901 F.3d 1071

FRIEDLAND, Circuit Judge, dissenting:
Although I join most of the majority's opinion, I disagree with its conclusion that Petitioner was ineligible for a § 212(c) waiver. Rather, I believe that AEDPA's amendment to § 212(c) cannot be applied to Petitioner because such an application would be impermissibly retroactive. I therefore dissent from Part III(B).
As the majority describes, the pre-AEDPA version of § 212(c) allowed any lawful permanent resident who had resided in the United States for " 'seven consecutive years' to apply for a discretionary waiver from deportation." INS v. St. Cyr , 533 U.S. 289, 295, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting 8 U.S.C. § 1182(c) (1994) ). AEDPA § 440(d) amended § 212(c) to provide that a petitioner who is deportable because he has committed an aggravated felony is ineligible to apply for that waiver. See Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996). That amendment was effective April 24, 1996. See id.
Petitioner committed his offense in September 1995, before the effective date of the amendment, but he pleaded nolo contendere to that offense after § 440(d) took effect. Although previous cases have held that § 440(d)'s amendment to § 212(c) applies in cases where a petitioner pleaded guilty after § 440(d)'s effective date, we have not addressed the effect of a petitioner's having committed the offense before that date. See United States v. Velasco-Medina , 305 F.3d 839, 849 (9th Cir. 2002) ; see also Alvarez-Barajas v. Gonzales , 418 F.3d 1050, 1054 (9th Cir. 2005). Petitioner thus presents us with a question of first impression: whether § 440(d) would be impermissibly retroactive as applied to him because it would attach new consequences to the commission of his offense.
As the majority explains, "the first step in determining whether a statute has an impermissible retroactive effect is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively." St. Cyr , 533 U.S. at 316, 121 S.Ct. 2271. It is undisputed that Congress did not direct that § 440(d) should be retroactive. We must therefore "proceed to the second step and determine whether the statute would have a retroactive effect" if applied to Petitioner. Cardenas-Delgado v. Holder , 720 F.3d 1111, 1115 (9th Cir. 2013). "If the statute would operate retroactively, then [we] must apply the traditional presumption against retroactivity and prohibit retroactive application of the statute." Id. "A statute does not operate 'retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment." Landgraf v. USI Film Prods. , 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). "Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 269-70, 114 S.Ct. 1483. I agree with the majority that this case hinges on that second step.
At step two, however, I would conclude that applying AEDPA's version of § 212(c) here would be impermissibly retroactive because it would impose new consequences on Petitioner's commission of his offense. Indeed, at the time Petitioner committed his offense, he was eligible for a waiver allowing him to stay in the United States notwithstanding his conduct. But under AEDPA's version of § 212(c), Petitioner is no longer eligible for that waiver because of that same conduct.
The fact that the consequence that § 212(c) can prevent (deportation) does not kick in until a petitioner is convicted does not make the conviction itself the only relevant event for the purposes of the retroactivity analysis. In Vartelas v.Holder , 566 U.S. 257, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), the Supreme Court recognized that a newly amended immigration provision created new consequences for multiple past events-including the commission of an offense-thereby making such an application impermissibly retroactive. See id. at 261, 132 S.Ct. 1479 (refusing to apply the version of a different immigration statute that became effective only after the petitioner committed and was convicted for his crime because doing so would "attach[ ] a new disability (denial of reentry) in respect to past events," specifically his "offense , plea, and conviction" (emphasis added) ); see also id. at 272, 132 S.Ct. 1479 ("That new disability rested not on any continuing criminal activity, but on a single crime committed years before [the statute's] enactment." (emphasis added) ). And, in fact, AEDPA's version of § 212(c) speaks of "having committed" an aggravated felony, not of conviction for an aggravated felony, which further suggests that the retroactivity analysis of AEDPA's amendment to § 212(c) should be concerned with the timing of the offense. See Vartelas , 566 U.S. at 272, 132 S.Ct. 1479 (reviewing a provision that also used the language "committed an offense").
I believe that applying AEDPA's amendment to § 212(c) here would be impermissibly retroactive because Petitioner committed his offense before that amendment. See Cardenas-Delgado , 720 F.3d at 1119 (a statute is impermissibly retroactive if it "attaches new legal consequences to events completed before the enactment of the statute"). I would therefore hold that § 440(d)'s amendment does not apply here, and that Petitioner is therefore eligible for a § 212(c) waiver.
Because the majority holds otherwise, I respectfully dissent.
Because Vartelas makes clear that a retroactive law can attach new consequences to multiple past events, I do not find the majority's appeal to Lawrence v. Gonzales , 446 F.3d 221 (1st Cir. 2006), and Atkinson v. Attorney General , 479 F.3d 222 (3d Cir. 2007), persuasive. Indeed, those cases appear to presuppose that consequences can attach to one event only and that the relevant event is the conviction. See Lawrence , 446 F.3d at 225 (holding that "the date of the criminal conduct is irrelevant" under St. Cyr 's retroactivity analysis); see also Atkinson , 479 F.3d at 231 n.8 (holding that, for the purposes of the retroactivity analysis, "the relevant past event [is] the conviction [because] absent a legal determination of guilt, the alien is not subject to deportation or in need of [§] 212(c) relief").
Similarly, although the reasoning in Kelava v. Gonzales , 434 F.3d 1120 (9th Cir. 2006), would support the majority's position, I do not believe we are bound by that decision because it was abrogated by Vartelas . See Miller v. Gammie , 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). Kelava held that to invoke the presumption against retroactive applications of law, the petitioner would have "to demonstrate reliance or any sort of 'settled expectations' on the existing immigration laws." 434 F.3d at 1125. But Vartelas has since explicitly rejected the idea that reliance is "a necessary predicate for invoking the antiretroactivity principle." 566 U.S. at 273-74, 132 S.Ct. 1479. And Cardenas-Delgado reaffirmed Vartelas 's holding in the context of § 212(c) waivers. See 720 F.3d at 1119 ("[A]fter Vartelas , it is clear that someone seeking to show that a civil statute is impermissibly retroactive is not required to prove any type of reliance and that the essential inquiry is whether the new statute attaches new legal consequences to events completed before the enactment of the statute."). For the same reason that I do not believe Kelava guides our decision here, I do not find the majority's appeal to United States v. Zuniga-Guerrero , 460 F.3d 733 (6th Cir. 2006), or to Khan v. Ashcroft , 352 F.3d 521 (2d Cir. 2003), persuasive, as both turned on the absence of reliance. Compare Zuniga-Guerrero , 460 F.3d at 737 ("[I]n fact, our sister circuits have uniformly noted 'the absurdity of arguing that one would not have committed a crime in the first place ... if he had known he could not ask for a § 212(c) waiver.' " (quoting Kelava , 434 F.3d at 1125 ) ), and Khan , 352 F.3d at 522-25 (similar), with Vartelas , 566 U.S. at 272, 132 S.Ct. 1479 (rejecting as "doubly flawed" the reasoning that, because it would be "absurd" to suppose that a noncitizen committed a crime "in reliance on the immigration laws," a law is not retroactive).

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