Argued September 26, 2012
Petition for Review of an Order of the Board of Immigration Appeals. No. A017 099 761
Before Easterbrook, Chief Judge, and Wood and Williams, Circuit Judges.
Wood, Circuit Judge.
Milija Zivkovic, a Serbian who has been in the United States since 1966, has petitioned for review of an order of the Board of Immigration Appeals ordering him removed from the United States. The Board found that Zivkovic was removable because he had committed three aggravated felonies and that he was not eligible for the special relief provided by Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c). Before this court, Zivkovic argues that none of the three felony convictions on which the Board relied can support its removal order. Even if one or more was properly counted, he continues, the Board erred when it rejected his eligibility for Section 212(c) relief. Finally, he complains that the Immigration Judge (IJ) should not have consulted certain conviction records that had been submitted for purposes of his bond proceeding when the IJ was considering his immigration petition.
Resolution of Zivkovic's petition might have been straightforward, but for the fact that two of his convictions are 35 years old, and the immigration laws have not remained static over that time. Zivkovic realizes that he must knock out all three of the aggravated felonies before his argument about Section 212(c) makes any difference, because a conviction on one alone would be enough to guarantee near-automatic removal. See Immigration and Nationality Act § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). But he believes that he can do so. Our assessment of his argument requires us to delve deeply into the history of the governing provisions of the immigration laws, and in addition to consider what level of deference we owe to the Board's effort to disentangle both the meaning of those statutes and Congress's intent over the years to make various changes retroactive. We conclude that the statutes are ambiguous and that the twin presumptions against retroactivity and implied repeal require us to grant Zivkovic's petition and to remand for further proceedings.
Zivkovic was admitted to the United States as a lawful permanent resident in 1966. Ten years later, on October 25, 1976, he pleaded guilty to the Illinois crime of burglary, now codified at 720 ILCS 5/19-1, and received a sentence of two to six years. In 1978, following a jury trial, he was convicted of attempted rape, see 720 ILCS 5/8-4 (current law defining crime of attempt); 720 ILCS 5/11-1.20 (current law defining criminal sexual assault), and was sentenced to 4 to 12 years in prison. Years later, on November 16, 2010, he was convicted under 720 ILCS 5/19-4(a)(2) for criminal trespass to a residence with a person present; for that crime, he received a three-year sentence of imprisonment. On the same day, he was convicted of aggravated battery, where the aggravating factor was the victim's age (over 60 years), and received a five-year sentence.
In 2004 Zivkovic received a Notice to Appear from the Department of Homeland Security (DHS). The Notice charged that he was removable on several grounds: first, pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien who has been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G); second, for the attempt or conspiracy to commit a crime defined in 8 U.S.C. § 1101(a)(43)(A) (murder, rape, or sexual abuse of a minor); and third, under 8 U.S.C. § 1227(a)(2)(A)(ii), as an alien who has been convicted of two crimes involving moral turpitude not arising out of a single incident. DHS temporarily closed his case in 2005 to await the conclusion of criminal proceedings in Illinois state court.
On February 22, 2011, with the state case resolved, DHS restored Zivkovic's immigration case to the calendar. This time DHS charged that Zivkovic's 2010 residential trespass conviction was also a basis for his removability because it qualified as a "crime of violence" under the INA; DHS continued to assert that his 1976 and 1978 convictions for the aggravated felonies of burglary and attempted rape supported his removal. On November 17, 2011, the IJ determined that residential trespass is a crime of violence because, like burglary, it involves a substantial risk that physical force may be used. The IJ also concluded that Zivkovic's 1976 and 1978 convictions counted as aggravated felonies because they are so defined in the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA). In reaching this conclusion, the IJ relied on a decision of the BIA holding that the Immigration Act of 1990 made "any alien who has been convicted of a crime defined as an aggravated felony, and who was placed in deportation proceedings on or after March 1, 1991,  deportable regardless of when the conviction occurred." Matter of Lettman, 22 I. & N. Dec. 365, 366 (BIA 1998) (en banc). The IJ found that Zivkovic was not eligible for discretionary waiver of removal because he went to trial rather than pleading guilty to the 1978 crime, and thus he cannot demonstrate that reliance on discretionary waiver from removal changed his response to those criminal charges.
On appeal, the BIA affirmed the IJ's determinations. Although at one point along the way, DHS had argued that Zivkovic was also removable because he had committed two crimes of moral turpitude, see 8 U.S.C. § 1227(a)(2)(A)(ii), the IJ did not specifically address that charge in his written decision. The Board also found it unnecessary to address that point; it explicitly commented that it was not reaching the moral turpitude ground and instead was affirming solely because of the aggravated felonies and ineligibility for Section 212(c) relief.
Because the standard of review that governs Zivkovic's petition is central to this case, we begin by reviewing the governing principles. To the extent that his petition raises questions of law, our review is generally de novo. Alvarado-Fonseca v. Holder, 631 F.3d 385, 389 (7th Cir. 2011). Nevertheless, we use the qualifier "generally" because the BIA is an expert agency. In I.N.S. v. Aguirre-Aguirre, the Supreme Court held that when a court of appeals confronts questions implicating the Board's "construction of the statute which it administers"—here, the INA—"the court should . . . appl[y] the principles of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984)." 526 U.S. 415, 424 (1999).
This does not mean, however, that Chevron applies to every issue that arises in an immigration case, for the simple reason that some questions of law do not depend on agency expertise for their resolution. The first preliminary question we must address is whether the question before us—what counts as a "crime of violence" for purposes of INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F)—is one for which Chevron deference is required. (For convenience, in the remainder of this opinion we omit the parallel citations to the INA and use only the citation found in Title 8.) Section 1101(a)(43)(F) says that "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." Id. (emphasis added). Section 16 of Title 18, which addresses Crimes and Criminal Procedure, is one of the "general provisions" collected in Chapter 1 of the Code. No one thinks that the Board of Immigration Appeals has the authority to set the boundaries of the term "crime of violence" for every criminal prosecution in the United States; the great majority of these cases are entirely unrelated to immigration law. Nor is there any hint that Congress intended the Board to craft a particularized definition of this general statute for use exclusively in immigration proceedings. Instead, Congress elected to refer the Board to the general definition of "crime of violence" when that becomes important for immigration purposes. In these circumstances, one cannot say that the Board exercises any delegated power to interpret the governing statute—18 U.S.C. § 16—and thus Chevron deference does not apply to that aspect of the Board's reasoning. See Flores v. Ashcroft, 350 F.3d 666, 671 (7th Cir. 2003).
The second preliminary question is whether we owe Chevron deference to the Board's decision about the retroactivity of a newly added provision of the immigration laws. At first glance, this might appear to be a closer question: after all, retroactivity (or the lack of retroactivity) is central to the determination of the content of the law at any given time. But in this case we have the benefit of a Supreme Court decision that is directly on point. In I.N.S. v. St. Cyr, 533 U.S. 289 (2001), the Court addressed the question whether certain amendments to the INA should be applied retroactively. The respondent, Enrico St. Cyr, pleaded guilty to a controlled-substance offense; he entered his plea just before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, which was quickly amended by IIRIRA, 110 Stat. 3009-546. The specific question before the Court was whether the provisions of AEDPA and IIRIRA eliminating waivers of deportation under INA § 212(c) applied retroactively to a person in St. Cyr's position. Importantly for present purposes, the Immigration and Naturalization Service (DHS's predecessor) had taken the position that the new provisions were retroactive and thus that St. Cyr was ineligible for the 212(c) waiver. Among other things, the agency argued that the Court should extend Chevron deference to "the BIA's interpretation of IIRIRA as applying to all deportation proceedings initiated after IIRIRA's effective date [as St. Cyr's was]." 533 U.S. at 320 n.45. The Supreme Court dismissed that argument with the following comment:
We only defer, however, to agency interpretations of statutes that, applying the normal "tools of statutory construction, " are ambiguous. [Chevron, 467 U.S.] at 843, n.9; INS v. Cardoza-Fonseca, [480 U.S. 421, 447-48 (1987)]. Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, Landgraf [v. USI Film Products, 511 U.S. 244, 264 (1994)], there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve.
533 U.S. at 320 n.45. Landgraf recognized that Congress has the power to make a statute retroactive, but it stressed that "a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." 511 U.S. at 268.
In Vartelas v. Holder, 132 S.Ct. 1479 (2012), the Supreme Court was again confronted with the question whether a provision of the immigration laws operated retroactively. It was a question, as the Court noted, "not addressed by Congress: As to a lawful permanent resident convicted of a crime before the effective date of IIRIRA, which regime governs, the one in force at the time of the conviction, or IIRIRA?" Id. at 1483. Noting that Congress did "not expressly prescribe the temporal reach of the IIRIRA provision in question, 8 U.S.C. § 1101(a)(13), " id. at 1487, the Court turned directly to Landgraf, with no mention of Chevron, to answer the question. It observed that the restraint added by IIRIRA ranked as a "new disability" for lawful permanent resident aliens, rejecting the dissent's argument that this was not the case because the legislature had attached no disability to past conduct. Id. at 1487-88. It then reiter- ated that "[t]he operative presumption . . . is that Congress intends its laws to govern prospectively only." Id. at 1491. As in St. Cyr, the alien had in all likelihood relied on the law that existed at the time of his plea of guilty (before IIRIRA). This independent assessment resulted in a finding of no retroactivity.
Interestingly, the government's brief in Vartelas conceded that the Second Circuit "reviews the retroactive application of statutes de novo, without Chevron deference." Brief for the Respondent at *9 [2009 WL 7498491], Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2009). The Second Circuit reiterated this rule in its Vartelas opinion, stating that it "consider[s] the issue of retroactiv-ity de novo, without giving deference to the opinion of the BIA, as the question . . . does not concern the sort of statutory gap that Congress has designated the BIA to fill, nor a matter in which the BIA has particular expertise." 620 F.3d at 117-18 (internal quotation marks omitted). Although the dissenting Justices in Vartelas disagreed on the merits, they did not question the majority's use of Landgraf as the governing standard for analyzing the retroactivity question. To the contrary, the dissent said that "the Court is correct that this case is governed by our longstanding interpretive principle that, in the absence of a contrary indication, a statute will not be construed to have retroactive application, " citing Landgraf. See Vartelas, 132 S.Ct. at 1492-93 (dissenting opinion of Scalia, J.).
Unlike our dissenting colleague, we see nothing in the Court's recent decision in Federal Communications Commission v. Arlington, 133 S.Ct. 1863 (2013), that undermines this analysis. Arlington reaffirms the general principle that a court must defer to an agency's reasonable interpretation of the scope of its own authority, regardless of whether that issue concerns the agency's jurisdiction or any other interpretation of its enabling statute. Id. at 1868 ("No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.") (Emphasis in original). Nothing in Arlington instructs courts to skip the first step of the Chevron process—that is, the assessment whether there is any ambiguity to be addressed after applying the ordinary tools of statutory construction. If those tools of statutory construction point clearly to a finding of no retroactivity, that is the end of it: the agency's views never come into play. Because the Supreme Court itself has provided an unambiguous legal rule for retroactivity questions, and we have no issue before us pertaining to the boundaries of the agency's authority, we conclude that Arlington does not drive our analysis here.
We conclude that this is not a situation in which any ambiguity (which if present would trigger deference to the agency) remains after applying the ordinary tools of statutory construction. St. Cyr tells us that Congress is the master here, and it essentially eliminates ambiguity from the picture by classifying all statutes as prospective except those that Congress has clearly designated as retroactive. Our sister circuits have come to the same conclusion. See Martinez v. I.N.S., 523 F.3d 365, 372-73 (2d Cir. 2008); Camins v. Gonzales, 500 F.3d 872, 880 (9th Cir. 2007); Hem v. Maurer, 458 F.3d 1185, 1189 (10th Cir. 2006); Dinnall v. Gonzales, 421 F.3d 247, 251 (3d Cir. 2005); Sarmiento Cisneros v. U.S. Att'y Gen., 381 F.3d 1277, 1280 (11th Cir. 2004); Arevalo v. Ashcroft, 344 F.3d 1, 9-10 (1st Cir. 2003); Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 300 n.53 (5th Cir. 2002); Bejjani v. I.N.S., 271 F.3d 670, 679-80 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 106 n.2 (4th Cir. 2001). The question whether Zivkovic's crime qualified under Section 1101(a)(43)(F) as a "crime of violence, " and the questions whether and to what extent certain amendments to the immigration laws apply retroactively, are all issues of law that this court must review de novo, without the use of Chevron deference.
We turn now to a detailed look at the governing law, which has changed over the years. The INA itself was passed in 1952 (Act of June 27, 1952, c. 477, Title I, § 101, 66 Stat. 166); it has been amended many times since then. The first such amendment that we must consider appeared in the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181. Section 7342 of that statute added the term "aggravated felony" to the definitions found in 8 U.S.C. § 1101(a) through the following new paragraph:
(43) The term "aggravated felony" means murder, any drug trafficking crime as defined in section 942(c)(2) of title 18, United States Code, or any illicit trafficking in any firearms or destructive devices as defined in section 921 of such title, or any attempt or conspiracy to commit any such act, committed within the United States.
Section 7343 of the Anti-Drug Abuse Act set out rules for the retention in custody of aliens who had committed aggravated felonies and specified that they were ineligible for voluntary departure. Section 7344 read as follows:
(a) IN GENERAL.—Section 241(a)(4) (8 U.S.C. 1251(a)(4)) is amended— (2) [sic] by inserting after the semicolon the following: "or (B) is convicted of an aggravated felony at any time after entry;".
(b) APPLICABILITY.—The amendments made by subsection (a) "8 U.S.C. 1251 note" shall apply to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony.
(Section 1251 was later transferred to 8 U.S.C. § 1227, which is now the section of the law describing which aliens are "deportable.")
It is worth noting in passing that Zivkovic did not become deportable as of November 18, 1988 (the effective date of the Anti-Drug Abuse Act) based on his 1974 and 1976 offenses. That is so for two independent reasons. First is the age of the offenses: both convictions pre-dated the "date of the enactment" of that Act, and they were therefore excluded by Section 7344(B). Second, his crimes of burglary and attempted rape did not fall within the definition of "aggravated felony" provided by Section 7342 of the Anti-Drug Abuse Act.
In 1990, Congress passed another law amending the INA; it called this simply the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. Among many other things, the 1990 Act (as we shall call it, in an effort to minimize confusing acronyms) changed the definition of "aggravated felony" and revised the grounds for deportation. It broadened the definition of "aggravated felony" in a variety of ways. Section 501(a) of the 1990 Act sets out the changes to the definition:
(a) IN GENERAL.—Paragraph (43) of section 101(a) (8 U.S.C. 1101(a)) is amended— * * * (2)by inserting "any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including" after "murder, ",
(3)by inserting after "such title, " the following: "any offense described in section 1956 of title 18, United States Code (relating to money laundering), or any crime of violence (as defined in section 16 of title 18, United States Code, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least 5 years, ",
(4)by striking "committed within the United States", (5) by adding at the end the following: "Such term applies to offenses described in the previous sentence whether in violation of Federal or State law.", and (6) by inserting before the period of the sentence added by paragraph (5) the following: "and also applies to offenses described in the previous sentence in violation of foreign law for ...