09-0649 | Omnilex

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: January 12, 2010
Decided: September 9, 2010)

Docket No. 09-0649-ag

PANAGIS VARTELAS,

Petitioner,

\- V. -

ERIC H. HOLDER, Jr., U.S. ATTORNEY GENERAL,

Respondent .

Before: KEARSE, CABRANES, and LIVINGSTON, Circuit Judges.

Petition for review of a decision of the Board of
Immigration Appeals, refusing to reopen removal proceeding on
petitioner's motion asserting that his counsel provided
ineffective assistance by failing to assert (a) that the crime of
which petitioner had been convicted was a petty, nonremovable,
offense within the scope of 8 U.S.C. § 1182 (a) (2) (A) (ii) (II), and
(b) that 8 U.S.C. § 1101 (a) (13), as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, could
not be applied retroactively.

Petition denied.

ANDREW K. CHOW, New York, New York (Neil A.
Weinrib & Associates, New York, New York,
on the brief) , for Petitioner.

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KEITH I. McMANUS, Senior Litigation Counsel,
Washington, D.C. (Tony West, Assistant
Attorney General, Terri J. Scadron,
Assistant Director, Anthony W. Norwood,
Senior Litigation Counsel, Office of
Immigration Litigation, U.S. Department of
Justice, Civil Division, Washington, D.C.,
on the brief) , for Respondent .

KEARSE, Circuit Judge:

Petitioner Panagis Vartelas, an alien who is a lawful
permanent resident of the United States and who traveled abroad
after being convicted of a crime involving moral turpitude, seeks
review of a decision of the Board of Immigration Appeals ( "BIA" or
the "Board") denying his motion to reopen a removal proceeding
brought against him pursuant to $ 212 (a) (2) (A) (i) (I) of the
Immigration and Nationality Act ("INA" or the "Act"), 8 U.S.C.
§ 1182 (a) (2) (A) (i) (I), as a returning alien seeking "admission" to
the United States within the meaning of INA § 101 (a) (13), 8 U.S.C.
§ 1101 (a) (13), as amended by § 301 (a) (13) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA") , Pub L. No. 104-208, Div. C., 110 Stat. 3009-546
(1996) . Vartelas moved to reopen on the ground that his
attorneys had rendered ineffective assistance by failing to move
before the Immigration Judge ( "IJ") for termination of the removal

proceeding on the grounds (a) that the offense of which he was
convicted was within the scope of 8 U.S.C. § 1182 (a) (2) (A) (ii) (II)
and thus was not a removable offense, and (b) that the IIRIRA
amendment should not be applied retroactively to treat him as
seeking "admission." In his petition for review, Vartelas

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contends principally that the BIA applied an erroneous legal
standard to his ineffective assistance claim and erred in
concluding that he was not prejudiced by his attorneys' failure to
move for termination of the removal proceeding on the above
grounds. Finding no merit in his contentions, we deny the
petition for review.

# I. BACKGROUND

Vartelas, a citizen of Greece, has been a lawful permanent
resident ("LPR") of the United States since 1989. In 1994, he was
convicted, upon his plea of guilty, of having conspired in 1992 to
make or possess a counterfeit security in violation of 18 U.S.C.
§ 371, see id. § 513 (a) . That offense carried a maximum term of
imprisonment of five years. The range of imprisonment recommended
by the Sentencing Guidelines ( "Guidelines") was 4-10 months; the
prison term imposed on Vartelas was four months.

The INA provides generally that " [a]ny alien who at the
time of entry" would be ineligible for admission into the United
States under "the law existing at such time" by reason of, inter
alia, having committed a non-petty offense involving moral
turpitude "is deportable." 8 U.S.C. 1227 (a) (1) (A) (2006) ("Any
alien who at the time of entry . . . was within one or more of the
classes of aliens inadmissible by the law existing at such time is
deportable. "), transferred from id. § 1251 (a) (1) (A) (1994) ("Any
alien who at the time of entry
was within one or more of the

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classes of aliens excludable by the law existing at such time is
deportable.") ; see id. § 1182 (a) (2) (A) (classes ineligible for
admission include aliens who have been convicted of, or who admit
having committed, non-political, non-petty crimes involving moral
turpitude, or conspiracy to commit such crimes); see also
18 U.S.C. § 1 (3) (1982 & Supp. IV 1987) (repealed 1987) (terming a
misdemeanor for which an individual could not be imprisoned for
more than six months or fined more than $5, 000, or both, "a petty
offense"). Crimes involving moral turpitude include
counterfeiting offenses. See, e.g., United States ex rel. Volpe
v. Smith, Director of Immigration, 289 U.S. 422, 423 (1933) .

On January 29, 2003, Vartelas returned to the United
States from a trip to Greece and claimed the right to return as
an LPR. He was questioned by an immigration officer about his
1994 conviction, and in March 2003 he was served with a notice to
appear for removal proceedings on the ground that he was
inadmissible as an alien who sought entry into the United States
after being convicted of, or having admitted committing, a crime
of moral turpitude.

A. The Proceedings Before the IJ and the Appeal to the BIA

In 2003, 2004, and early 2005, Vartelas appeared before an
IJ at a number of preliminary hearings at which various possible
defenses to the charge of removability were discussed. At a
hearing on June 15, 2005, however, Vartelas's then-attorney
informed the IJ that Vartelas was conceding that he was removable

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as charged, but that he would request relief from removal under
former § 212 (c) of the INA, 8 U.S.C. § 1182 (c) (1994) (repealed
1997) . Although that section, which granted the Attorney General
discretion to waive certain grounds of deportability for a subset
of LPRs, had been repealed by IIRIRA, it remained available to
LPRs whose convictions were based on guilty pleas entered before
IIRIRA's effective date of April 1, 1997, see INS v. St. Cyr, 533
U.S. 289 (2001) ("St. Cyr II"), aff'q 229 F.3d 406 (2d Cir. 2000)
( "St. Cyr I") . After Vartelas's first attorney thereafter
neglected his responsibilities, Vartelas changed attorneys and
continued the strategy of conceding his removability and
requesting a § 212 (c) discretionary waiver of removal.

In an Oral Decision delivered on June 27, 2006, the IJ
denied Vartelas's application for relief under § 212 (c). She
noted, inter alia, that Vartelas had made frequent trips to Greece
and remained there for long periods of time; had not paid his
United States income taxes; had not shown hardship to himself, his
estranged wife, or his United States citizen children who resided
in Chicago with their mother; and had not shown that he supported
the children. The IJ concluded that the equities did not warrant
discretionary relief, and she ordered Vartelas removed from the
United States to Greece.

Vartelas appealed the IJ's decision to the BIA, arguing
(1) that although he had committed a crime involving moral
turpitude, he had been sentenced to a prison term of less than six
months and that under 8 U.S.C. § 1182 (a) (2) (A) (ii) (II) his crime

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was thus not a removable offense; and (2) that, if removable, he
should have been granted relief under § 212 (c). In an opinion
dated May 1, 2008, the Board affirmed the order of removal. It
refused to consider Vartelas's contention that his conspiracy
crime was not a removable offense, because Vartelas had conceded
removability before the IJ. The Board rejected Vartelas's
contention that he should have been granted § 212 (c) relief,
adopting and affirming the decision of the IJ. The Board noted
that Vartelas had not taken advantage of the opportunity afforded
him by the IJ to clarify the facts relevant to his tax problems,
and it stated that the positive equities of Vartelas's family ties
and long residence in the United States were offset by his
frequent sojourns in Greece and his voluntarily maintaining his
United States residence in New York, a great distance from his
children.

## B. The Motion To Reopen the Proceeding

In July 2008, represented by new counsel, Vartelas filed a
timely motion before the BIA to reopen, citing In re Lozada, 19
I. & N. Dec. 637 (B.I.A. 1988) (setting standard for motions to
reopen based on claims of ineffective assistance of counsel), and
alleging that the series of attorneys who represented him in the
proceedings before the IJ had failed to provide him with effective
assistance. In addition to arguing that his first attorney had
been ill-prepared and had missed certain hearings, Vartelas argued
principally that he had been severely prejudiced by both

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attorneys' failure to pursue his defenses to removability.
Adverting to the defense the Board had refused to consider on his
appeal, and citing a predecessor of § 1182 (a) (2) (A) (ii) (II) ,
Vartelas pointed out that "the sentence actually imposed did not
exceed a term of imprisonment in excess of six months" and stated
that he "was not relying on 212 (c) relief when he entered his plea
of guilty; he was relying on the fact that the sentence imposed
made his crime a non-removable crime at the time of conviction."
(Vartelas Motion To Reopen and Remand at 12-13.) In addition,
Vartelas argued that IIRIRA had changed the meaning of "entry" in
§ 101 (a) (13) with respect to LPRs and that his prior attorneys had
provided ineffective assistance by not challenging removability on
the ground that the IIRIRA change should not be applied to him
retroactively.

In an opinion dated January 23, 2009 ( "BIA 2009 Decision")
(reported, without pagination, at 2009 WL 331200), the BIA denied
Vartelas's motion to reopen. The Board evaluated Vartelas's
ineffective-assistance claim under the standard that had recently
been announced by the Attorney General in In re Compean, Bangaly &
J-E-C-, 24 I. & N. Dec. 710 (A.G. Jan. 7, 2009) ("Compean I")
(overruling Lozada in part), vacated by In re Compean, Bangaly &
J-E-C-, 25 I. & N. Dec. 1 (A.G. June 3, 2009) ( "Compean II") .
Describing the then-controlling Compean I, the Board noted that

[t]o prevail on a deficient performance of counsel
claim, the respondent must establish that his
lawyer's failings were egregious and that his case
was prejudiced by counsel's performance. To
establish prejudice, the respondent must show that
but for the lawyer's failing[s], he likely would have

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succeeded on the merits of his underlying claim to
remain in the United States.

BIA 2009 Decision at 1. The Board concluded that Vartelas did not
meet this standard. It found no deficiency in the performance of
Vartelas's second attorney; and it found that even if there were
derelictions on the part of his first attorney, Vartelas

failed to show that [the attorney's] performance
prejudiced his case. The Immigration Judge gave the
respondent additional time to obtain new counsel.
[Vartelas] has failed to establish that he is not
inadmissible as charged. [Vartelas] is not eligible
for the "petty offense" exception under section
212 (a) (2) (A) (ii) (II) of the Act, 8 U.S.C.
§ 1182 (a) (2) (A) (ii) (II), because the maximum penalty
for the crime of which he was convicted is five years
imprisonment

BIA 2009 Decision at 2. The Board also rejected the contention
18 that the IIRIRA-amended version of INA § 101 (a) (13)

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was
impermissibly retroactive as applied to Vartelas, noting that
Vartelas cited only Camins v. Gonzales, 500 F.3d 872 (9th Cir.
2007) . It stated that his reliance on that case was "misplaced
because the instant case arises in the jurisdiction of the United
States Court of Appeals for the Second Circuit, not the Ninth
Circuit, " and "the Board historically follows a court's precedent
in cases arising in th[e] circuit" in which the proceeding is
conducted. BIA 2009 Decision at 2. The Board concluded that
Vartelas's attorneys' failure to raise the retroactivity argument
thus did not prejudice him.

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On this petition for review, Vartelas argues principally
that the BIA, in considering his motion to reopen the removal
proceeding, should have applied the Lozada standard to his
ineffective-assistance-of-counsel claim and should have found that
standard satisfied. He contends that the BIA, in concluding that
he failed to satisfy the prejudice prong of his claim, erred in
not concluding that his offense of conviction was a nonremovable
offense under § 1182 (a) (2) (A) (ii) (II), see Part II.B. below; and
in applying the IIRIRA-amended § 101 (a) (13), rather than applying
the "Fleuti doctrine," see Rosenberg v. Fleuti, 374 U.S. 449
(1963) ("Fleuti"), to conclude that in returning to the United
States he was not seeking "entry, " see Part II.C. below.

In reviewing the BIA's denial of a motion to reopen, we
apply an abuse-of-discretion standard. See, e.q., Debeatham v.
Holder, 602 F.3d 481, 484 (2d Cir. 2010); Wang v. BIA, 437 F.3d
270, 273 (2d Cir. 2006). For the reasons that follow, we see no
abuse of discretion here.

# A. The Prejudice Prong of a Claim of Ineffective Assistance in Removal Proceedings

In 1988, the BIA in Lozada established a framework within
which it would consider a motion to reopen a removal proceeding
based on a claim of ineffective assistance of counsel. See
generally 19 I. & N. Dec. at 637. With regard to the substance of
such a claim, the Board stated as follows :

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Any right a respondent in deportation
proceedings may have to counsel is grounded in the
fifth amendment guarantee of due process.
Ineffective assistance of counsel in a deportation
proceeding is a denial of due process only if the
proceeding was so fundamentally unfair that the alien
was prevented from reasonably presenting his
case. . . . One must show, moreover, that he was
prejudiced by his representative's performance.

Id. at 638 (emphasis added) .

In applying Lozada principles in the context of an alien's
claim that his attorney failed to make certain arguments, the BIA
has articulated a variety of standards as to what the alien must
show to establish that counsel's performance caused him prejudice.
For example, in In Re Fernandez, No. A41 590 875, 2006 WL 3088698
(B.I.A. Sept. 21, 2006) (unpaginated), the Board stated that
"prejudice" "means that it is likely that an alien would have
prevailed at the hearing or on appeal had the negligent
representation not occurred. " (Emphasis added. ) In In Re Munroe,
No. A34 111 687, 2007 WL 275812 (B.I.A. Jan. 18, 2007)
(unpaginated), the Board described a standard considerably less
stringent than likely-to-have-prevailed, stating that "evidence of
prejudice" is

evidence reflecting a reasonable possibility that the
outcome of his removal hearing would have been
different had counsel not declined to apply for
relief on his behalf or conceded the charge of
removability.

(Emphasis added.) And in applying Lozada in In Re Chambers, No.
A18 133 311, 2007 WL 2588591 (B.I.A. Aug. 8, 2007) (unpaginated) ,
the Board referred to yet another standard, stating that
" [p]rejudice is shown where counsel's actions [are] so inadequate

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that there is a reasonable probability that, but for counsel's
ineffectiveness, the outcome of the proceedings would have been
different, " while also stating that Chambers had failed to show
prejudice because he "failed to demonstrate what actions his
former attorney should have taken that would have warranted a
different result." (Emphases added. )

In Compean I, the then-Attorney General vacated Lozada in
part, renouncing its assumption of a constitutional foundation for
the right to counsel in removal proceedings, and established a
clear and stringent standard for BIA analysis of motions to reopen
based on claims of ineffective assistance of counsel. The
Compean I Attorney General opined that "the Constitution does not
confer a constitutional right to effective assistance of counsel
in removal proceedings." 24 I. & N. Dec. at 714; but see, e. g.,
Debeatham v. Holder, 602 F.3d at 485 (such claims are grounded in
the right to due process) . The Attorney General noted, however,
that the alien has a statutory privilege to retain counsel, see
Compean I, 24 I. & N. Dec. at 726, and concluded that the Board
has discretion to reopen proceedings " [i]n extraordinary cases,
where a lawyer's deficient performance likely changed the outcome
of an alien's removal proceedings, " id. at 714 (emphasis added) .
He stated, "I conclude that to establish prejudice arising from a
lawyer's deficient performance sufficient to permit reopening, an
alien must show that but for the deficient performance, it is more
likely than not that the alien would have been entitled to the
ultimate relief he was seeking." Id. at 733-34 (emphasis added) ;

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see also id. at 734 (finding "the 'more likely than not' standard
more appropriate than [the] 'reasonable probability'
standard" and "more demanding") .

In Compean II, a new Attorney General "vacate [d]
Compean [I] in its entirety, " 25 I. & N. Dec. at 3, and called
for rulemaking to evaluate the Lozada framework and to determine
what modifications should be proposed, see id. at 2. With
Compean I vacated, the Lozada standard was expressly restored.
See, e.g., id. at 3 ("To ensure that there is an established
framework in place pending the issuance of a final rule, the Board
and Immigration Judges should apply the pre-Compean standards to
all pending and future motions to reopen based upon ineffective
assistance of counsel, regardless of when such motions were
filed. ") .

Compean I was announced after Vartelas filed his motion to
reopen but before the Board ruled on the motion; Compean II
vacated Compean I, but not until after the Board had ruled on his
motion. Thus, the Compean I standard was the prevailing standard
at the time of the Board's decision. Vartelas contends that the
Board's application of the "stringent requirement" set in
Compean I, rather than the standard set by Lozada, denied him due
process. (Vartelas brief on appeal at 12.)

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We conclude, however, that in this case we need not
determine which of the standards of prejudice applies to an
ineffective-assistance-of-counsel claim in removal proceedings.
Whatever the provenance of the right, an ineffective-assistance

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claim cannot be established without some showing of prejudice; and
for the reasons stated in the sections that follow, Vartelas has
failed to show prejudice under any standard.

## B. The Petty Offense Exception

Vartelas contends that his crime involving moral turpitude
was a nonremovable offense under § 1182 (a) (2) (A) (ii) (II) because
he was sentenced to a prison term of less than six months. We
reject this contention because it disregards one of the criteria
stated in that section.

Section 212 (a) (2) of the INA, 8 U.S.C. § 1182 (a) (2),
defines classes of aliens who are excludable on " [c]riminal and
related grounds." In 1992 and 1994, when Vartelas committed and
pleaded guilty to, respectively, the crime of conspiracy to make
or possess a counterfeit security, subsection (a) (2) (A) provided,
in pertinent part, as follows:

### (i) In general

Except as provided in clause (ii), any alien
convicted of, or who admits having committed, or who
admits committing acts which constitute the essential
elements of --

(I) a crime involving moral turpitude
(other than a purely political offense) or an
attempt or conspiracy to commit such a crime,

is excludable.

#### (ii) Exception

Clause (i) (I) shall not apply to an alien who
committed only one crime if - -

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(II) the maximum penalty possible for the
crime of which the alien was convicted (or which
the alien admits having committed or of which
the acts that the alien admits having committed
constituted the essential elements) did not
exceed imprisonment for one year and, if the
alien was convicted of such crime, the alien was
not sentenced to a term of imprisonment in
excess of 6 months (regardless of the extent to
which the sentence was ultimately executed) .

8 U.S.C. § 1182 (a) (2) (A) (1988 & Supp. III 1992) (emphases
added); see 8 U.S.C. § 1182 (a) (2) (A) (2006) (substituting
By its terms, therefore,
§ 1182 (a) (2) (A) (ii) (II) is not applicable unless, inter alia, both
the prison term actually imposed was not more than six months and
"the maximum" prison term "possible for the crime" (emphasis
added) was not more than one year.

The section of the Criminal Code under which Vartelas was
convicted authorizes, inter alia, "imprison [ment of] not more than
five years, " 18 U.S.C. § 371. Thus, following his plea of guilty,
Vartelas could have been sentenced to five years' imprisonment.
His reliance on the fact that the range of imprisonment
recommended by the Guidelines for his offense was 4-10 months (see
Vartelas brief on appeal at 19) is misplaced. The plain meaning
of "maximum penalty possible" (emphases added) is the highest
penalty that the applicable statute allows. The "maximum
possible" does not refer to a Guidelines-recommended range of
imprisonment that is less than what a court could lawfully impose.
Accord Mejia-Rodriquez v. Holder, 558 F.3d 46, 48 (1st Cir. 2009)
(" 'maximum penalty possible' is determined in reference to the

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relevant statutory range of imprisonment and not the federal
Sentencing Guidelines range") ; Mendez-Mendez v. Mukasey, 525 F.3d
828, 833 (9th Cir. 2008) ("The plain language of the statute
indicates that the phrase, 'the maximum penalty possible, ' refers
to the statutory maximum, not the maximum sentence under the
sentencing guidelines. ") .

As the crime of which Vartelas was convicted carried a
statutory maximum prison term of five years, that crime was not
one for which he could not lawfully be imprisoned for more than
one year, and it thus did not qualify as a petty offense within
the scope of § 1182 (a) (2) (A) (ii) (II). Accordingly Vartelas was
not prejudiced by his attorneys' failure to argue that he was
nonremovable under that section.

## C. The Retroactivity Argument

As indicated in Part I above, § 1227 (a) (1) (A) provides
that an alien who is inadmissible under the laws in effect at the
time of his entry into the United States is deportable. Prior to
the enactment of IIRIRA, the INA defined "entry" to

mean [] any coming of an alien into the United States,
from a foreign port or place or from an outlying
possession, whether voluntarily or otherwise, except
that an alien having a lawful permanent residence in
the United States shall not be regarded as making an
entry into the United States for the purposes of the
immigration laws if the alien proves to the
satisfaction of the Attorney General that his
departure to a foreign port or place or to an
outlying possession was not intended or reasonably to
be expected by him or his presence in a foreign port
or place or in an outlying possession was not
voluntary.

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8 U.S.C. § 1101 (a) (13) (1994) (emphases added) .

In 1963, the Supreme Court in Fleuti interpreted this
provision as it applied to an LPR who had been served with a
notice of deportation under INA § 212 (a) after returning to the
United States following a visit of "about a couple hours" to
Mexico, 374 U.S. at 450 (internal quotation marks omitted). The
Court noted that "Congress unquestionably has the power to exclude
all classes of undesirable aliens from this country, " id. at 461,
but concluded that Congress had not meant its definition of
"entry" to encompass a resident alien's return from a brief,
innocent, casual foreign excursion that was not intended to
disrupt his resident alien status, see id. at 462. The Court
concluded that such a trip "therefore may not subject [the LPR] to
the consequences of an 'entry' into the country on his return."
Id.

Effective April 1, 1997, the INA was amended by IIRIRA to,
inter alia, delete the above definition of "entry" from the
statute; and § 101 (a) (13) was divided into subsections, the most
pertinent of which provide as follows:

(A) The terms "admission" and "admitted" mean,
with respect to an alien, the lawful entry of the
alien into the United States after inspection and
authorization by an immigration officer.

(C) An alien lawfully admitted for permanent
residence in the United States shall not be regarded
as seeking an admission into the United States for
purposes of the immigration laws unless the alien --

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(v) has committed an offense identified in
section 1182 (a) (2) of this title

8 U.S.C. §§ 1101 (a) (13) (A) and (C) (v) (2006) (emphases added) .
The word "entry" is not defined; and the new § 101 (a) (13) omits
reference to any effect that an LPR may have "intended" his
foreign sojourn to have.

The statute itself is silent as to the intended effect of
these amendments on the Fleuti doctrine, and this Court has not
previously addressed this question. The BIA, however, has
interpreted IIRIRA's amendment of § 101 (a) (13) as superseding the
Fleuti doctrine. In In re Collado-Munoz, 21 I. & N. Dec. 1061
(B. I.A. 1998), noting that "the central basis for the Supreme
Court's reasoning in" Fleuti was the then-existing § 101 (a) (13) 's
definition of "entry" and its reference to "intended"
consequences, and that "the amended section 101 (a) (13) (C) of the
Act no longer defines the term 'entry' and no longer contains the
term 'intended, '" 21 I. & N. Dec. at 1065, the BIA concluded that
"the Fleuti doctrine, with its origins in the no longer existent
definition of 'entry' in the Act, does not survive the enactment
of the IIRIRA as a judicial doctrine, " id. The BIA reasoned that
under the plain language of the new § 101 (a) (13) (C) (v), which
contains "a congressional directive not contained in the previous
version of that section and not before the Supreme Court when it
decided Fleuti, " 21 I. & N. Dec. at 1066,

a lawful permanent resident who has committed an
offense identified in section 212 (a) (2), who has not
since such time been granted relief under [certain
other provisions], who departs the United States and
returns, shall be regarded as seeking an admission

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into the United States despite his lawful permanent
resident status,

21 I. & N. Dec. at 1064 (emphases added), and is to be so viewed

without regard to whether [his] departure from the
United States might previously have been regarded as
"brief, casual, and innocent" under the Fleuti
doctrine,

id. at 1066.

As we have noted in dealing with a different IIRIRA
amendment,

[i]n general, when Congress has delegated authority
to an agency to administer a statute, and "the
statute is silent or ambiguous with respect to [a]
specific issue, " we must accord substantial deference
to a reasonable interpretation given by the agency
and cannot "simply impose [our] own construction on
the statute. " Chevron, U. S.A. , Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct.
2778, 81 L. Ed. 2d 694 (1984). The BIA, through powers
delegated by the Attorney General, enforces and
interprets the INA and thus has the authority to fill
statutory gaps with reasonable interpretations.

Martinez v. INS, 523 F.3d 365, 372 (2d Cir. 2008) ("Martinez")
(other internal quotation marks omitted), cert. denied, 129 S.Ct.
1314 (2009). In the present case, given IIRIRA's deletion of the
pre-1997 definition of "entry, " its emphasis on "admission, " and
its specification of the conditions under which an LPR is or is
not to be regarded as seeking "admission," we conclude that the
BIA in Collado-Munoz reasonably interpreted IIRIRA as superseding
the Fleuti doctrine. Accord De Vega v. Gonzales, 503 F.3d 45, 48
(1st Cir. 2007) ; Camins v. Gonzales, 500 F.3d at 880; Malagon de
Fuentes v. Gonzales, 462 F.3d 498, 501-02 (5th Cir. 2006); Tineo
v. Ashcroft, 350 F.3d 382, 395-96 (3d Cir. 2003) .

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Vartelas argues, however, that because his plea of guilty
preceded IIRIRA, the IIRIRA amendment to § 101 (a) (13) was
impermissibly retroactive as applied to him. We consider the
issue of retroactivity de novo, without giving deference to the
opinion of the BIA, as the question of whether an IIRIRA amendment
"would have an improper retroactive effect in [a] particular case
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 expertise." Martinez, 523 F.3d at 372-73. In
conducting the retroactivity analysis, we use the familiar two-
step inquiry announced in Landgraf v. USI Film Products, 511 U.S.
244 (1994) .

In the first Landgraf step, we "must ascertain, using the
ordinary tools of statutory construction, 'whether Congress has
expressly prescribed the statute's proper reach. '" Martinez, 523
F.3d at 370 (quoting Landgraf, 511 U.S. at 280). If Congress has
expressly prescribed the relevant provision's temporal reach, we
need look no farther. Here, we note -- and the government
concedes -- that Congress has not expressly prescribed the temporal
reach of § 101 (a) (13). Accordingly, we move to the second
Landgraf step, in which we ask whether application of the new
section would have a "genuinely 'retroactive' effect, " 511 U.S. at
277, that is, "whether the new provision attaches new legal
consequences to events completed before its enactment" and
inappropriately, i.e., contrary to "familiar considerations of
fair notice, " upsets "settled expectations" that were based on

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"reasonable reliance, " id. at 270. In making this determination,
we bear in mind that a "'statute [is not impermissibly
retroactive] merely because it is applied in a case arising from
conduct antedating the statute's enactment, or upsets expectations
based in prior law, '" Martinez, 523 F.3d at 370 (quoting Landgraf,
511 U.S. at 269) (brackets in Martinez), for "[i]f every time a
man relied on existing law in arranging his affairs, he were made
secure against any change in legal rules, the whole body of our
law would be ossified forever, " Landgraf, 511 U.S. at 269 n. 24
(internal quotation marks omitted) .

Vartelas contends that the application of the new
§ 101 (a) (13) (C) (v) to him would indeed interfere with his settled
expectations because that section

attach [es] a new legal consequence to Petitioner's
guilty plea because, based on Petitioner's
conviction, [it] renders him inadmissible upon
return from travel outside the United States, no
matter how innocent, casual, and brief the travel.
Petitioner reasonably relied on the Fleuti doctrine
when taking the plea and his subsequent decision to
depart the U.S. for a brief period of time.

(Vartelas brief on appeal at 16 (emphases added) ). This
contention might have greater merit if § 101 (a) (13) (C) (v)
depended on an LPR's decision to plead guilty. In St. Cyr II, 533
U.S. 289, the Supreme Court addressed the amendments to the INA
adopted in § 440 (d) of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA") and IIRIRA, which, respectively,
reduced and then eliminated the availability to LPRs of
discretionary relief from deportation under INA § 212 (c) , 8 U.S.C.
§ 1182 (c) (1994) (repealed 1997) . Affirming this Court's decision

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in St. Cyr I, 229 F.3d at 416, 420, the Supreme Court held that
those amendments "impose [d] an impermissible retroactive effect on
aliens who, in reliance on the possibility of § 212 (c) relief,
pleaded quilty to aggravated felonies," St. Cyr II, 533 U.S. at
315 (emphasis added). The Supreme Court observed that "in the
period between 1989 and 1995 alone, § 212 (c) relief was granted to
over 10,000 aliens, " 533 U.S. at 296, constituting "a substantial
percentage" of all LPR "applications for § 212 (c) relief, " 533
U.S. at 296; see id. at 296 n.5 (noting "statistics indicating
that 51.5% of the applications for which a final decision was
reached between 1989 and 1995 were granted"). The St. Cyr II
Court noted that

[g]iven 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 to proceed to trial.

Id. at 323 (footnote omitted) (emphasis added). Elementary
notions of fairness thus required the conclusion that the
AEDPA/IIRIRA amendments eliminating the availability of § 212 (c)
relief would be impermissibly retroactive if applied to LPRs who,
prior to the effective dates of those statutes, relied on the
availability of such relief in deciding to plead guilty:

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

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whether to enter into a plea agreement are acutely
aware of the immigration consequences of their
convictions.

St. Cyr II, 533 U.S. at 321-22 (internal quotation marks and
footnote omitted) (emphasis added) .

[After] 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

fair notice,

reasonable reliance, and settled expectations, "

to hold that IIRIRA's subsequent restrictions
deprive them of any possibility of such relief.

Id. at 323-24 (quoting Landgraf, 511 U.S. at 270) (emphases
ours) .

In St. Cyr I, we noted that it was "the conviction, not
the underlying criminal act, that trigger [ed] the disqualification
from § 212 (c) relief," 229 F.3d at 418 (internal quotation marks
omitted) ; and in Rankine v. Reno, 319 F.3d 93, 100 (2d Cir.),
cert. denied, 540 U.S. 910 (2003), we noted that the retroactivity
concerns with respect to § 212 (c) relief are triggered by an LPR's
decision to plead guilty, rather than by a conviction after a
trial. Although Vartelas argues that § 101 (a) (13) (C) (v) is
impermissibly retroactive because he pleaded guilty in reliance on
the Fleuti doctrine, that section, unlike § 212 (c), does not hinge
on either an LPR's conviction or his decision to plead guilty;
rather, it turns on whether the LPR "has committed an offense
identified in section 1182 (a) (2) " (emphasis added). In defining
the terms used in the INA, Congress has fashioned some subsections
in reference to an alien's conviction, and others in reference to
the offense's commission. For example, compare 8 U.S.C.

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§ 1101 (f) (8) (stating that no person is to be "regarded as . . . a
person of good moral character" during any period in which he "has
been convicted" of an aggravated felony (emphasis added) ), with
id. § 1101 (a) (13) (C) (v) (prescribing the admission status of an
LPR who "has committed an offense" involving moral turpitude
(emphasis added) ). When Congress "uses certain language in one
part of the statute and different language in another, the court
assumes different meanings were intended." Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004) (internal quotation marks
omitted). Here, we infer that in framing § 101 (a) (13) (C) (v) to
refer to an LPR who "has committed an offense, " Congress intended
the focus to be on the alien's commission of the crime; and that
is the event on which we focus in order to determine whether the
new section unfairly unsettles any reasonable expectations.

We have consistently rejected the notion that an alien can
reasonably have relied on provisions of the immigration laws in
"committ [ing] " his crimes. In St. Cyr I, we rejected the
petitioner's argument -- and the district court's ruling -- that the
AEDPA/IIRIRA elimination of § 212 (c) discretionary relief "should
not be applied retrospectively to bar [an LPR's] eligibility for
§ 212 (c) relief because . . . his criminal conduct . . . occurred
prior to the statutes' enactment, " St. Cyr I, 229 F.3d at 409
(emphasis added) . The district court had "reasoned that Congress
did not intend AEDPA § 440 (d) to be applied retroactively to such
pre-enactment events because it would unfairly attach new legal
consequences to pre-AEDPA criminal conduct." Id. (emphasis

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added). We refused to endorse the proposition that "barring
eligibility for discretionary relief on the basis of pre-enactment
criminal conduct -- as opposed to a plea going to the guilt of a
deportable crime -- constitutes an impermissible retroactive
application of a statute, " id. at 418 (emphasis added) . Rather,
we viewed it as

border [ing] on the absurd to argue that these aliens
might have decided not to commit [their] crimes, or
might have resisted conviction more vigorously, had
they known that if they were not only imprisoned but
also, when their prison term ended, ordered
deported, they could not ask for a discretionary
waiver of deportation.

Id. (internal quotation marks omitted) . See, e.g., Domond v. INS,
244 F.3d 81, 86 (2d Cir. 2001) (same) .

We made a similar observation in Martinez, 523 F.3d 365,
which concerned the former § 212 (c) 's requirement that, to be
eligible for discretionary relief from deportation, the alien
must, inter alia, have been domiciled in the United States for
seven consecutive years; the Martinez petitioner, who committed
his crime in 1995, made a retroactivity challenge to IIRIRA
§ 240A (d) (1) (B), codified at 8 U.S.C. § 1229b (d) (1) (B), which
provides that the continuity of an LPR's residence in the United
States is halted by his commission of a crime involving moral
turpitude or narcotics trafficking. We rejected the notion that
an alien in committing a crime could reasonably have relied on the
prospect that there would be no change in the immigration laws,
noting that "it makes no sense at all to ask whether an alien
acted with an intention to preserve [his or her] eligibility

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for relief under § 212 (c) " in "committing" his offense. 523 F.3d
at 376 (internal quotation marks omitted) .

In the present case, given that § 101 (a) (13) (C) (v)
governs the entry status of an LPR who has "committed" a crime
involving moral turpitude, we likewise conclude that the
application of that section with respect to Vartelas's January
2003 foreign trip -- an event begun and completed long after the
effective date of IIRIRA -- is not impermissibly retroactive, for
here too it would border on the absurd to suggest that Vartelas
committed his counterfeiting crime in reliance on the immigration
laws.

Vartelas points out that two of our Sister Circuits have
reached a conclusion contrary to the one we reach today, see
Camins v. Gonzales, 500 F.3d 872; Olatunji v. Ashcroft, 387 F.3d
383 (4th Cir. 2004). We do not find these cases persuasive. The
Camins Court reasoned that § 101 (a) (13) (C) (v) unfairly imposes a
new burden on an LPR who pleaded guilty to a crime involving moral
turpitude by "effectively prohibit [ing] him from making any
overseas travel." 500 F.3d at 883 (emphasis omitted) . The
burden, however, is not on the LPR's right to travel abroad but
rather on the absoluteness of his right to enter the United States
again -- a matter that is squarely within the province of Congress
to regulate. Moreover, in both Camins and Olatunji, the Courts
analyzed retroactivity in relation to the alien's plea of guilty;
neither opinion addressed § 101 (a) (13) (C) (v) 's focus on the LPR's
"commi [ssion] " of the crime, or on the lack of rationality in any

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claim that the LPR reasonably relied on the immigration laws in
deciding to break the criminal laws. Indeed, the Olatunji Court
held that reliance plays no role whatever in the retroactivity
analysis, see 387 F.3d at 389-91, a proposition that is contrary
to the reasoning of this Court in St. Cyr I, see 229 F.3d at 419,
and to that of the Supreme Court in St. Cyr II, see, e.q., 533
U.S. at 325 ("the elimination of any possibility of § 212 (c)
relief by IIRIRA has an obvious and severe retroactive effect"
" [b]ecause respondent, and other aliens like him, almost certainly
relied upon th[e] likelihood [of such relief] in deciding whether
to forgo their right to a trial" (emphasis added) ) .

In sum, we conclude that § 101 (a) (13) (C) (v), introduced
by IIRIRA, has superseded the Fleuti doctrine and that the
application of that section to an LPR who, after the effective
date of IIRIRA, makes a trip abroad and seeks to reenter the
United States is not impermissibly retroactive. Thus, Vartelas
has not shown that he was prejudiced by his attorneys' failure to
argue retroactivity.

# CONCLUSION

We have considered all of Vartelas's contentions in his
petition for review and have found them to be without merit. The
petition for review is denied.

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August Term, 2009 Argued: January 12, 2010 Decided: September 9, 2010 Docket No.… v. - ERIC H. HOLDER, Jr., U.S. ATTORNEY GENERAL

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