(B)  Due Process Argument Against Retroactive Application of the Aggravated Felony Definition.  There is an argument that due process may be violated by retroactive application of the aggravated felony definition to convictions that did not fall within the definition on the date of conviction.[223]  A number of courts have rejected this argument,[224] but it can be raised elsewhere.

 

                In the context of an illegal re-entry case, the Ninth Circuit laid the foundations for possible subsequent challenges to the retroactive application of the aggravated felony definition. While the original panel decision was changed to a concurring opinion on denial of rehearing en banc, it provides a restatement of the law regarding collateral attacks of underlying immigration proceedings by noncitizens convicted of illegal re-entry, and reemphasized a recent Ninth Circuit case on eligibility for an INA § 212(c) waiver for noncitizens who were not deportable for their offenses at the time of the conviction. These arguments against the retroactive application of the aggravated felony definition were as follows.

 

                Isidro Ubaldo-Figueroa was convicted of illegal re-entry following removal as an aggravated felon.  The district court rejected his attack on the underlying removal order on the grounds that he failed to present a plausible challenge to his removal order, and therefore failed to demonstrate that he was prejudiced by the Immigration Judge’s failure to advise him of his right to appeal to the BIA, or of his potential eligibility for relief under former INA § 212(c).  The Ninth Circuit reversed, finding that he met all the requirements under 8 U.S.C. § 1326 for attacking the validity of the underlying removal order (the case very clearly explains these), and had a plausible claim that retroactive application of the aggravated felony definition was unconstitutional.[225]

 

                In the process of making this finding, the court of appeals outlined a very convincing argument that IIRAIRA § 304,[226] which explicitly made all portions of the aggravated felony definition retroactive to at least 1952 (when the Immigration and Nationality Act was first enacted), violates due process. This argument even includes extensive supporting case law and arguments to distinguish cases to the contrary.  Counsel can bring these same arguments before the circuit court directly.

 

                The Supreme Court, in INS v. St. Cyr,[227] held that the repeal of § 212(c) relief by IIRAIRA § 309(a) is not retroactive, and those noncitizens who pleaded guilty before the April 1, 1997 effective date of IIRAIRA can still apply for § 212(c) relief.  In holding as it did, the Supreme Court relied, in part, upon its earlier decision, Landgraf v. USA Film Products,[228] which provided the following framework for determining whether a law should apply to cases where the underlying conduct occurred prior to enactment:

 

[W]hen a case implicates a federal statute enacted after the events giving rise to the suit, a court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach. If Congress has done so, there is no need to resort to judicial default rules.[229]

 

While St. Cyr found that there was no clear statement by Congress of the temporal reach of § 212(c), the court found that “IIR[A]IRA’s amendment of the definition of ‘aggravated felony’. . . clearly states that it applies with respect to ‘convictions entered on, before, or after’ the statute’s enactment date.”[230]  Because Congress explicitly stated its intent to apply the aggravated felony definition retroactively, any retroactivity analysis must stop at the first step in the Landgraf analysis. Though they would otherwise apply, the arguments against retroactivity that resulted in the St. Cyr holding cannot be applied because this first test has been met.  This conclusion is supported by Max-George v. Reno.[231] 

 

                According to the Ninth Circuit, however, there is still a plausible due process argument that the expressly imposed retroactivity of the aggravated felony definition is unconstitutional,[232] because: “The Due Process clause of the Fifth Amendment forbids Congress from enacting legislation expressly made retroactive when the ‘retroactive application [application of the statute] is so harsh and oppressive as to transgress the constitutional limitation.’”[233]

 

                For a retroactive statute to comport with due process: (1) the statute must have been enacted for a legitimate legislative purpose; (2) the retroactive application of the statute must be a rational means to accomplish the purpose of the statute; and (3) the period of retroactivity must be “confined to short and limited periods required by the practicalities of national legislation.”[234]  The rationality test applied to retroactive legislation requires a level of rationality “beyond that applied to other legislation.”[235]

 

                The Ninth Circuit notes that the United States Supreme Court generally looks to whether: (1) Congress applied the law retroactively in order to remedy a defect in previous legislation, or spread the costs of a current social problem; (2) Congress provided a specific rationale for applying the statute retroactively; and (3) the severity of consequences of the retroactive application, including the effect on a party’s interest in finality.[236]

 

                Looking to IIRAIRA § 321, the court first notes that there is absolutely no limitation on the temporal reach of the application, which “irrationally sweeps in and disrupts the lives of thousands of immigrants and their families because of their conduct far into the past.”[237]  This lack of temporal limitation fails to give finality and repose to the legal consequences of past conduct, and disrupts the expectations of those who chose to plead guilty to offenses that were not grounds for removal at the time of the plea.

 

                Second, the court notes that Congress gave no rationale, in IIRAIRA itself or in the legislative history, for the sweeping retroactive application of the statute. The court rejects the government argument that the purpose of the statute was simply to increase the group of criminal noncitizens subject to removal because, “[i]t is arbitrary to assume that all [criminal noncitizens] threaten our society because they committed a crime at some time in the past.”[238]  Nor was the statute designed to remedy a prior legal defect, or spread the costs of a social problem.[239]

 

                Finally, the court focuses on the harshness of the consequence of removal itself, and charges that the retroactive application of the aggravated felony definition appears to have been an attack upon a politically weak and unpopular group.[240]

 

                The court distinguishes two immigration cases in which a retroactive statute was challenged on due process grounds and found constitutional. The first, Harisiades v. Shaughnessy,[241] dealt with a perceived national security threat and the addition of a statute making members of the communist party deportable. As the focus of the aggravated felony statute is crime, not national security, this statute is not so “vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government,” as to render Congress’s acts immune from judicial interference.[242]  The second, United States v. Yacoubian,[243] found permissible a statute retroactively making deportable noncitizens convicted of firearm and destructive device offenses. The court distinguished Yacoubian on the basis that the statute dealt with “a narrow class of dangerous crimes . . . [and] the statute’s legislative history was available to assist us in determining the rationale for the retroactive reach of the statute.”[244]

 

                Practitioners may want to bring these arguments directly before the court of appeals. An ideal case might be a long-time permanent resident convicted of a misdemeanor crime of violence or theft offense and sentenced to 365 days in custody between April 24, 1996 and April 1, 1997 (and thus an aggravated felon ineligible for former § 212(c) relief under United States v. Velasco-Medina.[245] Although the immigration courts and the BIA cannot consider constitutional arguments, this challenge to the retroactive application of the aggravated felony statute could be brought before the IJ or BIA to preserve the issues for appeal.

[223] United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. Apr. 7, 2004) (concurring opinion) (the concurring opinion was originally part of the majority decision, United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. 2003); however, this argument was relegated to a concurring opinion upon denial of a request for rehearing en banc).  But see Sena v. Gonzales, 428 F.3d 50 (1st Cir. Nov. 2, 2005) (no due process violation through retroactive application of IIRAIRA expanded definition of “aggravated felony” to one who, at time he pleaded guilty to encouraging an alien to reside illegally in the United States, could not have been deported for that offense because it did not qualify as “aggravated felony”).  See generally Morawetz, Determining the Retroactive Effect of Laws Altering the Consequences of Criminal Convictions, 21 Law and History Review, Issue 1 (Spring 2003) http://www.historycooperative.org/journals/lhr/21.1/ngai.html

[224] Sena v. Gonzales, 428 F.3d 50 (1st Cir. Nov. 2, 2005) (no due process violation through retroactive application of IIRAIRA expanded definition of “aggravated felony” to one who, at time he pleaded guilty to encouraging a noncitizen to reside illegally in the United States, could not have been deported for that offense because it did not qualify as “aggravated felony”); Cordes v. Gonzales, 421 F.3d 889 (9th Cir. Aug. 24, 2005) (retroactive application of aggravated felony definition is supported by a rational basis and does not violate the Due Process Clause of the Constitution).

[225] United States v. Ubaldo-Figueroa, 347 F.3d 718 (9th Cir. Oct. 17, 2003), opinion amended and superseded on denial of rehearing, 364 F.3d 1042 (9th Cir. 2004).

[226] Pub.L. No. 104-208, 110 Stat. 3009-546.

[227] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[228] Landgraf v. USA Film Prod., 511 U.S. 244 (1994).

[229] Id., 511 U.S. at 245.

[230] St. Cyr, supra, at 2289.

[231] Max-George v. Reno, 205 F.3d 194, 200 (5th Cir. 2000), cert. granted, judgment vacated and remanded on other grounds, 121 S.Ct. 2585 (2001) (holding retroactive application of aggravated felony definition not unconstitutional).

[232] Ubaldo-Figueroa, 364 F.3d 1042, 1051 (9th Cir. 2004) (Pregerson, C.J., Concurring).

[233] Id. (quoting United States v. Carlton, 512 U.S. 26, 30 (1994)).

[234] Ibid. (quoting United States v. Carlton, 512 U.S. at 32).

[235] Ibid. (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 223 (1988)).

[236] Id. at 1054.

[237] Id.

[238] Ibid.

[239] Id. (distinguishing Carlton [defect] and Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976) [social cost]).

[240] Id.

[241] Harisiades v. Shaughnessy, 342 U.S. 580 (1952).

[242] Id. (quoting Harisiades, 342 U.S. at 590).

[243] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994).

[244] Ubaldo-Figueroa, supra, n.19.

[245] United States v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002).

Second Circuit

AGGRAVATED FELONY " EFFECTIVE DATE " EX POST FACTO RULES DO NOT APPLY TO REMOVAL CONTEXT
Morris v. Holder, 676 F.3d 309, 317 (2d Cir. Apr. 23, 2012) (the Supreme Court's decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), did not overturn our [Second Circuit] precedent holding that the Ex Post Facto Clause of the United States Constitution, U.S. Const. art. I, 9, cl. 3, is not applicable in the deportation and removal context.).

Third Circuit

AGGRAVATED FELONY - RETROACTIVITY
Biskupski v. Attorney Gen. of the US, __ F.3d __, 2007 WL 2774528 (3d Cir. Sept. 25, 2007) (aggravated felony definition not impermissibly retroactive; the term "actions taken" in section 321(c) of IIRAIRA refers to orders and decisions of an IJ or the BIA to apply "aggravated felony" definition, not to actions taken by the noncitizen).

Fourth Circuit

AGGRAVATED FELONIES " RETROACTIVITY
Mondragon v. Holder, 706 F.3d 535, (4th Cir. Jan. 31, 2013) (retroactive application of 1996 expansion of aggravated felony definition to convictions predating its effective date did not violate the Constitution).

Fifth Circuit

AGGRAVATED FELONY - EFFECTIVE DATE
Garrido-Morato v. Gonzales, ___ F.3d ___ (5th Cir. April 24, 2007) (the Illegal Immigration Reform and Immigrant Responsibility Act amendments that made harboring aliens an aggravated felony are not impermissibly retroactive).

Sixth Circuit

AGGRAVATED FELONY - RETROACTIVITY - EFFECTIVE DATE - ISSUANCE OF DHS ARREST WARRANT CONSTITUTES "ACTION TAKEN" TRIGGERING APPLICATION OF PRE-IIRIRA DEFINITION OF AGGRAVATED FELONY
Saqr v. Holder, 580 F.3d 414 (6th Cir. Sept. 9, 2009) (issuance of OSC by the INS, which has not been cancelled, constitutes an "action taken" for purposes of triggering application of the pre-IIRIRA definition of aggravated felony); see Alanis-Bustamante v. Reno, 201 F.3d 1303, 1310 (11th Cir.2000) (concluding that "[c]onsiderations of fairness convince us that for purposes of deciding which law applies, the removal proceedings in this case should be viewed as commencing at least on that date ... when the show cause order had been served and the warrant of detainer lodged"); Wallace v. Reno, 194 F.3d 279, 287 (1st Cir.1999) (finding that in the context of waiver to deportation proceedings, "when an order to show cause is served on the alien, the deportation process has effectively begun"); but see Garrido-Morato v. Gonzales, 485 F.3d 319, 324 (5th Cir.2007) (concluding that a guilty plea taken before the enactment of IIRIRA is insufficient to trigger application of the pre-IIRIRA definition of aggravated felony because the triggering event must be an action taken under the statute and stating that "the definition of aggravated felony is to be applied retroactively with respect to any action taken that implicates 321"). NOTE: the noncitizen in this case was later issued an NTA, which was filed with the immigration court post IIRIRA. However, the original OSC (which was never filed with the court) was not "cancelled" prior to filing the NTA.

AGGRAVATED FELONY - RETROACTIVITY
Morgan v. Keisler, __ F.3d __, 2007 WL 3131687 (6th Cir. Oct. 29, 2007) (relief under INA 212(c) is not available to a noncitizen convicted of an aggravated felony between April 24, 1996 and April 1, 1997, even if the offense was not considered an aggravated felony at the time of conviction).

Eighth Circuit

AGGRAVATED FELONY - FIREARMS OFFENSE - CLAIM OF SPORTING USE EXCEPTION REJECTED
Alvarado v. Gonzales, 484 F.3d 535 (8th Cir. April 17, 2007) (per curiam) (federal conviction of possession of firearms and ammunition by an unlawful user of a controlled substance, under 18 U.S.C. 922(g)(3), constituted aggravated felony firearms conviction, for purposes of removal and cancellation of removal, despite the alleged sporting purpose of the guns at issue).

Ninth Circuit

AGGRAVATED FELONY " DEPORTATION GROUND " EFFECTIVE DATE " AN AGGRAVATED FELONY CONVICTION OCCURRING PRIOR TO NOVEMBER 18, 1988 DOES NOT TRIGGER DEPORTATION
Reyes-Torres v. Holder, ___ F.3d ___, ___, 2011 WL 1312570 (9th Cir. Apr. 7, 2011) (the aggravated felony ground of deportation does not apply to convictions such as the 1984 conviction in this case that were entered prior to the date the aggravated felony definition was enacted, November 18, 1988: In Ledezma-Garcia, we held that 8 U.S.C. 1227(a)(2)(A)(iii) does not apply to convictions that occurred prior to the enactment of the Anti-Drug Abuse Act of 1988.).

AGGRAVATED FELONY - EFFECTIVE DATE - CONVICTIONS OCCURRING PRIOR TO NOVEMBER 18, 1988, DO NOT TRIGGER DEPORTATION GROUND
Ledezma-Garcia v. Holder, 599 F.3d 1055 (9th Cir. Mar. 22, 2010) (although the "aggravated felony" definition applies regardless of the date of conviction, an aggravated felony conviction occurring prior to November 18, 1988 does not trigger deportability under INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii)), overruling Matter of Lettman, 22 I. & N. Dec. 365 (BIA 1998) (en banc).

AGGRAVATED FELONY - EFFECTIVE DATE - ILLEGAL REENTRY - SENTENCE - AGGRAVATED FELONY CONVICTIONS TRIGGER SENTENCE ENHANCEMENT REGARDLESS OF DATE OF CONVICTION
United States v. Olmos-Esparza, 484 F.3d 1111 (9th Cir. April 24, 2007) (district court did not err by considering convictions from 1972 and 1976 in calculating illegal reentry sentencing enhancements under USSG 2L1.2), (USSG 2L1.2 contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements); accord, United States v. Torres-Duenas, 461 F.3d 1178, 1181-82 (10th Cir.2006), petition for cert. filed November 22, 2006 (No. 06-7990); United States v. Camacho-Ibarquen, 410 F.3d 1307, 1312-13 (11th Cir.), cert. denied, 126 S.Ct. 457 (2005).

AGGRAVATED FELONY - RETROACTIVITY
Although the Ninth Circuit held that only convictions after November 18, 1988, the effective date of the ADAA, could be considered aggravated felonies, see Ayala-Chavez v. INS, 945 F.2d 288 (9th Cir.1991), Congress effectively overruled that decision when it passed the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.L. No. 102-232 (December 12, 1991) amending the Immigration Act of 1990, Pub.L. No. 101-649 (November 29, 1990). These Amendments provided, among other things, that convictions before 1988 could also qualify as aggravated felonies. 105 Stat. at 1752, 306(a)(13). These Amendments are effective as though they were part of the 1990 Immigration Act. Pub.L. No. 102-232, 105 Stat. at 1759, 310.