NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 19-3825 __________ LOUIS EVANGELISTA, SR., AKA Luigi Evangelist, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA __________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A012-352-319) Immigration Judge: Paul Grussendorf __________ Argued October 5, 2020 Before: JORDAN, KRAUSE, and MATEY, Circuit Judges (Opinion filed: October 14, 2021) __________ OPINION* __________ KRAUSE, Circuit Judge. Because Appellant Louis Evangelista remained eligible for § 212(c) relief between the time that he chose to go to trial rather than take a plea deal and the time that he was * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. found guilty by a jury, we hold that AEDPA cannot be applied to withdraw that eligibility without violating the bar on retroactivity. Accordingly, we will grant the petition for review and remand to the Board of Immigration Appeals (“BIA”) to exercise its discretion whether to reopen Evangelista’s removal proceedings under the correct legal framework. See Sang Goo Park v. Att’y Gen., 846 F.3d 645, 651 (3d Cir. 2017). I. Background Historically, § 212(c) of the Immigration and Nationality Act (“INA”) permitted lawful permanent residents facing deportation to apply for a discretionary waiver of removal if they could show that (a) they had a lawful unrelinquished domicile of seven consecutive years and (b) they had not been convicted of an aggravated felony for which they served a term of at least five years’ imprisonment.1 See 8 U.S.C. § 1182(c) (1994). In 1996, however, Congress revisited § 212(c) twice in quick succession. First, in April 1996, it passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which disqualified from § 212(c) relief any noncitizen who “is deportable by reason of having committed” an aggravated felony, regardless of sentence. Pub L. No. 104-132, § 440(d), 110 Stat. 1214, 1277. Then, in September 1996, it passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which repealed § 212(c) altogether, Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-546, -597 (1996). But this repeal did not go into effect immediately, leaving § 212(c)—as amended by 1 Although by its terms § 212(c) applied only to exclusion, the BIA and federal courts also applied it to deportation proceedings. See INS v. St. Cyr, 533 U.S. 289, 295 (2001). 2 AEDPA—in place from April 1996 to April 1997. See IIRIRA § 309, 110 Stat. 3009- 625. Louis Evangelista, an Italian citizen who has resided in the United States since being admitted as a legal permanent resident in 1961, fell into that gap. In 1995, Evangelista was charged with various offenses, including tax evasion in violation of 26 U.S.C. § 7201, an aggravated felony. At that time, a conviction for this offense would not automatically disqualify him for a § 212(c) waiver so long as he was sentenced to less than five years’ imprisonment. Following his indictment, Evangelista and the Government …
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