Aggravated Felonies

 

         (J)  Does St. Cyr Extend to Immigrants Whose Convictions Resulted from “Slow Pleas of Guilty” or Convictions at Court or Jury Trial?  Seven circuit courts have held that St. Cyr does not apply to defendants who chose to go to trial.[581]  These decisions are very poorly reasoned. 

            New Regulations: Despite a number of new cases to the contrary, the comments to the new regulations cited only the decisions of five circuits holding that § 212(c) is available only to noncitizens who entered a plea of guilty, as opposed to those convicted after trial.  Agreeing with these cases, the regulations make § 212(c) relief available only to noncitizens who entered a plea of guilty or no contest, and not to noncitizens who proceeded to trial.[582]

 

            The Second Circuit, one of those cited by the Attorney General in limiting § 212(c) to noncitizens who entered guilty or no contest pleas,[583] has itself questioned a blanket bar of § 212(c) relief to noncitizens who chose to go to trial.  In Restrepo v. McElroy,[584] the court found that a noncitizen who was convicted by jury trial could still have impermissibly suffered the effect of the retroactive repeal of § 212(c) relief, having thought that he could at any time make an affirmative application for § 212(c) relief with the INS district director under the regulations.[585]

 

            The Second Circuit rejected the government’s argument that a noncitizen seeking § 212(c) relief in light of St. Cyr must show actual quid pro quo reliance by giving up his or her right to trial.  The court correctly pointed out that the Supreme Court has never stated that detrimental reliance is necessary to find impermissible retroactivity, but rather sufficient to make such a finding.[586]  The court distinguished this case from Rankine on the basis that the petitioners in that case had failed to show any “conduct on their part that reflects an intention to preserve their eligibility for relief under § 212(c) by going to trial.”[587]  The petitioner in Restropo, on the other hand, was able to demonstrate that he decided to forego filing an affirmative § 212(c) application immediately following his conviction with the settled expectation that he could present a stronger § 212(c) application at a later date.

 

The Second Circuit noted that a noncitizen would not want to apply for § 212(c) relief immediately following a conviction because waiting a period of time after the conviction allows the noncitizen to increase his or her equities and build a longer period of subsequent rehabilitation, so that s/he may later best be able to show that he deserves the § 212(c) relief as a matter of discretion.  The court found that the repeal of § 212(c) could therefore have disrupted the noncitizen’s reasonable reliance and settled expectations.  The court posited that if a noncitizen had known that AEDPA and IIRAIRA would remove his or her ability affirmatively to apply for § 212(c) relief, the noncitizen would have acted differently and chosen to make an earlier, but weaker, § 212(c) application before the repeal.[588]  The court remanded the case to determine whether the noncitizen must make an individualized showing that s/he chose not to apply immediately for affirmative § 212(c) relief, or whether such reliance may be presumed in all such cases. 

 

            The Third[589] and Fourth[590] Circuits have rejected the guilty plea requirement completely, also pointing out that the Supreme Court has never stated that substantial reliance is a necessary condition to a finding of retroactivity.  In Ponnapula v. Ashcroft,[591] the noncitizen had turned down a misdemeanor plea agreement in 1992, and was convicted of a felony by the jury.  The Third Circuit found, however, that Congress did not intend the repeal of INA § 212(c) relief to apply retroactively to pre-existing convictions resulting from jury verdicts, any more than the Supreme Court intended its holding in St. Cyr to apply only to convictions resulting from guilty pleas.

 

In disagreeing with the other circuits on this point, the Third Circuit held the other courts erred by insisting that a noncitizen show “actual reliance” to reap the benefit of the presumption against retroactivity.  The court stated that: “Our disagreement with the courts that have held that IIRIRA’s repeal of § 212(c) relief is not impermissibly retroactive with respect to aliens who went to trial is that those courts have erected too high a barrier to triggering the presumption against retroactivity.”[592]  Conducting a thorough review of the Supreme Court retroactivity cases, the court concluded that: “The Supreme Court has never required actual reliance or evidence thereof in the Landgraf line of cases, and has in fact assiduously eschewed an actual reliance requirement.”[593]  Rather, the Third Circuit found that the Supreme Court cases only require some “reasonable reliance.”  Just as Restrepo found that the petitioner in that case had settled expectations that he would be able to apply for § 212(c) relief at a later date, the court found that the petitioner in Ponnapula had reasonably relied upon his ability to apply for § 212(c) in choosing to forego a plea agreement and proceed to trial.[594]  At least three district courts have come to the same conclusion.[595]

 

Finally, the Sixth Circuit has held, even assuming a noncitizen removable for a single jury trial conviction may not be eligible for § 212(c) relief, that a noncitizen charged with deportation for having committed two crimes involving moral turpitude, based on convictions occurring prior to AEDPA and IIRAIRA, remains eligible for § 212(c) relief where the first conviction was by jury trial and the second conviction was by guilty plea, because the first conviction did not independently render the noncitizen deportable.[596]

 

There is no reason why INA § 212(c) relief should not also be available to immigrants who entered no contest pleas, as well as guilty pleas.  Although St. Cyr is quite specific in extending this relief to those who entered a plea, and some of the reasoning is grounded on factors specific to plea agreements, the Court certainly did not hold that a person convicted as a result of a jury trial or no contest plea is precluded from eligibility for INA § 212(c) relief.  Those issues were not raised or decided in St. Cyr.  Logic requires that INA § 212(c) relief should also be extended to those who chose a jury or court trial in reliance on the availability of INA § 212(c) relief in the event of a conviction. 

 

The clearest example would be a “slow plea” agreement, in which the defendant waives the rights to jury trial and confrontation, and submits the charges to a court trial by allowing the judge to read the police report or on the basis of other stipulated facts or materials.  This functions exactly as a plea agreement does, except that it is technically a court trial, and virtually all the same waivers are required as for a guilty plea.  In terms of the St. Cyr analysis, the “slow plea” procedure is completely indistinguishable from a guilty plea.  The only procedural difference is that the defendant enjoys full appellate rights after entry of a slow plea, and this should make no difference in eligibility for § 212(c) relief.

 

            Even though a jury or court trial involves less savings of prosecutorial and public expense than a plea bargain, the reasoning applies equally to jury or court convictions: it is unfair to disturb settled expectations of eligibility for INA § 212(c) relief by holding IIRAIRA’s § 212(c) bar applies retroactively to the existing conviction.  St. Cyr obviously did not decide this question, and any implications from the decision on this issue constitute dictum, which does not bind lower courts.  If INA § 212(c) relief were retroactively denied to an immigrant convicted after jury trial, that would unfairly penalize those who exercise their right to jury trial, as compared to those who enter a plea.  There is authority in other contexts finding it unconstitutional to force a defendant to abandon one constitutional right to secure another.[597]  The courts therefore should not burden the free exercise of the right to jury trial with this penalty, and St. Cyr should be extended to those whose convictions resulted from slow pleas, court trials, and jury trials.  It is equally unfair to disturb their settled expectations of eligibility for § 212(c) relief as it is to disturb the expectations of those whose convictions resulted from pleas.

 

            One court has reached the issue of the “date of conviction” when a noncitizen has been convicted by jury trial, finding that the “date of conviction” is the date, following the finding of guilt, that the judge enters the official judgment.[598]

 

[581] Hernandez-Castillo v. Moore, 436 F.3d 516 (5th Cir. Jan. 13, 2006) (noncitizen properly held ineligible for a waiver of deportation under former INA § 212(c), 8 U.S.C. § 1182(c), on account of aggravated felony conviction predating the repeal of former INA § 212(c), 8 U.S.C. § 1182(c), since there was no impermissible retroactive effect of legislation precluding § 212(c) relief for aggravated felon where conviction resulted from jury verdict); Thom v. Ashcroft, 369 F.3d 158 (2d Cir. May 27, 2004); Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. Feb. 3, 2004) (INA § 212(c), 8 U.S.C. § 1182(c) relief unavailable to noncitizen convicted by jury trial, even if noncitizen can prove subjective reliance on availability of INA § 212(c), 8 U.S.C. § 1182(c) in rejecting plea offer and proceeding to trial); Montenegro v. Ashcroft, 355 F.3d 1035 (7th Cir. Jan. 22, 2004); Rankine v. Reno, 319 F.3d 93 (2d Cir. Jan. 28, 2003) (citing Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002)) (per curiam); Anathanasios Theodoropoulos v. INS, 313 F.3d 732 (2d Cir. Dec. 18, 2002), as amended (Dec. 20, 2002); Chambers v. Reno, 307 F.3d 284 (4th Cir. Oct. 15, 2002) (repeal of INA § 212(c), 8 U.S.C. § 1182(c) relief properly applied retroactively to noncitizen convicted at trial of aggravated felony prior to enactment of IIRAIRA, since it did not alter the defendant’s guilty plea calculations); Armendariz-Montoya v. Sonchik, 291 F.3d 1116 (9th Cir. May 30, 2002) (INA § 212(c), 8 U.S.C. § 1182(c) relief was unavailable to a noncitizen convicted by jury trial), citing United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (this decision did not so hold; rather, it held that the noncitizen, who had been convicted by jury trial, did not come within the exception as delineated by Magana-Pizano; moreover, Herrera-Blanco was decided before St. Cyr, and did not properly address, nor focus upon, the retroactivity issues discussed by the Supreme Court); Brooks v. Ashcroft, 283 F.3d 1268 (11th Cir. 2002); Lara-Ruiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001).

[582] 8 C.F.R. § 1212.3(h).

[583] Rankine v. Reno, 319 F.3d 93, 99-100 (2d Cir. 2003).

[584] Restrepo v. McElroy, 369 F.3d 627 (2d Cir. Apr. 1, 2004), on remand, 354 F. Supp. 2d 254 (E.D.N.Y. Feb. 18, 2005).

[585] 8 C.F.R. § 212.3(b) (212(c) application may be made “prior to, at the time of, or at any time after the applicant’s departure from or arrival into the United States.”).  Although this regulation is currently still in effect, the court noted that the INS, as a matter of practice, stopped affirmatively granting § 212(c) relief on or after Mar. 25, 1994, following an opinion letter by then acting Assistant Commissioner for Adjudication, Louis D.Crocetti. Restropo v. McElroy, 369 F.3d at 638 n.19.  See 71 Interpreter Releases 949-950 (Appendix VII) (July 18, 1994).

[586] Restrepo v. McElroy, 369 F.3d at 637-638.

[587] Ibid. (quoting Rankine v. Reno, 319 F.3d at 100).

[588] Id. at 637.

[589] Ponnapula v. Ashcroft, 373 F.3d 480 (3d Cir. June 28, 2004).

[590] Olatunji v. Ashcroft, 387 F.3d 383 (4th Cir. Oct. 19, 2004) (“we hold that reliance (whether subjective or objective) is not a requirement of impermissible retroactivity and that the government’s notice is insufficient to overcome the impermissibly retroactive effect of IIRAIRA on Olatunji’s guilty plea.”); but see Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002).

[591] Ponnapula, supra.

[592] Id. at 491.

[593] Ibid.

[594] Id. at 495.

[595] Hernandez-Castillo v. Moore, 402 F.Supp.2d 749 (W.D.Tex. Jan. 7, 2005) (district court denied government’s motion to dismiss federal habeas petition since the record did not show whether applicant was offered a plea agreement or relied on the availability of § 212(c) for relief), vacated, 436 F.3d 516 (5th Cir. Jan. 13, 2006); Atkinson v. Elwood, 2004 WL 945158 (E.D. Pa. Apr. 30, 2004) (unpublished) (noncitizen convicted by jury trial prior to repeal of § 212(c) is eligible for relief under that section; St. Cyr does not require a noncitizen to give up constitutional right to trial to preserve ability to request § 212(c) relief); Ponnapula v. Ashcroft, 235 F.Supp.2d 397, 404, 406 (M.D.Pa. Dec. 10, 2002) (“A defendant, who goes to trial believing that his opportunity to seek § 212(c) relief is secure, is as equally disrupted in his reasonable and settled expectations as is a defendant who accepts a plea believing it to confer such a benefit.” . . . “There is no basis to conclude that Congress sought to distinguish between those immigrants who were convicted because they pled guilty, or those convicted after trial.”).  See also Mojica v. Reno, 970 F. Supp. 130, 174-176 (E.D.N.Y. 1997), aff’d, Henderson v. INS, 157 F.3d 106 (2d Cir. Sept. 18, 1998) (recognizing that impermissible retroactive effect applies to all cases, including those of defendants who chose to go to trial in reliance on availability of INA § 212(c), 8 U.S.C. § 1182(c) relief if they should be convicted).

[596] Thaqi v. Jennifer, 377 F.3d 500 (6th Cir. July 23, 2004).

[597] See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967 (1968).

[598] Perez v. Elwood, 294 F.3d 552 (3d Cir. June 28, 2002) (finding conviction occurred on date official judgment was entered by court; noncitizen was ineligible for § 212(c) relief since, although jury trial occurred before April 1, 1997, judgment was entered after April 1, 1997).