(D)  Inapplicability of Ex Post Facto Doctrine in Immigration Cases.  Unfortunately, immigration laws are considered civil in character, rather than criminal, and the federal Ex Post Facto Clauses therefore do not apply.[247]  An aggravated felony can be used to trigger deportation, even though the conviction occurred prior to the creation of the deportation ground.[248]  Congress is free to make new immigration penalties apply to previous convictions so long as it clearly expresses its desire to do so.  This possibility of grave unfairness means criminal defense lawyers must do their best to protect the client against future adverse changes in the law, since there is no constitutional protection against retroactively penalizing defendants for prior convictions by imposing new immigration penalties that were not in existence on the date the prior conviction was committed.  One district court may disagree.[249]

[247] Guaylupo-Moya v. Gonzalez, 423 F.3d 121 (2d Cir. Sept. 12, 2005) (aggravated felony definition retroactive; ex post facto clause does not apply to civil deportation proceedings); Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. Aug. 11, 2005) (retroactive application of aggravated felony definition proper); 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).  One federal district court in New York has questioned whether principles of international law require that the date of the offense, rather than the date of plea, is controlling for non-retroactivity purposes.  The same court also suggested that circuit court decisions allowing § 212(c) relief only where the conviction pre-dated the 1996 Act were wrongly decided under principles of ex post facto analysis, stating that “it defies common experience to characterize deportation of an alien such as petitioner as anything other than punishment for his crimes.” Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).

[248] Gelman v. Ashcroft, 372 F.3d 495 (2d Cir. June 17, 2004) (aggravated felony conviction occurring prior to effective date of statute creating ground of deportation could be used to deport).

[249] Beharry v. Reno, 183 F.Supp.2d 584 (E.D.N.Y. 2002), reversed, 329 F.3d 51 (2d Cir. May 1, 2003).

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.