Carlos Perez v. Kenneth J. Elwood, District Director Immigration

PRECEDENTIAL
Filed June 28, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3004
CARLOS PEREZ, Appellant
v.
KENNETH J. ELWOOD, DISTRICT DIRECTOR*
IMMIGRATION AND NATURALIZATION SERVICE
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 01-cv-00684)
District Judge: Honorable James F. McClure, Jr.
Argued May 20, 2002
Before: BECKER, Chief Judge, GREENBERG,
Circuit Judge, and BARZILAY, Judge, U.S. Court of
International Trade.**
(Filed: June 28, 2002)
_________________________________________________________________
* Substituted for Charles Zemski, Acting District Director, pursuant to
Federal Rule of Appellate Procedure 43(c)(2).
** Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
LAWRENCE H. RUDNICK, ESQUIRE
DEREK W. GRAY, ESQUIRE
(ARGUED)
Steel, Rudnick & Ruben
1608 Walnut Street, Suite 1500
Philadelphia, PA 19103
Counsel for Appellant
ROBERT D. McCALLUM, JR.,
ESQUIRE
Assistant Attorney General
CHRISTINE A. BITHER, ESQUIRE
Senior Litigation Counsel
JAMES E. GRIMES, ESQUIRE
(ARGUED)
U.S. Department of Justice,
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044-0878
MARGARET PERRY, ESQUIRE
U.S. Department of Justice

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Office of Immigration Litigation
1331 Pennsylvania Avenue, NW
Washington, DC 20530
Counsel for Appellee
OPINION OF THE COURT
BECKER, Chief Judge.
This is an appeal by Carlos Perez, a Colombian national
and U.S. permanent resident, from an order of the District
Court for the Middle District of Pennsylvania, the district
where Perez is held in INS detention, denying his petition
for a writ of habeas corpus. The petition challenged the
Board of Immigration Appeals’s ("BIA") affirmance of an
order of removal entered by an Immigration Judge ("IJ")
following Perez’s conviction for conspiracy to launder
money. In his habeas petition, Perez challenged the BIA’s
conclusion that he is ineligible to apply for relief pursuant
2
to former S 212(c) of the Immigration and Nationality Act
("INA"), 8 U.S.C. S 1182(c) (1994) (repealed). Perez argued
that because he was convicted for conduct that occurred
before the repeal of S 212(c), he was entitled to apply for a
waiver of deportation under that provision. The District
Court denied the writ on the ground that Perez was
ineligible to apply for relief under S 212(c) because, under
the new definition of the time of "conviction" created by the
Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-
546, Perez was convicted after the repeal of S 212(c).
Perez relies here on the Supreme Court’s decision in INS
v. St. Cyr, 533 U.S. 289 (2001), contending that it overruled
Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001), and
DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999), prior Third
Circuit cases that held that aliens whose removal
proceedings, like Perez’s, were initiated after the repeal date
of S 212(c), were ineligible for relief under that section.
Perez also contends that St. Cyr requires us to hold that
aliens like Perez, who are removable due to criminal
conduct that occurred prior to the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and
IIRIRA, are entitled to apply for relief under S 212(c). While
we acknowledge that St. Cyr rejected the reasoning that we
employed in Steele and DeSousa, we nonetheless will affirm
the order of the District Court on the ground upon which
the District Court relied, i.e., that under IIRIRA’s definition
of "conviction," Perez was convicted after the repeal of
S 212(c) and cannot now obtain relief under the repealed
statute.
I. Facts & Procedural History
Perez entered the United States in 1972 at the age of six
and has lived in the U.S. since then as a lawful permanent

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resident. In January 1997, Perez was tried and found guilty
by a jury in the United States District Court for the
Northern District of California of conspiracy to launder
money in violation of 18 U.S.C. S 371, based on criminal
conduct that occurred in 1992. He was sentenced in June
1997 to 60 months in prison.
3
On October 27, 1999, while he was in prison, the INS
issued Perez a Notice to Appear alleging that his criminal
conviction rendered him removable from the U.S. On
August 22, 2000, an IJ found Perez removable under 8
U.S.C. S 1227(a)(2)(A)(iii) based on his conviction for an
"aggravated felony" as defined by 8 U.S.C.SS 1101(a)(43)(D)
& (a)(43)(U), which includes conspiracy to commit money
laundering in the amount for which Perez was convicted.
The IJ also found Perez ineligible for withholding of removal
under the Convention Against Torture ("CAT"). Perez was
released from criminal custody to the custody of the INS on
August 24, 2000, after serving 52 months in prison.
Perez appealed the IJ’s order to the BIA, contending: (1)
that his conspiracy conviction did not constitute an
"aggravated felony" (because he was not convicted of the
underlying crime, only conspiracy); (2) that the IJ erred in
denying his CAT claims; and (3) that he should have been
allowed to apply for a waiver of deportation under former
INA S 212(c), 8 U.S.C. S 1182(c) (1994) (repealed), because
the criminal conduct underlying his conviction occurred
before that section was repealed. The BIA affirmed the IJ’s
order, concluding that: (1) Perez was convicted of an
aggravated felony within the meaning of the INA; and (2)
although Perez qualifies to apply for withholding of removal
under the CAT, he failed to demonstrate that it is more
likely than not that he will be tortured if returned to
Colombia, and is therefore not entitled to receive such
relief. The BIA also rejected Perez’s claim that he should
have been allowed to apply for a S 212(c) waiver, citing
Steele for the proposition that Perez is ineligible to apply for
a S 212(c) waiver because removal proceedings were
instituted against him after April 1, 1997, the effective date
of the repeal of S 212(c).
Perez thereupon filed a petition for a writ of habeas
corpus in the District Court for the Middle District of
Pennsylvania, seeking a declaration that the retroactive
application of IIRIRA (which repealed INA S 212(c)) to his
criminal conduct is unconstitutional, and seeking remand
of his case to the IJ for consideration of relief under
S 212(c). After holding its decision in abeyance until the
Supreme Court issued its decision in St. Cyr, the District
4
Court dismissed Perez’s petition based on the fact that
Perez’s conviction occurred in June 1997, which was after
the effective date of the section of IIRIRA that repealed

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S 212(c). The District Court concluded that relief under
S 212(c) was therefore not available to Perez, and that there
is nothing retroactive about his inability to apply for a
waiver under that section.
Perez contends that the Supreme Court’s holding in St.
Cyr -- that relief under INA S 212(c) remains available to
aliens whose convictions were obtained by plea bargains
and who would have been eligible for S 212(c) relief under
the law in effect at the time of the plea -- (1) overruled
Steele, in which we held that S 212(c) relief is not available
to aliens whose removal proceedings were initiated after the
repeal of S 212(c); and (2) "suggested that 212(c) relief could
. . . remain available to aliens whose criminal conduct pre-
dated the enactment of the 1996 immigration
amendments." Perez submits that, on the basis of St. Cyr,
we must find that it would be unfairly retroactive to deny
him the opportunity to apply for a waiver underS 212(c).
The government takes issue with these contentions, but
also endorses the reasoning of the District Court, that
because Perez’s June 1997 conviction was entered after
former INA S 212(c) was repealed on April 1, 1997, S 212(c)
is not available as relief from his removal order.
The District Court had jurisdiction pursuant to 28 U.S.C.
S 2241, which grants district courts the authority to issue
writs of habeas corpus in cases involving detainees held
under the authority of the U.S. See St. Cyr, 533 U.S. at
300-01; Steele, 236 F.3d at 133 (holding that district courts
retain the authority to issue writs of habeas corpus to
detained aggravated felon aliens following the passage of
IIRIRA). We have jurisdiction to review the District Court’s
denial of a writ of habeas corpus based on 28 U.S.C.
SS 1291 & 2253.
II. Statutory Background
Section 212 of the INA of 1952, formerly codified at 8
U.S.C. S 1182(c), excluded certain classes of aliens from the
U.S., including those convicted of offenses involving moral
5
turpitude or illicit traffic in narcotics. See 66 Stat. 163, 187
(1952). The section was subject to a waiver provision,
S 212(c), which was codified at 8 U.S.C. S 1182(c). It
provided:
Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not
under an order of deportation, and who are returning
to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of
the Attorney General . . . .
8 U.S.C. S 1182(c) (repealed). Although S 212(c) "was
literally applicable only to exclusion proceedings, . . . it . . .
has been interpreted by the Board of Immigration Appeals
. . . to authorize any permanent resident alien with‘a lawful

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unrelinquished domicile of seven consecutive years’ to
apply for a discretionary waiver from deportation." St. Cyr,
533 U.S. at 295 (citing Matter of Silva, 16 I. & N. Dec. 26,
30 (1976)).
In 1990, Congress amended S 212(c) to bar discretionary
relief to those convicted of an "aggravated felony" who had
served a term of imprisonment of at least five years. See
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.
4978, 5052 (amending 8 U.S.C. S 1182(c)). When Congress
enacted AEDPA on April 24, 1996, it included S 440(d),
which barred S 212(c) relief to those aliens who were
convicted of a broad set of offenses, including aggravated
felonies, drug convictions, certain weapons or national
security violations, and multiple convictions involving
crimes of moral turpitude. See Pub. L. 104-132, 1110 Stat.
1214, 1277-79 (1996) (amending 8 U.S.C. S 1182(c)).
Later that same year, on September 30, 1996, Congress
passed IIRIRA. IIRIRA S 304(b), which went into effect on
April 1, 1997, repealed INA S 212(c), and replaced it with a
new section, which is now codified at 8 U.S.C. S 1229b, and
which gives the Attorney General authority to cancel
removal only for a narrow class of inadmissible or
removable aliens. That class does not include anyone
previously "convicted of an aggravated felony." 8 U.S.C.
S 1229b(a)(3). IIRIRA also changed the definition of when a
money laundering conviction constitutes an "aggravated
6
felony," as defined by 8 U.S.C. S 1101(a)(43)(D). That
section formerly provided that an "aggravated felony"
includes "an offense described in section 1956 of title 18,
United States Code (relating to laundering of monetary
instruments) or section 1957 of that title (relating to
engaging in monetary transactions in property derived from
specific unlawful activity) if the amount of the funds
exceeded $ 100,000." IIRIRA S 321(a)(2) decreased the
minimum amount of funds to $10,000, which brought
Perez into its net.1
III. Discussion
A. The Legal Framework -- Retroactive Application
of Civil Statutes
Perez contends that it is unconstitutional for Congress to
change the consequences of a crime for purposes of the
immigration statutes after the date of the commission of the
criminal acts. This argument appears to derive from the ex
post facto clause, see U.S. Const. art. I, S 9, cl. 3 ("No Bill
of Attainder or ex post facto law shall be passed."), but such
an argument is not available to Perez because deportation
statutes are civil in nature. They do not constitute criminal
punishment for past acts, even where, as here, the alien
qualifies for removal because of a past criminal act. See INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (rejecting
the argument that deportation is punishment for past

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behavior and therefore subject to the "various protections
_________________________________________________________________
1. 8 U.S.C. S 1101(a)(43)(D) provides that an "aggravated felony" includes
"an offense described in section 1956 of title 18 (relating to laundering
of monetary instruments) or section 1957 of that title (relating to
engaging in monetary transactions in property derived from specific
unlawful activity) if the amount of the funds exceeded $10,000."
Congress retroactively amended this section in September 1996 to lower
the minimum amount of funds that must be involved for a money
laundering conviction to constitute an "aggravated felony" from $100,000
to $10,000. 8 U.S.C. S 1101(a)(43)(U) extends the definition of
"aggravated felony" to include "an attempt or conspiracy to commit an
offense described in this paragraph." The amount of money to be
laundered in the conspiracy for which Perez was convicted exceeded
$10,000.
7
that apply in the context of a criminal trial"); Harisiades v.
Shaughnessy, 342 U.S. 580, 594 (1952) ("Deportation,
however severe its consequences, has been consistently
classified as a civil rather than a criminal procedure.").
Perez therefore may not challenge the retroactive
application of IIRIRA’s repeal of S 212(c) under the ex post
facto clause, which applies only to the retroactive
application of criminal statutes. See Collins v. Youngblood,
497 U.S. 37, 41 (1991).
Nevertheless, there are limitations on when courts will
interpret Congress to have applied civil statutes
retroactively. Congress may apply civil laws retroactively as
long as: (1) it indicates clearly its intention to do so; and (2)
it would not violate the Constitution for it to do so. If
Congress does not clearly indicate its intention to apply a
civil statute retroactively, courts apply a presumption
against retroactive application. The controlling precedent is
Landgraf v. USI Film Products, 511 U.S. 244 (1994), in
which the Supreme Court applied a two-step process when
determining whether amendments to civil statutes are
intended to be retroactive.
In the first step, the Court asks "whether Congress has
expressly prescribed the statute’s proper reach." Id. at 280.
If so, and "[a]bsent a violation of . . .[a] specific provision[ ]
[of the Constitution,] the potential unfairness of retroactive
civil legislation is not a sufficient reason for a court to fail
to give a statute its intended scope." Id. at 267. Therefore,
if Congress speaks clearly in saying that it intends for a
civil statute to apply retroactively, a court must effectuate
Congress’s intent, absent a constitutional violation. The
clear statement requirement is an exacting one."[C]ases
where [the Supreme] Court has found truly‘retroactive’
effect adequately authorized by statute have involved
statutory language that was so clear that it could sustain
only one interpretation." Lindh v. Murphy, 521 U.S. 320,
328 n.4 (1997).
If Congress has not spoken clearly to indicate its intent

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for a civil statute to apply retroactively, then a court must
"determine whether the application of the statute to the
conduct at issue would result in a retroactive effect." Martin
v. Hadix, 527 U.S. 343, 352 (1999). If there would be such
8
a retroactive effect, then the court should presume that the
legislation does not apply to the conduct in question, and
apply it only prospectively. Id.
B. St. Cyr’s Effect on Steele and DeSousa
Perez first challenges the validity of our opinions in Steele
and DeSousa, contending that the Supreme Court implicitly
overruled these cases in St. Cyr. The BIA relied on Steele to
reject Perez’s argument that IIRIRA’s repeal ofS 212(c) is
unfairly retroactive. Steele involved the review of a district
court’s denial of the habeas petition of Desmond Steele, a
national of Grenada who was excluded after returning from
that country, where he had attended his mother’s funeral,
because of his three prior misdemeanor marijuana
possession convictions. The INS instituted exclusion
proceedings after the effective date of IIRIRA (and after the
end of the period in which the statute’s transition rules
applied). The IJ found Steele excludable and ineligible for
CAT relief, and the BIA affirmed.
Steele had argued in his habeas petition, inter alia, that
he was entitled to relief under former INA S 212(c) because
his convictions (and the acts upon which they were based)
took place prior to the enactment of IIRIRA. We rejected
this argument, reasoning as follows:
Section 1182(c) of Title 8[, INA S 212(c),] provides that
waivers of inadmissibility might be granted to certain
immigrants who traveled abroad for brief periods of
time. Section 1182(c) was repealed by section 309(c) of
IIRIRA, effective April 1, 1997, but by its terms is still
applicable to certain removal proceedings initiated
before its effective date. IIRIRA S 309(a). Because
Steele’s removal was initiated after April 1, 1997,
section 1182(c) is not an available avenue of relief for
Steele.
Steele argues that section 1182(c) must remain
available in his case because its unavailability would
constitute a retroactive application of the permanent
provisions of IIRIRA to a conviction that preceded the
Act and this result was not intended by Congress. We
find Steele’s argument foreclosed by our opinion in
9
DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999). In
DeSousa, the petitioner was a citizen of Portugal who
had been a lawful permanent resident of the United
States since 1969. The petitioner had served four and

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one-half years in prison on an aggravated assault
charge. DeSousa claimed that IIRIRA’s amendments
restricting eligibility for section 1182(c) waivers should
not be construed to apply "retroactively" to his case,
since his convictions pre-dated IIRIRA. We disagreed,
finding it likely that Congress had intended the
amended version of section 1182(c) to apply to
convictions preceding the amendment. Id. at 186.
Because the issue was not "absolutely clear," however,
we proceeded to analyze whether the removal of relief
was retroactive in any sense. We concluded, in
accordance with our earlier opinion in Scheidemann v.
INS, 83 F.3d 1517 (3d Cir. 1996), that because the
statute related only to the discretion of the Attorney
General to grant a future waiver, its eligibility
restriction had only prospective impact. 190 F.3d at
187.
Steele, 236 F.3d at 133-34. DeSousa, the earlier Third
Circuit opinion on which Steele relied, concluded that
AEDPA’s changes to former INA S 212(c) did not have a
"retroactive effect" within the meaning of the second step of
the Landgraf test because S 212(c) relief could be granted
solely in the discretion of the Attorney General.
In St. Cyr, the Supreme Court considered whether "the
restrictions on discretionary relief from deportation
contained in [AEDPA and IIRIRA] . . . apply to removal
proceedings brought against an alien who pled guilty to a
deportable crime before their enactment." 533 U.S. at 293.
The Court applied Landgraf’s two-step retroactivity analysis
to IIRIRA’s S 304(b), the section that repealed former INA
S 212(c). The Court concluded that that section, which
simply states that "Section 212(c) (8 U.S.C.S 1182(c)) is
repealed," did not show Congress’s unequivocal intent to
apply the repeal retroactively to aliens like St. Cyr who had
pleaded guilty before the repeal of S 212(c). Having decided
that Congress did not unambiguously state its intention to
make the repeal of INA S 212(c) retroactive, the Court went
10
on to the second step of determining whether the rule
would have an "impermissible retroactive effect for aliens
who, like [St. Cyr], were convicted pursuant to a plea
agreement at a time when their plea would not have
rendered them ineligible for S 212(c) relief." Id. at 320. The
Court held that it did have such an effect, finding that:
IIRIRA’s elimination of any possibility of S 212(c) relief
for people who entered into plea agreements with the
expectation that they would be eligible for such relief
clearly "attaches a new disability, in respect to
transactions or considerations already past." Landgraf,
511 U.S. at 269. 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

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numerous tangible benefits, such as promptly imposed
punishment without the expenditure of prosecutorial
resources. There can be little doubt that, as a general
matter, alien defendants considering whether to enter
into a plea agreement are acutely aware of the
immigration consequences of their convictions.
Id. at 321-22 (some internal quotation marks and citations
omitted).
In so holding, the Court also rejected the INS’s argument
that because "S 212(c) relief is discretionary" the mere
removal of the possibility of such discretionary relief does
not have retroactive effect (since it was never guaranteed in
the first place). Id. at 325. The Court noted that "[t]here is
a clear difference, for the purposes of retroactivity analysis,
between facing possible deportation and facing certain
deportation." Id. Perez argues that Steele and DeSousa are
no longer valid because the St. Cyr Court, although it did
not specifically overrule either case, rejected theories that
are necessary to the holding of each.
In Steele, we concluded that the repeal ofS 212(c) was
likely made retroactive by IIRIRA S 309(c) (which replaced it
with transitional rules), but declined to decide the
retroactivity issue on the clear statement prong. Instead,
relying on DeSousa (which in turn relied on Scheidemann v.
11
INS, 83 F.3d 1517 (3d Cir. 1996)), we stated"that because
the statute related only to the discretion of the Attorney
General to grant a future waiver, its eligibility restriction
had only prospective impact." Steele, 236 F.3d at 134.
Because we declined to rely on the "clear statement"
ground, the reasoning that there would be no retroactive
effect from the removal of a source of relief that was always
only discretionary is a necessary ground supporting both
Steele and DeSousa. As noted above, the Supreme Court
rejected this reasoning in St. Cyr, stating that "[t]here is a
clear difference, for the purposes of retroactivity analysis,
between facing possible deportation and facing certain
deportation." 533 U.S. at 325. The Court’s rejection of this
ground was not mere dicta; it was necessary to the Court’s
holding, because if the Court accepted the theory on which
we relied in DeSousa and Steele, then it would have
reached the opposite result in St. Cyr.
Although we have explained that St. Cyr rejected the
ground on which Steele and DeSousa ultimately relied, thus
establishing tension between these decisions, we do not
suggest that in other cases with the same facts as Steele or
DeSousa, we would not reach the same result on a different
ground. More importantly for the resolution of this case,
although the BIA relied on Steele to reject Perez’s argument
that IIRIRA’s repeal of S 212(c) is unfairly retroactive, the
District Court denied Perez’s habeas petition on the
independent, alternative ground that he was not convicted
until after the effective date of the section of IIRIRA that

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repealed former INA S 212(c). Therefore, even if St. Cyr
undermined Steele and DeSousa, Perez must also overcome
the other ground on which the District Court relied when
denying his petition in order to prevail in this appeal.
C. Was Perez Convicted After the Repeal of IIRIRA?
In denying Perez’s writ on the ground that he was not
convicted until after the effective date of the section of
IIRIRA that repealed former INA S 212(c), the District
Court’s reasoning was as follows. Former INA S 212(c)
provided discretionary relief to aliens who were excludable
or removable and otherwise met that section’s requirements
(i.e., they were legal resident aliens who had resided
12
continuously in the U.S. for seven consecutive years). In
this case, the event that triggered Perez’s deportability was
his felony conviction for conspiracy to launder money.
Therefore he was never even potentially eligible forS 212(c)
relief until after he was convicted. And because he was
convicted after S 212(c) was repealed, there is nothing
retroactive about his inability to apply for a waiver under
that section.
Under the District Court’s approach, the reason Perez
was not convicted until after the effective date of the IIRIRA
section that repealed former INA S 212(c) is that IIRIRA’s
definitional amendments changed the definition of
"conviction" for the purposes of the INA. The amendments
provide that a "conviction" occurs for the purposes of the
INA only at the point when a court sentences the defendant
or when a court enters a formal judgment of guilt. The
government contends that statutory language in these
definitional amendments shows unequivocally that
Congress intended the changes to apply retroactively. In
order to determine whether the District Court was right
that Perez is ineligible for relief under S 212(c), we must
first determine when IIRIRA’s new definition of"conviction"
took effect, and whether it applies to Perez’s conviction.
Second, we must decide when, under IIRIRA’s new
definition of "conviction," Perez was convicted. These are
legal questions over which we exercise plenary review.
Centerpoint Props. v. Montgomery Ward Holding Corp. , 268
F.3d 205, 208 (3d Cir. 2001).
As an initial matter, we must determine whether
Congress meant for IIRIRA S 322 to apply retroactively, and
thus whether it applies to Perez. IIRIRA S 322(c) states that
the definitional amendments in that section "shall apply to
convictions and sentences entered before, on, or after the
date of the enactment of this Act." In our view, this
statement evinces a clear congressional intent to apply the
statute retroactively. In St. Cyr, the Supreme Court cited
the language quoted above from S 322(c) as an example of
a clear statement of Congress’s intent to apply a section
retroactively (in contrast to the language of IIRIRAS 304(b),
which it found to be ambiguous regarding Congress’s intent

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to apply the repeal of INA S 212(c) retroactively). See St.
13
Cyr, 533 U.S. at 320 n.43. We therefore think that
Congress plainly intended for IIRIRA S 322 to apply
retroactively. Importantly for this case, the St. Cyr Court
also cited IIRIRA S 321, which amended the definition of
"aggravated felony," as another example of a statute that
Congress clearly intended to apply retroactively. Id. at 319
(stating that "IIRIRA’s amendment of the definition of
‘aggravated felony,’ for example, clearly states that it
applies with respect to ‘convictions . . . entered before, on,
or after’ the statute’s enactment date. S 321(b)").
Perez does not raise any arguments about why the
retroactive application of IIRIRA S 322 would violate the
Constitution. Because it is clear that Congress intended to
apply IIRIRA’s new definition of "conviction" retroactively,
we need not proceed to the second step of the retroactivity
analysis.
Concluding that IIRIRA’s new definition of conviction
applies to Perez, we must determine when, under the new
definition, he was convicted. IIRIRA S 322, which is now
codified at 8 U.S.C. S 1101(a)(48), provides as follows:
(1) IN GENERAL - Section 101(a) (8 U.S.C. S 1101(a)) is
amended by adding at the end the following new
paragraph:
"(48)(A) The term ‘conviction,’ means, with respect to
an alien, a formal judgment of guilt of the alien entered
by a court or, if adjudication of guilt has been
withheld, where --
"(i) a judge or jury has found the alien guilty or the
alien has entered a plea of guilty or nolo contendere or
has admitted sufficient facts to warrant a finding of
guilt, and
"(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be
imposed.
IIRIRA S 322.
The government contends that we should define the
terms "formal judgment of guilt," by reference to Federal
Rule of Criminal Procedure 32(d)(1), which provides that:
14
[a] judgment of conviction must set forth the plea,
verdict or findings, the adjudication, and the sentence.
If the defendant is found not guilty or for any other
reason is entitled to be discharged, judgment must be
entered accordingly. The judgment must be signed by

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the judge and entered by the clerk.
Fed. R. Crim. P. 32(d)(1).
We agree that it makes sense to define "formal judgment
of guilt" by reference to Rule 32(d)(1)’s definition of
"judgment of conviction." Therefore, for the purposes of the
INA, a conviction occurs when either (1) a "formal judgment
of guilt of the alien [is] entered by a court," 8 U.S.C.
S 1101(a)(48)(A), (and such a judgment must"set forth the
plea, verdict or finding, the adjudication, and the sentence,"
Fed R. Crim. P. 32(d)(1)); or (2) "a judge or jury has found
the alien guilty or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient facts to warrant
a finding of guilt" and "the judge has ordered some form of
punishment, penalty, or restraint on the alien’s liberty to be
imposed." 8 U.S.C. S 1101(a)(48)(A)(i) & (ii).
A jury found Perez guilty on a conspiracy charge in
January 1997. He was not sentenced until June 1997.
After sentencing, the Court filed a judgment captioned
"Judgment In A Criminal Case," which is dated June 24,
1997. We are satisfied that under IIRIRA’s definition, Perez
was convicted, at the earliest, when the Court sentenced
Perez in June 1997. That means that Perez was convicted
after April 1, 1997, the effective date of IIRIRAS 304(b), the
section that repealed INA S 212(c).
We disagree with Perez’s contention that St. Cyr requires
us to grant the relief he seeks notwithstanding the fact that
he was convicted after the repeal of S 212(c). The present
case is distinguishable from St. Cyr. Unlike IIRIRA S 304(b),
the section that the St. Cyr Court found to be ambiguous
regarding Congress’s intent to apply it retroactively, IIRIRA
S 322(c) shows Congress’s clear intent to apply S 322
retroactively. Section 322 states that the section’s new
definitions "shall apply to convictions and sentences
entered before, on, or after the date of the enactment of this
Act." Therefore, Perez’s conviction occurred after the
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effective date of the repeal of former INA S 212(c). In
contrast, the defendant’s conviction in St. Cyr occurred
while S 212(c) was still in effect. Therefore, Perez’s reliance
on St. Cyr is inapposite.
In sum, Congress, by evincing a clear intent to change
retroactively the definition of "conviction" in the INA,
removed the possibility of S 212(c) relief for aliens who were
convicted after the April 1, 1997 repeal of former INA
S 212(c). The order of the District Court will therefore be
affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

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