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Rejecting the views of six other federal appeals courts, the 3rd U.S. Circuit Court of Appeals has ruled that a new immigration law that calls for automatic deportation of certain convicted felons cannot be applied retroactively if the alien was relying on the old version of the law when he rejected a misdemeanor plea agreement and opted to stand trial. In Ponnapula v. Ashcroft, the 3rd Circuit concluded that its sister courts had all taken too narrow a view of the U.S. Supreme Court’s 2001 decision in INS v. St. Cyr, which held that the Illegal Immigration Reform and Immigrant Responsibility Act, or IIRIRA, should not be applied retroactively to aliens who entered guilty pleas before the law went into effect. Prior to the passage of IIRIRA, deportable aliens who had lived in the United States for at least seven years could request discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act. But IIRIRA repealed § 212(c) entirely, replacing it with a procedure called “cancellation of removal” that is not available to an alien convicted of any aggravated felony. In St. Cyr, the Supreme Court ruled that IIRIRA cannot be applied retroactively to aliens who entered guilty pleas before the law was enacted because it would severely impair the rights the alien possessed at the time he entered the guilty plea. Since St. Cyr, the federal appellate courts have consistently limited its retroactivity holding to the plea bargain context — rejecting any claim by an alien who was convicted at trial. Now the 3rd Circuit has broken ranks with its sister courts, holding that some aliens who rejected plea agreements may still be entitled to the benefit of the old law. “Our disagreement with the courts that have held that IIRIRA’s repeal of Section 212(c) relief is not impermissibly retroactive with respect to aliens who went to trial is that those courts have erected too high a barrier to triggering the presumption against retroactivity,” Senior 3rd Circuit Judge Edward R. Becker wrote. Becker said that the other appeals courts have failed to follow the dictates of the U.S. Supreme Court’s 1994 decision in Landgraf v. USI Film Products, which established a test for deciding whether the repeal of a law had “an impermissible retroactive effect.” In Landgraf, Becker said, the justices found there is a “presumption against statutory retroactivity” in the absence of a clear command from Congress. A statute is impermissibly retroactive, the Landgraf Court said, when it attaches new legal consequences to prior events because its application “would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Becker said that the other appellate courts — the 1st, 2nd, 4th, 7th, 9th and 11th circuits — erred by insisting that an alien show “actual reliance” to reap the benefit of the presumption against retroactivity. “The Supreme Court has never required actual reliance or evidence thereof in the Landgraf line of cases, and has in fact assiduously eschewed an actual reliance requirement,” Becker wrote. Becker found that the appeal by Murali Krishna Ponnapula presented the question of whether application of IIRIRA “would have a similarly impermissible retroactive effect” when applied to an alien who turned down a plea agreement. Ponnapula turned down a misdemeanor plea agreement and went to trial when § 212(c) was still in effect and was convicted of a felony by the jury. But Becker found that Ponnapula “went to trial in reliance on the advice of his counsel that, even if he were found guilty, he would very likely not receive a sentence that would render him ineligible for Section 212(c) relief, because of his very minor role in the offense.” Government lawyers argued that Ponnapula was precluded from claiming retroactive effect because St. Cyr is limited to aliens who entered guilty pleas. Becker disagreed, saying St. Cyr “is simply one application of the general principles articulated in Landgraf that counsel against interpreting statutes to have retroactive effect.” The same logic applies, Becker found, in cases where the alien opted to go to trial on the basis of legal advice that he would not be jeopardizing his immigration rights. “Because aliens such as Ponnapula who affirmatively turned down plea agreements had a reliance interest in the potential availability of Section 212(c) relief, we hold that IIRIRA’s repeal of Section 212(c) is impermissibly retroactive with respect to such aliens,” Becker wrote in an opinion joined by 3rd Circuit Judges Marjorie O. Rendell and Maryanne Trump Barry. According to court papers, Ponnapula, a native of India, was indicted in 1993 by a New York state grand jury on charges of grand larceny in the first degree. The offense involved a fraudulent application submitted to the Bank of India for a loan to generate working capital, secured by a valuable parking lot located near LaGuardia Airport in New York City. The loan application was submitted by a group headed by Ponnapula’s brother, Dr. P.S. Prasad. Prasad and his assistant, Vijay Dandapani, prepared a loan application in the name of a shell company, listed Ponnapula as its nominal president, and submitted an inflated personal net worth statement over his name. Becker found that the undisputed evidence established that Prasad and Dandapani “did all of this without Ponnapula’s knowledge” and that Dandapani “forged Ponnapula’s signature on both the loan application and the net worth statement.” Over the next year, Ponnapula and the Manhattan district attorney’s office engaged in plea negotiations. The DA’s office offered to allow him to plead guilty to a misdemeanor with a probationary sentence. Ponnapula considered the offer and the immigration consequences of pleading guilty vs. going to trial. His lawyer advised him that if he was convicted, he would very likely receive the minimum sentence of only one to three years’ imprisonment, which is less than the five years necessary to disqualify an alien from § 212(c) relief. Becker found that “Ponnapula reasonably believed that even if he were convicted of a felony after trial he would still likely be eligible for hardship relief from deportation pursuant to former Section 212(c). In reliance on this advice, Ponnapula decided to turn down the misdemeanor offer and proceeded to trial.” The lawyer’s advice was “easily understandable,” Becker said, because the evidence at trial “barely established criminality.” Ponnapula’s participation was “so limited,” Becker noted, that the trial judge set aside the jury’s guilty verdict and dismissed the indictment as to Ponnapula; however, that ruling was reversed by an appellate court and the conviction was reinstated. After he had finished serving his sentence, the INS detained Ponnapula and sought his deportation on the grounds that he was convicted of an “aggravated felony.” But U.S. District Judge Sylvia Rambo of the Middle District of Pennsylvania ruled that IIRIRA could not be applied retroactively in Ponnapula’s case despite his decision to stand trial. Rambo found that “in deciding not to accept the plea bargain offered, but instead to go to trial, petitioner conformed his conduct to the settled expectation that Section 212(c) relief would be available. Accordingly, the court finds that foreclosing Section 212(c) relief to petitioner would have an impermissible retroactive effect.” Becker agreed, noting that since Ponnapula had lived continuously in the United States for seven years and had been sentenced to less than five years’ imprisonment, he would have been eligible for § 212(c) relief had it not been eliminated. “Indeed, it would appear from the record that he would likely have been granted it: Ponnapula’s wife and two children as well as several of his brothers are naturalized United States citizens,” Becker wrote. “All of them live in this country. Ponnapula’s 14-year-old and 20-year-old daughters do not speak Telgu, the native language of their parents. With the exception of the first one and one-half years of the older daughter’s infancy, each has spent a total of only six weeks in India in their entire lives.” Ponnapula’s youngest daughter is in the ninth grade, Becker noted, and “removal of her father would lead to her mother leaving the country, and would force the daughter to reside in a place where she has no ties and does not speak the language.” Becker also noted that Ponnapula “had been approved to become a United States citizen and was planning to take the oath in 1993, but did not do so because he was indicted for this offense before the oath could be administered.”

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