Abdul Azim Jaghoori v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A028-224-801. [999477013]. [13-1801]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1801

ABDUL AZIM JAGHOORI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued:

September 17, 2014

Decided:

November 18, 2014

Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.

Petition for review granted and case remanded by published
opinion.
Judge Thacker wrote the majority opinion, in which
Judge Duncan joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: Tamara L. Jezic, LAW OFFICE OF IVAN YACUB, Woodbridge,
Virginia, for Petitioner.
Lindsay M. Murphy, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Ivan Yacub, LAW OFFICE OF IVAN YACUB, Falls Church,
Virginia, for Petitioner.
Stuart F. Delery, Assistant Attorney
General, Civil Division, Song Park, Senior Litigation Counsel,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.

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THACKER, Circuit Judge:
An

alien

who

wishes

to

apply

for

cancellation

of

removal must show, among other things, that he has continuously
resided in the United States for seven years after admission to
this country.
provision

See 8 U.S.C. § 1229b(a)(2).

commission

known
of

a

as

the

criminal

stop-time
offense

period of continuous residence.

However, a statutory

rule

can

provides

cut

short

that

the

the

alien’s

See id. § 1229b(d)(1)(B).

In

the case before us, the Board of Immigration Appeals (“BIA”) has
deemed Petitioner Abdul Azim Jaghoori (“Petitioner”) ineligible
for cancellation

of

removal

because

of

a

crime

he

committed

within his first seven years of residence in the United States.
Petitioner argues the BIA should not have applied the stop-time
rule in his case because the offense and guilty plea occurred
before Congress promulgated the stop-time rule.
The

inquiry

into

a

statute’s

retroactive

effect

is

“informed and guided by ‘familiar considerations of fair notice,
reasonable reliance, and settled expectations.’”

INS v. St.

Cyr, 533 U.S. 289, 321 (2001) (quoting Martin v. Hadix, 527 U.S.
343,

358

(1999))

considerations
Accordingly,

we

(internal
militate
apply

our

quotation

marks

against
“‘traditional

omitted).

retroactivity
presumption’

These
here.
against

retroactivity,” Olatunji v. Ashcroft, 387 F.3d 383, 393 (4th
Cir. 2004) (citation omitted) (quoting Republic of Austria v.
2

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Altmann, 541 U.S. 677, 694 (2004)), and grant the petition for
review.
I.
The prospect of discretionary relief from removal has
long been a fixture of immigration jurisprudence.
passage

of

the

Responsibility

Illegal

Act

of

Immigration

1996

relief

included

a

212(c)

of

Immigration

the

waiver

(“IIRIRA”),

of

Reform

and

potential

deportation
and

Prior to the

avenues

pursuant

Nationality

Immigrant

to

Act,

8

for

section
U.S.C.

§ 1182(c) (1994) (repealed 1996), and suspension of deportation
pursuant to 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996).

To

qualify for relief under either statute, an alien had to meet
certain criteria.
Section 212(c) 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 without
regard to the provisions of subsection (a)
of this section (other than paragraphs (3)
and (9)(C)). . . . The first sentence of
this subsection shall not apply to an alien
who has been convicted of one or more
aggravated felonies and has served for such
felony or felonies a term of imprisonment of
at least 5 years.
8

U.S.C.

§

1182(c).

Although,

by

its

terms,

the

provision

referred only to aliens seeking readmission after a temporary
3

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departure,

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courts

deportation

and

the

proceedings

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BIA

came

“regardless

to
of

apply
an

the

waiver

alien’s

in

travel

history.”

Judulang v. Holder, 132 S. Ct. 476, 480 (2011).

The

class

aliens

was

of

“extremely

qualifying

large,”

and

a

for

this

“substantial

aliens succeeded in obtaining a waiver.

form

of

relief

percentage”

of

these

INS v. St. Cyr, 533

U.S. 289, 295-96 (2001).
Suspension of deportation was harder to obtain.

To

qualify, an alien had to show that he was a “person of good
moral character,” and that his deportation would cause “extreme
hardship” to him or his family.

8 U.S.C. § 1254(a)(1).

The

statute further limited relief to aliens who, at a minimum, 1 had
been “physically present in the United States for a continuous
period of not less than seven years immediately preceding” the
application

for

relief.

Id.

Satisfying

this

continuous

presence requirement was a simple matter, demanding nothing more
than the passage of time; the clock continued to run even after
deportation proceedings were under way.

See Appiah v. U.S. INS,

202 F.3d 704, 707 (4th Cir. 2000).
1

The number of years of continuous physical presence varied
depending on the ground of deportation.
For aliens deportable
on criminal or security grounds, or for falsification of
immigration documents, the statute required ten years of
continuous physical presence.
See 8 U.S.C. § 1254(a)(2)
(repealed 1996).
For other aliens, the requisite period was
seven years. See id. § 1254(a)(1).

4

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The

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1996

enactment

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of

IIRIRA

eliminated

both

the

section 212(c) waiver and suspension of deportation and replaced
them

with

a

new

form

“cancellation of removal.”
Stat. 3009-546 (1996).

of

discretionary

relief,

dubbed

IIRIRA, Pub. L. No. 104-208, 110

The new provision, which governs here,

authorizes the Attorney General to:
cancel removal in the case of an alien who
is inadmissible or deportable from the
United States if the alien—
(1) has been an alien lawfully admitted for
permanent residence for not less than 5
years,
(2)
has
resided
in
the
United
States
continuously for 7 years after having been
admitted in any status, and
(3) has not been convicted of any aggravated
felony.
8 U.S.C. § 1229b(a).

While the second of these requirements has

analogs in the prior statutes, it does not operate the same way.
Under a provision that has come to be known as the stop-time
rule, the period of continuous residence is “deemed to end” upon
the earlier of two events, which are spelled out in subsections
(A) and (B) of the rule.

Id. § 1229b(d)(1).

Under subsection

(A), the clock stops when the government serves a notice to
appear for removal proceedings.
when

the

alien

has

Under subsection (B), it stops

committed

5

an

offense

rendering

him

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inadmissible under § 1182(a)(2) or removable under § 1227(a)(2)
or § 1227(a)(4).
Congress enacted IIRIRA on September 30, 1996.

The

bulk of its provisions, though, including the stop-time rule,
did not take effect until April 1, 1997. 2

See § 309, 110 Stat.

at 3009-625.
II.
Petitioner is an Afghan citizen but has lived in the
United States for most of his life.
province in eastern Afghanistan.

He was born in the Ghazni

The family’s Shia Muslim faith

and Hazara ethnicity placed them within a small minority of the
Afghan population.

In the early 1980s, a time of war in that

country, the family fled to Pakistan.

Subsequently, at age 12,

Petitioner entered the United States as a refugee.

He acquired

lawful permanent resident status on April 25, 1989.
During his stay in the United States, Petitioner has
had several run-ins with law enforcement.

The first -- and, for

present purposes, most relevant -- of these was a credit card

2

For aliens placed in deportation proceedings prior to the
statute’s effective date, there was a special “transitional”
stop-time rule.
See § 309(c)(5), 110 Stat. at 3009-627.
This
rule, as amended, provided that the permanent stop-time rule
“shall apply to orders to show cause . . . issued before, on, or
after the date of the enactment of this Act.”
Nicaraguan
Adjustment and Central American Relief Act, Pub. L. No. 105-100,
111 Stat. 2193, 2196 (1997).

6

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theft committed in Virginia on February 27, 1995.

Petitioner

pled guilty to this offense on July 14, 1995, and received a 90day suspended jail sentence.

Importantly, this conviction did

not

See

render

him

deportable.

8

U.S.C.

§ 1251(a)(2)(A)(i)

(1994) (authorizing deportation of an alien convicted of a crime
involving moral turpitude (“CIMT”), but only if (1) the crime
occurred within five years after the alien’s date of entry, and
(2)

the

alien

was

sentenced

to

confinement

as

a

for

one

year

or

longer).
Petitioner’s
remained

secure

even

status
after

lawful

Congress

permanent

enacted

IIRIRA

resident
in

1996.

Though his criminal record grew to include one conviction for
misdemeanor

obstruction

of

justice

and

three

convictions

for

driving under the influence, none of these offenses rendered him
removable.
In

September

2009,

Petitioner

traveled

back

to

Afghanistan to do some work for his brother, who was in the
construction business.

He stayed for about a month.

Upon his

return, the Department of Homeland Security (“DHS”) placed him
into removal proceedings on the basis of the 1995 credit card
theft

conviction,

alleging

that

this

offense

was

a

CIMT

rendering him removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(i).

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DHS later withdrew this charge. 3

Subsequently, in August 2010, a

Virginia grand jury indicted Petitioner for attempting to pass a
fraudulent prescription for OxyContin in violation of section
18.2-258.1 of the Virginia Code.

Petitioner pled guilty to this

charge and received a two-year suspended jail sentence.
The 2010 prescription fraud conviction prompted DHS to
bring two new charges of removability.

The first charge alleged

that Petitioner’s 1995 credit card theft and 2010 prescription
fraud convictions were CIMTs “not arising out of a single scheme
of

criminal

misconduct,”

thereby

rendering

pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii).

him

removable

The second charge

alleged that the prescription fraud conviction, by itself, was
grounds for removal pursuant to § 1227(a)(2)(B)(i). 4
Petitioner,

through

counsel,

conceded

removability

pursuant to § 1227(a)(2)(A) and proceeded to file an application

3

The record does not explain why DHS brought this charge,
only to withdraw it a short time later.
We observe, though,
that Petitioner’s 1995 credit card theft did not occur within
five years of his admission to the United States, as would be
required for removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(i)
(2006).
4

This section provides, in pertinent part, that an alien is
deportable if “at any time after admission [he] has been
convicted
of
a
violation
of . . . any
law
or
regulation . . . relating to a controlled substance (as defined
in section 802 of Title 21), other than a single offense
involving possession for one’s own use of 30 grams or less of
marijuana.” 8 U.S.C. § 1227(a)(2)(B)(i).

8

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for asylum, withholding of removal, and cancellation of removal.
The immigration judge (“IJ”) ordered his removal to Afghanistan.
However, in view of Petitioner’s ethnicity and religion and his
many years in the United States, the IJ granted his application
for withholding of removal.

This decision allows Petitioner to

remain in the United States for the time being, but it does not
accord an opportunity to pursue citizenship, nor does it prevent
immigration authorities from removing him to a country other
than Afghanistan.

See 8 C.F.R. § 1208.16(f) (2014); In re Lam,

18 I. & N. Dec. 15, 18 (BIA 1981).
Cancellation
opportunity

to

seek

of

removal

permanent

would

preserve

residence,

but

Petitioner’s

the

IJ

denied

Petitioner’s application for this form of relief on the ground
that the 1995 credit card theft triggered the stop-time rule, 8
U.S.C. § 1229b(d)(1).

In response, Petitioner filed an appeal

with the BIA, arguing that the stop-time rule was prospective
only and could not apply to the pre-IIRIRA credit card theft.
The BIA dismissed the appeal.
Petitioner’s

pre-IIRIRA

Applying the stop-time rule to

credit

card

offense,

the

BIA

said,

cannot produce an impermissible retroactive effect here because
Petitioner did not become removable until the 2010 prescription
fraud.

Invoking the Supreme Court’s rationale in Fernandez-

Vargas v. Gonzales, 548 U.S. 30 (2006), the agency reasoned that
it

was

Petitioner’s

“‘choice

to
9

[engage

in

illegal

conduct]

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after the effective date of the new law (i.e., the IIRIRA), that
subjects him to the new and less generous legal regime (i.e.,
the

application

of

the

stop-time

rule).’”

A.R.

16-17

(alteration in original) (quoting Fernandez-Vargas, 548 U.S. at
44). 5
III.
We

have

jurisdiction

to

review

removal pursuant to 8 U.S.C. § 1252(a)(1).
such

orders

is

limited

by

§

a

final

order

of

Our power to review

1252(a)(2)(B),

which

restricts

judicial review of decisions denying cancellation of removal,
and by § 1252(a)(2)(C), which restricts judicial review of any
final order against an alien who, like Petitioner, is removable
because of a drug offense covered in § 1227(a)(2)(B).
restrictions,

however,

are

of

no

moment

here

because

These
the

permissibility of applying a statute retroactively is a “pure
question of law,” Fox v. Balt. City Police Dep’t, 201 F.3d 526,
531 (4th Cir. 2000), and therefore subject to judicial review.
See § 1252(a)(2)(D).
We review legal questions de novo.
647 F.3d 111, 115 (4th Cir. 2011).

Salem v. Holder,

Although we generally defer

to agency interpretations of statutes that are ambiguous, “a

5

Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.

10

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statute

that

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is

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ambiguous

with

respect

to

retroactive

application is construed . . . to be unambiguously prospective.”
INS v. St. Cyr, 533 U.S. 289, 320 n.45 (2001).

We therefore do

not defer to the BIA’s interpretation of the stop-time rule.
IV.
Where applicable, subsection (B) of the stop-time rule
cuts off an alien’s period of continuous residence upon either
of the following: (1) the alien commits an offense that renders
him inadmissible under 8 U.S.C. § 1182(a)(2), or (2) the alien
commits

an

offense

that

§§ 1227(a)(2) or 1227(a)(4).
cannot

justify

the

renders

him

removable

See § 1229b(d)(1)(B).

application

of

the

stop-time

under

The latter
rule

here

because Petitioner was not removable within seven years of his
admission to the United States.

Nevertheless, because the BIA

characterized Petitioner’s 1995 credit card theft as a crime
involving moral turpitude, which would render him inadmissible
pursuant

to

§ 1182(a)(2)(A)(i)(I), 6

we

must

determine

whether

subsection (B) of the stop-time rule operates against him.
The retroactivity of the stop-time rule is, at bottom,
a question of congressional intent.

6

See Olatunji v. Ashcroft,

This provision states that an alien who commits a crime
involving moral turpitude, other than a purely political
offense, is inadmissible, except as otherwise provided.
See
§ 1182(a)(2)(A)(i)(I).

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387 F.3d 383, 389 (4th Cir. 2004).
Products,
steps.

511

U.S.

244

(1994),

Under Landgraf v. USI Film

our

analysis

proceeds

in

two

First, we ask “whether Congress has expressly prescribed

the statute’s proper reach.”

Id. at 280.

“If Congress has made

its intent clear, while acting within the limits of its power,
our inquiry is concluded.”
(4th Cir. 2000).

Tasios v. Reno, 204 F.3d 544, 548

If, conversely, Congress did not speak with

the requisite clarity, we proceed to Landgraf’s second step and
ask “whether the new statute would have retroactive effect.”
Landgraf, 511 U.S. at 280.

Here we assess whether the statute

“attaches new legal consequences to events completed before its
enactment.”

Id. at 269-70.

If so, then “in keeping with our

traditional presumption against retroactivity, we presume that
the statute does not apply to that conduct.”

Martin v. Hadix,

527 U.S. 343, 352 (1999) (internal quotation marks omitted).
A.
In
Congress

this

clearly

retroactively.
is

“silent”

case,

the

intended

BIA

for

took

the

no

position

stop-time

rule

on

whether

to

operate

Its decision assumed arguendo that the statute

with

regard

to

congressional

intent.

A.R.

15.

Neither party argues that this was in error.
The
necessary

requirement

for

“demanding” one.

of

disposition

a

clear

under

congressional

Landgraf

step

directive,
one,

is

INS v. St. Cyr, 533 U.S. 289, 316 (2001).
12

a
The

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prescriptive

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language

in

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the

unambiguous, and unequivocal.

statute

must

be

express,

See id.; Gordon v. Pete’s Auto

Serv. of Denbigh, Inc., 637 F.3d 454, 459 (4th Cir. 2011).

We

are satisfied that Congress did not expressly and unambiguously
prescribe

the

proper

reach

of

the

stop-time

rule, 7

and

we

proceed, accordingly, to Landgraf’s second step.
B.
“A statute does not operate ‘retrospectively’ merely
because it is applied in a case arising from conduct antedating
the

statute’s

enactment.”

Tasios,

204

F.3d

at

550

(quoting

Landgraf, 511 U.S. at 269) (internal quotation marks omitted).
The question, rather, is whether the statute “would attach new
legal consequences to prior events.”
284, 289 (4th Cir. 2002).

Chambers v. Reno, 307 F.3d

In this regard, a statute “must be

deemed retrospective” if, as Justice Story long ago stated, it
“takes away or impairs vested rights acquired under existing

7

Three circuits examining the stop-time rule under Landgraf
step one have concluded that Congress did not expressly
prescribe the statute’s reach.
See Jeudy v. Holder, 768 F.3d
595, 600-03 (7th Cir. 2014); Martinez v. INS, 523 F.3d 365, 37072 (2d Cir. 2008); Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1199
(9th Cir. 2006). But see Heaven v. Gonzales, 473 F.3d 167, 175
(5th Cir. 2006) (reasoning that Congress must have intended for
the permanent stop-time rule to apply retroactively, since it
was clear in stating that the “transitional” stop-time rule,
Pub. L. No. 104-208, § 309(c)(5), 110 Stat. 3009-546, -627
(1996), should have a retroactive effect in exclusion and
deportation proceedings pending when IIRIRA became effective).

13

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laws,

Doc: 33

or

attaches

Filed: 11/18/2014

creates
a

new

a

new

Pg: 14 of 31

obligation,

disability,

in

considerations already past.”

imposes

respect

a

duty,

or

transactions

to

new

or

Soc’y for the Propagation of the

Gospel v. Wheeler, 22 F. Cas. 756, 767 (C.C.D.N.H. 1814) (No.
13,156).
This

inquiry

into

a

statute’s

retroactive

effect

“‘demands a commonsense, functional judgment.’”

St. Cyr, 533

U.S. at 321 (quoting Hadix, 527 U.S. at 357).

The judgment

“‘should be informed and guided by “familiar considerations of
fair notice, reasonable reliance, and settled expectations.”’”
Id. (quoting Hadix, 527 U.S. at 358).
The

circumstances

presented

here

are

remarkably

similar to those in Jeudy v. Holder, 768 F.3d 595 (7th Cir.
2014).

As with Petitioner, the alien in Jeudy acquired lawful

permanent resident status in 1989.
crime in 1995.

Both men pled guilty to a

See 768 F.3d at 597.

By the time IIRIRA took

effect in 1997, both had attained the seven years of continuous
residence required to seek discretionary relief under pre-IIRIRA
law.
States
2009,

See id.
until
a

full

Both, too, continued to reside in the United

the
20

government
years

initiated

after

they

removal

acquired

proceedings

lawful

in

permanent

resident status and more than a decade after they reached seven
years of continuous residence.

See id.

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The Jeudy court declared that applying the stop-time
rule to Jeudy’s 1995 offense and conviction “would attach a new
and serious consequence to Jeudy’s criminal conduct that was
completed before IIRIRA took effect.”

768 F.3d at 603-04.

effect in Petitioner’s case is the same.

The

When Petitioner pled

guilty to credit card theft in 1995, his conviction did not
foreclose his opportunity to qualify for discretionary relief.
Petitioner continued to accrue the seven years of unrelinquished
domicile necessary for a section 212(c) waiver and the seven
years of continuous physical presence necessary for suspension
of deportation.

Indeed, by the time Congress enacted IIRIRA in

September 1996, Petitioner had been living in the United States
long enough to qualify for both forms of relief.
application

of

the

stop-time

rule

would

not

A retroactive
merely

imperil

Petitioner’s opportunity to seek permanent relief from removal;
it would render such relief an impossibility.

Absent a clear

congressional directive, we cannot assume that Congress intended
the rule to have this effect.
The Government notes that both the Second and Tenth
Circuits have identified circumstances in which the retroactive
application

of

the

impermissible effect.

stop-time

rule

does

not

produce

an

See Kleynburg v. Holder, 525 F. App’x

814, 819 (10th Cir. 2013); Martinez v. INS, 523 F.3d 365, 373
(2d

Cir.

2008).

These

cases
15

are

distinguishable

from

the

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present case in two critical ways.
cases,

the

pre-IIRIRA

deportable.

crime

First, in each of these

rendered

the

alien

immediately

Second, the alien had not yet accrued seven years

of continuous residence when IIRIRA took effect.
These factors were critical to the Second Circuit’s
decision in Martinez.

Under the circumstances in that case, the

court said, there was nothing to prevent the government from
prosecuting

the

alien

and

securing

an

order

of

deportation

before the alien reached seven years of continuous residence.
See Martinez, 523 F.3d at 374.

But for the “time required to

bring an offender to justice,” the alien would never have become
eligible

for

discretionary

relief,

and

there

expectation for the stop-time rule to unsettle.
In

this

respect,

the

circumstances

would

be

no

Id.
of

Petitioner’s

case bear a closer resemblance to Sinotes-Cruz v. Gonzales, 468
F.3d

1190

(9th

Cir.

2006).

There,

the

alien’s

pre-IIRIRA

convictions did not expose him to deportability under pre-IIRIRA
law.

See id. at 1202.

The alien continued to live in the

United States and, like Petitioner, was a seven-year resident
when IIRIRA became law.

See id.

The Ninth Circuit recognized

that the imposition of the stop-time rule would have “serious
adverse consequences” for the alien.
that the rule must not apply to him.

16

Id.

It held, therefore,

See id. at 1202-03.

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We think it important to note, too, that both here and
in Sinotes-Cruz the government procured the aliens’ pre-IIRIRA
convictions

via

guilty

plea.

The

means

of

conviction

are

relevant to our assessment of retroactive effect because, as the
Supreme Court observed in INS v. St. Cyr, an alien who decides
to

plead

guilty

cannot

help

consequences of conviction.

but

be

“acutely

aware”

533 U.S. at 322.

of

the

In St. Cyr, an

alien pled guilty to a drug offense prior to the passage of
IIRIRA.

See

deportable,
eligible
§ 212(c).

id.

but,

to

at

under

apply

See id.

for

293.
the
a

His
law

at

conviction
that

discretionary

rendered

time,

waiver

him

he

remained

under

section

IIRIRA’s abolishment of the section 212(c)

waiver took this opportunity away from him.

The Court, noting

that aliens under pre-IIRIRA law had a “significant likelihood
of

receiving

§ 212(c)

relief,”

reasoned

that

aliens

“almost

certainly relied” on this likelihood “in deciding whether to
forgo their right to a trial.”

Id. at 325.

The interference

with this expectation, the Court concluded, was an impermissible
retroactive effect.
Here,

the

See id.
Government

argues

that

Petitioner,

unlike

the alien in St. Cyr, had no reason to concern himself with the
availability of discretionary relief at the time of his 1995
guilty plea, since that offense did not render him deportable.
This is a questionable assumption, and in any event irrelevant,
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as we have emphatically declared that subjective reliance is not
an essential element of retroactive effect.

See Olatunji, 387

F.3d at 389, 394 (“Whether the particular petitioner did or did
not

subjectively

rely

upon

the

prior

statute

or

scheme

has

nothing whatever to do with Congress’ intent -- the very basis
for the presumption against statutory retroactivity.”).
There can be no doubt that the right to go to trial is
a valuable one.
would

impose

A retroactive application of the stop-time rule

new

and

unforeseen

consequences

decision to relinquish this right.

on

Petitioner’s

This is impermissible.

C.
The Government does not deny that the stop-time rule
imposes

new

legal

consequences

on

Petitioner.

It

contends,

though, that Petitioner has no right to complain about those
consequences

because

Resp’t’s Br. 6.

he

was

not

“helpless

to

avoid”

them.

But for his 2010 prescription fraud, it notes,

the effects of our immigration laws -- including the stop-time
rule -- would never have come to bear on him.
We cannot agree that the retroactive effect of the
stop-time rule is diminished because of actions Petitioner took
after the rule’s enactment.

The question before us is whether

we may presume that a statute enacted in 1996 does not apply
retroactively to events in 1995.

18

Petitioner’s conduct in 2010

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gives us occasion to address this question, but it does not
change the answer.
Indeed, as Supreme Court precedent and our own case
law make clear, a statute may have an impermissible retroactive
effect on an alien even if the immigration consequences of that
statute were avoidable.

See Vartelas v. Holder, 132 S. Ct.

1479, 1487-88 (2012); Olatunji, 387 F.3d at 392.

The Supreme

Court was clear on this point in Vartelas v. Holder, a case
involving
IIRIRA.
week

another

alien

with

a

criminal

conviction

predating

The alien in Vartelas, a Greek immigrant, took a one-

trip

abroad

in

2003,

long

after

IIRIRA

effectively

precluded foreign travel by aliens with criminal records like
his.

The Government argued that the statute had no retroactive

effect at all, since it was the post-IIRIRA act of returning to
the

United

States

--

and

not

the

conviction -- that triggered the statute.

immigrant’s

pre-IIRIRA

The Court deemed this

argument “disingenuous,” stating:
[The immigrant’s] return to the United
States occasioned his treatment as a new
entrant,
but
the
reason
for
the
“new
disability” imposed on him was not his
lawful foreign travel.
It was, indeed, his
conviction,
pre-IIRIRA,
of
an
offense
qualifying as one of moral turpitude.
That
past misconduct, in other words, not present
travel, is the wrongful activity Congress
targeted in § 1101(a)(13)(C)(v).
132 S. Ct. at 1488-89.

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The text of the stop-time rule, similarly, leaves no
doubt about the “wrongful activity” that Congress designed it to
target.

The object of subsection (B) is to ensure that an alien

who commits an enumerated criminal offense within seven years of
admission to the United States does not go on to become eligible
for discretionary relief while immigration proceedings against
him inch slowly toward a resolution.

See Ram v. INS, 243 F.3d

510, 518 (9th Cir. 2001) (explaining that Congress “enacted the
stop-time rule in response to a belief that aliens sought to
delay deportation proceedings in order to meet the continuous
physical presence requirement”).

The rule is unconcerned with

the particular events that give rise to the alien’s removal;
indeed, it operates the same way no matter what brought about
the removal.
those

The only crimes that come within its scope are

committed

residence

before

requirement.

the
In

fulfilment
this

way,

of

the

the
rule

continuousreserves

its

effect for aliens who “abuse[] the hospitality of this country”
within a short time of being welcomed here.

In re Perez, 22 I.

& N. Dec. 689, 700 (BIA 1999).
The Government likens this case to Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006), but the comparison is inapt.

The

alien in that case had ample opportunity to seek an adjustment
of status before IIRIRA took that opportunity away from him.
See id. at 45.

He simply neglected to take advantage of it.
20

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See id. at 45-46.

Pg: 21 of 31

This rationale does not apply to Petitioner.

He did not sleep on his rights.

How could he, when the law that

threatened his ability to seek relief, IIRIRA, was on the books
before his need for that relief had even arisen?
We do not hold that Petitioner had a right to commit
more crimes.

He does not, and the repercussions of his conduct

have, accordingly, come to bear on him twice to date –- first
when the criminal court convicted him, and second when the IJ
issued an order of removal.

We simply hold that the government

cannot use the stop-time rule to add yet one more repercussion
to that list.
States

long

A lawful resident who has lived in the United
enough

to

merit

consideration

for

relief

from

removal has a settled expectation in his opportunity to request
such relief.

Courts may not disturb that expectation absent

clear evidence that Congress intended that effect.
V.
For the foregoing reasons, we grant the petition for
review and remand the case to the BIA for proceedings consistent
with this opinion.
PETITION FOR REVIEW GRANTED AND CASE REMANDED

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NIEMEYER, Circuit Judge, dissenting:
Abdul Jaghoori, a native and citizen of Afghanistan and a
lawful permanent resident of the United States since 1989, was
convicted of at least two crimes involving moral turpitude while
residing in Virginia -- a 1995 conviction for credit card theft
and a 2010 conviction for prescription fraud.

He concedes that

the

under

two

convictions

§ 1227(a)(2)(A)(ii).
his

order

of

render

him

removable

8

U.S.C.

Jaghoori seeks discretionary relief from

removal

with

his

application

for,

among

other

things, cancellation of removal under 8 U.S.C. § 1229b(a).
section

authorizes

the

Attorney

General

to

cancel

a

That
lawful

permanent resident’s removal if the resident:
(1)

has been an alien lawfully admitted for permanent
residence for not less than 5 years,

(2)

has resided in the United States continuously for
7 years after having been admitted in any status,
and

(3)

has not been convicted of any aggravated felony.

8 U.S.C. § 1229b(a) (emphasis added).
The BIA denied Jaghoori’s application for cancellation of
removal

because

he

was

unable

to

show,

as

required

by

§ 1229b(a)(2), that he had resided in the United States as a
lawful permanent resident “continuously for 7 years.”
“stop-time
credit

rule”

card

of

fraud

§
cut

1229b(d)(1),
off

the

his

running

1995
of

Under the

conviction
the

for

seven-year

residency period short of seven years, because it would have
22

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rendered him ineligible for admission into the United States
under 8 U.S.C. § 1182(a)(2)(A)(i)(I).
that

his

1995

conviction

preceded

Jaghoori noted, however,

the

effective

date

of

the

stop-time rule, which was enacted in 1996 as part of Illegal
Immigration

Reform

and

Immigrant

Responsibility

Act

of

1996

(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified as
amended

in

scattered

sections

of

the

U.S.

Code).

Jaghoori

maintained therefore that applying the rule in his case would
give it impermissible retroactive effect.

The BIA rejected this

argument, explaining:
[W]hen
assessing
statutory
eligibility
or
discretionary merit for a grant of cancellation of
removal, we . . . necessarily look at a variety of
antecedent events, including events that are both
favorable and unfavorable to the alien, and . . . an
alien’s past criminal conduct may well impact on the
operation of the statute, but only to the extent of
defining the authority to grant discretionary relief
to removable aliens.
*

*

*

[W]e find that it is the respondent’s choice to engage
in illegal conduct [underlying his 2010 conviction]
after the effective date of the new law (i.e., the
IIRIRA), that subjects him to the new and less
generous legal regime (i.e., the application of the
stop-time rule), not a past act that he is helpless to
undo up to the moment the Government finds him out.
A.R. 16-17 (internal quotation marks omitted).
On

appeal,

Jaghoori

again

presses

his

argument

that

applying the 1996 stop-time rule of § 1229b(d)(1) (effective
April 1, 1997) to his 1995 conviction in order to deny his 2011
23

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application

Filed: 11/18/2014

for

cancellation

Pg: 24 of 31

of

removal

“attaches

new

legal

consequences to [his] 1995 guilty plea, and, as such, [the rule]
should not be applied retroactively,” citing Landgraf v. USI
Film Products, 511 U.S. 244 (1994).
Because

the

legal

consequence

on

Jaghoori’s

immigration

status only attached once Jaghoori committed a second crime 13
years after IIRIRA’s enactment, I believe that the BIA got it
right.

Therefore, I would reject Jaghoori’s argument and affirm

the BIA’s ruling.
In Landgraf, the Supreme Court laid out a two-part test for
determining whether a statute applies retroactively.

First, a

court must “determine whether Congress has expressly prescribed
the statute’s proper [temporal] reach.”
280.

Landgraf, 511 U.S. at

“If so, this is the end of the analysis and there is no

need ‘to resort to judicial default rules.’”

Appiah v. INS, 202

F.3d 704, 708 (4th Cir. 2000) (quoting Landgraf, 511 U.S. at
280).

But if the statute fails to define expressly its temporal

reach, the court must determine whether the statute would have
an “impermissible retroactive effect.”
289, 320 (2001).

INS v. St. Cyr, 533 U.S.

Any retroactive effect is impermissible absent

“clear congressional intent favoring such a result.”

Landgraf,

511 U.S. at 280; see also St. Cyr, 533 U.S. at 316.
Because I agree with the majority that Congress did not
expressly prescribe the stop-time rule’s temporal reach, I too
24

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would

Filed: 11/18/2014

resolve

determining

this

whether

case
the

Pg: 25 of 31

under

statute

Landgraf’s

has

a

second

retroactive

step,

effect

on

Jaghoori’s 1995 conviction.
A statute does not operate retroactively “merely because it
is

applied

in

a

case

arising

from

conduct

antedating

the

statute’s enactment,” or because it “upsets expectations based
in prior law.”

Landgraf, 511 U.S. at 269.

Rather, a statute

has retroactive effect when it “attaches new legal consequences
to events completed before its enactment,” id. at 270, by “[1]
tak[ing]

away

or

impair[ing]

vested

rights

acquired

under

existing laws, or [2] creat[ing] a new obligation, impos[ing] a
new

duty,

or

transactions
(emphasis

attach[ing]
or

a

new

considerations

added)

(quoting

disability,

already

Soc’y

for

in

past,”

the

respect
id.

to

at
of

Propagation

269
the

Gospel v. Wheeler, 22 F. Cas. 756, 761 (C.C.D.N.H. 1814) (No.
13,156)).
Vargas

v.

Because the Supreme Court made clear in FernandezGonzales,

548

U.S.

30,

44

n.10

(2006),

that

cancellation of removal is not a vested right -- i.e., “a term
that

describes

something

more

substantial

than

inchoate

expectations and unrealized opportunities” -- IIRIRA would only
have

a

retroactive

effect

on

Jaghoori

if

it

created

a

new

obligation or attached a new disability to his prior conduct.
And

this

judgment

must

“be

informed

and

guided

by

familiar

considerations of fair notice, reasonable reliance, and settled
25

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Filed: 11/18/2014

expectations.”
Hadix,

527

Pg: 26 of 31

St. Cyr, 533 U.S. at 321 (quoting Martin v.

U.S.

343,

358

(1999))

(internal

quotation

marks

omitted).
The majority asserts that the stop-time rule attached a new
disability to Jaghoori’s 1995 conviction by preventing him from
accruing

additional

years

of

continuous

residence.

But

the

seven-year period of continuous residence is significant only
for one purpose -- obtaining discretionary relief from removal.
In 1995, Jaghoori had no need for this discretionary relief, as
his

1995

conviction

did

not

change

his

status

permanent resident or render him deportable.

as

a

lawful

Nor did he need

such relief on April 1, 1997, when IIRIRA went into effect,
because, as the majority acknowledges, Jaghoori’s “status as a
lawful permanent resident remained secure even after Congress
enacted IIRIRA in 1996.”

Ante, at 7.

His eligibility for

cancellation of removal and the attendant seven-year residency
requirement

became

relevant

only

after

he

committed

the

prescription-fraud crime in 2010.
To be sure, IIRIRA did apply more generously to one who had
committed

no

crime

in

the

past.

But

one

who

had

already

committed a crime could nonetheless avoid any future deportation
simply by abiding by the law and not committing a second crime
involving moral turpitude.

See Fernandez-Vargas, 548 U.S. at 44

(noting that “the alien’s choice” after enactment of a “new and
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less generous legal regime” was the cause of his ineligibility
for

discretionary

relief).

Thus,

while

the

majority

frames

Jaghoori’s disability from the enactment of IIRIRA in terms of
his loss of the accrual of years of continuous residence, the
disability

was,

in

actuality,

Jaghoori’s

inability

to

commit

future crimes while remaining eligible for discretionary relief
in the event that a removal proceeding were to be instituted
against him.
Properly framed, the inability to commit a future crime
cannot be considered a new disability because Jaghoori was never
entitled to commit crimes in the first place.

Jaghoori had no

greater right to commit crimes before IIRIRA was enacted than he
did

thereafter.

Nor

did

IIRIRA

impose

any

new

duties

upon

Jaghoori, since he was already required to obey the law.
The

Supreme

Court

has

so

far

recognized

only

two

circumstances in which application of IIRIRA to past conduct
would

amount

to

a

new

disability:

(1)

where

it

would

effectively ban an alien’s travel outside the United States,
Vartelas v. Holder, 132 S. Ct. 1479, 1487 (2012); and (2) where
it

would

absolute

convert

deportation

certainty,

St.

Cyr,

from
533

a
U.S.

mere
at

possibility

to

an

323.

if

an

Even

alien’s inability to commit future crimes without immigration
consequences could be considered a disability, it would be far
less debilitating than those categories of disability previously
27

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recognized

Filed: 11/18/2014

by

the

Supreme

Pg: 28 of 31

Court

and

therefore

would

not

be

cognizable under Landgraf’s second step.
The conclusion that § 1229b(d)(1) does not impose a new
disability on Jaghoori’s 1995 conviction is inevitable when one
considers Jaghoori’s reliance interests.
insists

that

whether

discretionary

relief

Jaghoori
at

the

relied

time

of

Although the majority

on

the

his

availability

1995

conviction

of
is

“irrelevant,” ante, at 17, the Supreme Court has held to the
contrary,

see

Vartelas,

132

S.

Ct.

at

1491

(“While

the

presumption against retroactive application of statutes does not
require a showing of detrimental reliance, reasonable reliance
has been noted among the ‘familiar considerations’ animating the
presumption” (citation omitted) (quoting Landgraf, 511 U.S. at
270)).

Indeed,

recognizes,

reliance

played a big part in the Court’s reasoning in St. Cyr.

See 533

U.S. at 325.

as

the

majority

itself

And we have expressly held that an alien cannot

“reasonably rely ‘on the availability of a discretionary waiver
of

deportation

activity.’”

when

choosing

to

engage

in

illegal

.

.

.

Tasios v. Reno, 204 F.3d 544, 551 (4th Cir. 2000)

(quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir. 1993));
see also LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998)
(“It would border on the absurd to argue that these aliens might
have decided not to commit drug crimes . . . had they known that
if they were not only imprisoned but also, when their prison
28

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term

Doc: 33

ended,

Filed: 11/18/2014

ordered

deported,

Pg: 29 of 31

they

could

not

ask

for

a

discretionary waiver of deportation”); St. Cyr v. INS, 229 F.3d
406, 418 (2d Cir. 2000), aff’d, 533 U.S. 289; Jurado-Gutierrez
v. Greene, 190 F.3d 1135, 1150 (10th Cir. 1999).
Additionally,

when

“fair

notice

.

.

.

and

settled

expectations” are taken into consideration, Landgraf, 511 U.S.
at 270, application of the stop-time rule to Jaghoori would not
be inequitable.

Indeed, the circumstances of the present case

are substantially similar to those in Fernandez-Vargas.

In that

case, 21 years after Fernandez-Vargas illegally returned to the
United States, the United States sought, in 2003, to reinstate
an earlier deportation order entered against him.
Vargas, 548 U.S. at 35-36.
the

reinstatement

of

discretionary waiver.
all

illegal

reentrants

a

Fernandez-

Before IIRIRA’s enactment in 1996,

deportation

order

was

subject

a

But IIRIRA changed that, mandating that
are

to

have

their

orders

of

removal

reinstated without any possibility of discretionary relief.
at 34-35.

to

Id.

Rejecting the claim that IIRIRA had an impermissible

retroactive effect when applied to Fernandez-Vargas, the Supreme
Court stated that it was “the alien’s choice to continue his
illegal presence, after illegal reentry and after the effective
date of the new law, that subject[ed] him to the new and less
generous legal regime, not a past act that he [was] helpless to
undo.”

Id. at 44.

Moreover, the Court noted, in the six-month
29

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period

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between

IIRIRA’s

Pg: 30 of 31

passage

and

its

effective

date,

Fernandez-Vargas “had an ample warning that the new law could be
applied

to

him

and

ample

opportunity

possibility by leaving the country.”
The

same

can

be

said

about

to

avoid

that

very

Id. at 45.
Jaghoori.

Like

Fernandez-

Vargas, Jaghoori became ineligible for discretionary relief with
IIRIRA’s enactment.

But it was Jaghoori’s choice in 2010 to

commit a second crime involving moral turpitude that rendered
him removable in the first place, thus “subject[ing] him[self]
to the new and less generous legal regime.”

Fernandez-Vargas,

548 U.S. at 44; see also Olatunji v. Ashcroft, 387 F.3d 383, 398
(4th Cir. 2004) (“[A] statute[] do[es] not have a retroactive
effect when a party has an opportunity to avoid all of its new
consequences”).
IIRIRA

and

And the 13-year period between the enactment of

Jaghoori’s

second

crime

in

2010

gave

him

“ample

warning” of the existence of the stop-time rule and the fact
that it could result in his removal from the United States upon
his commission of another crime.
Finally,
inapposite.
2014), the

the

cases

on

which

the

majority

relies

are

In Jeudy v. Holder, 768 F.3d 595, 597 (7th Cir.
petitioner’s

him deportable.

pre-IIRIRA

conviction

itself

rendered

Thus, the passage of IIRIRA meant that if the

government ever got around to bringing removal proceedings, the
petitioner was helpless to obtain discretionary relief.
30

Here,

Appeal: 13-1801

the

Doc: 33

Filed: 11/18/2014

government

committed

a

had

no

second

IIRIRA’s passage.

Pg: 31 of 31

basis

crime

to

remove

involving

Jaghoori

moral

until

turpitude

he

after

Indeed, the majority purports to distinguish

cases from two other circuits on this exact same ground.

Ante,

at 16 (“[I]n each of these cases, the pre-IIRIRA crime rendered
the alien immediately deportable”).
v.

Gonzales,

468

F.3d

1190,

1193

Similarly, in Sinotes-Cruz
(9th

Cir.

2006),

IIRIRA

reclassified the petitioner’s prior crimes as crimes involving
moral turpitude in a provision that Congress explicitly made
retroactive, making the petitioner immediately removable under
§ 1227(a)(2)(A)(i)

upon

IIRIRA’s

effective

date.

Again,

Jaghoori did not become removable until he committed a second
crime.

Had Jaghoori been law abiding, IIRIRA’s enactment would

have produced absolutely no adverse consequences; he would have
retained his lawful permanent residence status to this day.
finally,

in

Vartelas

“engaged

passage.”

Vartelas,
in

the
no

Court
criminal

repeatedly
activity

stressed
after

And
that

IIRIRA’s

132 S. Ct. at 1489.

Because IIRIRA’s stop-time rule imposed no new disability
on Jaghoori and thus did not have any retroactive effect, I
would deny his petition for review.

31