the law will not apply retrospectively if it has "retroactive effect."
This second prong — deciding when a statute has an impermissible
retroactive effect — is "not always a simple or mechanical task."
Id. at 268, 114 S.Ct. 1483. The inquiry is functional. Even in the
absence of an express direction by Congress, the retrospective
application of a statute, that is, its application to conduct antedating
its enactment, is not necessarily impermissible. "Rather, the court must
ask whether the new provision attaches new legal consequences to events
completed before its enactment," a judgment informed by "familiar
considerations of fair notice, reasonable reliance, and settled
expectations." Id. at 270, 114 S.Ct. 1483.*fn3 The Court further
explained that a law had an impermissible retroactive effect when its
application to events prior to enactment 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." Id. at
280, 114 S.Ct. 1483.
C. St. Cyr and Domond
On August 23, 1999, Judge Alan H. Nevas of the District of
Connecticut, deciding three § 2241 petitions, granted habeas relief
to three lawful permanent residents — Rohan P. Dunbar, Enrico St.
Cyr, and Gyno Domond — who had committed crimes before the changes
in federal law removed their eligibility for § 212(c) relief. Judge
Nevas held that, under Landgraf the removal of § 212(c) relief could
not be applied to criminal conduct completed before the laws were
passed. See Dunbar v. INS, 64 F. Supp.2d 47 (D.Ct. 1999). The INS appealed
in all three cases, though the appeal as to Dunbar was later withdrawn.
See Domond, 244 F.3d at 84 n. 1.
In deciding the remaining appeals, the Second Circuit twice addressed
the continuing availability of § 212(c) relief to aliens who
committed aggravated felonies prior to April 24, 1996. On September 1,
2000, the Second Circuit decided the appeal as to St. Cyr, affirming the
grant of the writ. See St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000).
Relying primarily on the Landgraf analysis, the court held that §
440(d) of AEDPA could not be applied to aliens who pled guilty to
aggravated felonies prior to April 24, 1996, as many such aliens entered
their pleas in reliance on the availability of § 212(c) relief. To
hold otherwise, the Second Circuit stated, would give the statute an
impermissible retroactive effect on such aliens. See 229 F.3d at 420.
St. Cyr put forward two additional propositions. First, it broadly
asserted that, as a general matter, the retrospective application of the
bar to discretionary relief from deportation to aliens whose crimes were
committed prior to AEDPA and IIRIRA was permissible:
As an initial matter, we note that it is difficult to
argue that barring eligibility for discretionary
relief on the basis of pre-enactment criminal conduct
— as opposed to a plea going to the guilt of a
deportable crime — constitutes an impermissible
retroactive application of a statute. Indeed, we agree
It would border on the absurd to argue that these
aliens might have decided not to commit drug
might have resisted conviction more vigorously, had
they known that if they were not only imprisoned but
also, when their prison term ended, ordered
deported, they could not ask for a discretionary
waiver of deportation.
Jurado-Gutierrez [v. Greene], 190 F.3d [1135,] 1150-51
[(10th Cir. 1999)] (quoting LaGuerre [v. Reno], 164
F.3d [1035,] 1041 [7th Cir. 1998]). Thus, we conclude
that the bar to discretionary relief applies
regardless of whether a legal permanent alien's
underlying criminal conduct pre-dated the AEDPA or
229 F.3d at 418 (emphasis added). Since the court upheld the grant of
habeas relief to St. Cyr, this conclusion that other,
differently-situated aliens would not be entitled to such relief was