Engjull Thaqi v. CAROL JENIFER, District Director, United States Immigration

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0238P (6th Cir.)
File Name: 04a0238p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ENGJULL THAQI,
Petitioner-Appellant,
v.
CAROL JENIFER, District
Director, United States
Immigration and
Naturalization Service, JAMES
ZIEGLER, Commissioner,
Immigration and
Naturalization Service, and
JOHN ASHCROFT, United
States Attorney General,
Respondents-Appellees.
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No. 03-1587
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-74876—Patrick J. Duggan, District Judge.
Submitted: June 18, 2004
Decided and Filed: July 23, 2004
Before: NORRIS, COLE, and ROGERS, Circuit Judges.
2 Thaqi v. Jenifer, et al. No. 03-1587
_________________
COUNSEL
ON BRIEF: David K. Wenger, DAVID K. WENGER &
ASSOCIATES, Detroit, Michigan, for Appellant. Nancy B.
Pridgen, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
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OPINION
_________________
ALAN E. NORRIS, Circuit Judge. Petitioner Engjull
Thaqi appeals from the district court’s denial of his petition
for a writ of habeas corpus. Thaqi contends that the district
court erred in refusing to disturb a determination by the Board
of Immigration Appeals (“BIA”) that he was not a candidate
for a discretionary waiver of deportation because a provision
of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. 104-132, 110 Stat. 1214 (“AEDPA”) applied
retroactively to strip him of eligibility. Because the district
court incorrectly concluded that the rationale of the Supreme
Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), did
not apply to Thaqi’s circumstances, we reverse its judgment.
I.
Thaqi is a legal permanent resident of the United States and
a citizen of Yugoslavia. He was convicted of felonious
assault in Michigan state court following a jury trial on July
26, 1994. On December 31, 1995, he pleaded guilty in state
court to larceny. On March 10, 1997, the Immigration and
Naturalization Service (“INS”) commenced deportation
proceedings against Thaqi, charging him with being
deportable for the commission of two unconnected crimes of
moral turpitude under § 241(a)(2)(A)(ii) of the Immigration
and Nationality Act, 66 Stat. 163, as amended (“INA”). See

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No. 03-1587 Thaqi v. Jenifer, et al. 3
8 U.S.C. § 1227(a)(2)(A)(ii). Thaqi conceded deportability
but requested alternative relief, including consideration for a
discretionary waiver of deportation under § 212(c) of the
INA. See 8 U.S.C. § 1182(c) (1994). The Immigration Judge
conducting Thaqi’s hearing denied the § 212(c) waiver
without explanation, and the BIA summarily affirmed. The
BIA then denied Thaqi’s motion for reconsideration, basing
its decision on the conclusion that he was ineligible for a
§ 212(c) waiver under AEDPA because one of his convictions
resulted from a jury verdict.
Following the BIA’s decision, Thaqi filed a petition for a
writ of habeas corpus in district court, in which he sought
declaratory and injunctive relief solely on the ground that the
BIA erred in determining that he was ineligible for a
discretionary waiver of deportability. The district court
denied Thaqi’s petition, reasoning that the BIA correctly
concluded that, because Thaqi had once been convicted
following a jury trial, the Supreme Court’s decision in St. Cyr
did not require a determination that he remained eligible for
§ 212(c) relief.
II.
An alien’s eligibility for a discretionary waiver of
deportation has changed over time. Thaqi became deportable
under the immigration laws on December 31, 1995, the date
on which his guilty plea resulted in his second criminal
conviction. See 8 U.S.C. § 1227(a)(2)(A)(ii). At that time,
Thaqi would have been eligible for consideration for a
discretionary waiver of deportation under § 212(c) of the
INA. Only an alien who had “been convicted of one or more
aggravated felonies and ha[d] served for such felony or
felonies a term of imprisonment of at least 5 years” would
have been ineligible for the waiver. 8 U.S.C. § 1182(c)
(1994). Neither of Thaqi’s convictions were for aggravated
felonies.
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1This provision of IIRIRA took effect after AEDPA had already
become effective and after the INS had b egun proceed ings against Thaqi,
and is therefore not applicable to Thaqi’s case.
By the time that deportation proceedings were initiated
against Thaqi on March 10, 1997, however, the standards
governing eligibility for a waiver under § 212(c) had changed.
By that date, AEDPA had become effective, and had amended
INA § 212(c) to cancel eligibility for waivers for aliens who,
like Thaqi, had been convicted of two unconnected crimes of
moral turpitude. See 8 U.S.C. § 1182(c) (1996). It was this
provision upon which the BIA relied to determine that Thaqi
was ineligible for relief under § 212(c). In his petition, Thaqi
protests the application of a later-enacted law to increase the
immigration consequences of his convictions.
Whether it was appropriate for the BIA to rely upon
AEDPA to strip Thaqi of eligibility for the waiver based upon
crimes he had committed prior to AEDPA’s effective date is
governed by the Supreme Court’s decision in INS v. St. Cyr,
533 U.S. 289 (2001). In that case, the Court had to determine
whether a provision of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. 104-208, Div.
C, 110 Stat. 3009-546 (“IIRIRA”), which repealed § 212(c)
entirely, could be applied retroactively.1 St. Cyr was an alien
who had become deportable after pleading guilty to a drug
crime under Connecticut law. At the time of his conviction
on March 8, 1996, he would have been a candidate for a
§ 212(c) waiver. The INS, however, only initiated
proceedings against St. Cyr on April 10, 1997, ten days after
IIRIRA became effective, and it sought to use his drug
conviction as grounds for deportation. St. Cyr requested
§ 212(c) relief, but the INS ruled that IIRIRA rendered him
ineligible because IIRIRA repealed § 212(c). St. Cyr objected
to the INS’s retroactive application of IIRIRA. St. Cyr, 533
U.S. at 293.

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No. 03-1587 Thaqi v. Jenifer, et al. 5
The Court applied a two-step test to determine whether the
provision repealing § 212(c) could be applied retroactively.
“[T]he first step in determining whether a statute has an
impermissible retroactive effect is to ascertain whether
Congress has directed with the requisite clarity that the law be
applied retrospectively.” Id. at 316 (citations omitted).
Having determined that Congress had not clearly stated an
intent regarding retroactive application, the Court then turned
to the second step, asking whether retroactively applying
IIRIRA “produces an impermissible retroactive effect[:]”
The inquiry into whether a statute operates
retroactively demands a commonsense, functional
judgment about whether the new provision attaches new
legal consequences to events completed before its
enactment. A statute has retroactive effect when it takes
away or impairs vested rights acquired under existing
laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or
considerations already past. As we have repeatedly
counseled, the judgment whether a particular statute acts
retroactively should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and
settled expectations.
IIRIRA’s elimination of any possibility of § 212(c)
relief for people who entered into plea agreements with
the expectation that they would be eligible for such relief
clearly attaches a new disability, in respect to
transactions or considerations already past. Plea
agreements involve a quid pro quo between a criminal
defendant and the government. In exchange for some
perceived benefit, defendants waive several of their
constitutional rights (including the right to a trial) and
grant the government numerous tangible benefits, such as
promptly imposed punishment without the expenditure
of prosecutorial resources. There can be little doubt that,
as a general matter, alien defendants considering whether
to enter into plea agreements are acutely aware of the
6 Thaqi v. Jenifer, et al. No. 03-1587
immigration consequences of the convictions. Given the
frequency with which § 212(c) relief was granted in the
years leading up to AEDPA and IIRIRA, preserving the
possibility of such relief would have been one of the
principal benefits sought by defendants deciding whether
to accept a plea offer or instead proceed to trial.
The case of Charles Jideonwo, a petitioner in a parallel
litigation in the Seventh Circuit, is instructive. Charged
in 1994 with violating federal narcotics law, Jideonwo
entered into extensive plea negotiations with the
Government, the sole purpose of which was to ensure
that he got less than five years to avoid what would have
been a statutory bar on 212(c) relief. The potential for
unfairness in the retroactive application of IIRIRA’s
§ 304(b) [which repealed INA § 212(c)] to people like
Jideonwo and St. Cyr is significant and manifest.
Relying upon settled practice, the advice of counsel, and
perhaps even assurances in open court that the entry of
the plea would not foreclose § 212(c) relief, a great
number of defendants in Jideonwo’s and St. Cyr’s
position agreed to plead guilty. Now that prosecutors
have received the benefit of these plea agreements,
agreements that were likely facilitated by the aliens’
belief in their continued eligibility for § 212(c) relief, it
would surely be contrary to familiar considerations of
fair notice, reasonable reliance, and settled expectations
to hold that IIRIRA’s subsequent restrictions deprive
them of any possibility of such relief.
Id. at 320-24 (citations, quotations marks and footnotes
omitted). In deciding Thaqi’s case, we must apply the
reasoning of St. Cyr to determine first whether the language
of the statute in question reveals Congress’s intent regarding
retroactivity, and second, whether enforcing the statute
against Thaqi would result in an impermissible retroactive
effect.

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No. 03-1587 Thaqi v. Jenifer, et al. 7
2W e note that, under St. Cyr, the petitioner ne ed no t demonstrate
actual reliance upon the immigration laws in order to demonstrate an
impermissible retroactive effect; he need only be among a class of aliens
whose guilty pleas “were likely facilitated” by their continued eligibility
for § 2 12(c) relief. St. Cyr, 533 U.S. at 323 .
On the first question, we agree with the parties that the
language of AEDPA reveals nothing regarding Congress’s
intent. Moving to the second part of the inquiry and applying
the reasoning of St. Cyr to Thaqi’s case, we conclude that
enforcing AEDPA against Thaqi would have an
impermissible retroactive effect.
In St. Cyr, the conviction that rendered the petitioner
ineligible for § 212(c) relief was the result of a guilty plea; in
the opinion of the Supreme Court, St. Cyr might well have
chosen to contest the charge had he known that, under later
legislation, his conviction would render him ineligible for an
avenue of relief from deportation. In Thaqi’s case, the crime
that rendered him ineligible for § 212(c) relief was also the
result of a guilty plea—it was his second conviction, in which
he pleaded guilty to larceny, that made him guilty of two
unconnected crimes of moral turpitude. Accordingly, under
the logic of St. Cyr, had he known that later legislation would
deprive him of § 212(c) eligibility, Thaqi would likely have
decided to contest the larceny charge. Accordingly, applying
AEDPA retroactively to bar Thaqi from eligibility for a
discretionary waiver of deportation would have an
impermissible retroactive effect.2
The government cites various cases in which courts of
appeals have concluded that where petitioners had been
convicted following jury trials, the retroactive application of
a statute eliminating their eligibility for § 212(c) relief would
not have had impermissible retroactive effects. See Rankine
v. Reno, 319 F.3d 93, 100-02 (2d Cir. 2003); Dias v. INS, 311
F.3d 456, 458 (1st Cir. 2002); Chambers v. Reno, 307 F.3d
284, 290-93 (4th Cir. 2002); Armendariz-Montoya v. Sonchik,
291 F.3d 1116, 1121-22 (9th Cir. 2002). These cases,
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however, do not apply to Thaqi’s circumstances. Although
Thaqi’s first conviction resulted from a jury trial, his second,
the one which would render him ineligible for § 212(c) relief
under AEDPA, resulted from a guilty plea.
III.
For the foregoing reasons, the judgment of the district court
is reversed and the case is remanded to the district court for
further proceedings consistent with this opinion.

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