Clifford K. Olatunji v.  JOHN ASHCROFT, Attorney General of the United States

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 CLIFFORD K. OLATUNJI,
Petitioner-Appellant,
v. No. 00-6650 
JOHN ASHCROFT, Attorney General of
the United States,
Respondent-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-99-3566-AMD)
Argued: May 4, 2004
Decided: October 19, 2004
Before LUTTIG and MICHAEL, Circuit Judges, and
Bobby R. BALDOCK, Senior Circuit Judge of the
United States Court of Appeals for the Tenth Circuit,
sitting by designation.
Reversed by published opinion. Judge Luttig wrote the opinion, in
which Judge Michael joined. Senior Judge Baldock wrote a dissenting
opinion.
COUNSEL
ARGUED: Cary Berkeley Kaye, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C.,

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for Appellant. Papu Sandhu, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF:
Steven H. Goldblatt, Director, Elizabeth B. Wydra, Supervising
Attorney, Laura Phillips, Rachel Brauner Vogelstein, Student Coun-
sel, Appellate Litigation Program, GEORGETOWN UNIVERSITY
LAW CENTER, Washington, D.C., for Appellant.
OPINION
LUTTIG, Circuit Judge:
Petitioner Olatunji appeals from the district court’s denial of his 28
U.S.C. § 2241 habeas petition, which sought review of his continued
detention by the INS pursuant to a final order of removal issued by
the Board of Immigration Appeals. For the reasons that follow, the
judgment of the district court is reversed and the habeas petition is
granted.
I.
Clifford K. Olatunji, a citizen of Nigeria, has been in the United
States on an ongoing basis since 1984. He became a lawful permanent
resident in 1993. J.A. 116. In 1994, Olatunji was arrested for illegally
selling insurance policies and stealing government property. He sub-
sequently pled guilty to one count of theft of government property in
violation of 18 U.S.C. § 641, J.A. 133-35, and was sentenced to two
months of confinement in a community treatment center, fined $259,
ordered to pay $2,296 in restitution, and placed on probation for two
years. Id.
In 1998, Olatunji traveled to London for nine days. Upon his
return, he sought to re-enter the United States as a lawful permanent
resident. J.A. 198-99. He disclosed his 1994 conviction and, pursuant
to provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act ("IIRIRA") enacted after 1996, was accordingly
classified as a lawful permanent resident seeking "admission" into the
United States, 8 U.S.C. § 1101(a)(13)(C)(v). He was subsequently
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deemed inadmissible because of that conviction. J.A. 153-53; 8
U.S.C. § 1182(a)(2)(A). After a hearing before an Immigration Judge,
Olatunji was ordered to be removed from the United States to Nigeria.
J.A. 183-84. His appeal to the Board of Immigration Appeals was
unsuccessful. Id. at 187-89.
Instead of directly appealing the Board’s decision to this court,
Olatunji filed a pro se petition for a writ of habeas corpus in the dis-
trict court. He argued, inter alia, that IIRIRA’s criminal inadmissibil-
ity provisions were impermissibly retroactive to his decision to plead
guilty and that his removal under IIRIRA would violate the Fifth
Amendment’s Due Process Clause. The district court exercised juris-
diction over Olatunji’s claims and denied the petition on the merits.
J.A. 196-205.
II.
As to the threshold question of the district court’s jurisdiction, title
8, section 1252(a)(2)(C), of the United States Code, provides that,
"[n]otwithstanding any other provision of law, no court shall have
jurisdiction to review any final order of removal against an alien who
is removable by reason of having committed a [crime involving moral
turpitude]." Despite this plain language, the government urges that
direct review of Olatunji’s "substantial constitutional claims" is per-
mitted under IIRIRA and that Olatunji’s instant habeas petition is pre-
cluded by his failure to seek relief on direct review.
As the government notes, at least two of our sister circuits have
agreed with its interpretation of IIRIRA. Respondent’s Br. at 14. Both
of these authorities, Robledo-Gonzales v. Ashcroft, 342 F.3d 667 (7th
Cir. 2003)1 and Patel v. INS, 334 F.3d 1259, 1262-63 (11th Cir.
1The Seventh Circuit has not even treated the jurisdictional scope of
section 1252(a)(2)(C) consistently. Compare Bosede v. Ashcroft, 309
F.3d 441, 445-46 (7th Cir. 2002)(holding that pursuant to sec-
tion 1252(a)(2)(C) and "[u]nder the Supreme Court’s decisions in
Calcano-Martinez . . . and St. Cyr, it is also clear that Bosede may not
raise other constitutional or statutory challenges in a direct review peti-
tion, but that habeas corpus under 28 U.S.C. § 2241 remains available for
some such claims") (emphasis added), with Robledo-Gonzales v. Ash-
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2003), rest on the following dicta, and in particular the government’s
concession that is referenced within this dicta, which appears in Jus-
tice Stevens’ opinion for the Court in Calcano-Martinez v. INS, 533
U.S. 348 (2001):
The scope of [§ 1252(a)(2)(C)] is not entirely clear. Though
the text of the provision is quite broad, it is not without its
ambiguities. . . . [T]he government has . . . conceded that
the courts of appeals retain jurisdiction to review "substan-
tial constitutional challenges" raised by aliens who come
within the strictures of § 1252(a)(2)(C). As the petitions in
this case do not raise any of these types of issues, we need
not address this point further. Nonetheless, it remains
instructive that the government acknowledges that back-
ground principles of statutory construction and constitu-
tional concerns must be considered in determining the scope
of IIRIRA’s jurisdiction-stripping provisions.
Id. at 350 n.2 (emphasis added).
This dicta, and its referenced concession, must be understood in the
context of the government’s full proposal as to the proper interpreta-
tion of section 1252(a)(2)(C) in Calcano-Martinez. There, the govern-
ment maintained that by enacting IIRIRA’s jurisdiction-stripping
provisions, "Congress ha[d] also precluded the district courts from
reviewing challenges . . . by habeas corpus or otherwise," and that
"Congress’s unmistakable intent in the judicial review provisions of
[IIRIRA] [was] to channel all challenges . . . into the courts of
appeals." Brief for the Respondent at 14, 533 U.S. 348 (2001)
(emphasis added). It was as a consequence of this understanding that
croft, 342 F.3d 667, 679-80 n.10 (7th Cir. 2003) (holding that sec-
tion 1252(a)(2)(C) is not a bar to direct review of substantial
constitutional claims and admitting that prior Seventh Circuit precedent
conferring such jurisdiction "coincided" with the "conclusion that
IIRIRA . . . had abolished habeas review," but nonetheless contending
that this precedent still bound the circuit because the Bosede panel’s
decision was dicta and the opinion was not circulated pursuant to local
circuit rules).
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the government interpreted section 1252(a)(2)(C) to permit direct
review in the Courts of Appeals, in order to avoid the "serious consti-
tutional question that would arise if a federal statute were construed
to deny any judicial forum for a colorable constitutional claim." Web-
ster v. Doe, 486 U.S. 592, 603 (1988) (emphasis added).
But as the Supreme Court made clear in St. Cyr, IIRIRA’s
jurisdiction-stripping provisions in fact do not eliminate the district
courts’ habeas jurisdiction under 28 U.S.C. § 2241. INS v. St. Cyr,
533 U.S. 289, 313-14 (2001). Thus, the entire premise for the govern-
ment’s assertion in Calcano-Martinez, that direct review of substan-
tial constitutional claims must exist because no other avenue of
review — including habeas corpus — was available, was no longer
of any moment after St. Cyr. And indeed, the authorities cited by the
government in Calcano-Martinez in support of its proposed interpre-
tation simply noted the serious constitutional question that would
arise if Congress eliminated all judicial review of constitutional chal-
lenges to removal and deportation decisions, decisions that have no
relevance where a forum to litigate substantial constitutional claims
does exist. See Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1069 (9th
Cir. 2003) ("[T]he thrust of the opinion in Calcano-Martinez, together
with the Court’s opinion in St. Cyr . . . is that jurisdiction over consti-
tutional issues . . . is withdrawn from the courts of appeals and that
the place to resolve such issues is the district courts through habeas
corpus.").
Consistent with our interpretation of section 1252(a)(2)(C), as
informed by St. Cyr, where Congress has provided a forum for litigat-
ing constitutional claims, the Supreme Court has declined to read
exceptions into unambiguous statutes limiting federal jurisdiction. See
Weinberger v. Salfi, 422 U.S. 749, 762 (1975) (refusing to read a con-
stitutional challenge exception into 42 U.S.C. § 405(h) of the Social
Security Act, barring jurisdiction under § 1331 "to recover on any
claim arising under [Title II of the Social Security Act]," because the
Social Security Act "itself provides jurisdiction for constitutional
challenges to its provisions"); see also Cedano-Viera, 324 F.3d at
1070 ("[T]he Webster rule turned on the absence of any other avail-
able forum, which is not the case with respect to . . . § 1252(a)(2)(C),
because all routes to the courthouse are not closed when there is an
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opportunity for habeas relief."); Flores-Miramontes v. INS, 212 F.3d
1133, 1136 (9th Cir. 2000).
In sum, the mandate of section 1252(a)(2)(C) that "no court shall
have jurisdiction to review any final order of removal" plainly
extends to all claims on direct review, including constitutional claims.
That St. Cyr’s holding rested on the purported legal and historical
distinction between "jurisdiction to review" and "habeas corpus," see
533 U.S. at 311-312, confirms that such is the correct interpretation
of section 1252(a)(2)(C)’s unambiguous prohibition. Section 1252(a)
(2)(C) should, accordingly, be enforced without exception. The con-
trary interpretation would allow petitioners multiple opportunities to
pursue their constitutional claims in the face of a jurisdiction-
stripping statute that is unquestionably enacted to curtail such access
to judicial review. Olatunji being barred from pursuing direct review
in the courts of appeals under IIRIRA, the district court properly exer-
cised its jurisdiction pursuant to section 2241.
III.
Turning to the merits of the dispute before us, Olatunji contends
that IIRIRA has attached new legal consequences to his 1994 decision
to plead guilty and that this is impermissible under the well estab-
lished presumption against retroactive application of statutes. The
government and the dissent agree with the first half of this contention,
namely that Olatunji would have been free, prior to IIRIRA’s enact-
ment, to travel abroad after his guilty plea and that the sole reason
under IIRIRA that Olatunji can no longer travel abroad without facing
removal proceedings is his decision to plead guilty. Respondent’s Br.
at 21-24; post at 29. The government and dissent nonetheless main-
tain, despite the longstanding presumption against retroactivity, that
IIRIRA’s retroactive application is permissible unless Olatunji can
demonstrate that he "almost certainly relied" upon his ability to take
brief trips abroad when he entered his plea. Post at 29 citing St. Cyr,
533 U.S. at 325. And the government further suggests that it can
defeat the presumption against retroactivity merely by notifying
aggrieved parties of the adverse consequences of the statutes it seeks
to enforce retroactively.
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Believing that these twin requirements would all but turn the pre-
sumption against retroactivity on its head, we hold that reliance
(whether subjective or objective) is not a requirement of impermissi-
ble retroactivity and that the government’s notice is insufficient to
overcome the impermissibly retroactive effect of IIRIRA on Olatun-
ji’s guilty plea.2
A.
Where, as here, Congress has not clearly spoken as to a statute’s
temporal application, we begin with a "presumption against retroac-
tive legislation" that is "deeply rooted in our nation’s jurisprudence,"
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994).3 A statute
will be held to have an impermissible 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 consideration already past." St. Cyr, 533
U.S. at 321 (quoting Society for Propagation of the Gospel v. Wheeler
22 F. Cas. 756, 767, No. 13,1356 (C.C.D.N.H. 1814) (Story, J.)).
"[T]he judgment whether a particular statute acts retroactively should
be informed and guided by familiar considerations of fair notice, rea-
sonable reliance, and settled expectations." Landgraf, 511 U.S. at 270.
Whether, under the Landgraf framework, an aggrieved party must
demonstrate some form of reliance on a prior statute in order to estab-
lish that a later-enacted statute is impermissibly retroactive has not
been resolved by the Supreme Court. The government and the dissent
claim, purportedly under Landgraf, that Olatunji must establish that
he "almost certainly relied upon" pre-IIRIRA law to his detriment,
Respondent’s Br. at 30-31; post at 43-44 citing St. Cyr, 533 U.S. at
325, and that he did not so rely. The proposed imposition of a subjec-
2Because we hold that Olatunji’s statutory retroactivity claim entitles
him to relief, we do not reach his claim that his removal under IIRIRA
is constitutionally prohibited under the Fifth Amendment’s Due Process
Clause.
3The Government has conceded that the relevant portions of IIRIRA
do not contain "effective date" or "temporal reach" provisions and that
"the Court must reach the second step of the Landgraf test." Respon-
dent’s Br. at 25-26.
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tive reliance requirement is understandable in light of the Supreme
Court’s confusing treatment of the subject, beginning in Landgraf and
continuing through St. Cyr. However, we do not believe that subjec-
tive reliance is, or ought to be, relevant to the question of whether a
particular statute is impermissibly retroactive, as such is neither dic-
tated by Supreme Court precedent nor related to the presumption of
congressional intent underlying the bar against retroactivity.
A careful review of both the basis for the judicially-imposed pre-
sumption against retroactivity and the Supreme Court’s retroactivity
jurisprudence shows that the fact that IIRIRA has attached new legal
consequences to Olatunji’s guilty plea is, alone, sufficient to sustain
his claim, and that no form of reliance is necessary. If some form of
reliance were understood as required by the Supreme Court’s teach-
ings on the subject, it could only be objectively reasonable reliance.
It is impossible to infer from those teachings the requirement of sub-
jective reliance proposed by the government and the dissent.
1.
Retroactivity is a question of congressional intent. In the face of
congressional silence on the temporal reach of a given statute, it is
presumed that Congress did not intend for the statute to be applied
retroactively. See Landgraf, 511 U.S. at 271 ("Since the early days of
this Court, we have declined to give retroactive effect to statutes bur-
dening private rights unless Congress had made clear its intent."); id.
at 286 ("A legislator who supported a prospective statute might rea-
sonably oppose retroactive application of the same statute. Indeed,
there is reason to believe that the omission of . . . express retroactivity
provisions was a factor in the passage of the . . . bill."). Neither the
dissent nor the government even attempts to relate its subjective reli-
ance requirement to this fundamental underpinning of the prohibition
on statutory retroactivity.
Consistent with the understanding that retroactivity is a question of
congressional intent, courts have historically asked simply whether
the statute in question attached "new legal consequences to events
completed before its enactment." Id. at 268. Thus, as Justice Story
wrote in his oft-quoted formulation, "every statute, which takes away
or impairs vested rights acquired under existing laws, or creates a new
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obligation, imposes a new duty, or attaches a new disability, in
respect to transactions or considerations already past, must be deemed
retrospective." Society for Propagation of the Gospel, 22 F. Cas. at
767. Indeed, the Landgraf Court itself relied upon numerous cases
where the retroactivity determination appears to have been based
exclusively on the factual question of whether the statute "change[d]
the legal consequences of acts completed before its effective date." Id.
at 268 n.23.
Recent Supreme Court decisions, beginning with Landgraf itself,
admittedly can be read as suggesting that Justice Story’s formulation
is not necessarily the whole of the retroactivity inquiry. In Landgraf,
for example, the Court noted the influence of Justice Story’s formula-
tion, but then observed as follows:
The conclusion that a particular rule operates "retroactively"
comes at the end of a process of judgment concerning the
nature and extent of the change in the law and the degree of
connection between the operation of the new rule and a rele-
vant past event. Any test of retroactivity will leave room for
disagreement in hard cases, and is unlikely to classify the
enormous variety of legal changes with perfect philosophi-
cal clarity. However, retroactivity is a matter on which
judges tend to have ‘sound instincts,’ . . . and familiar con-
siderations of fair notice, reasonable reliance, and settled
expectations offer sound guidance.
Id. at 270 (citations omitted) (emphasis added).
Landgraf’s ambiguous treatment of reliance has generated substan-
tial confusion as to whether a party must prove some form of reliance
in order to demonstrate that a statute is impermissibly retroactive.
This confusion exists within the Supreme Court, in its decisions post-
dating Landgraf. Compare, e.g., Hughes Aircraft Co. v. United States
ex rel. Schumer, 520 U.S. 939, 946 (1997)(holding that the elimina-
tion of certain defenses to qui tam suits under the False Claims Act
was impermissibly retroactive without discussing whether Hughes
Aircraft detrimentally relied on the prior statutory scheme), with St.
Cyr, 533 U.S. 289 (observing that aliens who had entered plea agree-
ments prior to IIRIRA’s enactment had relied on the possibility of
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receiving section 212(c) waivers and holding that IIRIRA could not
be retroactively applied to such aliens). The confusion extends
throughout the Courts of Appeals. Compare Ponnapula v. Ashcroft,
373 F.3d 480 (3rd Cir. 2004) (holding that, irrespective of subjective
reliance, IIRIRA cannot be retroactively applied as a bar to section
212(c) discretionary waivers to aliens who declined plea agreements
and elected to go to trial), with Rankine v. Reno, 319 F.3d 93, 99 (2d
Cir. 2003) (holding that IIRIRA could be retroactively applied as a
bar to section 212(c) discretionary waivers to aliens who elected to go
to trial because "none of these petitioners detrimentally changed his
position in reliance on continued eligibility for § 212(c) relief" and
because in St. Cyr "it was reliance, and the consequent change in
immigration status, that produced the impermissible retroactive effect
of IIRIRA"). And, unsurprisingly, the same confusion exists among
the parties to suit in the federal courts. In this very case, the govern-
ment vacillated in response to the pointed question of whether reli-
ance remains a requirement after Hughes Aircraft.
Although Landgraf’s ambiguity has engendered a significant
amount of confusion, neither Landgraf’s holding nor subsequent
Supreme Court authority supports a subjective reliance requirement.
Certainly Justice Story’s familiar statement of the test for determining
statutory retroactivity — which the Court held in Hughes Aircraft was
sufficient to demonstrate retroactivity — makes no mention of reli-
ance. See Hughes Aircraft, 520 U.S. at 947. And neither is there any
reason instinctively to believe that subjective reliance properly should
be a consideration in retroactivity analysis: Whether a plaintiff did or
did not rely on a prior statutory scheme is irrelevant to whether that
scheme in fact has a retroactive effect on that plaintiff. "It is," as the
Third Circuit has noted, "a strange ‘presumption’. . . that arises only
on so heightened a showing as actual reliance." Ponnapula, 373 F.3d
at 491.
In Landgraf, the Court confronted the question of whether the Civil
Rights Act of 1991, which created a right to recover compensatory
and punitive damages for certain violations of Title VII of the Civil
Rights Act of 1964, could be applied to conduct occurring before the
1991 Act. The court acknowledged that "concerns of unfair surprise
and upsetting expectations are attenuated in the case of intentional
employment discrimination, which has been unlawful for more than
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a generation," but nonetheless held the statute impermissibly retroac-
tive because "[e]ven where the conduct in question is morally repre-
hensible or illegal, a degree of unfairness is inherent whenever the law
imposes additional burdens on conduct that occurred in the past." Id.
at 283 n.35 (emphasis added).
That the Supreme Court in Landgraf did not intend to impose a
requirement of reliance is confirmed by Hughes Aircraft. There, the
Court held that the elimination of certain defenses to qui tam suits
under the False Claims Act could not be applied retroactively to
Hughes Aircraft. And it so held without even a single word of discus-
sion as to whether Hughes Aircraft — or, for that matter, similarly
situated government contractors — had relied on the eliminated
defense to its detriment. Contrary to the dissent’s contention, if reli-
ance were indeed a requirement, the Court almost certainly would
have addressed the question or at least remanded for a factual deter-
mination of whether Hughes Aircraft had or had not relied upon the
prior statutory scheme. It is exceedingly unlikely that the Court sim-
ply overlooked the factor.
And if this were not enough, our own Circuit has so interpreted
Hughes Aircraft. In Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 109
(4th Cir. 2001), not only did we emphasize that Hughes Aircraft
"h[eld] that the amended False Claims Act operated retroactively
without discussing whether any party detrimentally relied on previous
law," but we ourselves stated that the fact "[t]hat Velasquez-Gabriel
did not detrimentally rely on prior law may not, however, foreclose
a claim that § 241(a)(5) nonetheless operates retroactively." See also
Chambers v. Reno, 307 F.3d 284, 292-93 (4th Cir. 2002) ("In view
of these observations by the Court [in Hughes Aircraft] about retroac-
tivity, we have acknowledged that an alien’s failure to demonstrate
reliance on pre-IIRIRA law might not foreclose a claim that the post-
IIRIRA version of the INA operates retroactively."). Inexplicably, the
dissent does not even attempt to address our Circuit’s interpretation
of Hughes Aircraft in the context of IIRIRA retroactivity claims.
The dissent maintains that our Circuit has held in Velasquez-
Gabriel, Chambers, and Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000)
that reliance is required in order to find a statute impermissibly retro-
active. Post at 25-27. But it has not. The dissent simply misreads
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these authorities. In none of these cases did we hold that an alien must
show detrimental reliance upon pre-IIRIRA law to establish a retroac-
tivity claim. While in Velasquez-Gabriel and Chambers, we con-
cluded that neither petitioner had relied upon pre-IIRIRA law, in both
cases we specifically declined — in light of Hughes Aircraft — to rest
our holding on this conclusion. In fact, as the preceding quotations
from these cases make clear, far from holding that reliance is the sine
qua non of retroactivity, both Chambers and Velasquez-Gabriel said
precisely the opposite, that even aliens who have not detrimentally
relied on pre-IIRIRA law can sustain a claim that IIRIRA is imper-
missibly retroactive.
Velasquez-Gabriel, who was "represented by counsel the entire
time," was denied relief because he could have completely avoided
the retroactive effect of IIRIRA by applying to adjust his status under
pre-IIRIRA law, including during the six months between IIRIRA’s
passage and its effective date. Velasquez-Gabriel, 263 F.3d at 109-10.
Chambers was denied relief because IIRIRA did not attach new con-
sequences to his "relevant past conduct," namely his decision to go
to trial, and was therefore not retroactive in fact. Chambers, 307 F.3d
at 293. Thus, Chambers did not even fall under the Justice Story retro-
activity framework because his "decision to go to trial did not render
him deportable or subject him to certain deportation, regardless of
whether pre- or post-IIRIRA law applied." Id. (emphasis in original).
Indeed, that IIRIRA was not substantively retroactive to Chambers’
relevant past conduct was the exclusive distinction offered by the
Chambers court to Velasquez-Gabriel’s reservation that under
Hughes an alien is not foreclosed from a retroactivity challenge to
IIRIRA by his inability to demonstrate subjective reliance. Id.
Suffice it to say that neither Velasquez-Gabriel’s ability to avoid
the costs of IIRIRA’s enactment nor Chambers’ inability to demon-
strate that IIRIRA was substantively retroactive under Justice Story’s
framework bears in any way on Olatunji’s claim. As demonstrated
below, Olatunji could not avoid the cost of IIRIRA because that legis-
lation either entirely foreclosed his ability to travel abroad — a cost
not attendant to his plea agreement — or it subjected him to deporta-
tion upon reentry. For the same reason, IIRIRA’s effect on Olatunji
is indisputably retroactive substantively, i.e. retroactive in fact, under
Justice Story’s formulation.
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Tasios holds nothing different from Chambers or Velasquez-
Gabriel. In Tasios, we held that AEDPA section 440(d) had "an unde-
niably retroactive effect" on pre-enactment guilty pleas and therefore
could not pose a bar to discretionary relief under section 212(c).
Tasios, 204 F.3d at 550. Confronting the "dictum" from De Osorio v.
INS, 10 F.3d 1034, 1041-42 (4th Cir. 1993) that "the De Osorios
could not plausibly argue that they relied on the availability of discre-
tionary relief when they chose to violate the drug laws," Tasios, 204
F.3d at 550, we explained that "we do not limit our analysis to the
conduct that resulted in the felony conviction." Instead, we held,
guilty pleas and concessions of deportability are also "conduct" the
"legal effect" of which can be impermissibly "determined by subse-
quently enacted law." Id. at 551. We did observe that the relevant dif-
ference between these categories of previously completed conduct
(i.e., felonious offense and a lawful plea agreement or concession)
was the possibility of "reasonable[ ] reliance[ ]." But we granted relief
without holding — or even discussing for that matter — that Tasios
was required to demonstrate that he subjectively relied on section
212(c) when he entered his plea.
And not only is our holding today consistent with our circuit prece-
dent, it is also consistent with Supreme Court precedent, notwith-
standing the dissent’s contention otherwise. The dissent claims that
our holding conflicts with both St. Cyr and Republic of Austria v. Alt-
mann, 124 S. Ct. 2240 (2004). It conflicts with neither.
St. Cyr did not alter the requirements for establishing retroactivity.
St. Cyr discussed the fact that "aliens like [St. Cyr], almost certainly
relied upon that likelihood [of receiving discretionary relief under
§ 212(c)] in deciding whether to forgo their right to a trial." St. Cyr,
533 U.S. at 325. But St. Cyr did not purport to add a subjective reli-
ance requirement; rather, it applied Landgraf to a set of facts that
indicated "an obvious and severe retroactive effect." Id. (emphasis
added). The "Court regarded St. Cyr as a clear and straightforward
result flowing from Landgraf. . . . St. Cyr was an easy case on the
retroactivity issue." Ponnapula, 373 F.3d at 492-93 (quotation omit-
ted).
Altmann likewise did not establish a reliance requirement. While it
is indeed noted in Altmann, as the dissent points out, that the "aim of
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the presumption [against retroactivity] is to avoid unnecessary post
hoc changes to legal rules on which parties relied in shaping their pri-
mary conduct," Altmann, 124 S. Ct. at 2252 (emphasis added), the
Court neither said nor held that the legal framework for determining
whether a statute is impermissibly retroactive includes consideration
of reliance. Rather, quoting Landgraf, Altmann describes "the pre-
sumption against retroactive application" as follows:
When, however, the statute contains no such express com-
mand the court must determine whether the new statute
would have retroactive effect, i.e., whether it would impair
rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect
to transactions already completed. If the statute would oper-
ate retroactively, our traditional presumption teaches that it
does not govern absent clear congressional intent favoring
such a result.
Id. at 2250-51 quoting Landgraf, 511 U.S. at 280. Not only is reliance
conspicuously absent from the "Landgraf default rule," as the Alt-
mann Court described the governing test, see 124 S. Ct. at 2251, but
Altmann’s formulation stands as yet further confirmation that the
Supreme Court intends Justice Story’s framework to be sufficient for
application of the "traditional presumption," id., against retroactivity.
While in Altmann the Court reaffirms that the presumption against
retroactivity serves reliance interests, it also confirms that reliance is
not a requirement of retroactivity.
In sum, the historical presumption against retroactive application of
statutes did not require reliance. Neither Landgraf nor subsequent
Supreme Court authority imposes any such requirement. And we
believe that the consideration of reliance is irrelevant to statutory
retroactivity analysis.
Justice Story’s formulation, which the Supreme Court has consis-
tently relied upon, asks only whether a statute in fact has retroactive
effect, and we would ask no more. If the presumption is that Congress
does not intend statutes to operate retroactively (and that is the pre-
sumption we indulge), then it follows that if a statute does in fact
impose new legal consequences on past actions, Congress did not
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intend such. Whether the particular petitioner did or did not subjec-
tively rely upon the prior statute or scheme has nothing whatever to
do with Congress’ intent — the very basis for the presumption against
statutory retroactivity. It is one thing to indulge in the supportable
presumption that Congress intends its enactments not to operate retro-
actively; it is another altogether to indulge the quite different, and
unsupported and unsupportable, presumption that Congress so
intends, but only where the particular petitioning party can prove that
he subjectively relied on the prior statute to his detriment. In other
words, where Congress has apparently given no thought to the ques-
tion of retroactivity whatever, there is no basis for inferring that Con-
gress’ intent was any more nuanced than that statutes should not be
held to apply retroactively. Anything more, in the face of complete
congressional silence, is nothing but judicial legislation.
Though Judge Baldock believes otherwise, we understand his dis-
sent actually to validate just this. Not only does the dissent admit
(internally inconsistent with its own opinion) that the court has never
insisted upon reliance as a requirement in retroactivity analysis, but
also, by way of omissions, the dissent has betrayed its own under-
standing that a statute does operate retroactively if, alone, it attaches
new legal consequences to prior conduct.
The dissent prominently quotes the Supreme Court’s observation
that "the Court has used various formulations to describe the func-
tional conception of legislative retroactivity, and made no suggestion
that Justice Story’s formulation was the exclusive definition of pre-
sumptively impermissible retroactive legislation," see post at 24 quot-
ing Hughes, 520 U.S. at 947 (emphasis added). Unrecognized by the
dissent, this quoted observation actually establishes the majority’s
point and refutes that of the dissent — namely that the Supreme Court
has variously articulated the requirements to show retroactivity, has
never insisted upon a reliance requirement, and has consistently con-
cluded that Justice Story’s formulation is "sufficient . . . for invoking
the presumption against retroactivity." Hughes, 520 U.S. at 947.
Moreover, in further quotation of the Supreme Court, the dissent
states that "a statute does not operate ‘retrospectively’ merely because
it is applied in a case arising from conduct antedating the statute’s
enactment, or upsets expectations based in prior law," post at 28 quot-
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ing Landgraf, 511 U.S. at 269; rather, the dissent confidently asserts,
it is "reliance" that the Supreme Court requires in addition to mere
application to prior conduct, in order for a law to be impermissibly
retroactive. But once again, not only does the passage from which the
dissent quotes not bear the interpretation imposed upon the passage
by the dissent; it affirmatively proves the point upon which the major-
ity rests. For the dissent omits the very next sentence following the
sentence it quotes from Landgraf. It is in this omitted sentence that
the Court explains what must be asked in addition to whether a statute
applies to conduct antedating its enactment. And, tellingly, there, the
Court does not identify "reliance" as the further inquiry, as the dissent
would have one believe. "[R]ather," said the Supreme Court, "the
court must ask whether the new provision attaches new legal conse-
quences to events completed before its enactment," id. — precisely
the standard that we (the majority) adopt today.4
In sum, the dissent asserts concern that we have "ignored Supreme
Court precedent," claiming the Court’s precedent has established a
"central role" for reliance in "the . . . retroactivity analysis." Post at
23. But it is hard to take this assertion of concern seriously. For, not
only is it beyond dispute that the Supreme Court has not insisted upon
reliance in order to hold a law impermissibly retroactive, as we estab-
lish above and as the dissent itself acknowledges (albeit unwittingly);
but it is the dissent that refuses even to address the Supreme Court
precedent that it contends we "ignore," which precedent, as we dem-
onstrate, does not hold that reliance is required and, indeed, holds
laws impermissibly retroactive without even so much as a mention of
the "reliance" that the dissent steadfastly maintains is essential to the
retroactivity analysis.
4The authority cited in Landgraf between these two sentences, Repub-
lic National Bank of Miami v. United States, 506 U.S. 80, 100 (1992)
(Thomas, J., concurring in part and concurring in judgment), further con-
firms that the first sentence is not an oblique reference to a reliance
requirement, if further confirmation were needed beyond the explicit
point made in the succeeding sentence omitted by the dissent. There, Jus-
tice Thomas explained that while "newly enacted laws restricting or
enlarging jurisdiction" apply to all "pending actions," "this jurisdictional
rule does not affect the general principle that a statute is not to be given
retroactive effect unless such construction is required by explicit lan-
guage." Id.
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2.
Olatunji is entitled to relief under the framework that we conclude
governs the retroactivity determination. After his 1994 guilty plea but
prior to IIRIRA’s enactment, Olatunji would have been free to take
brief trips abroad — such as his trip to London — without subjecting
himself to removal proceedings. The previously applicable statute
governing lawful permanent resident reentry into the United States,
former 8 U.S.C. § 1101(a)(13), provided:
The term "entry" means any coming of an alien into the
United States, from a foreign port or place or from an outly-
ing 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 . . .
(emphasis added). In Rosenberg v. Fleuti, 374 U.S. 449 (1963), the
Supreme Court held that departures that were "not intended" under
the statutory exception to the entry requirement included "innocent,
casual, and brief" trips abroad. Id. at 461-62. Olatunji contends that
under the Fleuti doctrine he would not have been required to seek
"entry" into the United States after his nine day trip to London. Ola-
tunji further contends that he was only required to seek "admission"
under IIRIRA — thereby subjecting himself to removal proceedings
— because of his 1994 guilty plea. Neither the district court, the gov-
ernment, nor the dissent disagrees with these contentions. J.A. 203;
Respondent’s Br. at 23-24; post at 29 ("Petitioner could have briefly
traveled abroad . . . without any consequences.").
The dissent’s observations that "IIRIRA had no effect whatsoever
on Petitioner’s plea agreement and no rights Petitioner might have
obtained during plea bargaining have been eliminated," post at 29, do
not bear on whether IIRIRA has attached new legal consequences to
Olatunji’s plea. Olatunji does not claim that IIRIRA affected the par-
ticular terms of his agreement or deprived him of consideration
obtained during the bargaining process; rather, he claims IIRIRA has
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attached new legal consequences to the conviction that resulted from
his plea. The dissent does not dispute this contention because it
admits that "Petitioner could have briefly traveled abroad in 1994
without any consequences," post at 29, but that he is now deportable
because of IIRIRA’s treatment of his guilty plea. Id.
Accordingly, we conclude that Olatunji has established that
IIRIRA is impermissibly retroactive because it indisputably attached
new legal consequences to his decision to plead guilty.
3.
As the foregoing makes clear, we believe reliance, in any form, is
irrelevant to the retroactivity inquiry. To the extent that it could or
should be understood as required in order to establish impermissible
retroactive effect however, we would insist at most upon objectively
reasonable reliance (as opposed to the subjective reliance proposed by
the government and the dissent). See, e.g., Ponnapula v. Ashcroft, 373
F.3d 480 (3rd Cir. 2004). This said, we must admit that it is unclear
to us in what circumstance, if any, the "reasonable reliance" inquiry
will (or at least should) yield a conclusion different from that reached
under Justice Story’s framework. For it would seem never to be
unreasonable for one to rely upon a duly enacted or promulgated law.
Whether the Supreme Court was thinking such or not at the time, its
decisions in Landgraf and Hughes Aircraft suggest the same, because
in both cases the Court acknowledged that the parties had relied little
— if any — on the prior statutes, but in both instances held the later
enacted statutes to be impermissibly retroactive.
In Ponnapula, the Third Circuit held that IIRIRA’s changes with
respect to discretionary waivers under section 212(c) could not be
retroactively applied to aliens who had declined plea deals and pro-
ceeded to trial, irrespective of those aliens’ subjective reliance. The
Third Circuit observed, as we have suggested, that subjective reliance
is inconsistent with Supreme Court precedent because the aggrieved
parties in Landgraf and Hughes Aircraft could not have made such a
showing, id. at 491, and because subjective reliance is inconsistent
with "the language of presumption in Landgraf and its progeny." Id.
at 490. The Third Circuit further concluded, as we have concluded,
that St. Cyr did not establish a subjective reliance requirement. And
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it went on to hold that that case instead imposes a "reasonable reli-
ance" requirement because, inter alia, "the Court’s holding is not lim-
ited to those aliens who actually relied on the availability of § 212(c)
relief." Id. at 493 (emphasis in original).
Relying on St. Cyr, Landgraf, Hughes Aircraft, and Martin v.
Hadix, 527 U.S. 343 (1998), the Third Circuit explained the reason-
able reliance requirement as follows:
[C]ourts are to concentrate on the group to whose conduct
the statute is addressed — in Landgraf it was employers
subject to Title VII; in Hughes Aircraft it was government
contractors; in Hadix it was attorneys performing prison
reform monitoring services; in St. Cyr it was aliens who
accepted a plea agreement — with a view to determining
whether reliance was reasonable.
Id. The Third Circuit further explained that, consistent with Hughes
Aircraft and Landgraf, "reasonable reliance" will frequently be sub-
stantially more attenuated than it was in St. Cyr. But, it said,
the fact that an interest may have been attenuated, however,
has had little salience in the Supreme Court’s analysis of
other retroactivity questions. For example, ex ante it was
unlikely that Hughes Aircraft — or any given government
contractor — would need to avail itself of a specific defense
against a qui tam action; or that USI Film Products — or
any given employer subject to Title VII — would find itself
accused of discriminatory conduct meriting punitive dam-
ages. In neither case would anyone have claimed, ex ante,
that the affected companies had anything more than a highly
contingent — and thus seriously attenuated — interest in the
then-existing state of the law.
Id. at 495.
If it were to govern, Olatunji would of course be entitled to relief
under this framework as well. As in St. Cyr, the group to whose con-
duct 8 U.S.C. § 1101(a)(13)(C) is addressed is aliens, like Olatunji,
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who accepted a plea agreement prior to IIRIRA’s enactment. The rel-
evant inquiry, then, is whether these aliens, objectively, might have
reasonably relied on their continued ability to take brief trips abroad
when they pled guilty.
The reliance interest here is no less attenuated than in Hughes Air-
craft and Landgraf. As explained in St. Cyr, "[p]lea agreements
involve a quid pro quo between a criminal defendant and the govern-
ment . . . In exchange for some perceived benefit, defendants waive
several of their constitutional rights (including the right to trial) and
grant the government numerous ‘tangible benefits.’" St. Cyr, 533 U.S.
at 321. In addition to the preceding, aliens entering plea agreements
forgo the possibility of prevailing at trial and thereby avoiding con-
viction. Moreover, "there can be little doubt that, as a general matter,
alien defendants considering whether to enter into a plea agreement
are acutely aware of the immigration consequences of their convic-
tions." Id. Thus, an alien, like Olatunji, could reasonably have consid-
ered the ramifications of his guilty plea on his immigration status,
including its implications for travel abroad.
This is not merely hypothetical. Olatunji’s plea immediately lim-
ited his ability to engage in travel other than that permitted by the
Fleuti doctrine. Brief for Petitioner at 31; 8 U.S.C. § 1182(a)(2)(A)
(i)(I). Under St. Cyr, "there can be little doubt" that defendants in Ola-
tunji’s position would have been "acutely aware" of these pre-IIRIRA
"immigration consequences of their convictions" with respect to
travel. At a minimum, aliens who accepted a plea agreement prior to
IIRIRA could reasonably have relied on their continuing ability to
take brief trips abroad.
The dissent claims that this reliance interest is defeated because
"Petitioner could have briefly traveled abroad in 1994 without any
consequences whether he was acquitted of theft of government prop-
erty, pled guilty to the theft of government property, or convicted by
jury of theft of government property." Post at 29. While an accurate
statement of fact — and an illustration of the retroactive effect of
IIRIRA — this observation does not address the reality that Olatunji
and other similarly situated aliens could reasonably have understood
their plea agreements as a limitation on their ability to travel abroad
rather than an outright prohibition. That some of these aliens, if faced
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with IIRIRA’s effective ban on foreign travel, might have elected to
go to trial is no less attenuated than the notion that the defendants in
Landgraf would have altered their already illegal conduct in the face
of increased compensatory and punitive damages.
B.
In addition to arguing that Olatunji’s claim must fail because he
has not established subjective reliance, the government maintains that
IIRIRA is not impermissibly retroactive because it was enacted prior
to Olatunji’s decision to travel abroad and that he therefore should
have been on notice of its requirements. Respondent’s Br. at 27-28.
The district court adopted this reasoning when it held that "the 1996
IIRIRA amendment has been applied prospectively to events occur-
ring post-enactment," namely Olatunji’s decision to travel abroad.
J.A. 204.
But Olatunji does not claim that IIRIRA is impermissibly retroac-
tive as to his decision to travel abroad; rather, he contends IIRIRA is
retroactive as to his decision to plead guilty. Moreover, the fact that
Olatunji should have discontinued all foreign travel after IIRIRA’s
enactment merely confirms its retroactive effect on his guilty plea.
Olatunji had no notice at the time of his plea that Congress would
subsequently decide to effectively prohibit him from traveling abroad.
Notification is only relevant to the extent that it provides a party an
opportunity to avoid future consequences, not as a warning that the
government has attached new costs to past conduct.
This conclusion is consistent with Supreme Court and Circuit
authority holding that statutes do not have a retroactive effect when
a party has an opportunity to avoid all of its new consequences. See
Martin v. Hadix, 527 U.S. 343 (1998)(holding that section 803(d)(3)
of the Prison Reform Litigation Act ("PLRA"), which caps attorney’s
fees awarded pursuant to 42 U.S.C. § 1988, applied exclusively to
services performed after the enactment of the PLRA because "[i]f the
attorney does not wish to perform services at this new, lower pay rate,
she can choose not to work. In other words . . . the PLRA has future
effect on future work; this does not raise retroactivity concerns");
Velasquez-Gabriel, 263 F.3d 102, 109-10 (holding that IIRIRA was
not retroactive because Velasquez-Gabriel had ample opportunity to
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apply for a status adjustment under pre-IIRIRA law, including the six
months between IIRIRA’s enactment [when — according to the dis-
sent — he would have been on notice] and its effective date).
IV.
The Supreme Court has repeatedly counseled that the judiciary is
to presume that Congress, unless it has expressly stated otherwise,
does not intend its statutes to operate retroactively. As even the gov-
ernment and the dissent concede, IIRIRA unmistakably had a retroac-
tive effect on Olatunji’s 1994 guilty plea. Because reliance, and
particularly subjective reliance, is not required to establish impermis-
sible retroactivity, we hold that this retroactive effect was impermissi-
ble. Because the government’s "notice" could not have, and did not,
negate this impermissible effect, Olatunji is entitled to the relief he
seeks. Accordingly, the judgment of the district court is reversed.
REVERSED
BALDOCK, Senior Circuit Judge, dissenting:
Because this Court’s opinion runs afoul of Supreme Court and
Fourth Circuit precedent, and is equally puzzling as it is unpersuasive,
I dissent. In light of the Court’s erroneous opinion, the Government
will presumably seek rehearing en banc on the issue of whether
IIRIRA is impermissibly retroactive as applied to Petitioner. Because
I cannot participate in such proceedings, I fully set forth the reasons
why, at this point, reliance remains a relevant factor in a retroactivity
analysis.
The Court inappropriately propagates a substantive change in the
law of retroactivity. In its effort to find IIRIRA impermissibly retro-
active in this case, the Court broadly holds "reliance (whether subjec-
tive or objective) is not a requirement of impermissible retroactivity."
Op. at 7. In so holding, the Court chides the Government and the dis-
sent for even suggesting reliance is a factor in the retroactivity analy-
sis. The Court’s broad and complete dismissal of reliance, however,
is unsupportable. The Court’s holding might be defensible if we were
writing on a clean slate, but we are not. The Court ignores Supreme
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Court and Fourth Circuit precedent, and, in dismissing such a large
body of law as "confusing," the Court turns its back on the substantial
implications of its opinion. I will address each proposition in turn.
A.
The Court’s opinion ignores Supreme Court precedent. Reliance
undeniably plays a "central role" in the Supreme Court’s retroactivity
analysis. Just this term, the Supreme Court explained the "aim of the
presumption [against retroactivity] is to avoid unnecessary post hoc
changes to legal rules on which parties relied in shaping their primary
conduct." Republic of Austria v. Altmann, 124 S.Ct. 2240, 2252
(2004) (emphasis added). Further, the Supreme Court has repeatedly
counseled that the judgment of whether a particular statute acts retro-
actively should be informed by "familiar considerations of fair notice,
reasonable reliance, and settled expectations." Landgraf v. USI Film
Products, 511 U.S. 244, 270 (1994) (emphasis added).
Reliance clearly predominated the Supreme Court’s analysis in INS
v. St. Cyr, 533 U.S. 289 (2001). There, the Supreme Court ultimately
held "[b]ecause respondent, and other aliens like him, almost cer-
tainly relied upon th[e] likelihood [of receiving discretionary relief]
in deciding whether to forgo their right to a trial, the elimination of
any possibility of § 212(c) relief by IIRIRA has an obvious and severe
retroactive effect." Id. at 325 (emphasis added).1 The Fourth Circuit
also recognized that reliance was clearly the "key event" in St. Cyr’s
retroactivity analysis. In Chambers v. Reno, 307 F.3d 284, 290 (4th
Cir. 2002), for example, the Fourth Circuit explained "[t]he key event
in terms of St. Cyr’s analysis of whether the new statute would pro-
duce a retroactive effect was the alien’s decision to abandon his con-
stitutional right to a trial and plead guilty to a deportable offense in
reliance on prior law." Further, in Velasquez-Gabriel v. Crocetti, 263
F.3d 102, 108 (4th Cir. 2001), the Fourth Circuit noted that the Court
in St. Cyr "heavily relied" on the fact that aliens like St. Cyr "almost
certainly relied . . . to their detriment" on pre-IIRIRA law.
1The Supreme Court has directed us to follow the most analogous
Court precedent—obviously St. Cyr in this case—when determining
what authority directly controls. See Agostini v. Felton, 521 U.S. 203,
237 (1997).
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In fact, this Court acknowledges the use of reliance is understand-
able in light of the Supreme Court’s "confusing treatment" of retroac-
tivity. See Op. at 8. The Court thus recognizes the Supreme Court has
utilized reliance in determining whether a statute has an impermissi-
ble retroactive effect. Unlike the Court, I do not believe we can take
refuge in the statement that "confusion exists within the Supreme
Court" in order to ignore binding precedent. See Op. at 9. Instead, we
judges of the inferior courts must apply the law as the Supreme Court
directs. See Hutto v. Davis, 454 U.S. 370, 375 (1982) (per curiam)
(noting "unless we wish anarchy to prevail within the federal judicial
system, a precedent of this Court must be followed by the lower fed-
eral courts no matter how misguided the judges of those courts may
think it to be"). This Court’s concession that the Supreme Court has
utilized the reliance factor precludes it from holding otherwise.
Moreover, in its effort to discard reliance entirely, the Court sug-
gests Justice Story’s formulation employed in Landgraf, 511 U.S. at
268-69, should be the exclusive test of impermissible retroactivity.
See Op. at 14. Under this formulation, courts look to whether a statute
takes away or impairs vested rights, creates a new obligation, imposes
a new duty, or attaches a new disability to past transactions. See
Landgraf, 511 U.S. at 269-70. Contrary to the Court’s assertion, the
Supreme Court in Hughes Aircraft Co. v. United States, 520 U.S. 939,
947 (1997), specifically stated "the Court has used various formula-
tions to describe the functional conceptio[n] of legislative retroactiv-
ity, and made no suggestion that Justice Story’s formulation was the
exclusive definition of presumptively impermissible retroactive legisla-
tion."2
B.
The Court’s opinion ignores Fourth Circuit precedent. The Fourth
2The Court repeatedly belies my dissent. Reliance, in my opinion, is
not the exclusive factor in a retroactivity analysis. On the contrary, Jus-
tice Story’s formulation is equally relevant when determining whether a
statute has a retroactive effect. In light of St. Cyr and Fourth Circuit pre-
cedent, however, reliance undoubtedly plays a "central role" in such
analysis and, contrary to the Court’s holding, cannot be discarded
entirely. See St. Cyr, 533 U.S. at 323-25; Chambers, 307 F.3d at 290-92.
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Circuit has consistently used reliance as a factor in determining
whether a statute has an impermissible retroactive effect. See Tasios
v. Reno, 204 F.3d 544, 550-52 (4th Cir. 2000); Velasquez-Gabriel,
263 F.3d at 108; Chambers, 307 F.3d at 290.3
To begin, in Tasios, Judge Michael, writing for the court, addressed
the issue of whether eliminating discretionary relief after an alien pled
guilty in reliance on such relief was impermissibly retroactive. 204
F.3d at 551. According to Judge Michael’s opinion for the court, reli-
ance was a very relevant factor. He explained:
While no one could reasonably rely "on the availability of
a discretionary waiver of deportation when choosing to
engage in illegal drug activity," there are at least two cir-
cumstances in which a person could reasonably modify his
conduct in reliance on the prospect of § 212(c) relief. First,
an alien might waive the right to trial and plead guilty to a
criminal charge, banking on a lighter sentence that would
preserve the availability of a § 212(c) waiver. Second, an
alien might concede deportability, despite having a color-
able defense, knowing that the facts of his case provide a
good possibility of § 212(c) relief. . . . [T]he possibility of
a successful defense cannot be ruled out categorically. At
least one fact confirms that it was reasonable for an alien
to rely on the prospect of § 212(c) relief when pleading
guilty or conceding deportability: in the years immediately
preceding the enactment of AEDPA, immigration judges
and the BIA granted over half of the § 212(c) applications
they decided.
3Moreover, our sister circuits have also recognized that reliance is a
relevant factor in a retroactivity analysis. For example, in Rankine v.
Reno, 319 F.3d 93, 102 (2d Cir. 2003), the Second Circuit explained "the
issue of reliance has played a central role in the Supreme Court’s and the
circuit courts’ reasoning with respect to the retroactivity of IIRIRA."
(emphasis added). Additionally, the First Circuit noted in Dias v. INS,
311 F.3d 456, 458 (1st Cir. 2002) (per curiam), that a "retroactivity anal-
ysis must include an examination of reliance in a guilty plea situation."
(emphasis added).
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Id. at 551 (internal quotations and citations omitted) (emphasis
added). Judge Michael’s analysis in Tasios focused almost exclu-
sively on reliance. Never once did the court indicate that consider-
ation of reliance was improper. Further, Judge Luttig concurred in
Tasios and specifically joined the court’s resolution of retroactivity.
In doing so, Judge Luttig never expressed any concern with the
court’s use of reliance as a relevant, if not exclusive, factor in a retro-
activity analysis. See id. at 553. This Court’s ironic attempt to implic-
itly overrule Tasios should not go unnoticed. See Booth v. Maryland,
327 F.3d 377, 383 (4th Cir. 2003) (explaining "[i]t is quite settled that
a panel of this circuit cannot overrule a prior panel. Only the en banc
can do that").
The Fourth Circuit expounded on Judge Michael’s reasoning in
Velasquez-Gabriel, 263 F.3d at 108. There, the Fourth Circuit
explained the Supreme Court in St. Cyr "heavily relied on two factors
. . . (1) aliens like St. Cyr had a significant likelihood of receiving the
relief they sought under the old law and (2) they almost certainly
relied upon that likelihood to their detriment." Id. at 108 (emphasis
added) (internal quotation and citations omitted). The court noted that
these two factors also "formed the basis of our retroactivity holding
in Tasios." Id. (emphasis added). The court in Velasquez-Gabriel ulti-
mately concluded the petitioner’s case differed critically from St. Cyr
and Tasios because he failed to demonstrate "a reasonable likelihood
of success under pre-IIRIRA law nor a detrimental reliance on pre-
IIRIRA law." (emphasis added). Reliance thus played an obvious role
in the analysis of whether IIRIRA was impermissibly retroactive in
Velasquez-Gabriel.4
Building again upon Judge Michael’s reasoning in Tasios, the
Fourth Circuit utilized reliance as a relevant factor in Chambers, 307
F.3d at 290. In Chambers, the Fourth Circuit addressed whether
IIRIRA had an impermissible retroactive effect on a plea agreement.
4The Court responds reliance was not the "sine qua non" of retroactiv-
ity in Velasquez-Gabriel. See Op. at 12. The Court misses the point.
Again, I never suggest the reliance factor is exclusive. See supra at 24
n.2. That said, the Fourth Circuit clearly considered reliance a relevant
factor in Velasquez-Gabriel and never once suggested it should be dis-
carded entirely.
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The petitioner in Chambers pled not guilty and proceeded to trial. See
id. at 290-91. Later, the petitioner argued he relied on pre-IIRIRA law
when he pled not guilty. See id. at 290. In rejecting the petitioner’s
argument, the Fourth Circuit discussed St. Cyr and explained "[t]he
key event in terms of St. Cyr’s analysis . . . was the alien’s decision
to abandon his constitutional right to a trial and plead guilty to a
deportable offense in reliance on prior law." Id. (emphasis added).
Thereafter, the court held "[b]y contrast, an alien [such as Chambers]
who goes to trial does not act to preserve eligibility under INA
§ 212(c)." Id. at 290-91. The court’s analysis in Chambers, therefore,
clearly demonstrates reliance played an obvious role in determining
whether IIRIRA retroactively effected the petitioner’s plea agreement.5
C.
The Court’s opinion not only contravenes Supreme Court and
Fourth Circuit precedent, it goes well beyond the parties’ briefs in this
case. Petitioner himself spends several pages in his brief discussing
why he has shown a reliance interest similar to the aliens in St. Cyr
and Chambers. (Aplt’s Br. at 24-32). The Court also points out that
"the government vacillated in response to the pointed question of
whether reliance remains a requirement after Hughes Aircraft." Op.
at 10. The Government "vacillated" because reliance is an obvious
relevant factor in a retroactivity analysis under Supreme Court and
Fourth Circuit precedent. In fact, the Government’s brief emphasized
St. Cyr and Chambers and argued "[t]his case does not raise the same
type of reliance concerns because Olatunji cannot seriously argue that
5The Court suggests I have misread Chambers, but I am not alone in
my reading. The Second Circuit recognized the clear import of Judge
Traxler’s lucid opinion in Chambers:
Decisions from other circuits are in accordance with our holding.
In Chambers v. Reno, the Fourth Circuit held in a case legally
indistinguishable from those of petitioners here that IIRIRA’s
repeal of § 212(c) relief was not impermissibly retroactive when
applied to an alien convicted after trial of an aggravated felony.
Using the reasoning of the Supreme Court in St. Cyr, the court
found that Chambers did not possess "a reliance interest compa-
rable to that which was at the heart of St. Cyr."
Rankine, 319 F.3d at 101 (internal citations omitted) (emphasis added).
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he pled guilty in reliance on the admission procedures that were in
effect at the time of his plea." (Aple’s Br. at 31) (emphasis added).
The parties in this case will be quite surprised to discover a substan-
tial portion of their briefs were completely off-mark.
The Court’s opinion today makes an already "confusing" area of
law even more "confusing." Litigants in the Fourth Circuit will be left
to wonder what is left of Tasios, Velasquez-Gabriel, and Chambers.
Further, today’s opinion has the potential to significantly upset immi-
gration law in two ways: (1) any alien who pled guilty of an offense
listed in IIRIRA § 1182(a)(2) before 1996 and was denied admission
may now file a successful habeas petition; and (2) the opinion sup-
plants the executive’s and legislative’s prerogative to create and
enforce immigration law by essentially writing IIRIRA § 1182(a)(2)
out of the statute.
The Court’s opinion also flies in the face of the well-settled notion
that a "statute does not operate ‘retrospectively’ merely because it is
applied in a case arising from conduct antedating the statute’s enact-
ment, or upsets expectations based in prior law." Landgraf, 511 U.S.
at 269 (internal citations omitted); Tasios, 204 F.3d at 550.6 By dis-
carding reliance entirely, this Court essentially holds a statute has a
retroactive effect merely because an alien might have made a different
choice when deciding whether to plead guilty or not guilty. This
approach defies commonsense; most aliens are, of course, going to
argue they would have made a different choice had they known the
law was going to change. "Would have," "could have," or "should
have" does not make a statute impermissibly retroactive.
D.
With these observations, and based upon binding Supreme Court
and Fourth Circuit precedent, I would hold that Petitioner, and simi-
larly situated aliens, did not almost certainly rely on pre-IIRIRA law
when pleading guilty. Specifically, former INA § 101(a)(13) and the
6The Fourth Circuit succinctly explained in Chambers, 307 F.3d at
292, that "the fact that Chambers’ conviction was not a deportable
offense at the time of his sentencing, but later became so after IIRIRA
was enacted, does not cause IIRIRA . . . to operate retroactively."
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Fleuti doctrine did not take into consideration an alien’s criminal con-
viction when Petitioner pled guilty in 1994. See Rosenberg v. Fleuti,
374 U.S. 449, 460 (1963). Therefore, whether Petitioner was con-
victed via guilty plea or by jury was irrelevant to determining whether
he could have briefly traveled abroad in 1994. Stated differently, Peti-
tioner could have briefly traveled abroad in 1994 without any conse-
quences whether he was acquitted of theft of government property,
pled guilty to theft of government property, or convicted by jury of
theft of government property. Petitioner’s case thus falls squarely in
line with Chambers and is markedly distinguishable from St. Cyr
because Petitioner "almost certainly" did not agree to plead guilty
with the expectation that, "by conferring a benefit on the government,
he would receive a benefit in return." Chambers, 307 F.3d at 290; see
also St. Cyr, 533 U.S. at 325.
Furthermore, notwithstanding reliance, the outcome of Petitioner’s
case would also not differ under Justice Story’s formulation of the
retroactivity analysis. See Hughes Aircraft, 520 U.S. at 947. IIRIRA’s
admission procedures simply do not take away or impair vested rights
acquired under existing laws, create a new obligation, impose a new
duty, or attach a new disability with respect to relevant past conduct,
i.e., Petitioner’s decision to plead guilty. As noted, IIRIRA had no
effect whatsoever on Petitioner’s plea agreement and no rights Peti-
tioner might have obtained during plea bargaining have been elimi-
nated. Simply, whether Petitioner could travel abroad and be
readmitted without recourse was never a part of the bargaining pro-
cess. Accordingly, application of IIRIRA to Petitioner simply does
not have an unlawful retroactive effect. I therefore dissent.
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