Engjull Thaqi v. Carol Jenifer, District Director, United States Immigration and Naturalization Service, James Ziegler, Commissioner, Immigration and Naturalization Service, and John Ashcroft, United States Attorney General

Citations: 377 F.3d 500; 2004 U.S. App. LEXIS 15272Docket: 03-1587

Court: Court of Appeals for the Sixth Circuit; July 23, 2004; Federal Appellate Court

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Engjull Thaqi, a legal permanent resident from Yugoslavia, appeals the district court's denial of his habeas corpus petition concerning his ineligibility for a discretionary waiver of deportation under § 212(c) of the Immigration and Nationality Act (INA). Thaqi was convicted of felonious assault in 1994 and larceny in 1995, leading to deportation proceedings initiated by the Immigration and Naturalization Service (INS) in 1997. He conceded deportability and sought a discretionary waiver, which was denied without explanation by the Immigration Judge, and the Board of Immigration Appeals (BIA) affirmed this decision based on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), claiming his jury conviction rendered him ineligible.

Thaqi's habeas petition argued that the BIA's determination was erroneous. The district court upheld the BIA's ruling, asserting that the Supreme Court's decision in INS v. St. Cyr did not apply to Thaqi's case. However, the appellate court found that the district court misapplied the rationale of the Supreme Court's ruling, which could potentially affect Thaqi's eligibility for the waiver. The court noted changes in eligibility criteria under immigration law around the time of Thaqi's deportability, emphasizing that he was eligible for consideration under the previous standards as neither of his convictions were classified as aggravated felonies. The appellate court ultimately reversed the district court's judgment.

Deportation proceedings against Thaqi began on March 10, 1997, after the standards for waivers under § 212(c) were changed due to the enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). This law amended INA § 212(c) to make individuals, like Thaqi, who had two unconnected convictions for crimes of moral turpitude ineligible for waivers. The Board of Immigration Appeals (BIA) based its decision on this provision, and Thaqi argued against the application of a new law that heightened the immigration consequences of his prior offenses.

The applicability of AEDPA to Thaqi's case hinges on the Supreme Court's ruling in INS v. St. Cyr, which examined whether a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which entirely repealed § 212(c), could be applied retroactively. The Court established a two-step test for assessing retroactive application. First, it sought to determine if Congress explicitly intended the law to apply retrospectively, ultimately finding no clear intent. Second, the Court evaluated if retroactive application would produce impermissible effects, emphasizing that it would if it impaired vested rights or imposed new obligations regarding past actions.

The Court noted that IIRIRA's repeal of § 212(c) removed the potential for relief for those who entered plea agreements under the assumption they could seek such relief, thus imposing a new disability concerning prior decisions. It highlighted that plea agreements often involve a trade-off where defendants surrender certain rights in exchange for benefits, including considerations of immigration status. The expectation of potential § 212(c) relief was likely significant for defendants when weighing plea offers against going to trial.

Charles Jideonwo’s case illustrates the significant implications of retroactive application of IIRIRA's § 304(b), which repealed INA § 212(c) relief. Initially charged with federal narcotics violations in 1994, Jideonwo engaged in plea negotiations to secure a sentence of less than five years, thereby avoiding a statutory bar on relief. Many defendants, like Jideonwo, relied on established legal practices and assurances that their pleas would not eliminate eligibility for § 212(c) relief. Retrospective enforcement of IIRIRA's restrictions against them would violate principles of fair notice and reasonable reliance.

In evaluating Thaqi's case, the court considers whether the language of AEDPA indicates Congress's intent regarding retroactivity and whether its enforcement would yield an impermissible retroactive effect. The court finds no clear intent in AEDPA's language. Applying the reasoning from St. Cyr, enforcing AEDPA against Thaqi, whose ineligibility for § 212(c) relief stemmed from a guilty plea for larceny, would impose an impermissible retroactive effect. Thaqi likely would have contested the larceny charge had he known it would affect his eligibility for relief under subsequent legislation.

While the government cites cases where retroactive application did not yield impermissible effects for petitioners convicted after jury trials, Thaqi’s situation differs because his ineligibility arose from a guilty plea. Consequently, the judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. Notably, the provision of IIRIRA is not applicable to Thaqi's case, as it became effective after both AEDPA and the commencement of proceedings against him. Additionally, under St. Cyr, a petitioner does not need to prove actual reliance on the laws to establish an impermissible retroactive effect; it suffices to be part of a class of aliens whose pleas were likely influenced by the belief in their eligibility for § 212(c) relief.