Filed: Jun. 21, 2017
Latest Update: Mar. 03, 2020
Summary: 15-516 Centurion v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2016 (Argued: February 28, 2017 Decided: June 21, 2017) Docket No. 15-516 _ CHARLES WILLIAM CENTURION, Petitioner, —v.— JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _ B e f o r e: KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges. _ Petitioner Charles William Centurion, a lawful permanent resident of the United States, was placed in removal proceedings after a brief 2
Summary: 15-516 Centurion v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _ August Term, 2016 (Argued: February 28, 2017 Decided: June 21, 2017) Docket No. 15-516 _ CHARLES WILLIAM CENTURION, Petitioner, —v.— JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _ B e f o r e: KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges. _ Petitioner Charles William Centurion, a lawful permanent resident of the United States, was placed in removal proceedings after a brief 20..
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15-516
Centurion v. Sessions
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2016
(Argued: February 28, 2017 Decided: June 21, 2017)
Docket No. 15‐516
_______________
CHARLES WILLIAM CENTURION,
Petitioner,
—v.—
JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL,
Respondent.
_______________
B e f o r e:
KATZMANN, Chief Judge, POOLER and LYNCH, Circuit Judges.
_______________
Petitioner Charles William Centurion, a lawful permanent resident of the
United States, was placed in removal proceedings after a brief 2007 trip to the
Dominican Republic because of a drug offense he committed in Texas in 1990.
The drug offense was not finally adjudicated until 2007. Between the date of the
commission of Centurion’s crime and the date of its final adjudication, Congress
passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”). Prior to IIRIRA’s passage, lawful permanent residents who left the
United States for brief trips were not subject to formal admission procedures
upon their return to the United States. After IIRIRA’s passage, certain lawful
permanent residents returning to the United States from a brief trip abroad must
seek formal admission to the United States. Invoking Vartelas v. Holder, 566 U.S.
257 (2012), and the presumption against retroactive legislation, Centurion claims
that because he committed his drug offense prior to IIRIRA’s passage, he should
not have been forced to seek admission to the United States after his brief
vacation to the Dominican Republic in 2007. We agree and conclude that the
Board of Immigration Appeals (“BIA”) should evaluate Centurion’s motions to
reopen his removal proceedings and to stay his removal under the law in effect
at the time of the commission of Centurion’s 1990 drug offense.
Accordingly, we GRANT the petition for review, VACATE the BIA’s
January 27, 2015 order, and REMAND the case to the BIA for further
proceedings consistent with this opinion.
_______________
ALINA CHARNIAUSKAYA (Theodore N. Cox, on the brief), Law Office of Theodore
N. Cox., New York, NY for Petitioner.
SABATINO F. LEO, Trial Attorney (Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, and Anthony P. Nicastro, Assistant Director, Office of
Immigration Litigation, on the brief), United States Department of Justice, Civil
Division, Washington, DC for Respondent.
_______________
KATZMANN, Chief Judge:
In this case, we are called on to determine whether the presumption
against retroactive legislation bars the application of an immigration statute.
After Petitioner Charles William Centurion committed a drug crime but before
Centurion’s crime was adjudicated, Congress passed a statute with immigration
2
consequences for any lawful permanent resident who “has committed” a drug
crime. 8 U.S.C. § 1101(a)(13)(C)(v). The question is whether the statute can be
given effect with respect to Centurion’s crime, even though Centurion committed
the crime before the statute’s passage. We conclude that the presumption against
retroactive legislation bars such an application because the plain text of the
statute attaches legal consequences at the time a lawful permanent resident
commits a crime, rather than at the time of conviction.
BACKGROUND
Petitioner Charles William Centurion is a native and citizen of Peru. On
November 4, 1989, he became a lawful permanent resident of the United States.
In 1990, Centurion was arrested and charged in the Criminal District Court for
Dallas County, Texas with conspiracy to possess cocaine. Centurion posted bail
and fled the state. His Texas criminal case remained unresolved for seventeen
years.
During Centurion’s years as a fugitive, Congress took two legislative
actions material to his case. To fully describe the import of these actions on
Centurion’s case, it is necessary to explain some general principles of
immigration law. First, the Attorney General formerly enjoyed the discretion,
3
under certain circumstances, to waive the deportation of aliens under § 212(c) of
the Immigration and Nationality Act (“INA”). An alien subject to deportation
could apply for such a waiver, which was generally known as “212(c) relief.” See
INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The first Congressional action
material to Centurion’s case was the repeal of INA § 212(c): in 1996, through the
passage of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104‐132, § 440(d), 110 Stat. 1214, 1276–77, and then
IIRIRA, Pub.L. No. 104‐208, § 304(b), 110 Stat. 3009, 3009‐597, Congress narrowed
and ultimately eliminated § 212(c) relief and replaced it with cancellation of
removal, 8 U.S.C. § 1229b(a).
The second Congressional action material to Centurion’s case concerned
the Fleuti doctrine. Under Rosenberg v. Fleuti, 374 U.S. 449 (1963), a lawful
permanent resident of the United States was not subject to exclusion
proceedings, the pre‐IIRIRA analogue to removal proceedings for an alien
seeking entry into the United States, if the lawful permanent resident’s departure
from the United States was “an innocent, casual, and brief excursion.” Id. at 462.
In other words, lawful permanent residents could come and go from the United
States on short trips without formally seeking admission. Through the passage of
4
IIRIRA in 1996, Congress ended the Fleuti doctrine. See Vartelas v. Holder, 620 F.3d
108, 116–18 (2d Cir. 2010) (“Vartelas I”), rev’d on other grounds, 566 U.S. 257 (2012).1
Thus, “lawful permanent residents returning post‐IIRIRA . . . may be required to
seek an admission into the United States, without regard to whether the alien’s
departure from the United States might previously have been ranked as brief,
casual, and innocent under the Fleuti doctrine.” Vartelas v. Holder, 566 U.S. 257,
262–63 (2012) (“Vartelas II”) (internal quotation marks and brackets omitted). In
other words, under 8 U.S.C. § 1101(a)(13)(C)(v), a lawful permanent resident
must seek formal admission—even if returning from a brief trip abroad—if he
has committed a drug offense or a crime of moral turpitude. In turn, a lawful
permanent resident who has been convicted of or who admits committing a drug
offense or a crime of moral turpitude is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i).
1 As will be discussed in greater detail below, the Supreme Court overruled Vartelas I in
part. Contrary to our decision in Vartelas I, the Supreme Court held that IIRIRA could
not be applied retroactively to deprive Vartelas of the Fleuti doctrine. Vartelas v. Holder,
556 U.S. 257, 275–76 (2012) (“Vartelas II”). The Court left untouched the portion of our
decision in which we deferred to the BIA and held that IIRIRA overruled the Fleuti
doctrine. Indeed, it explicitly “assume[d], but [did] not decide, that IIRIRA’s
amendments to § 1101(a)(13)(A) abrogated Fleuti.” Vartelas II, 566 U.S. at 262 n.2. Thus,
we adhere to the portion of our decision in Vartelas I that remains good law, as we
would in any event, since the BIA’s determination that IIRIRA overruled Fleuti was
reasonable. See In re Collado‐Munoz, 21 I. & N. Dec. 1061, 1065 (BIA 1998). Moreover,
since both Vartelas decisions were issued, we have recognized in dicta that “IIRIRA
superseded Fleuti.” Nuñez Peña v. Lynch, 823 F.3d 756, 758 (2d Cir. 2016).
5
Because of these two changes—the elimination of § 212(c) relief and the
end of the Fleuti doctrine—Centurion faced a significantly different immigration
law landscape when, in 2005, he was arrested in Puerto Rico on an outstanding
warrant from his 1990 Texas drug offense. After his release from custody,
Centurion went to Texas to resolve his criminal case. On April 10, 2007, he
pleaded nolo contendere to conspiracy to possess cocaine in violation of Texas
Health and Safety Code § 481.115 and received six months of community
supervision. After Centurion complied with the terms of his probation, the
proceedings against him in Texas criminal court were dismissed.
On September 25, 2007, the Department of Homeland Security (“DHS”)
questioned Centurion as he attempted to enter the United States after a brief
vacation in the Dominican Republic. During this questioning, Centurion
admitted that he was an alien and informed DHS of his 1990 arrest in Texas and
his 2005 arrest in Puerto Rico. On January 18, 2008, Centurion was served with a
Notice to Appear stating he was subject to removal pursuant to INA §
212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), because he was alien convicted
of a controlled substance offense, namely conspiracy to possess cocaine.
6
On May 19, 2009, an Immigration Judge (“IJ”) pretermitted Centurion’s
application for § 212(c) relief and ordered him removed. Specifically, the IJ relied
on INS v. St. Cyr, 533 U.S. 289 (2001), and Landgraf v. USI Film Prods., 511 U.S. 244
(1994), to conclude that § 212(c) relief was unavailable to Centurion because he
pleaded nolo contendere to his drug offense on April 10, 2007, years after IIRIRA
came into effect. On June 23, 2011, the BIA dismissed Centurion’s appeal from
the IJ’s decision. This Court dismissed Centurion’s petition for review of the
BIA’s decision, holding “that the legal regime in force at the time of an alien’s
conviction determines whether an alien is entitled to seek § 212(c) relief.”
Centurion v. Holder, 755 F.3d 115, 124 (2d Cir. 2014) (“Centurion I”).
On October 23, 2014, Centurion filed a motion before the BIA to reopen
and terminate his removal proceedings and to stay his removal. Centurion
argued that the untimeliness of his motion to reopen should be excused because
of an intervening change in the law, namely the Supreme Court’s decision in
Vartelas II, 566 U.S. 257 (2012). In Vartelas II, the Court held that, to the extent that
IIRIRA eliminated the Fleuti doctrine, this elimination did not apply to a lawful
permanent resident who had committed and been convicted of a crime of moral
turpitude before IIRIRA’s passage. Id. at 272. In other words, the Court held that
7
a lawful permanent resident with a pre‐IIRIRA conviction could re‐enter the
United States after a brief trip abroad without seeking admission. The Vartelas II
Court observed that “courts read laws as prospective in application unless
Congress has unambiguously instructed retroactivity.” Id. at 266. Requiring a
lawful permanent resident who had only briefly travelled abroad to seek formal
admission to the United States and thereby be deemed inadmissible as a result of
a crime fully adjudicated before IIRIRA’s passage would give IIRIRA
impermissibly retroactive effect. See id. at 267. In his motion to reopen, Centurion
argued that his criminal conduct, like that of the petitioner in Vartelas II, pre‐
dated IIRIRA and thus he should not have been forced to formally seek
admission to the United States or been placed in removal proceedings after his
brief 2007 vacation. In other words, he claimed that he was entitled to avail
himself of the Fleuti doctrine, as the petitioner was able to do in Vartelas.
The BIA denied Centurion’s motion to reopen and dismissed his motion to
stay as moot. The BIA concluded that the anti‐retroactivity holding of Vartelas II
did not apply to Centurion’s case because, although he committed his drug
offense prior to IIRIRA’s passage, the offense was not finally adjudicated until
more than a decade after IIRIRA’s passage. In reaching this conclusion, the BIA
8
relied on a footnote in Vartelas II which states that § 1101(a)(13)(C)(v) “appears to
advert to a lawful permanent resident who has been convicted of an offense
under § 1182(a)(2) (or admits to one).” Id. at 275 n.11. Centurion filed the present
petition for review of the BIA’s denial of his motion to reopen.
DISCUSSION
The question presented by Centurion’s petition is whether the Supreme
Court’s holding in Vartelas II that a lawful permanent resident with a conviction
pre‐dating IIRIRA need not formally seek admission after a brief trip abroad
applies when a lawful permanent resident’s criminal conduct occurred prior to
IIRIRA’s passage but the offense was not finally adjudicated until after IIRIRA’s
passage. Before proceeding to this question, we note the limitations of our
jurisdiction.
First, when reviewing a final order of removal against an alien who is
inadmissible because of a drug offense, we have jurisdiction to review only
constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(C), (D).
Second, Centurion’s motion to reopen his removal proceedings was
untimely because it was filed more than ninety days after the issuance of his final
administrative order of removal. See 8 U.S.C. §§ 1101(a)(47)(B), 1229a(c)(7)(C)(i).
9
The motion’s untimeliness was not excused by any regulatory exception. See 8
C.F.R. § 1003.2(c)(3). In such circumstances, Centurion’s “motion to reopen could
only be considered upon exercise of the [BIA]’s sua sponte authority.” Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009). We do not have jurisdiction to review the
BIA’s “entirely discretionary” refusal to reopen a case sua sponte. Ali v. Gonzales,
448 F.3d 515, 518 (2d Cir. 2006) (per curiam). However, we do have jurisdiction to
address the narrow question of whether the BIA “misperceived the legal
background and thought, incorrectly, that a reopening would necessarily fail.”
Mahmood, 570 F.3d at 469. In denying Centurion’s motion to reopen, the BIA set
out its understanding that “[f]or Vartelas [II] to apply to an alien’s case, . . . not
just the offense, but also the plea and conviction must be pre‐IIRIRA.” Cert.
Admin. Record 4. Under this interpretation of Vartelas II, Centurion’s motion to
reopen would necessarily fail. Therefore, we have jurisdiction to review whether
the BIA’s understanding of Vartelas II was correct.2
2 However, we emphasize that, on remand, the BIA could choose not to exercise its sua
sponte authority to reopen Centurion’s removal proceedings, regardless of the correct
meaning of Vartelas II. See Mahmood, 570 F.3d at 471. Such a decision would not be
subject to our review. Id.
10
Because the correct interpretation of Vartelas II is a question of law, we
review it de novo. See Chambers v. Office of Chief Counsel, 494 F.3d 274, 277 (2d Cir.
2007).
I.
We begin with the presumption against retroactive legislation. “The
principle that the legal effect of conduct should ordinarily be assessed under the
law that existed when the conduct took place has timeless and universal human
appeal.” Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 855 (1990).
“Elementary considerations of fairness dictate that individuals should have an
opportunity to know what the law is and to conform their conduct accordingly;
settled expectations should not be lightly disrupted.” Landgraf, 511 U.S. at 265.
In Landgraf, the Supreme Court set out a two‐step framework for
determining when the presumption against retroactive legislation bars
application of a statute. See id. at 280. The first step is to determine whether
Congress expressly provided that a statute should apply retroactively. Id. We
need not dwell on this first step because the Vartelas II Court held that “Congress
did not expressly prescribe the temporal reach of . . . 8 U.S.C. § 1101(a)(13).” 566
U.S. at 267. Proceeding to the second step of the Landgraf framework, “[t]he
11
essential inquiry . . . is ‘whether the new provision attaches new legal
consequences to events completed before its enactment.’” Id. at 273 (quoting
Landgraf, 511 U.S. at 270). To conduct this inquiry, courts engage in a “process of
judgment concerning the nature and extent of the change in the law and the
degree of connection between the operation of the new rule and a relevant past
event.” Landgraf, 511 U.S. at 270. In this process, “familiar considerations of fair
notice, reasonable reliance, and settled expectations offer sound guidance.” Id.
We do not write on a blank slate because the Supreme Court concluded in
Vartelas II that 8 U.S.C. § 1101(a)(13)(C)(v) does not apply to an alien convicted of
a relevant crime before IIRIRA’s enactment. It is clear that § 1101(a)(13)(C)(v)
“attaches new legal consequences to events completed before its enactment.”
Vartelas II, 566 U.S. at 273 (quoting Landgraf, 511 U.S. at 270). The question now at
hand is when these new consequences attach. Do they attach when an alien
engages in criminal conduct or only once the offense has been adjudicated?
To answer this question, we must construe § 1101(a)(13)(C)(v). “Statutory
construction begins with the plain text and, if that text is unambiguous, it usually
ends there as well.” United States v. Razmilovic, 419 F.3d 134, 136 (2d Cir. 2005).
Section 1101(a)(13)(C)(v) states that “[a]n alien lawfully admitted for permanent
12
residence in the United States shall not be regarded as seeking an admission into
the United States for purposes of the immigration laws unless the alien . . . has
committed an offense identified in section 1182(a)(2) of this title.” We discern no
ambiguity in this provision. The plain text of § 1101(a)(13)(C)(v) requires a lawful
permanent resident to seek formal admission if he “has committed” an offense.
Id. The legal consequences of § 1101(a)(13)(C)(v) attach at the time of an alien’s
criminal conduct. To test and ensure the soundness of our conclusion that a
statutory provision is unambiguous, it is prudent to examine those words in the
context of the larger statutory structure and related statutory provisions.
Our interpretation of § 1101(a)(13)(C)(v) is consistent with our long‐
standing interpretation of a related statutory provision. Under 8 U.S.C.
§ 1229b(a), the Attorney General may cancel the removal of aliens who satisfy
certain conditions, including that they have resided in the United States
continuously for seven years. However, such a “period of continuous residence
. . . in the United States shall be deemed to end . . . when the alien has committed
an offense referred to in section 1182(a)(2) of this title that renders the alien
inadmissible to the United States.” 8 U.S.C. § 1229b(d)(1). This is known as the
“stop‐time rule.” We have repeatedly held that “the date of the commission of
13
the offense[,]” not the date of conviction, triggers the stop‐time rule. Baraket v.
Holder, 632 F.3d 56, 60 (2d Cir. 2011) (per curiam); see Martinez v. INS, 523 F.3d
365, 369 (2d Cir. 2008); Reid v. Gonzales, 478 F.3d 510, 512 (2d Cir. 2007) (per
curiam); Tablie v. Gonzalez, 471 F.3d 60, 62 (2d Cir. 2006). The holdings of these
cases rest on the language of § 1229b(d)(1), specifically the “natural meaning,”
Baraket, 632 F.3d at 60, of the phrase “when the alien has committed an offense,” 8
U.S.C. § 1229b(d)(1) (emphasis added). The relevant language in
§§ 1101(a)(13)(C)(v) and 1229b(d)(1) is identical, and we see no reason to deviate
from our past interpretation of it here.
We also note that in various statutory provisions, including § 1229b,
Congress has expressly required an alien to have been convicted of an offense for
specific consequences to attach. For example, under 8 U.S.C. § 1229b(a)(3), “[t]he
Attorney General may cancel removal in the case of an alien who is inadmissible
or deportable from the United States if the alien . . . has not been convicted of any
aggravated felony.” (emphasis added); see also id. § 1229b(b)(1)(C) (“The Attorney
General may cancel removal of, and adjust to the status of an alien lawfully
admitted for permanent residence, an alien who is inadmissible or deportable
from the United States if the alien . . . has not been convicted of an offense under
14
[certain sections] of this title . . . .” (emphasis added)); id. § 1182(h) (“No waiver
shall be provided under this subsection in the case of an alien who has been
convicted of (or who has admitted committing acts that constitute) murder or
criminal acts involving torture, or an attempt or conspiracy to commit murder or
a criminal act involving torture.” (emphasis added)). These provisions
demonstrate that when Congress intends legal consequences to attach only at the
time of adjudication of a crime, Congress will use language to specifically
communicate that timing.
The government’s arguments against the plain text of § 1101(a)(13)(C)(v)
fall short. First, the government points out that, although the text of
§ 1101(a)(13)(C)(v) does not specifically mention convictions, the text of 8 U.S.C.
§ 1182(a)(2), to which § 1101(a)(13)(C)(v) refers, does. 8 U.S.C. § 1182(a)(2)(A)(i)
states in relevant part that “any alien convicted of, or who admits having
committed, or who admits committing acts which constitute the essential
elements of . . . a violation of . . . any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance . . . is inadmissible.”
Although § 1182(a) does expressly attach legal consequences to a conviction or
admission rather than the commission of a crime, the government’s argument
15
overlooks the role of § 1182(a) in § 1101(a)(13)(C)(v). Section 1101(a)(13)(C)(v)
forces a lawful permanent resident to seek admission when he “has committed
an offense identified in section 1182(a)(2) of this title.” 8 U.S.C. § 1101(a)(13)(C)(v)
(emphasis added). The sole purpose of § 1182(a) in § 1101(a)(13)(C)(v) is to
identify a category of crimes, including drug offenses, the commission of which
triggers certain legal consequences. The mention of convictions in § 1182(a) does
not bear directly on § 1182(a)’s identification of crimes and so sheds little light on
the question at hand.
Second, the government argues that we must defer to the BIA’s reading of
§ 1101(a)(13)(C)(v). It is true that “the BIAʹs interpretations of ambiguous
provisions of the INA are owed substantial deference unless ‘arbitrary,
capricious, or manifestly contrary to the statute.’” Mardones v. McElroy, 197 F.3d
619, 624 (2d Cir. 1999) (quoting Chevron, U.S.A, Inc. v. Nat. Resources Def. Council,
Inc., 467 U.S. 837, 844 (1984)). However, “[i]f the intent of Congress is clear, that
is the end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43.
Section 1101(a)(13)(C)(v) is not ambiguous. It states clearly that lawful
permanent residents must submit to admission proceedings if they have
16
“committed an offense identified in section 1182(a)(2) of this title.” 8 U.S.C.
§ 1101(a)(13)(C)(v). We do not owe the BIA any deference in the interpretation of
this unambiguous language.
Third, the government argues that, despite what the plain text of
§ 1101(a)(13)(C)(v) might say, in practice the consequences of § 1101(a)(13)(C)(v)
will only attach upon an alien’s conviction of a crime. Specifically, the
government observes that an official at the border will ordinarily have no way of
knowing whether a lawful permanent resident has committed a crime unless he
has been convicted of one. As the Supreme Court memorably put it: “Ordinarily,
to determine whether there is clear and convincing evidence that an alien has
committed a qualifying crime, the immigration officer at the border would check
the alien’s records for a conviction. He would not call into session a piepowder
court to entertain a plea or conduct a trial.” Vartelas II, 566 U.S. at 275 (footnote
omitted).3 We do not doubt the wisdom of this insight into the practical
application of § 1101(a)(13)(C)(v). However, regardless of the difficulties inherent
in applying a statute as written, we are bound by its text. See United States v.
3 “Piepowder (‘dusty feet’) courts were temporary mercantile courts held at trade fairs
in Medieval Europe; local merchants and guild members would assemble to hear
commercial disputes. These courts provided fast and informal resolution of trade
conflicts, settling cases while the merchants’ feet were still dusty.” Vartelas II, 566 U.S. at
275 n.12 (internal quotation marks omitted).
17
Messina, 806 F.3d 55, 67 (2d Cir. 2015) (“[W]e first consider whether the language
at issue has a plain and unambiguous meaning with regard to the particular
dispute in the case. If it does, that meaning controls without need for further
inquiry.” (internal quotation marks and citation omitted)). Accordingly, for
purposes of the retroactivity analysis in this case, the legal consequences of a
lawful permanent resident’s commission of a drug offense attach at the time of
commission, even if, in practice, those consequences may not be enforceable in
any meaningful way until after the lawful permanent resident is convicted of the
crime.
Because § 1101(a)(13)(C)(v) attaches legal consequences to the commission
of drug offenses and Centurion committed his Texas drug offense in 1990, six
years prior to IIRIRA’s passage, § 1101(a)(13)(C)(v) “attache[d] new legal
consequences to events completed before its enactment.’” Vartelas II, 566 U.S. at
273 (quoting Landgraf, 511 U.S. at 270). Therefore, § 1101(a)(13)(C)(v) cannot be
applied to Centurion without violating the presumption against retroactive
legislation. This means that the Fleuti doctrine should apply to Centurion’s five‐
day vacation to the Dominican Republic in 2007. See id. at 275.
18
II.
The government also raises a series of arguments that past decisions of the
Supreme Court and of this Court require us to deny Centurion’s petition. With
respect to the Supreme Court, the government claims that we are bound by
Vartelas II to deny Centurion’s petition. The government understands Vartelas II
to hold that the Fleuti doctrine does not apply if a lawful permanent resident
merely committed but was not convicted of a relevant crime prior to IIRIRA’s
enactment. Vartelas II contains no such holding. As we explained in Centurion I,
“Vartelas [II] did not turn on a distinction between the date of the offense and the
date of conviction: the Supreme Court had no occasion to consider the issue in
that case because both events, offense and conviction, took place pre‐IIRIRA.”
755 F.3d at 123. The petitioner in Vartelas II had been convicted of conspiracy to
make a counterfeit security in 1994, two years prior to IIRIRA’s passage. Vartelas
II, 566 U.S. at 260. Therefore, to the extent the Vartelas II Court discussed in
passing in a footnote whether the date of commission or conviction of a crime
triggered its retroactivity analysis, we think this discussion was meant to alert us
to some of the interpretive and practical challenges posed by § 1101(a)(13)(C)(v),
but not to definitively resolve them.
19
The government also claims that our own past decisions foreclose
Centurion’s present petition. However, the decisions on which the government
relies, Centurion I and Domond v. INS, 244 F.3d 81 (2d Cir. 2001), concerned
AEDPA and IIRIRA’s limitation and elimination of § 212(c) relief, not IIRIRA’s
elimination of the Fleuti doctrine. Crucially, in the § 212(c) context, “[i]t [was] the
conviction, not the underlying criminal act, that trigger[ed] the disqualification
from § 212(c) relief.” Domond, 244 F.3d at 85–86 (quoting St. Cyr v. INS, 229 F.3d
406, 418 (2d Cir. 2000)) (internal quotation marks omitted). In the present context,
the underlying criminal act triggers the necessity of applying for readmission
into the United States. As such, Centurion I and Domond do not control the
present case.
To fully explain the limited relevance of Centurion I and Domond to our
present decision, it is necessary to chart the trajectory of judicial decisions
following the passage of AEDPA and IIRIRA. AEDPA barred aliens who had
committed certain crimes from receiving relief under § 212(c), and IIRIRA then
repealed § 212(c) altogether. See AEDPA, Pub. L. No. 104‐132, § 440(d), 110 Stat.
1214, 1277; IIRIRA, Pub. L. No. 104‐208, § 304(b), 110 Stat. 3009, 3009‐597. In INS
v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that AEDPA and IIRIRA’s
20
limitation and elimination of § 212(c) relief did not apply to aliens convicted of
relevant crimes before the passage of AEDPA and IIRIRA. Id. at 326. In other
words, such persons could still make use of § 212(c). In Domond, this Court
clarified that AEDPA’s limitations on § 212(c) relief did apply if an alien only
committed the relevant offense before AEDPA’s passage, but was convicted of
the offense after AEDPA’s passage. 244 F.3d at 85–86.
Because Domond barred Centurion from seeking § 212(c) relief, Centurion
argued on his prior appeal that Domond did not survive the Supreme Court’s
decision in Vartelas II. In Centurion I, this Court held that Domond survived
Vartelas II because Vartelas II did not address whether the date of commission or
the date of conviction of a crime was the key date for retroactivity purposes.
Centurion I, 755 F.3d at 123. Centurion I does not directly control the outcome of
this case because Centurion I concerned the retroactivity of the elimination of
§ 212(c) relief, not the retroactivity of § 1101(a)(13)(C)(v). In addition, the
reasoning of Centurion I is not applicable here because Centurion I did not decide
the retroactivity issue as a matter of first impression. Centurion I focused on
whether Vartelas II had sub silentio overruled a binding Second Circuit precedent,
Domond, rather than on the underlying question of the crucial date for a
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retroactivity analysis. There is no controlling precedent analogous to Domond
that resolves the retroactivity issue with respect to § 1101(a)(13)(C)(v), as
opposed to the repeal of § 212(c).
Although Centurion I is of only minimal relevance to our present decision,
the reasoning of Domond is applicable. However, Domond’s insights play out
differently in the § 1101(a)(13)(C)(v) context than in the § 212(c) context.
Specifically, our holding in Domond that the date of conviction was the key date
for retroactivity purposes in the § 212(c) context rested on three key points. Each
cuts the other way in the present context. First and most importantly, in Domond,
we observed that “[i]t is the conviction, not the underlying criminal act, that
triggers the disqualification from § 212(c) relief.” 244 F.3d at 85–86 (quoting St.
Cyr, 229 F.3d at 418) (internal quotation marks omitted). By contrast, in the
present case, the plain language of § 1101(a)(13)(C)(v) attaches consequences
when a lawful permanent resident “has committed an offense.”
Second, in Domond, we stated that “waivers available from [§] 212(c)
hearings were purely discretionary. Therefore, loss of the [§] 212(c) hearings,
while clearly a hardship, does not impose a new legal consequence on
[petitioner’s] pre‐AEDPA conduct.” 244 F.3d at 86. Unlike the loss of purely
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discretionary § 212(c) relief, § 1101(a)(13)(C)(v) imposes definite new legal
consequences, not attenuated hardships, on lawful permanent residents. Without
§ 1101(a)(13)(C)(v) a lawful permanent resident who has committed certain
crimes would “not be regarded as seeking an admission into the United States
for purposes of the immigration laws” upon reentry, but under
§ 1101(a)(13)(C)(v) the same lawful permanent resident is regarded as seeking
admission to the United States (and is deemed inadmissible under 8 U.S.C.
§ 1182(a)(2)). 8 U.S.C. § 1101(a)(13)(C).
Third, in Domond, we concluded that any reliance interests were minimal:
“‘[i]t would border on the absurd to argue’ that [petitioner] would have decided
not to commit a crime if he had known that he not only could be imprisoned, but
also could face deportation without the availability of a discretionary waiver of
deportation.” 244 F.3d at 86 (first alteration in original) (quoting St. Cyr., 229 F.3d
at 418). We reiterated this view in our opinion in Vartelas I, 620 F.3d at 120
(quoting St. Cyr., 229 F.3d at 418) (citing Domond, 244 F.3d at 86). However, in its
opinion in Vartelas II, the Supreme Court specifically overturned our assessment
of the likelihood of an alien’s reliance on immigration law when choosing to
commit a crime. See 566 U.S. at 272–75. The Vartelas II Court stated that the
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Vartelas II petitioner “likely relied on [pre‐IIRIRA] immigration law.” Id. at 273.
Moreover, the Court explained that reliance interests were not “essential to the
application of the retroactivity principle.” Id. at 275. To the extent that reliance
interests are relevant, Centurion is similarly situated to the petitioner in Vartelas
II: he might have been deterred from committing his crime had he known his
conduct would bar him from leaving the United States for a brief trip.
Because each of the three bases of the Domond decision weigh in
Centurion’s favor in the present context, we reach the opposite conclusion from
Domond: § 1101(a)(13)(C)(v) does not apply retroactively as of the date of
commission of a drug offense.
CONCLUSION
For the foregoing reasons, we GRANT the petition for review, VACATE
the BIA’s January 27, 2015 order, and REMAND the case to the BIA for further
proceedings consistent with this opinion.
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