 1990 Act
created a comprehensive new statutory framework,
which consolidated the grounds for deportation and
repealed by implication a variety of earlier scattered
statutory provisions, including Section 7344(b) of the Anti-
Drug Abuse Act of 1988. See Matter of Lettman, 22 I. & N.
Dec. 365 (BIA 1998) (en banc). In Lettman, a majority of
the Board permitted use of a pre-1988 conviction for
murder (a crime defined as an aggravated felony in the
Anti-Drug Abuse Act of 1988) to support the alien’s
removal. It did so despite the fact that the Anti-Drug
Abuse Act, which had added for the first time the term
“aggravated felony,” also highlighted the prospective
nature of this change in Section 7344(b). The Board
relied on the language providing that the amendments
“shall apply to any alien who has been convicted,
on or after the date of the enactment of this Act, of an ag-
gravated felony.” Three members of the Board dissented.
Initially, the Eleventh Circuit ruled that the Board
had erred in Lettman, see 168 F.3d 463 (11th Cir. 1999), but
upon reconsideration the court decided to give Chevron
deference to the Board’s understanding of the effective
date of the changes made by the 1990 Act. 207 F.3d 1368,
No. 12-2143 29
1370 (11th Cir. 2000). The court did so in reliance on
I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (1999), which
had commanded such deference to the Board’s inter-
pretation of the term “serious nonpolitical crime” for
purposes of 8 U.S.C. § 1253(h)(2)(C). But the Eleventh
Circuit failed to note that the question of retroactivity
before it is quite different from the question how to
interpret a particular phrase unique to the immigration
laws. We have already explained why we do not believe,
in light of St. Cyr and Vartelas, that Chevron deference
applies to retroactivity determinations, even though it
does apply to run-of-the-mill questions of interpreta-
tion that are unique to the immigration statutes and
thus within the Board’s expertise, such as the one in
Aguirre-Aguirre.
The absence of Chevron deference does not mean that
we must disregard the Eleventh Circuit’s underlying
reasons for upholding the result in Lettman; it means
only that we evaluate the Board’s position in Lettman
with an open mind, bearing in mind the more flexible
principles of Skidmore v. Swift & Co., 323 U.S. 134 (1944),
and United States v. Mead Corp., 533 U.S. 218 (2001). In
reviewing the Board, the Eleventh Circuit began with
the proposition that the 1990 Act redesignated the ag-
gravated felony ground but did not expressly either
enact or re-enact any corresponding date restriction.
The only help with respect to dates comes from
Section 602(c) of the 1990 Act, set forth above. Unfortu-
nately, the second sentence of that provision is practically
indecipherable:
30 No. 12-2143
Except as otherwise specifically provided in such
section and subsection (d), the provisions of such
section, as amended by this section, shall apply
to all aliens described in subsection (a) thereof not-
withstanding either that the alien entered the United
States before the 1990 Act took effect or that the
grounds for deportation occurred before the date of
the enactment of this Act.
(Emphasis added.) The Board recognized that it is
difficult at best to know what Congress was talking
about when it said “such section” twice. Does this
passage apply to the aggravated felony ground in the
form that it originally had in 1988—date restriction and
all? If so, that particular ground (which was new to the
law in 1988) would remain prospective as of 1988. (No
one is arguing for any earlier starting point, and so we
disregard that possibility.) Or does “such section” mean
the 1988 aggravated felony ground without the date
restriction? In that case, the date restriction on the under-
lying acts would disappear and the 1990 Act would
be fully retroactive on this point. This is, as the Eleventh
Circuit recognized, purely a question of statutory con-
struction. As the Supreme Court held in Mulcahey v.
Catalanotte, 353 U.S. 692 (1957), Congress has the
authority to pass a law requiring deportation regardless
of when the supporting facts took place. The question
is only what did it do in the set of statutes we are con-
sidering.
The Eleventh Circuit was persuaded by several of
the reasons that the BIA offered when it chose the
No. 12-2143 31
second of those interpretations—that is, full retroactiv-
ity. It thought that full retroactivity better reflected Con-
gress’s desire in 1990 to simplify the immigration laws,
because this reading eliminated the need to check earlier
versions. In addition, the Eleventh Circuit had already
adopted this reading as it related to the former firearms
ground for deportation (which appears in a different
part of the Anti-Drug Abuse Act). See Lopez-Amaro v.
INS, 25 F.3d 986 (11th Cir. 1994); see also Lewis v. INS, 194
F.3d 539, 545-46 (4th Cir. 1999) (also deferring to
the Board’s Lettman decision). The Eleventh Circuit
rejected Lettman’s argument that the firearms ground
was materially different because it was amended sub-
stantively in the 1990 Act, while the aggravated
felony ground was carried forward unchanged and
was merely re-codified.
In Bell v. Reno, 218 F.3d 86 (2d Cir. 2000), the Second
Circuit took a different approach to Lettman. It found
that Chevron deference to the Board’s view was not ap-
propriate, writing that the Board’s interpretation was
“not sustainable because it runs afoul of the long-
standing presumption against the retroactive applica-
tion of ambiguous statutory provisions.” Id. at 93 (citing
Landgraf, 511 U.S. at 265). The court pointed out that in
Lettman the Board had not conducted a retroactivity
analysis under Landgraf. Had it done so, the court said,
“it would have been compelled to conclude that § 602(c)
cannot be construed to apply to convictions that pre-date
the [Anti-Drug Abuse Act],” since both the majority
and the dissent in Lettman acknowledge that the provi-
sion is ambiguous. Id. at 94. The Second Circuit
32 No. 12-2143
turned instead to the effective date provision of the
1990 Act, Section 602(d), which states that the amended
definition of “aggravated felony” should apply only to
deportation proceedings initiated after March 1, 1991. The
court understood that language to mean that it should
apply the deportation consequences to any aggravated
felon no matter when the qualifying felony was
committed, so long as the proceeding itself was
initiated after March 1, 1991. Id. at 94-96.
In Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir.
2010), the Ninth Circuit rejected the approaches of both
the Eleventh Circuit and the Second Circuit. There, peti-
tioner Ledezma-Galicia was a lawful permanent
resident alien. He was convicted in September 1988 of
sodomy, for sexually assaulting a minor. That crime is
now defined as an aggravated felony by 8 U.S.C.
§ 1101(a)(43)(A), and thus (putting retroactivity to one
side) it currently is a ground for removal under 8 U.S.C.
§ 1227(a)(2)(A)(iii). But at the time Ledezma-Galicia
was convicted of his state crime, he could not have
been removed for that or any other aggravated
felony, because this was before November 18, 1988, when
the Anti-Drug Abuse Act added the category of “aggra-
vated felony” to the INA.
The Ninth Circuit focused on two central questions:
“First, did § 602 of the 1990 [Act] preserve or override
[the Anti-Drug Abuse Act] § 7344(b), the [Anti-Drug
Abuse Act’s] temporal limitation on aggravated felony
deportations? Second, if [the Anti-Drug Abuse Act]
§ 7344(b) survived the [1990 Act], did IIRIRA in 1996
No. 12-2143 33
eliminate its temporal limitation?” 636 F.3d at 1066.
Like us, the Ninth Circuit recognized that Chevron defer-
ence does not apply to the question whether a statute
should be applied retroactively. Turning to the Board’s
Lettman decision, the Ninth Circuit concluded that the
Board “took a fundamentally wrong turn in its analysis”
when it decided to concentrate on the “except” clause of
the 1990 Act, Section 602(c). Id. at 1068. In the Ninth
Circuit’s view, whether the “except” clause referred to the
pre-1990 Act or post-1990 Act version of INA Section 241(a)
was of no importance. That is because Section 7344(b) (part
of the Anti-Drug Abuse Act of 1988) was never part of
Section 241 to begin with; only Section 7344(a) amended
Section 241. That meant, the court reasoned, that Section
7344(b) “was always an entirely free-standing temporal
limitation provision.” Id. at 1069. Because Section 7344(b)
was never part of 241, it was unaffected by Section
602(c)’s references to “such section.” Finally, the Ninth
Circuit concluded that nothing in the 1990 Act (or any
other legislation) has repealed Section 7344(b), either
explicitly or by implication. Indeed, the court found,
repeal of Section 7344(b) would have produced odd
results. Id. at 1072. Like the Anti-Drug Abuse Act, the
1990 Act treated the definition of aggravated felony as
something distinct from the aggravated-felony ground
for deportation. This made sense, because otherwise
why would Section 501 of the 1990 Act have separately
specified the temporal reach of the new definitions? If
Section 7344(b) had been impliedly repealed by the 1990
Act, the provision in the 1990 Act itself specifying that
certain of the amendments in Section 501(a) would be
34 No. 12-2143
effective from the date of the 1988 Anti-Drug Abuse
Act would have been pointless. Id. at 1073. The court
was also influenced in its decision by the presumptions
against retroactivity and implied repeals.
IIRIRA did not affect the Board’s decision in Lettman,
because those proceedings began well before the
statute’s 1996 date of enactment. In Ledezma-Galicia,
however, the Ninth Circuit had to consider its impact,
because it was IIRIRA that added “sexual abuse of a
minor” to the list of aggravated felonies in the INA. IIRIRA
also made its amended definition applicable to all
aliens, regardless of their date of conviction. As it had
done earlier, the court rejected the argument that the
definition automatically dictated the immigration con-
sequences. Instead, the court found it necessary to
look at the particular consequence (removal) and see if
it should be applied retroactively. The court concluded
that Ledezma-Galicia was not removable by reason of
being an aggravated felon, because the removal provi-
sion of the statute does not apply to convictions
that occurred prior to November 18, 1988.
Judge Bybee dissented from the majority’s opinion,
but his opening line makes a telling point. He wrote:
“There is no polite way to say this: The statutory scheme
we are required to parse in this case is a mess. It is a
model of ambiguity and misdirection.” 636 F.3d at 1080.
That said, he would have deferred to the BIA’s under-
standing of the interactions among all of these statutes
and would have denied the petition for review. But
Judge Bybee’s statement illustrates the exact problem
No. 12-2143 35
that the St. Cyr Court identified as precluding any such
deference in light of the Landgraf presumption against
retroactivity—where the statute is admittedly “a model
of ambiguity,” Congress has not made the necessary
clear statement of retroactive intent.
Where, then, does all of this leave Zivkovic? If we were
to follow Ledezma-Galicia, the conclusion would be
that neither his 1976 nor his 1978 conviction (each of
which now falls within the definition of “aggravated
felony”) may form the predicate for removal, because
the commission of an aggravated felony did not become
a ground for removal until 1988. If, on the other hand,
we were to follow the Eleventh and Fourth Circuits
(which followed the Board’s reasoning in Lettman), the
result would be to say that Section 602(c) of the 1990
Act not only placed the definition of aggravated felony
in a different part of the statute, but it also cryptically
wiped away any temporal limitations on use of such
a conviction for purposes of removal. Were we to
follow the Second Circuit, we would permit the use
of Zivkovic’s two old felonies not because we would
be deferring to the Board, but because his removal pro-
ceedings were initiated after March 1, 1991. Finally,
our dissenting colleague proposes yet another ap-
proach, bypassing the 1990 Act as ambiguous but
instead finding a clear rule for retroactive removability
in IIRIRA.
It appears to be common ground that neither the
1990 Act nor any other statute passed after the Anti-Drug
Abuse Act of 1988 has expressly repealed Section 7344(b),
36 No. 12-2143
the provision stating that the deportation consequences
of the newly defined group of aggravated felonies
operate prospectively as of the effective date of the 1988
Act. A finding of retroactivity would thus need to rest
on implied repeal, a topic on which the Supreme
Court provided useful guidance in National Association of
Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007):
While a later enacted statute (such as the [Endangered
Species Act]) can sometimes operate to amend or
even repeal an earlier statutory provision (such as
the [Clean Water Act]), “repeals by implication are
not favored” and will not be presumed unless the
“intention of the legislature to repeal [is] clear and
manifest.” Watt v. Alaska, 451 U.S. 259, 267 (1981)
(internal quotation marks omitted). We will not infer
a statutory repeal unless the later statute ‘expressly
contradict[s] the original act’ ” or unless such a con-
struction “is absolutely necessary . . . in order that
[the] words [of the later statute] shall have any mean-
ing at all.
Id. at 662 (some internal quotations omitted). We do not
find any irreconcilable conflict among the Anti-Drug
Abuse Act, the 1990 Act, and IIRIRA, nor did either of
the later statutes comprehensively replace the underlying
INA. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 154
(1976). Instead, what we find is the confusion that
Judge Bybee described.
Out of that mess, we can extract a number of observa-
tions.
No. 12-2143 37
• Section 7344(b) of the 1988 Anti-Drug Abuse Act
applies only to one of many categories of deportable
criminal offenses listed in the 1990 Act, which sets
out thirty grounds for deportation and fourteen
categories of deportable criminal offenses.
• There is no clear signal in the text of the 1990 Act
indicating that it is repealing Section 7344(b) of the
1988 statute.
• When Section 7344(b) was enacted, the INA already
contained a provision nearly identical to the one in
the 1990 Act—that is, one that applied the INA’s
grounds for deportation regardless of when the
facts occurred. This means that the Anti-Drug
Abuse Act was creating an exception to an under-
stood rule.
• The 1990 Act added several new crimes to the def-
inition of “aggravated felony.” It provided that
three of these crimes would be grounds for deporta-
tion only if they were based on post-1990 Act con-
victions; the other two would be “effective as if
included” in Section 7342 of the 1988 Act.
• IIRIRA also did no more than to expand the defini-
tion of aggravated felony. The new grounds it pro-
vided for deportation are of no importance to
Zivkovic’s case.
We conclude that the statutes are wholly unclear on
the point whether Section 7344 survives both the 1990
Act and IIRIRA. As we have just pointed out, judges
addressing this issue have taken four distinct and
38 No. 12-2143
often contradictory approaches: (1) deference to Lettman
(Eleventh and Fourth Circuits plus Ninth Circuit dis-
sent); (2) no deference to Lettman, but reliance on
Section 602(d) of the 1990 Act (Second Circuit); (3) the
IIRIRA amendments to 8 U.S.C. § 1101(a)(43) (dissenting
judge in this case); and (4) no retroactive consequences of
expanded definition for removability (Ninth Circuit
majority). This level of ambiguity cannot overcome the
presumptions against implied repeal and retroactivity.
As the Supreme Court reminded us in Vartelas, because
“[s]everal provisions of the Constitution . . . embrace the
doctrine” against retroactivity, we need a clear state-
ment of intent from Congress before we will take such
an important step. 132 S. Ct. at 1486. Because Zivkovic’s
aggravated felony convictions were more than a decade
old before the 1988 statute took effect, they cannot be
used as a ground for removal (although they can be
used for many other purposes under the statute). Before
closing, we state the obvious: we are only construing
the law as it now stands. Congress has broad powers
in this area, and it may change the rules in the future,
either prospectively or, with the necessary clear state-
ment, retrospectively.
V
This leaves two loose ends to tie up, one of which is
relatively unimportant and the other of which is signifi-
cant. Zivkovic argued that the IJ should not have con-
sidered evidence from his bond proceedings during
No. 12-2143 39
the removal proceedings, because the judges are
supposed to maintain separate records for the two types
of cases. We find no merit in this argument. The IJ is
quite able to keep separate records while at the same
time taking into account relevant evidence that arises
in either proceeding. Zivkovic’s conviction documents
would have been admitted in a flash in each set of pro-
ceedings if the government had introduced them sepa-
rately. We have no desire to make the system even
more inefficient than it already is.
The other question relates to the proper disposition
of Zivkovic’s case. We are granting his petition for
review, but that means only that the case will be
returned to the Board for further proceedings. Earlier,
the Board had no occasion to consider his removability
for moral turpitude, but that ground remains in the
record, and the Board may wish to remand to an IJ for
further proceedings on that or other points that the gov-
ernment has properly preserved.
The petition for review is G RANTED and the case
is returned to the Board for further proceedings con-
sistent with this opinion.
40 No. 12-2143
E ASTERBROOK, Chief Judge, dissenting. My colleagues
have written a complex opinion in a simple case. Zivkovic
wants a waiver of inadmissibility under 8 U.S.C. §1182(c).
He is ineligible if even one of his convictions is an “ag-
gravated felony” as defined in 8 U.S.C. §1101(a)(43).
I disregard Zivkovic’s conviction for residential tres-
pass. It is enough if either burglary or attempted rape is
an “aggravated felony.”
Section 1101(a)(43)(G) says that burglary is an
aggravated felony if the sentence was a year or more, as
Zivkovic’s was. Section 1101(a)(43)(A) says that rape is
an aggravated felony, and §1101(a)(43)(U) adds that “an
attempt or conspiracy to commit an offense described
in this paragraph” likewise is an aggravated felony.
(“[T]his paragraph” refers to all of (a)(43): lettered parts
of a section are “subsections” and the numbered
parts of subsections are “paragraphs.” See Office of the
Legislative Counsel, United States Senate, Legislative
Drafting Manual §112 (1997).) This leaves only the question
whether §1101(a)(43) applies to convictions rendered
during the 1970s. The answer is yes. The final, hanging
sentence of §1101(a)(43) reads: “Notwithstanding any
other provision of law (including any effective date),
the term [aggravated felony] applies regardless of
whether the conviction was entered before, on, or after
September 30, 1996.”
A plainer declaration of retroactivity is hard to imag-
ine—and the Supreme Court said exactly this in INS v.
St. Cyr, 533 U.S. 289, 295 & n.4 (2001), when stating that
the definition of aggravated felonies in §1101(a)(43)
No. 12-2143 41
applies “without regard to how long ago they were com-
mitted.” To drive the point home, the Court repeated
this observation, quoting from the hanging sentence, 533
U.S. at 319 & n.43, and adding that this shows that Con-
gress knows how to make a change retroactive. Id. at 320.
My colleagues today nonetheless hold that, even if
the full list of “aggravated felonies” consolidated in
§1101(a)(43) applies to pre-1996 convictions, those older
convictions do not carry the statutorily prescribed conse-
quences of aggravated felonies—and this despite
contrary conclusions of the responsible agency, Matter of
Letterman, 22 I&N Dec. 365 (1998) (en banc), and three
other courts of appeals. Bell v. Reno, 218 F.3d 86 (2d Cir.
2000); Lewis v. INS, 194 F.3d 539, 544–46 (4th Cir. 1999);
Lettman v. Reno, 207 F.3d 1368 (11th Cir. 2000). Today’s
decision follows a divided panel in the Ninth Circuit.
Ledezma-Galicia v. Holder, 636 F.3d 1059 (9th Cir. 2010). But
it is contrary to the language of §1101(a)(43), the view
of the Supreme Court, and the holdings of three
other circuits.
The majority opinion is so long and complex because
it tries to sort out the relation among the 1988, 1990, and
1996 Acts (sometimes dubbed ADAA, IMMAct, and
IIRIRA) by using tools other than the language of the
statute now in force. If we want to know whether the
current definition of “aggravated felony” applies to pre-
1996 convictions (and thus pre-1988 and pre-1990 con-
victions) we need not go beyond the hanging sentence
at the end of §1101(a)(43). No backstory is needed.
42 No. 12-2143
The presumption against retroactivity tells us how to
deal with ambiguity, but the hanging sentence is pellucid.
St. Cyr said as much. The 1988 and 1990 Acts survive in
part in §1101(a)(43), but their effective dates are history;
the hanging sentence tells us how the date of convictions
matters today. As for “implied repeal”: the 1988 Act said
that it was not retroactive, and the 1990 Act was ambigu-
ous about retroactivity. Neither was “repealed” by the
statement in 1996 that the definition as amended is retro-
active. The 1988 statement “this Act is not retroactive”
is 100% compatible with the 1996 declaration “Ah, but
this Act is retroactive.” Neither modifies the other. It’s
not as if the 1988 Act said: “Any statute enacted later
will not make these substantive changes apply to older
convictions.” Then the 1996 Act would have repealed
that part of the 1988 Act. But that’s not what happened.
There is no “repeal” when a more recent Congress
declares that the current definition applies whether or
not the date mattered under a predecessor statute. (Recall
that the hanging sentence begins: “Notwithstanding
any other provision of law (including any effec-
tive date) …” (emphasis added).) Section 7344(b) of the
1988 Act, and §602 of the 1990 Act, tell us the temporal
reach of those Acts; they are not part of the United
States Code and do not control the temporal reach of
§1101(a)(43) as amended in 1996 and later.
The hanging sentence of §1101(a)(43) decides this
case. Once we conclude that the 1996 Act’s changes to
§212(c) apply to Zivkovic (I agree with Part IV.A of the
majority’s opinion), everything else becomes irrelevant.
No. 12-2143 43
My colleagues reach a different conclusion because
they agree with Ledezma-Galicia that, although the defini-
tions in §1101(a)(43) apply to older convictions, the conse-
quences of those definitions are not necessarily retroac-
tive. I don’t get it—nor did Judge Bybee, dissenting in
Ledezma-Galicia. 636 F.3d at 1080–92. Congress has ad-
dressed through §1101(a)(43) which criminal convictions
count as aggravated felonies. Other parts of the statute
specify the effects of that label. In the main, an alien
convicted of an aggravated felony is removable and
ineligible for discretionary relief. Particular parts of the
Immigration and Nationality Act outside §1101(a)(43)
may or may not be retroactive, but not because of any-
thing in the 1988 and 1990 Acts.
The only part of immigration law plausibly limiting
today’s consequences of pre-1996 convictions that count
as aggravated felonies under §1101(a)(43) would be
§212(c), 8 U.S.C. §1182(c), the subject of St. Cyr. But all
three members of this panel conclude that Zivkovic—
whose convictions for burglary and attempted rape
predate the legislation authorizing waiver of inadmissi-
bility for such crimes, and who therefore cannot have
relied on the pre-1996 version of §212(c) when making
choices in the criminal prosecutions—does not get any
benefit from St. Cyr’s limitation on how §212(c) applies
to pre-1996 convictions. See Part IV.A of the
majority opinion.
If §1101(a)(43) applies to all pre-1996 convictions, and
§212(c) thus forecloses a waiver of inadmissibility, then
what statute is it that withholds the “consequences” of
44 No. 12-2143
Zivkovic’s conviction? My colleagues do not say, and
neither did Ledezma-Galicia.
Our opinion in Alvarado-Fonseca v. Holder, 631 F.3d 385(7th Cir. 2011), left open the possibility of distinguishing
definitions from consequences, while hinting that it
doubted the Ninth Circuit’s hair-splitting. The panel
in Alvarado-Fonseca refrained from a definitive conclu-
sion, however, because the alien had failed to raise
before the BIA an argument based on this elusive dis-
tinction.
The reason to get the Board’s view is that its under-
standing of the relation among the 1988, 1990, and 1996
Acts deserves substantial weight in resolving disputes
about their interaction. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), and, e.g.,
Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012);
Negusie v. Holder, 555 U.S. 511, 516–17 (2009); INS v.
Aguirre-Aguirre, 526 U.S. 415, 424–26 (1999). To resolve
Zivkovic’s application for a waiver, the Board had to
decide whether the 1996 decision that §1101(a)(43)
applies to all older convictions leaves any room for a
conclusion that some aliens who have “aggravated felo-
nies” (thus defined) on their records nonetheless are
spared the normal consequences. My colleagues think
that issue cloudy and wrestle with it at length. Ambiguity
in an agency’s organic statute is the core of Chevron’s
domain, and this is true even if the dispute concerns the
agency’s authority. Arlington v. FCC, 133 S. Ct. 1863 (2013).
Although my colleagues point out that the Supreme
Court did not use Chevron when resolving retroactivity
No. 12-2143 45
issues in Vartelas v. Holder, 132 S. Ct. 1479 (2012), it was
not asked to do so. Issues not presented by the parties
are not resolved. Chevron was argued in St. Cyr and
addressed in a footnote, 533 U.S. at 320 n.45, which ob-
serves that Chevron matters only when other tools do
not provide an answer. That’s Chevron’s Step One. St. Cyr
said that the rule requiring clear language to warrant
retroactivity was such a tool, leaving no gap for the
agency to fill. My colleagues conclude from this
that Chevron is irrelevant to all questions related to retro-
activity. Yet the hanging sentence of §1101(a)(43), which
makes the amended definition retroactive, supplies
what was missing in St. Cyr—as the Court itself observed,
533 U.S. at 295 & n.4, 319–20 & n.43.
On my colleagues’ understanding that definitions
and consequences must be analyzed separately, there is
a knotty question about the relation among the 1988,
1990, and 1996 Acts. St. Cyr does not address that subject,
which concerns Chevron’s Step Two—and for reasons
I have given is not within the scope of the presumption
against retroactivity. The agency’s views therefore
should be respected, not thrown into the trash.
Unanimous panels of three courts of appeals, one judge
on the Ninth Circuit’s panel, and one judge on
this circuit’s panel agree with the Board either after
independent review or through the lens of Chevron; and
of the four other judges (two on the Ninth Circuit and
two on this circuit) none has concluded that answer is
too clearly against the Board’s views to admit of debate.
As Judge Bybee put it: “so twisted and complex are
the provisions at issue here that—short of spitting in a
46 No. 12-2143
bucket—the BIA could have concluded almost anything
in this case and been reasonable. There is nothing ‘plain’
about these statutes. If Chevron means anything, this is a
classic case for deferring to the agency.” 636 F.3d at1080–81 (dissenting opinion). And if Chevron falls out, we
still have Mead-Skidmore deference. See United States v.
Mead Corp., 533 U.S. 218 (2001); Skidmore v. Swift & Co., 323
U.S. 134 (1944). Yet my colleagues give the Board’s views
no weight. If (as I doubt) there is a distinction between
definitions and consequences, the Board’s views should
prevail.
7-31-13