author: Justice Stevens Justice Kennedy,

text:
    DIXON v. UNITED STATES
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
    No. 05-7053.
    Argued April 25, 2006
    Decided June 22, 2006

      J. Craig Jett, by appointment of the Court, 547 U. S. 1002, argued the cause for petitioner. With him on the briefs was Jeffrey T. Green.

      Irving L. Gornstein argued the causé for the United States. On the brief were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, Deanne E. Maynard, and Deborah Watson.

        Elliot H. Scherker, Julissa Rodriguez, Karen M. Gottlieb, Peter Goldberger, and Pamela Harris filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal.

   Justice Stevens

delivered the opinion of the Court.

In January 2003, petitioner Keshia Dixon purchased multiple firearms at two gun shows, during the course of which she provided an incorrect address and falsely stated that she was not under indictment for a felony. As a result of these illegal acts, petitioner was indicted and convicted on one count of receiving a firearm while under indictment in violation of 18 U. S. C. § 922(n) and eight counts of making false statements in connection with the acquisition of a firearm in violation of § 922(a)(6). At trial, petitioner admitted that she knew she was under indictment when she made the purchases and that she knew doing so was a crime; her defense was that she acted under duress because her boyfriend threatened to kill her or hurt her daughters if she did not buy the guns for him.

Petitioner contends that the trial judge’s instructions to the jury erroneously required her to prove duress by a preponderance of the evidence instead of requiring the Government to prove beyond a reasonable doubt that she did not act under duress. The Court of Appeals rejected petitioner’s contention, 413 F. 3d 520 (CA5 2005); given contrary treatment of the issue by other federal courts, we granted certiorari, 546 U. S. 1135 (2006).

I

At trial, in her request for jury instructions on her defense of duress, petitioner contended that she “should have the burden of production, and then that the Government should be required to disprove beyond a reasonable doubt the duress.” App. 300. Petitioner admitted that this request was contrary to Fifth Circuit precedent, and the trial court, correctly finding itself bound by Circuit precedent, denied petitioner’s request. Ibid. Instead, the judge’s instructions to the jury defined the elements of the duress defense and stated that petitioner has “the burden of proof to establish the defense of duress by a preponderance of the evidence.” Id., at 312.

Petitioner argues here, as she did in the District Court and the Court of Appeals, that federal law requires the Government to bear the burden of disproving her defense beyond a reasonable doubt and that the trial court’s erroneous instruction on this point entitles her to a new trial. There are two aspects to petitioner’s argument in support of her proposed instruction that merit separate discussion. First, petitioner contends that her defense “controverted the mens rea required for conviction” and therefore that the Due Process Clause requires the Government to retain the burden of persuasion on that element. Brief for Petitioner 41. Second, petitioner argues that the Fifth Circuit’s rule is “contrary to modern common law.” Id., at 14.

II

The crimes for which petitioner was convicted require that she have acted “knowingly,” § 922(a)(6), or “willfully,” § 924(a)(1)(D). As we have explained, “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.” Bryan v. United States, 524 U. S. 184, 193 (1998) (footnote omitted). And the term “willfully” in § 924(a)(1)(D) requires a defendant to have “acted with knowledge that his conduct was unlawful.” Ibid. In this case, then, the Government bore the burden of proving beyond a reasonable doubt that petitioner knew she was making false statements in connection with the acquisition of firearms and that she knew she was breaking the law when she acquired a firearm while under indictment. See In re Winship, 397 U. S. 358, 364 (1970). Although the Government may have proved these elements in other ways, it clearly met its burden when petitioner testified that she knowingly committed certain acts—she put a false address on the forms she completed to purchase the firearms, falsely claimed that she was the actual buyer of the firearms, and falsely stated that she was not under indictment at the time of the purchase—and when she testified that she knew she was breaking the law when, as an individual under indictment at the time, she purchased a firearm. App. 221-222.

Petitioner contends, however, that she cannot have formed the necessary mens rea for these crimes because she did not freely choose to commit the acts in question. But even if we assume that petitioner’s will was overborne by the threats made against her and her daughters, she still knew that she was making false statements and knew that she was breaking the law by buying a firearm. The duress defense, like the defense of necessity that we considered in United States v. Bailey, 444 U. S. 394, 409-410 (1980), may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself. As we explained in Bailey, “[c]riminal liability is normally based upon the concurrence of two factors, 'an evil-meaning mind [and] and evil-doing hand____’ ” Id., at 402 (quoting Morissette v. United States, 342 U. S. 246, 251 (1952)). Like the defense of necessity, the defense of duress does not negate a defendant’s criminal state of mind when the applicable offense requires a defendant to have acted knowingly or willfully; instead, it allows the defendant to “avoid liability . . . because coercive conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.” Bailey, 444 U. S., at 402.

The fact that petitioner’s crimes are statutory offenses that have no counterpart in the common law also supports our conclusion that her duress defense in no way disproves an element of those crimes. We have observed that “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Liparota v. United States, 471 U. S. 419, 424 (1985). Here, consistent with the movement away from the traditional dichotomy of general versus specific intent and toward a more specifically defined hierarchy of culpable mental states, see Bailey, 444 U. S., at 403-404, Congress defined the crimes at issue to punish defendants who act “knowingly,” § 922(a)(6), or “willfully,” § 924(a)(1)(D). It is these specific mental states, rather than some vague “evil mind,” Brief for Petitioner 42, or “ ‘criminal’ intent,” Martin v. Ohio, 480 U. S. 228, 235 (1987), that the Government is required to prove beyond a reasonable doubt, see Patterson v. New York, 432 U. S. 197, 211, n. 12 (1977) (“The applicability of the reasonable-doubt standard, however, has always been dependent on how a State defines the offense that is charged in any given case”). The jury instructions in this case were consistent with this requirement and, as such, did not run afoul of the Due Process Clause when they placed the burden on petitioner to establish the existence of duress by a preponderance of the evidence.

Ill

Having found no constitutional basis for placing upon the Government the burden of disproving petitioner’s duress de-. fense beyond a reasonable doubt, we next address petitioner’s argument that the modern common law requires the Government to bear that burden. In making this argument, petitioner recognizes that, until the end of the 19th century, common-law courts generally adhered to the rule that “the proponent of an issue bears the burden of persuasion on the factual premises for applying the rule.” Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 898 (1967-1968). In petitioner’s view, however, two important developments have established a contrary common-law rule that now prevails in federal courts: this Court’s decision in Davis v. United States, 160 U. S. 469 (1895), which placed the burden on the Government to prove a defendant’s sanity, and the publication of the Model Penal Code in 1962.

Although undisputed in this case, it bears repeating that, at common law, the burden of proving “affirmative defenses—indeed, ‘all... circumstances of justification, excuse or alleviation’—rested on the defendant.” Patterson, 432 U. S., at 202 (quoting 4 W. Blackstone, Commentaries *201); see also Martin v. Ohio, 480 U. S., at 235; Mullaney v. Wilbur, 421 U. S. 684, 693 (1975). This common-law rule accords with the general evidentiary rule that “the burdens of producing evidence and of persuasion with regard to any given issue are both generally allocated to the same party.” 2 J. Strong, McCormick on Evidence §337, p. 415 (5th ed. 1999). And, in the context of the defense of duress, it accords with the doctrine that “where the facts with regard to an issue lie peculiarly in the knowledge of a party, that party has the burden of proving the issue.” Id., at 418. Although she claims that the common-law rule placing the burden on a defendant to prove the existence of duress “was the product of flawed reasoning,” petitioner accepts that this was the general rule, at least until this Court’s decision in Davis. Brief for Petitioner 18. According to petitioner, however, Davis initiated a revolution that overthrew the old common-law rule and established her proposed rule in its place.

Davis itself, however, does not support petitioner’s position. In that case, we reviewed a defendant’s conviction for having committed murder “feloniously, wilfully, and of his malice aforethought.” 160 U. S., at 474. It was undisputed that the prosecution’s evidence, “if alone considered, made it the duty of the jury to return a verdict of guilty of the crime charged”; the defendant, however, adduced evidence at trial tending to show that he did not have the mental capacity to form the requisite intent. Id., at 475. At issue before the Court was the correctness of the trial judge’s instruction to the jury that the law “ ‘presumes every man is sane, and the burden of showing it is not true is upon the party who asserts it.’” Id., at 476. Under this instruction, “if the evidence was in equilibrio as to the accused being sane, that is, capable of comprehending the nature and effect of his acts, he was to be treated just as he would be if there were no defence of insanity or if there were an entire absence of proof that he was insane.” Id., at 479.

In reversing the defendant’s conviction, we found ourselves “unable to assent to the doctrine that in a prosecution for murder... it is the duty of the jury to convict where the evidence is equally balanced on the issue as to the sanity of the accused at the time of the killing.” Id., at 484 (emphasis added). Instead, we concluded that this defendant was “entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing [the] crime.” Ibid, (emphasis added). Our opinion focused on the “definition of murder,” explaining that “it is of the very essence of that heinous crime that it be committed by a person of ‘sound memory and discretion,’ and with ‘malice aforethought.’” Ibid. Reviewing “the adjudged cases” and “elementary treatises upon criminal law,” we found that “[a]ll admit that the crime of murder necessarily involves the possession by the accused of such mental capacity as will render him criminally responsible for his acts.” Id., at 485. Thus, when we ultimately found that the burden of proving the accused’s sanity rested on the Government, our holding rested on the conclusion that

“[Davis’] guilt cannot be said to have been proved beyond a reasonable doubt—his will and his acts cannot be held to have joined in perpetrating the murder charged—if the jury, upon all the evidence, have a reasonable doubt whether he was legally capable of committing crime, or (which is the same thing) whether he wilfully, deliberately, unlawfully, and of malice aforethought took the life of the deceased. As the crime of murder involves sufficient capacity to distinguish between right and wrong, the legal interpretation of every verdict of guilty as charged is that the jury believed from all the evidence beyond a reasonable doubt that the accused was guilty, and was therefore responsible, criminally, for his acts. How then upon principle or consistently with humanity can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, namely, the capacity in law of the accused to commit that crime?” Id., at 488.

Our opinion in Davis, then, interpreted a defendant’s sanity to controvert the necessary mens rea for the crime of murder committed “feloniously, wilfully, and of his malice aforethought,” id., at 474, as “[o]ne who takes human life cannot be said to be actuated by malice aforethought, or to have deliberately intended to take life, or to have ‘a wicked, depraved, and malignant heart/ . . . unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such an act,” id., at 485. We required the Government to prove the defendant’s sanity beyond a reasonable doubt because the evidence that tended to prove insanity also tended to disprove an essential element of the offense charged. See Davis v. United States, 165 U. S. 373, 378 (1897) (“[T]he fact of sanity, as any other essential fact in the case, must be established to the satisfaction of the jury beyond a reasonable doubt” (emphasis added)). Whether or not this reasoning correctly treated insanity as negating the mens rea for murder as defined in the statute at issue, cf. n. 4, supra, it does not help petitioner: The evidence of duress she adduced at trial does not contradict or tend to disprove any element of the statutory offenses that she committed.

Nor does the proposition for which Davis has come to stand help petitioner’s cause. Although written more narrowly in the context of a prosecution for the crime of murder, Davis was later interpreted to establish a general “rule for federal prosecutions . . . that an accused is ‘entitled to an acquittal of the specific crime charged if upon all the evidence there is reasonable doubt whether he was capable in law of committing crime.’ ” Leland v. Oregon, 343 U. S. 790, 797 (1952) (quoting Davis, 160 U. S., at 484); see also Lynch v. Overholser, 369 U. S. 705, 713 (1962) (explaining that the Davis rule applied in all federal courts). After Davis, if a federal defendant introduced sufficient evidence to raise a reasonable doubt as to his sanity, it was sufficient to create a question for the jury on which the Government bore the ultimate burden of persuasion beyond a reasonable doubt. See, e. g., Hall v. United States, 295 F. 2d 26, 28 (CA4 1961); Holloway v. United States, 148 F. 2d 665, 666 (CADC 1945); Post v. United States, 135 F. 1, 10 (CA5 1905).

In apparent recognition of the fact that Davis relied on the heightened mens rea applicable to the particular statute at issue, we held in Leland that this rule was not constitutionally mandated, 343 U. S., at 797, and Congress overruled it by statute in 1984, requiring a defendant to prove his insanity by clear and convincing evidence, 98 Stat. 2057, codified at 18 U. S. C. § 17(b). Moreover, Congress has treated the defense of insanity differently from that of duress not only by codifying it but by requiring defendants who intend to rely on an insanity defense to provide advance notice to the Government. See Fed. Rule Crim. Proc. 12.2(a). Thus, even if the rule arising from Davis may have once been relevant to an evaluation of other affirmative defenses, Congress’ differential treatment of the insanity defense and its rejection of the Davis rule are inconsistent with petitioner’s invitation to follow Davis’ lead in this case.

Indeed, petitioner’s reliance on Davis ignores the fact that federal crimes “are solely creatures of statute,” Liparota, 471 U. S., at 424, and therefore that we are required to effectuate the duress defense as Congress “may have contemplated” it in the context of these specific offenses, United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 491, n. 3 (2001) (internal quotation marks omitted); see also id., at 499 (Stevens, J., concurring in judgment) (explaining that Court was addressing whether the statute at issue foreclosed a necessity defense to specific charges brought under the statute); Bailey, 444 U. S., at 410 (“We need not speculate now, however, on the precise contours of whatever defenses of duress or necessity are available against charges brought under [18 U. S. C.J § 751(a)”). The offenses at issue in this case were created by statute in 1968, when Congress enacted the Omnibus Crime Control and Safe Streets Act (hereinafter Safe Streets Act or Act). See 82 Stat. 197. There is no evidence in the Act’s structure or history that Congress actually considered the question of how the duress defense should work in this context, and there is no suggestion that the offenses at issue are incompatible with a defense of duress. Cf. Oakland Cannabis Buyers’ Cooperative, 532 U. S., at 491. Assuming that a defense of duress is available to the statutory crimes at issue, then, we must determine what that defense would look like as Congress “may have contemplated” it.

As discussed above, the common law long required the defendant to bear the burden of proving the existence of duress. Similarly, even where Congress has enacted an affirmative defense in the proviso of a statute, the “settled rule in this jurisdiction [is] that an indictment or other pleading . . . need not negative the matter of an exception made by a proviso or other distinct clause . . . and that it is incumbent on one who relies on such an exception to set it up and establish it.” McKelvey v. United States, 260 U. S. 353, 357 (1922); see also United States v. Dickson, 15 Pet. 141, 165 (1841) (calling this “the general rule of law which has always prevailed, and become consecrated almost as a maxim in the interpretation of statutes”). Even though the Safe Streets Act does not mention the defense of duress, we can safely assume that the 1968 Congress was familiar with both the long-established common-law rule and the rule applied in McKelvey and that it would have expected federal courts to apply a similar approach to any affirmative defense that might be asserted as a justification or excuse for violating the new law.

This conclusion is surely more reasonable than petitioner’s hypothesis that Davis dramatically upset a well-settled rule of law. Petitioner cites only one federal case decided before 1968 for the proposition that it has been well established in federal law that the Government bears the burden of disproving duress beyond a reasonable doubt. But that case involved a defendant’s claim that he “lacked the specific intent to defraud required by the statute for the reason that he committed the offense under duress and coercion.” Johnson v. United States, 291 F. 2d 150, 152 (CA8 1961). Thus, when the Court of Appeals explained that “there is no burden upon the defendant to prove his defense of coercion,” id., at 155, that statement is best understood in context as a corollary to the by-then-unremarkable proposition that “the burden of proof rests upon the Government to prove the defendant’s guilt beyond a reasonable doubt,” ibid. Properly understood, Johnson provides petitioner little help in her uphill struggle to prove that a dramatic shift in the federal common-law rule occurred between Davis and the enactment of the Safe Streets Act in 1968.

Indeed, for us to be able to accept petitioner’s proposition, we would need to find an overwhelming consensus among federal courts that it is the Government’s burden to disprove the existence of duress beyond a reasonable doubt. The existence today of disagreement among the Federal Courts of Appeals on this issue, however—the very disagreement that caused us to grant certiorari in this case, see n. 1, supra— demonstrates that no such consensus has ever existed. See also post, at 25-27 (Breyer, J., dissenting) (discussing differences in treatment of the duress defense by the various Courts of Appeals). Also undermining petitioner’s argument is the fact that, in 1970, the National Commission on Reform of Federal Criminal Laws proposed that a defendant prove the existence of duress by a preponderance of the evidence. See 1 Working Papers 278. Moreover, while there seem to be few, if any, post-Davis, pre-1968 cases placing the burden on a defendant to prove the existence of duress, or even discussing the issue in any way, this lack of evidence does not help petitioner. The long-established common-law rule is that the burden of proving duress rests on the defendant. Petitioner hypothesizes that Davis fomented a revolution upsetting this rule. If this were true, one would expect to find cases discussing the matter. But no such cases exist.

It is for a similar reason that we give no weight to the publication of the Model Penal Code in 1962. As petitioner notes, the Code would place the burden on the government to disprove the existence of duress beyond a reasonable doubt. See ALI, Model Penal Code § 1.12, p. 88 (2001) (hereinafter Model Penal Code or Code) (stating that each element of an offense must be proved beyond a reasonable doubt); § 1.13(9)(c), at 91 (defining as an element anything that negatives an excuse for the conduct at issue); §2.09, at 131-132 (establishing affirmative defense of duress). Petitioner argues that the Code reflects “well established” federal law as it existed at the time. Brief for Petitioner 25. But, as discussed above, no such consensus existed when Congress passed the Safe Streets Act in 1968. And even if we assume Congress’ familiarity with the Code and the rule it would establish, there is no evidence that Congress endorsed the Code’s views or incorporated them into the Safe Streets Act.

In fact, the Act itself provides evidence to the contrary. Despite the Code’s careful delineation of mental states, see Model Penal Code §2.02, at 94-95, the Safe Streets Act attached no explicit mens rea requirement to the crime of receiving a firearm while under indictment, § 924(a), 82 Stat. 233 (“Whoever violates any provision of this chapter ... shall be fined not more than $5,000 or imprisoned not more than five years, or both”). And when Congress amended the Act to impose a mens rea requirement, it punished people who “willfully” violate the statute, see § 104(a), 100 Stat. 456, a mental state that has not been embraced by the Code, see Model Penal Code '§ 2.02(2), at 94-95 (defining “purposely,” “knowingly,” “recklessly,” and “negligently”); id., Explanatory Note, at 97 (“Though the term ‘wilfully’ is not used in the definitions of crimes contained in the Code, its currency and its existence in offenses outside the criminal code suggest the desirability of clarification”). Had Congress intended to adopt the Code’s structure when it enacted or amended the Safe Streets Act, one would expect the Act’s form and language to adhere much more closely to that used by the Code. It does not, and, for that reason, we cannot rely on the Model Penal Code to provide evidence as to how Congress would have wanted us to effectuate the duress defense in this context.

IV

Congress can, if it chooses, enact a duress defense that places the burden on the Government to disprove duress beyond a reasonable doubt. In light of Congress’ silence on the issue, however, it is up to the federal courts to effectuate the affirmative defense of duress as Congress “may have contemplated” it in an offense-specific context. Oakland Cannabis Buyers’ Cooperative, 532 U. S., at 491, n. 3 (internal quotation marks omitted). In the context of the firearms offenses at issue—as will usually be the case, given the long-established common-law rule—we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Kennedy,

concurring.

No one disputes that, subject to constitutional constraints, Congress has the authority to determine the content of a duress defense with respect to federal crimes and to direct whether the burden of proof rests with the defense or the prosecution. The question here is how to proceed when Congress has enacted a criminal statute, the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197 et seq. (hereinafter Safe Streets Act), without explicit instructions regarding the duress defense or its burden of proof. See ante, at 12-13.

When issues of congressional intent with respect to the nature, extent, and definition of federal crimes arise, we assume Congress acted against certain background understandings set forth in judicial decisions in the Anglo-American legal tradition. See United States v. Bailey, 444 U. S. 394, 415, n. 11 (1980). Those decisions, in turn, consult sources such as legal treatises and the American Legal Institute’s Model Penal Code. See, e. g., United States v. Jimenez Recio, 537 U. S. 270, 275-276 (2003); Salinas v. United States, 522 U. S. 52, 64-65 (1997). All of these sources rely upon the insight gained over time as the legal process continues. Absent some contrary indication in the statute, we can assume that Congress would not want to foreclose the courts from consulting these newer sources and considering innovative arguments in resolving issues not confronted in the statute and not within the likely purview of Congress when it enacted the criminal prohibition applicable in the particular case.

While the Court looks to the state of the law at the time the statute was enacted, see ante, at 14, the better reading of the Court’s opinion is that isolated authorities or writings do not control unless they were indicative of guiding principles upon which Congress likely would have relied. Otherwise, it seems altogether a fiction to attribute to Congress any intent one way or the other in assigning the burden of proof. It seems unlikely, moreover, that Congress would have wanted the burden of proof for duress to vary from statute to statute depending upon the date of enactment. Consistent with these propositions, the Court looks not only to our precedents and common-law traditions, but also to the treatment of the insanity defense in a 1984 statute and a proposal of the National Commission on Reform of Federal Criminal Laws, even though they both postdated the passage of the Safe Streets Act. See ante, at 12, 15.

As there is no reason to suppose that Congress wanted to depart from the traditional principles for allocating the burden of proof, the proper approach is simply to apply these principles to the context of duress. See, e. g., Schaffer v. Weast, 546 U. S. 49, 56 (2005) (where the plain text of the statute is “silent on the allocation of the burden of persuasion,” we proceed to consider the “ordinary default rule” and its exceptions). The facts needed to prove or disprove the defense “lie peculiarly in the knowledge of” the defendant. 2 K. Broun, McCormick on Evidence §337, p. 475 (6th ed. 2006); see ante, at 8-9. The claim of duress in most instances depends upon conduct that takes place before the criminal act; and, as the person who allegedly coerced the defendant is often unwilling to come forward and testify, the prosecution may be without any practical means of disproving the defendant’s allegations. There is good reason, then, to maintain the usual rule of placing the burden of production and persuasion together on the party raising the issue. See 2 Broun, supra, §337; ante, at 8. The analysis may come to a different result, of course, for other defenses.

With these observations, I join the Court’s opinion.

Justice Alito, with whom Justice Scalia joins, concurring.

I join the opinion of the Court with the understanding that it does not hold that the allocation of the burden of persuasion on the defense of duress may vary from one federal criminal statute to another.

Duress was an established defense at common law. See 4 W. Blackstone, Commentaries on the Laws of England 30 (1769). When Congress began to enact federal criminal statutes, it presumptively intended for those offenses to be subject to this defense. Moreover, Congress presumptively intended for the burdens of production and persuasion to be placed, as they were at common law, on the defendant. Although Congress is certainly free to alter this pattern and place one or both burdens on the prosecution, either for all or selected federal crimes, Congress has not done so but instead has continued to revise the federal criminal laws and to create new federal crimes without addressing the issue of duress. Under these circumstances, I believe that the burdens remain where they were when Congress began enacting federal criminal statutes.

I do not assume that Congress makes a new, implicit judgment about the allocation of these burdens whenever it ereates a new federal crime or, for that matter, whenever it substantially revises an existing criminal statute. ' It is unrealistic to assume that on every such occasion Congress surveys the allocation of the burdens of proof on duress under the existing federal case law and under the law of the States and tacitly adopts whatever the predominant position happens to be at the time. Such a methodology would create serious problems for the district courts and the courts of appeals when they are required to decide where the burden of persuasion should be allocated for federal crimes enacted on different dates. If the allocation differed for different offenses, there might be federal criminal cases in which the trial judge would be forced to instruct the jury that the defendant bears the burden of persuasion on this defense for some of the offenses charged in the indictment and that the prosecution bears the burden on others.

I would also not assume, as Justice Breyer does, see post, at 22 (dissenting opinion), that Congress has implicitly delegated to the federal courts the task of deciding in the manner of a common-law court where the burden of persuasion should be allocated. The allocation of this burden is a debatable policy question with an important empirical component. In the absence of specific direction from Congress, cf. Fed. Rule Evid. 501, I would not assume that Congress has conferred this authority on the Judiciary.

Justice Breyer, with whom Justice Souter joins, dissenting.

Courts have long recognized that “duress” constitutes a defense to a criminal charge. Historically, that defense “excuse[d] criminal conduct” if (1) a “threat of imminent death or serious bodily injury” led the defendant to commit the crime, (2) the defendant had no reasonable, legal alternative to breaking the law, and (3) the defendant was not responsible for creating the threat. United States v. Bailey, 444 U. S. 394, 409-410 (1980); see also 2 W. LaFave, Substantive Criminal Law § 9.7(b), pp. 74-82 (2003) (hereinafter LaFave); ante, at 4, n. 1 (opinion of the Court). The Court decides today in respect to federal crimes that the defense must bear the burden of both producing evidence of duress and persuading the jury. I agree with the majority that the burden of production lies on the defendant, that here the burden of persuasion issue is not constitutional, and that Congress may allocate that burden as it sees fit. But I also believe that, in the absence of any indication of a different congressional intent, the burden of persuading the jury beyond a reasonable doubt should lie where such burdens normally lie in criminal cases, upon the prosecution.

I

My disagreement with the majority in part reflects my different view about how we should determine the relevant congressional intent. Where Congress speaks about burdens of proof, we must, of course, follow what it says. But suppose, as is normally the case, that the relevant federal statute is silent. The majority proceeds on the assumption that Congress wished courts to fill the gap by examining judicial practice at the time that Congress enacted the particular criminal statute in question. Ante, at 12-16. I would not follow that approach.

To believe Congress intended the placement of such burdens to vary from statute to statute and time to time is both unrealistic and risks unnecessary complexity, jury confusion, and unfairness. It is unrealistic because the silence could well mean only that Congress did not specifically consider the “burden of persuasion” in respect to a duress defense. It simply did not think about that secondary matter. Had it done so, would Congress have wanted courts to freeze current practice statute by statute? Would it have wanted to impose different burden-of-proof requirements where claims of duress are identical, where statutes are similar, where the only relevant difference is the time of enactment? Why? Indeed, individual instances of criminal conduct often violate several statutes. In a trial for those violations, is the judge to instruct the jury to apply different standards of proof to a duress defense depending upon when Congress enacted the particular statute in question? What if in this very case the defendant’s boyfriend had given her drug money and insisted (under threat of death) not only that she use some of the money to buy him a gun, but that she launder the rest? See 18 U. S. C. § 1956 (2000 ed. and Supp. II); see infra, at 25-27.

I would assume instead that Congress’ silence typically means that Congress expected the courts to develop burden rules governing affirmative defenses as they have done in the past, by beginning with the common law and taking full account of the subsequent need for that law to evolve through judicial practice informed by reason and experience. See Davis v. United States, 160 U. S. 469 (1895); McNabb v. United States, 318 U. S. 332, 341 (1943); ante, at 14, n. 8 (opinion of the Court) (proposed general revision of the federal criminal code would have instructed courts to determine the contours of affirmative defenses “ ‘according to the principles of the common law as they may be interpreted in the light of reason and experience’ ”); 9 J. Wigmore, Evidence § 2486, p. 291 (J. Chadbourn rev. ed. 1981) (allocation of the burdens of proof present courts with questions “of policy and fairness based on experience in the different situations”). That approach would produce uniform federal practice across different affirmative defenses, as well as across statutes passed at different points in time.

II

My approach leads me to conclude that in federal criminal cases, the prosecution should bear the duress defense burden of persuasion. The issue is a close one. In Blackstone’s time the accused bore the burden of proof for all affirmative defenses. See 4 W. Blackstone, Commentaries *201; Patterson v. New York, 432 U. S. 197, 201-202 (1977). And 20th-century experts have taken different positions on the matter. The Model Penal Code, for example, recommends placing the burden of persuasion on the prosecution. ALI, Model Penal Code §1.12, p. 16, § 1.13(9)(c), p. 18, §2.09, pp. 37-38 (1985). The Brown Commission recommends placing it upon the defendant. 1 National Commission on Reform of Federal Criminal Laws, Working Papers 278 (1970). And the proposed revision of the federal criminal code, agnostically, would have turned the matter over to the courts for decision. S. 1722, 96th Cong., 1st Sess., §501 (1979). Moreover, there is a practical argument that favors the Government’s position here, namely, that defendants should bear the burden of persuasion because defendants often have superior access to the relevant proof.

Nonetheless, several factors favor placing the burden on the prosecution. For one thing, in certain respects the question of duress resembles that of mens rea, an issue that is always for the prosecution to prove beyond a reasonable doubt. See In re Winship, 397 U. S. 358, 364 (1970); Martin v. Ohio, 480 U. S. 228, 234 (1987). The questions are not the same. The defendant’s criminal activity here was voluntary; no external principle, such as the wind, propelled her when she acted. The Nicomachean Ethics of Aristotle, p. 54 (R. Browne transí. 1865). Moreover, her actions were intentional. Whether she wanted to buy the guns or not, and whether she wanted to lie while doing so or not, she decided to do these things and knew that she was doing them. Indeed, her action was willful in the sense that she knew that to do them was to break the law. Ante, at 5-7 (opinion of the Court); see also Ratzlaf v. United States, 510 U. S. 135, 136-137 (1994).

Nonetheless, where a defendant acts under duress, she lacks any semblance of a meaningful choice. In that sense her choice is not free. As Blackstone wrote, the criminal law punishes “abuse[s] of th[e] free will”; hence “it is highly just and equitable that a man should be excused for those acts, which are done through unavoidable force and compulsion.” 4 Commentaries *27. And it is in this “force and compulsion,” acting upon the will, that the resemblance to lack of mens rea lies. Cf. Austin, Ifs and Cans, in Proceedings of the British Academy 123-124 (1956) (noting difference between choosing to do something where one has the opportunity and ability to do otherwise and choosing to do something where one lacks any such opportunity or ability). Davis v. United States, supra, allocated the federal insanity defense burden to the Government partly for these reasons. That case, read in light of Leland v. Oregon, 343 U. S. 790, 797 (1952), suggests that, even if insanity does not always show the absence of mens rea, it does show the absence of a “ ‘vicious will.’ ” Davis, supra, at 484 (citing Blackstone; emphasis added).

For another thing, federal courts (as a matter of statutory construction or supervisory power) have imposed the federal-crime burden of persuasion upon the prosecution in respect to self-defense, insanity, and entrapment, which resemble the duress defense in certain relevant ways. In respect to both duress and self-defense, for example, the defendant’s illegal act is voluntary, indeed, intentional; but the circumstances deprive the defendant of any meaningful ability or opportunity to act otherwise, depriving the defendant of a choice that is free. Insanity, as I said, may involve circumstances that resemble, but are not identical to, a lack of mens rea. And entrapment requires the prosecution to prove that the defendant was “predisposed” to commit the crime—a matter sometimes best known to the defendant.

As to self-defense, see First Circuit Pattern Criminal Jury Instructions § 5.04 (1998); United States v. Thomas, 34 F. 3d 44, 47 (CA2 1994); Government of Virgin Islands v. Smith, 949 F. 2d 677, 680 (CA3 1991); United States v. Harris, Nos. 95-5637, 95-5638, 1996 U. S. App. LEXIS 22040, *4-*5 (CA4, Aug. 27, 1996); United States v. Branch, 91 F. 3d 699, 714, n. 1 (CA5 1996); Sixth Circuit Pattern Criminal Jury Instructions § 6.06 (2005); United States v. Jackson, 569 F. 2d 1003, 1008, n. 12 (CA7 1978); United States v. Pierre, 254 F. 3d 872, 876 (CA9 2001); United States v. Corrigan, 548 F. 2d 879, 883 (CA10 1977); United States v. Alvarez, 755 F. 2d 830, 842 (CA11 1985); Bynum v. United States, 408 F. 2d 1207 (CADC 1968); see also Mullaney v. Wilbur, 421 U. S. 684, 702, n. 30 (1975) (noting this as the “‘majority rule’”).

As to insanity, see Davis, 160 U. S., at 486; Leland, supra, at 797 (making clear that Davis determined burden allocations as a matter of federal, but not constitutional, law); but see 18 U. S. C. § 17(b) (overruling this default rule to place the burden on the defendant by clear and convincing evidence). As to entrapment, see Jacobson v. United States, 503 U. S. 540, 554 (1992) (reversing the judgment affirming the conviction because “the prosecution failed, as a matter of law, to adduce evidence to support the jury verdict that petitioner was predisposed, independent of the Government’s acts and beyond a reasonable doubt,” to commit the crime). See also Patterson, 432 U. S., at 202 (noting that Davis “had wide impact on the practice in the federal courts with respect to the burden of proving various affirmative defenses”); Patterson, supra, at 231 (Powell, J., dissenting) (“[SJince this Court’s decision in Davis . . . federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production”).

Further, most federal courts, in respect to most federal crimes, have imposed the burden of persuasion in respect to the duress defense upon the Government, following Johnson v. United States, 291 F. 2d 150, 155 (CA8 1961), and authorities such as E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.14, p. 293 (2d ed. 1970), and Sthe Federal Judicial Center Pattern Criminal Jury Instructions §56 (1988). By the mid-1990’s, seven Circuits had squarely placed the burden of persuasion upon the prosecution; one Circuit (the Fifth) placed the burden on the defendant; and four (the Third, Fourth, Eleventh, and District of Columbia) did not, as far as I can tell, have a definitive practice. Compare United States v. Arthurs, 73 F. 3d 444, 448 (CA1 1996); United States v. Mitchell, 725 F. 2d 832, 836 (CA2 1983); United States v. Campbell, 675 F. 2d 815, 821 (CA6 1982); United States v. Talbott, 78 F. 3d 1183, 1186 (CA7 1996) (per curiam); United States v. Campbell, 609 F. 2d 922, 925 (CA8 1979); United States v. Hearst, 563 F. 2d 1331, 1336, and n. 2 (CA9 1977) (per curiam); and United States v. Falcon, 766 F. 2d 1469, 1477 (CA10 1985), with United States v. Willis, 38 F. 3d 170, 179 (CA5 1994) (putting the burden on the defendant by a preponderance). Compare also First Circuit Pattern Criminal Jury Instructions § 5.05 (1998); Sixth Circuit Pattern Criminal Jury Instructions §6.05 (1991); Seventh Circuit Pattern Criminal Federal Jury Instructions § 6.08 (1998); and Eighth Circuit Pattern Criminal Jury Instructions §§3.09, 9.02 (2000), with Fifth Circuit Pattern Criminal Jury Instructions §1.36 (2001). Petitioner adds, without contradiction, that the States allocate the burden similarly by a ratio of 2 to 1. Brief for Petitioner 32-34; Brief for United States 38, n. 30.

Beginning in 1991, the matter became more complicated because the Ninth Circuit began to require the defendant to bear the burden of proving duress in certain circumstances. United States v. Dominguez-Mestas, 929 F. 2d 1379, 1382, 1384 (per curiam). And a few years later the Third, Sixth, and Eleventh Circuits followed suit in cases concerning a closely related justification defense. See United States v. Dodd, 225 F. 3d 340, 347-350 (CA3 2000); United States v. Brown, 367 F. 3d 549, 555-556 (CA6 2004); United States v. Deleveaux, 205 F. 3d 1292, 1298-1300 (CA11 2000); Eleventh Circuit Pattern Criminal Jury Instructions § 16 (2003). But see Sixth Circuit Pattern Criminal Jury Instructions §6.05 (2005) (stating that the burden-of-proof issue for duress is undecided in that Circuit).

These latter cases, however, put the burden on the defendant only where the criminal statute narrows its mens rea requirement, i. e., the burden is the defendant’s where the statute requires that the defendant act with “knowledge” but not, suggest these courts, where the statute requires that the defendant act “willfully,” “intentionally,” or “voluntarily.” See, e. g., Dominguez-Mestas, supra, at 1382, 1384; United States v. Meraz-Solomon, 3 F. 3d 298, 300 (CA9 1993) (per curiam); Ninth Circuit Pattern Criminal Jury Instructions §§6.5, 6.6 (2003); but see United States v. Fei Lin, 139 F. 3d 1303, 1307-1308 (CA9 1998). See also Eleventh Circuit Pattern Criminal Jury Instructions § 16 (2003); United States v. Diaz, 285 F. 3d 92, 97 (CA1 2002) (indicating that this bifurcated rule might be appropriate, but noting Circuit precedent to the contrary). Similarly, the Tenth Circuit placed the burden of proving duress upon the defendant in “strict liability” cases where mens rea is not an element of the crime at all. United States v. Unser, 165 F. 3d 755, 763-765 (1999).

The apparent upshot is that four Circuits now place the burden of persuasion on the prosecution across the board; one places the burden on the prosecution if the statute requires mens rea but not otherwise; and four have held or suggested that the burden should be on the prosecution if the statute requires an intentional or willful state of mind, but not if the statute requires only knowledge. While the Circuits are divided, apparently only one (the Fifth) agrees with the position taken by the Court today.

Further, while I concede the logic of the Government’s practical argument—that defendants have superior access to the evidence—I remain uncertain of the argument’s strength. After all, “[i]n every criminal case the defendant has at least an equal familiarity with the facts and in most a greater familiarity with them than the prosecution.” Tot v. United States, 319 U. S. 463, 469 (1943). And the strict contours of the duress defense, as well as the defendant’s burden of production, already substantially narrow the circumstances under which the defense may be used. A defendant may find it difficult, for example, to show duress where the relevant conduct took place too long before the criminal act. Cf. ante, at 18-19 (Kennedy, J., concurring). That is because the defendant must show that he had no alternative to breaking the law. Supra, at 20-21. And that will be the more difficult to show the more remote the threat. See also LaFave § 9.7, at 77-79 (duress generally requires an “immediate” or “imminent” threat, that the defendant “take advantage of a reasonable opportunity to escape,” and that the defendant “terminate his conduct ‘as soon as the claimed duress . . . had lost its coercive force’”). More important, the need to prove mens rea can easily present precisely the same practical difficulties of proof for the prosecutor. Suppose for example the defendant claims that an old lady told him that the white powder he transported across the border was medicine for her dying son. Cf. United States v. Mares, 441 F. 3d 1152 (CA10 2006). See also Mullaney v. Wilbur, 421 U. S., at 702 (requiring the government to prove an absence of passion in a murder conviction imposes “no unique hardship on the prosecution”).

It is particularly difficult to see a practical distinction between this affirmative defense and, say, self-defense. The Government says that the prosecution may “be unable to call the witness most likely to have information bearing on the point,” namely, the defendant. Brief for United States 21. But what is the difference in this respect between the defendant here, who says her boyfriend threatened to kill her, and a battered woman who says that she killed her husband in self-defense, where the husband’s evidence is certainly unavailable? See also Jacobson, 503 U. S. 540 (entrapment; need to prove “propensity”). Regardless, unless the defendant testifies, it could prove difficult to satisfy the defendant’s burden of production; and, of course, once the defendant testifies, cross-examination is possible.

In a word, I cannot evaluate the claim of practicality without somewhat more systematic evidence of the existence of a problem, say, in those Circuits that for many years have imposed the burden on the prosecutor. And, of course, if I am wrong about the Government’s practical need (and were my views to prevail), the Government would remain free to ask Congress to reallocate the burden.

Finally, there is a virtue in uniformity, in treating the federal statutory burden of persuasion similarly in respect to actus reus, mens rea, mistake, self-defense, entrapment, and duress. The Second Circuit, when imposing the burden of persuasion for duress on the prosecution, wrote that differences in this respect create “a grave possibility of juror confusion.” United States v. Mitchell, 725 F. 2d 832, 836 (1983) (Newman, J., joined by Feinberg, C. J., and Friendly, J.). They risk unfairness as well.

For these reasons I believe that, in the absence of an indication of congressional intent to the contrary, federal criminal law should place the burden of persuasion in respect to the duress defense upon the prosecution, which, as is now common in respect to many affirmative defenses, it must prove beyond a reasonable doubt. With respect, I dissent.

       Cf., e. g., United States v. Talbott, 78 F. 3d 1183, 1186 (CA7 1996) (per curiam); United States v. Riffe, 28 F. 3d 565, 568, n. 2 (CA6 1994); United States v. Simpson, 979 F. 2d 1282, 1287 (CA8 1992).

       There is no federal statute defining the elements of the duress defense. We have not specified the elements of the defense, see, e. g., United States v. Bailey, 444 U. S. 394, 409-410 (1980), and need not do so today. Instead, we presume the accuracy of the District Court’s description of these elements: (1) The defendant was under an unlawful and imminent threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) the defendant had not recklessly or negligently placed herself in a situation in which it was probable that she would be forced to perform the criminal conduct; (3) the defendant had no reasonable, legal alternative to violating the law, that is, a chance both to refuse to perform the criminal act and also to avoid the threatened harm; and, (4) that a direct causal relationship may be reasonably anticipated between the criminal act and the avoidance of the threatened harm. See App. 312-313; see generally United States v. Harper, 802 F. 2d 115, 118 (CA5 1986).

       Although §922(n) does not contain a mens rea requirement, the relevant sentencing provision, § 924(a)(1)(D), requires that a violation be committed willfully.

       As the Government recognized at oral argument, there may be crimes where the nature of the mens rea would require the Government to disprove the existence of duress beyond a reasonable doubt. See Tr. of Oral Arg. 26-27; see also, e. g., 1 W. LaFave, Substantive Criminal Law § 5.1, p. 333 (2d ed. 2003) (hereinafter LaFave) (explaining that some common-law crimes require that the crime be done “'maliciously’”); Black’s Law Dictionary 968 (7th ed. 1999) (defining malice as “[t]he intent, without justification or excuse, to commit a wrongful act”).

       Professor LaPave has explained the duress defense as follows:
      “The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Nor is it that the defendant has not engaged in a voluntary act. Rather it is that, even though he has done the act the crime requires and has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is excused .. ..” 2 LaFave § 9.7(a), at 73 (footnotes omitted).

       While Congress’ findings in support of the Safe Streets Act show that Congress was concerned because “the ease with which any person can acquire firearms ... is a significant factor in the prevalence of lawlessness and violent crime in the United States,” § 901(a)(2), 82 Stat. 225, it would be unrealistic to read this concern with the proliferation of firearm-based violent crime as implicitly doing away with a defense as strongly rooted in history as the duress defense, see, e. g., 4 W. Blackstone, Commentaries on the Laws of England 30 (1769).

       We have previously made this assumption when addressing common-law affirmative defenses, see United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 491 (2001); Bailey, 444 U. S., at 410, and the parties give us no reason to question it here.

       Indeed, when a congressional committee did consider codifying the duress defense, it would have had the courts determine the defense “according to the principles of the common law as they may be interpreted in the light of reason and experience.” S. 1437, 95th Cong., 2d Sess., §501 (1978).

       Duress, like the defense at issue in McKelvey, is an excuse that allows an exception from liability. See, e. g., 2 LaFave § 9.7, at 72 (“The rationale of the defense of duress is that the defendant ought to be excused when he ‘is the victim of a threat that a person of reasonable moral strength could not fairly be expected to resist’”).

       In D’Aquino v. United States, 192 F. 2d 338, 358, n. 11 (CA9 1951), the trial court instructed the jury that it would be warranted in acquitting the defendant on the basis that she acted under duress “ ‘[i]f you believe from the evidence that the defendant committed these acts that the Government alleges . . . under a well grounded apprehension of immediate death or serious bodily injury____This instruction did not require the Government to disprove duress beyond a reasonable doubt, and it seemingly placed the burden on the defendant to prove the existence of duress.


source: Caselaw Access Project

author: Justice Souter Justice Stevens,

license: Public Domain

text:
    FERNANDEZ-VARGAS v. GONZALES, ATTORNEY GENERAL
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
    No. 04-1376.
    Argued March 22, 2006
    Decided June 22, 2006

      David M. Gossett argued the cause for petitioner. With him on the briefs was Andrew Tauber.

      Sri Srinivasan argued the cause for respondent. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Kneedler, Donald E. Keener, and Alison Marie Igoe.

        Trina A. Realmuto, Matt Adams, Marc Van Der Hout, and Stacy Tolchin filed a brief for the American Immigration Law Foundation et al. as amici curiae urging reversal.

   Justice Souter

delivered the opinion of the Court.

For some time, the law has provided that an order for removing an alien present unlawfully may be reinstated if he leaves and unlawfully enters again. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, div. C, 110 Stat. 3009-546, enlarged the class of illegal reentrants whose orders may be reinstated and limited the possible relief from a removal order available to them. See Immigration and Nationality Act (INA), § 241(a)(5), 66 Stat. 204, as added by IIRIRA § 305(a)(3), 110 Stat. 3009-599, 8 U. S. C. § 1231(a)(5). The questions here are whether the new version of the reinstatement provision is correctly read to apply to individuals who reentered the United States before IIRIRA’s effective date, and whether such a reading may'be rejected as impermissibly retroactive. We hold the statute applies to those who entered before IIRIRA and does not retroactively affect any right of, or impose any burden on, the continuing violator of the INA now before us.

I

In 1950, Congress provided that deportation orders issued against some aliens who later reentered the United States illegally could be reinstated. Internal Security Act of 1950, § 23(d), 64 Stat. 1012, 8 U. S. C. § 156(d) (1946 ed., Supp. V). Only specific illegal reentrants were subject to the provision, those deported as “anarchists” or “subversives,” for example, see § 23(c), 64 Stat. 1012, while the rest got the benefit of the ordinary deportation rules. Congress retained a reinstatement provision two years later when it revised the immigration laws through the INA, § 242(f), 66 Stat. 212, as codified in this subsection:

“Should the Attorney General find that any alien has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952,[] on any ground described ... in subsection (e) . . . , the previous order of deportation shall be deemed to be reinstated from its original date and such alien shall be deported under such previous order at any time subsequent to such reentry.” 8 U. S. C. § 1252(f) (1994 ed.).

Again, only a limited class of illegal reentrants was susceptible, see § 242(e), 66 Stat. 211; cf. § 241(a), id., at 204, and even those affected could seek some varieties of discretionary relief, see, e. g., 8 U. S. C. § 1254(a)(1) (1994 ed.) (suspension of deportation available to aliens who maintained a continuous presence in the United States for seven years and could demonstrate extreme hardship and a good moral character).

In IIRIRA, Congress replaced this reinstatement provision with one that toed a harder line, as the old § 242(f) was displaced by the new § 241(a)(5):

“If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.” 8 U. S. C. § 1231(a)(5) (1994 ed., Supp. III).

The new law became effective on April 1, 1997, “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment. § 309(a), 110 Stat. 3009-625. Unlike its predecessor, § 241(a)(5) applies to all illegal reentrants, explicitly insulates the removal orders from review, and generally forecloses discretionary relief from the terms of the reinstated order.

II

Humberto Fernandez-Vargas is a citizen of Mexico, who first came to the United States in the 1970s, only to be deported for immigration violations, and to reenter, several times, his last illegal return having been in 1982. Then his luck changed, and for over 20 years he remained undetected in Utah, where he started a trucking business and, in 1989, fathered a son, who is a United States citizen. In 2001, Fernandez-Vargas married the boy’s mother, who is also a United States citizen. She soon filed a relative-visa petition on behalf of her husband, see 8 U. S. C. §§ 1154(a), 1151(b) (2000 ed.); see Fernandez-Vargas v. Ashcroft, 394 F. 3d 881, 883, n. 4 (CA10 2005), on the basis of which he filed an application to adjust his status to that of lawful permanent resident, see § 1255(f). The filings apparently tipped off the authorities to his illegal presence here, and in November 2003, the Government began proceedings under § 241(a)(5) that eventuated in reinstating Fernandez-Vargas’s 1981 deportation order, but without the possibility of adjusting his status to lawful residence. He was detained for 10 months before being removed to Juarez, Mexico, in September 2004.

Fernandez-Vargas petitioned the United States Court of Appeals for the Tenth Circuit to review the reinstatement order. He took the position that because he illegally reentered the country before IIRIRA’s effective date, the controlling reinstatement provision was the old § 242(f), which meant he was eligible to apply for adjustment of status as spouse of a citizen, and he said that the new § 241(a)(5) would be impermissibly retroactive if it barred his application for adjustment. The Court of Appeals held that § 241(a)(5) did bar Fernandez-Vargas’s application and followed Landgraf v. USI Film Products, 511 U. S. 244 (1994), in determining that the new law had no impermissibly retroactive effect in Fernandez-Vargas’s case. 394 F. 3d, at 886, 890-891. We granted certiorari to resolve a split among the Courts of Appeals over the application of § 241(a)(5) to an alien who reentered illegally before IIRIRA’s effective date, 546 U. S. 975 (2005), and we now affirm.

III

Statutes are disfavored as retroactive when their 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.” Landgraf, supra, at 280. The modern law thus follows Justice Story’s definition of a retroactive statute, as “tak[ing] away or impairing] vested rights acquired under existing laws, or creating] a new obligation, imposing] a new duty, or attaching] a new disability, in respect to transactions or considerations already past,” Society for the Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CCNH 1814). Accordingly, it has become “a rule of general application” that “a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.” United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926) (opinion for the Court by Brandéis, J.).

This Court has worked out a sequence of analysis when an objection is made to applying a particular statute said to affect a vested right or to impose some burden on the basis of an act or event preceding the statute’s enactment. We first look to “whether Congress has expressly prescribed the statute’s proper reach,” Landgraf, supra, at 280, and in the absence of language as helpful as that we try to draw a comparably firm conclusion about the temporal reach specifically intended by applying “our normal rules of construction,” Lindh v. Murphy, 521 U. S. 320, 326 (1997). If that effort fails, we ask whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of “affecting substantive rights, liabilities, or duties [on the basis of] conduct arising before [its] enactment,” Landgraf, supra, at 278; see also Lindh, supra, at 326. If the answer is yes, we then apply the presumption against retroactivity by construing the statute as inapplicable to the event or act in question owing to the “absentee of] a clear indication from Congress that it intended such a result.” INS v. St. Cyr, 533 U. S. 289, 316 (2001); see Martin v. Hadix, 527 U. S. 343, 352 (1999) (quoting Landgraf, supra, at 280).

Fernandez-Vargas fights at each step of the way, arguing that Congress intended that INA § 241(a)(5) would not apply to illegal reentrants like him who returned to this country before the provision’s effective date; and in any event, that application of the provision to such illegal reentrants would have an impermissibly retroactive effect, to be avoided by applying the presumption against it. We are not persuaded by either contention.

A

Needless to say, Congress did not complement the new version of § 241(a)(5) with any clause expressly dealing with individuals who illegally reentered the country before IIRIRA’s April 1, 1997, effective date, either including them within §241(a)(5)’s ambit or excluding them from it. Fernandez-Vargas argues instead on the basis of the generally available interpretive rule of negative implication, when he draws attention to language governing temporal reach contained in the old reinstatement provision, but missing from the current one. Section 242(f) applied to “any alien [who] has unlawfully reentered the United States after having previously departed or been deported pursuant to an order of deportation, whether before or after June 27, 1952, on any ground described in . . . subsection (e).” 8 U. S. C. § 1252(f) (1994 ed.). According to Fernandez-Vargas, since that before-or-after clause made it clear that the statute applied to aliens who reentered before the enactment date of the earlier version, its elimination in the current iteration shows that Congress no longer meant to cover preenactment reentrants. See Brewster v. Gage, 280 U. S. 327, 337 (1930) (“deliberate selection of language . . . differing from that used in the earlier Acts” can indicate “that a change of law was intended”); cf. 2B N. Singer, Statutes and Statutory Construction §51.04, p. 244 (6th rev. ed. 2000). But the clues are not that simple.

To begin with, the old before-or-after clause was sandwiched between references to departure or deportation under a deportation order and to grounds for deportation set out in a different subsection of the INA. It thus most naturally referred not to the illegal reentry but to the alien’s previous deportation or departure. If its omission from the new subsection (a)(5) is significant, its immediate significance goes to the date of leaving this country, not the date of illegal return. Since the old clause referred to the date of enactment of the INA in 1952, the negative implication argument from dropping the language is that the reinstatement section no longer applies to those who left the country before that date. But, in 1996, application keyed to departures in 1952 or earlier was academic, and the better inference is that the clause was removed for that reason.

If, moreover, we indulged any suggestion that omitting the clause showed an intent to apply § 241(a)(5) only to deportations or departures after IIRIRA’s effective date, the result would be a very strange one: it would exempt from the new reinstatement provision’s coverage anyone who departed before IIRIRA’s effective date but reentered after it. The point of the statute’s revision, however, was obviously to expand the scope of the reinstatement authority and invest it with something closer to finality, and it would make no sense to infer that Congress meant to except the broad class of persons who had departed before the time of enactment but who might return illegally at some point in the future.

Fernandez-Vargas sidesteps this problem (on a very generous reading of his argument) by making a more general sug- • gestión of congressional intent: whatever the event to which the old law was tied, activity before as well as activity after it implicated the reinstatement power. Since the new law is bereft of such clarity, we should apply the “ ‘longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,’” St. Cyr, supra, at 320 (quoting INS v. Cardoza-Fonseca, 480 U. S. 421, 449 (1987)), which would effectively impose “[t]he presumption against retroactive application of ambiguous statutory provisions,” St. Cyr, supra, at 320. If we did so, we would find that § 241(a)(5) operates only to reentries after its effective date.

Even at this amorphously general level, however, the argument suffers from two flaws, the first being that it puts the cart before the horse. As Fernandez-Vargas realizes, he urges application of the presumption against retroactivity as a tool for interpreting the statute at the first Landgraf step. But if that were legitimate, a statute lacking an express provision about temporal reach would never be construed as having a retroactive potential and the final two steps in the Landgraf enquiry would never occur (that is, asking whether the statute would produce a retroactive effect, and barring any such application by applying the presumption against retroactivity). It is not until a statute is shown to have no firm provision about temporal reach but to produce a retroactive effect when straightforwardly applied that the presumption has its work to do. See 511 U. S., at 280.

The second flaw is the argument’s failure to account for the new statute’s other provisions on temporal reach, from which one might draw a negative inference that subsection (a)(5) was (or at least may well have been) meant to apply to reentries before its effective date. In contrast to their silence about the temporal sweep of § 241(a)(5), the 1996 amendments speak directly to the scope of changes in provisions making reentry criminal and setting civil penalties. IIRIRA § 324(c), 110 Stat. 3009-629, note following 8 U. S. C. § 1326 (2000 ed.), provides that the expanded criminal prohibitions, see § 1326(a), apply only to reentries or attempts after the effective date, and § 105(b), 110 Stat. 3009-556, note following 8 U. S. C. § 1325, provides the same as to civil penalties for illegal reentry, see § 1325(b). The point here is not that these provisions alone would support an inference of intent to apply the reinstatement provision retroactively, see Lindh, 521 U. S., at 328, n. 4, for we require a clear statement for that, see Martin, 527 U. S., at 354. But these provisions do blunt any argument that removal of the before-or-after clause suffices to establish the applicability of § 241(a)(5) only to posteffective date reentries. The fact is that IIRIRA sometimes expressly made changes prospective as from its effective date and sometimes expressly provided they were applicable to earlier acts; compare §§ 324(c) and 105(b) with § 347(c), 110 Stat. 3009-639 (provision governing removal of aliens who have unlawfully voted is applicable “to voting occurring before, on, or after the date of the enactment of this Act”), and § 351(c), id., at 3009-640 (provision applicable to “waivers filed before, on, or after the date of the enactment of this Act”). With such a variety of treatment, it is just too hard to infer any clear intention at any level of generality from the fact of retiring the old before-or-after language from what is now § 241(a)(5).

One conclusion can be stated, however. Common principles of statutory interpretation fail to unsettle the apparent application of § 241(a)(5) to any reentrant present in the country, whatever the date of return.

B

This facial reading is confirmed by two features of IIRIRA, not previously discussed, that describe the conduct to which § 241(a)(5) applies, and show that the application suffers from no retroactivity in denying Fernandez-Vargas the opportunity for adjustment of status as the spouse of a citizen of the United States. One is in the text of that provision itself, showing that it applies to Fernandez-Vargas today not because he reentered in 1982 or at any other particular time, but because he chose to remain after the new statute became effective. The second is the provision setting IIRIRA’s effective date, § 309(a), 110 Stat. 3009-625, which shows that Fernandez-Vargas had an ample warning of the coming change in the law, but chose to remain until the old regime expired and § 241(a)(5) took its place.

As a preface to identifying the conduct by Fernandez-Vargas to which the reinstatement provision applies (the conduct that results in reinstating the old deportation order without the former opportunities to seek adjustment of status), a look at our holding in St. Cyr, 533 U. S. 289, is helpful. The alien, St. Cyr, was a lawful, permanent resident who made a plea agreement and pleaded guilty to an aggravated felony charge. Although the resulting conviction justified his deportation, when he entered his plea the law allowed him to seek a waiver of deportation at the discretion of the Attorney General. Between the plea and deportation proceedings, however, IIRIRA and another statute repealed the provision for that discretionary relief, converting deportation from a possibility to a certainty. Id., at 325. The question was whether Landgraf barred application of the new law eliminating discretionary relief, on the ground that applying it to a defendant who pleaded guilty before the enactment of the new law would attach a further burdensome consequence to his plea, amounting to “a new disability, in respect to transactions or considerations already past,” 533 U. S., at 321 (internal quotation marks omitted). The answer was that converting deportation from a likely possibility to a dead certainty would add such a burden, and application of the new law was accordingly barred. Id., at 325. In making this “commonsense, functional judgment,” Martin, supra, at 357, we emphasized that plea agreements “involve a quid pro quo between a criminal defendant and the government,” St. Cyr, 533 U. S., at 321, in which a waiver of “constitutional rights (including the right to a trial),” had been exchanged for a “perceived benefit,” id., at 322, which in practical terms was valued in light of the possible discretionary relief, a focus of expectation and reliance, id., at 323.

St. Cyr’s agreement for a quid pro quo and his plea were entirely past, and there was no question of undoing them, but the “transactio[n] or consideratio[n]” on which § 241(a)(5) turns is different. While the law looks back to a past act in its application to “an alien [who] has reentered . . . illegally,” 8 U. S. C. § 1231(a)(5), the provision does not penalize an alien for the reentry (criminal and civil penalties do that); it establishes a process to remove him “under the prior order at any time after the reentry,” ibid. Thus, it is the conduct of remaining in the country after entry that is the predicate action; the statute applies to stop an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country. It is therefore the alien’s choice to continue his illegal presence, after illegal reentry and after the effective date of the new law, that subjects him to the new and less generous legal regime, not a past act that he is helpless to undo up to the moment the Government finds him out.

That in itself is enough to explain that Fernandez-Vargas has no retroactivity claim based on a new disability consequent to a completed act, but in fact his position is weaker still. For Fernandez-Vargas could not only have chosen to end his continuing violation and his exposure to the less favorable law, he even had an ample warning that the new law could be applied to him and ample opportunity to avoid that very possibility by leaving the country and ending his violation in the period between enactment of § 241(a)(5) and its effective date. IIRIRA became law on September 30,1996, but it became effective and enforceable only on “the first day of the first month beginning more than 180 days after” IIRIRA’s enactment, that is, April 1, 1997. § 309(a), 110 Stat. 3009-625. Unlawful alien reentrants like Fernandez-Vargas thus had the advantage of a grace period between the unequivocal warning that a tougher removal regime lay ahead and actual imposition of the less opportune terms of the new law. In that stretch of six months, Fernandez-Vargas could have ended his illegal presence and potential exposure to the coming law by crossing back into Mexico. For that matter, he could have married the mother of his son and applied for adjustment of status during that period, in which case he would at least have had a claim (about which we express no opinion) that proven reliance on the old law should be honored by applying the presumption against retroactivity.

Fernandez-Vargas did not, however, take advantage of the statutory warning, but augmented his past 15 years of unlawful presence by remaining in the country into the future subject to the new law, whose applicability thus turned not on the completed act of reentry, but on a failure to take timely action that would have avoided application of the new law altogether. To be sure, a choice to avoid the new law before its effective date or to end the continuing violation thereafter would have come at a high personal price, for Fernandez-Vargas would have had to leave a business and a family he had established during his illegal residence. But the branch of retroactivity law that concerns us here is meant to avoid new burdens imposed on completed acts, not all difficult choices occasioned by new law. What Fernandez-Vargas complains of is the application of new law to continuously illegal action within his control both before and after the new law took effect. He claims a right to continue illegal conduct indefinitely under the terms on which it began, an entitlement of legal stasis for those whose lawbreaking is continuous. But “[i]f every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever.” L. Fuller, The Morality of Law 60 (1964) (quoted in Landgraf, 511 U. S., at 270, n. 24).

Because we conclude that § 241(a)(5) has no retroactive effect when applied to aliens like Fernandez-Vargas, we affirm the judgment of the Court of Appeals.

It is so ordered.

Justice Stevens,

dissenting.

In 1982, petitioner Humberto Fernandez-Vargas, an alien who had previously been deported, reentered the United States illegally. Over the next 20 years, petitioner remained here. He worked as a truckdriver, owned a trucking business, fathered a child, and eventually married the child’s mother, a United States citizen. The laws in place at the time of petitioner’s entry and for the first 15 years of his residence in this country would have rewarded this behavior, allowing him to seek discretionary relief from deportation on the basis of his continued presence in and strong ties to the United States. See 8 U. S. C. § 1254(a)(1) (1994 ed.).

In 1996, however, Congress passed a new version of the applicable provision eliminating almost entirely the possibility of relief from deportation for aliens who reenter the country illegally having previously been deported. See Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA or Act), § 305(a)(3), 110 Stat. 3009-599, 8 U. S. C. § 1231(a)(5) (2000 ed.); see also ante, at 35, n. 4. The 1996 provision is silent as to whether it was intended to apply retroactively to conduct that predated its enactment. Despite a historical practice supporting petitioner’s reading, and despite the harsh consequences that attend its application to thousands of individuals who, like petitioner, entered the country illegally before 1997, the Court not only holds that the statute applies to preenactment reentries but also that it has no retroactive effect. I disagree with both of these conclusions.

I

In 1950, when Congress first gave the Attorney General the authority to reinstate an order of deportation, it enacted a reinstatement provision containing no explicit temporal reach. See Internal Security Act, § 23(d), 64 Stat. 1012, 8 U. S. C. § 156(d) (1946 ed., Supp. V). The natural reading of this provision, the one most consistent with the “deeply rooted” traditional presumption against retroactivity, Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994), is that it would apply to deportations that occurred before the provision’s enactment but not to preenactment reentries. While both deportation and reentry can constitute “events completed before [the provision’s] enactment,” id., at 270, an alien’s reentry is the act that triggers the provision’s operation and is therefore the act to which the provision attaches legal consequences.

When the Immigration and Naturalization Service (INS) promulgated regulations implementing the 1950 statute, however, it did not read the statute so naturally. Instead, the INS’ regulations, embodying an overly strong version of the presumption against retroactivity, provided that an order of deportation could only be reinstated if that deportation occurred after the statute’s enactment date. See 8 CFR §152.5 (1950 Cum. Supp.). Thus, the INS read the reinstatement provision as inapplicable even to reentries that occurred after the statute’s enactment date if the underlying deportation had been entered before that date; it follows a fortiori that the provision was considered inapplicable to reentries that occurred before the statute’s enactment.

Congress corrected the INS’ error two years later by adding the clause “whether before or after the date of enactment of this Act.” Immigration and Nationality Act, § 242(f), 66 Stat. 212, 8 U. S. C. § 1252(f) (1994 ed.); see also ante, at 33-34, and nn. 2-3. As the Court correctly notes, that amendment “most naturally referred not to the illegal reentry but to the alien’s previous deportation or departure.” Ante, at 39. The best interpretation of Congress’ intent with regard to the 1952 statute, then, was that it meant to apply the reinstatement provision to preenactment deportations but to preserve the status quo with regard to preenactment reentries: In accordance with the traditional presumption against retroactivity, preenactment reentries would remain uncovered by the reinstatement provision.

In 1996, when Congress enacted the current reinstatement provision, it drafted a version of the statute that, like its 1950 predecessor, was silent as to its temporal reach. See 8 U. S. C. § 1231(a)(5) (2000 ed.). If we assume (as the Court does) that the addition of the “before-or-after” clause in the 1952 statute merely clarified Congress’ original intent in 1950 to make the provision applicable to preenactment departures without authorizing any application to preenactment reentries, it is reasonable to attribute precisely the same intent to the Congress that enacted the 1996 statute: As in the 1950 and 1952 versions of the provision, Congress intended the 1996 reinstatement provision to apply to preenactment deportations but not to preenactment reentries.

In sum, our normal rules of construction support the reasonable presumption that Congress intended the provision to cover only postenactment reentries. Accordingly, the 1996 reinstatement provision should not be construed to apply to petitioner’s earlier entry into the United States.

II

The Court not only fails to give the 1996 Act its most normal interpretation, but also erroneously concludes that the provision does not have any retroactive effect. The Court reaches this conclusion based on its judgment that the provision applies not to conduct that occurred before the statute’s enactment date, but rather to “an indefinitely continuing violation that the alien himself could end at any time by voluntarily leaving the country.” Ante, at 44. This reasoning is unpersuasive.

It is true, of course, that the order of deportation entered against petitioner in 1981 could not be reinstated unless he was present in the United States, and that, until he was arrested in 2003, petitioner could have chosen to leave the United States. But it is precisely petitioner’s “continuing violation” that allowed him to be eligible for relief from deportation in the first place: He was required to have been physically present in the United States for a period of not less than seven years, to have been a person of good moral character during that time, and to have developed ties to the United States such that his deportation would result in extreme hardship to himself or to his United States citizen wife or child. See 8 U. S. C. § 1254(a)(1) (1994 ed.); see also INS v. Phinpathya, 464 U. S. 183 (1984) (strictly construing physical presence requirement). Moreover, under the pre1996 version of the reinstatement provision, the longer petitioner remained in the United States the more likely he was to be granted relief from deportation. See Matter of Ige, 20 I. & N. Dec. 880, 882 (1994) (listing factors considered in evaluating extreme hardship requirement, including alien’s length of residence in United States, family in United States, business or occupation, and position in community).

Given these incentives, petitioner legitimately complains that the Government has changed the rules midgame. At the time of his entry, and for the next 15 years, it inured to petitioner’s benefit for him to remain in the United States continuously, to build a business, and to start a family. After April 1, 1997, the date on which the applicable reinstatement provision became effective, all of these activities were rendered irrelevant in the eyes of the law. Only the Court’s unfortunately formalistic search for a single “past act that [petitioner] is helpless to undo,” ante, at 44, allows it to conclude that the provision at issue has no retroactive effect. For regardless of whether his 1982 reentry was or was not an act that he could now “undo,” it is certainly an act to which the 1996 reinstatement provision has attached serious adverse consequences. Because the provision has an undeniably harsh retroactive effect, “absent a clear indication from Congress that it intended such a result,” INS v. St Cyr, 533 U. S. 289, 316 (2001), we should apply the presumption against retroactivity and hold that the 1996 reinstatement provision does not apply to petitioner.

Accordingly, I respectfully dissent.

       What was formerly known as “deportation” is now called “removal” in IIRIRA. See Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998) (IIRIRA “realigned the vocabulary of immigration law, creating a new category of ‘removal’ proceedings that largely replaces what were formerly exclusion proceedings and deportation proceedings”). Our use of each term here will vary according to the scheme under discussion.

       This is the full text of the provision: “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous warrant of deportation against him shall be considered as reinstated from its original date of issuance.”

       A date was inserted when the provision was codified; as originally enacted, the text read, “whether before or after the date of enactment of this Act.” 66 Stat. 212.

       Notwithstanding the absolute terms in which the bar on relief is stated, even an alien subject to § 241(a)(5) may seek withholding of removal under 8 U. S. C. § 1231(b)(3)(A) (2000 ed.) (alien may not be removed to country if “the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion”), or under 8 CFR §§ 241.8(e) and 208.31 (2006) (raising the possibility of asylum to aliens whose removal order has been reinstated under INA § 241(a)(5)).

       Two Courts of Appeals have held that § 241(a)(5) does not apply at all to aliens who reentered before the provision’s effective date, see Bejjani v. INS, 271 F. 3d 670 (CA6 2001); Castro-Cortez v. INS, 239 F. 3d 1037 (CA9 2001), while eight have held that it does, at least in some circum stances, see Arevalo v. Ashcroft, 344 F. 3d 1 (CA1 2003); Avila-Macias v. Ashcroft, 328 F. 3d 108 (CA3 2003); Velasquez-Gabriel v. Crocetti, 263 F. 3d 102 (CA4 2001); Ojeda-Terrazas v. Ashcroft, 290 F. 3d 292 (CA5 2002); Faiz-Mohammad v. Ashcroft, 395 F. 3d 799 (CA7 2005); Alvarez-Portillo v. Ashcroft, 280 F. 3d 858 (CA8 2002); 394 F. 3d 881 (CA10 2005) (case below); Sarmiento Cisneros v. United States Attorney General, 381 F. 3d 1277 (CA11 2004). The Courts of Appeals in the majority are themselves divided on the question whether an alien’s marriage or application for adjustment of status before the statute’s effective date (facts not in play here) renders the statute impermissibly retroactive when it is applied to the alien. See, e. g., Faiz-Mohammad, supra, at 809-810 (application for adjustment of status); Alvarez-Portillo, supra, at 862, 867 (marriage).

       The Government urges us to forgo Landgraf analysis altogether because § 241(a)(5) regulates only a present removal process, not past primary conduct, citing our recent decision in Republic of Austria v. Altmann, 541 U. S. 677 (2004). Although we ultimately agree with the Government, in the abstract at least, that the reinstatement provision concerns itself with postenactment affairs, see infra, at 44-46, we find the Government’s allusion to Altmann inapt. The Court’s conclusion in that ease, that Landgraf was to be avoided, turned on the peculiarities of the Foreign Sovereign Immunities Act. See Altmann, supra, at 694-696. Those peculiarities are absent here, and we thus advert to Landgraf, as we ordinarily do.

       We therefore need not entertain Fernandez-Vargas’s argument that the provision’s drafting history indicates that the language was eliminated deliberately.

       Justice Stevens states that when, in 1952, Congress inserted the before-or-after clause with the old § 242(f), it was responding to the Immigration and Naturalization Service (INS) practice of applying the reinstatement provision only to deportation orders issued after the provision’s enactment, a practice that necessarily meant the INS applied the provision only to postenaetment reentries. By correcting the INS’s interpretation only as to deportation orders, Justice Stevens suggests, Congress did nothing to disturb the practice as to reentries. And when it removed the obsolete before-or-after clause in 1996 without adding alternative language of temporal reach, the argument goes, Congress held fast to its intent in 1950 and 1952 to apply the reinstatement provision only to postenaetment reentries. But the INS’s practice circa 1951 of applying the reinstatement provision only to postenaetment reentries followed from its policy regarding deportation orders, and in 1952 Congress might just as easily have assumed that the branch would go the way of the root. In any event, it is difficult to accept Justice Stevens’s view that congressional understanding from 40 years back was intended to govern the IIRIRA reinstatement provision, given Congress’s care to make the revised criminal and civil penalties applicable only to postenaetment reentries.

       We would reach the same conclusion about denial of opportunities to apply for permission for voluntary departure as an alternative to removal, see 8 U. S. C. § 1229c, and about cancellation of removal, see § 1229b(b), if there were a need to deal with these matters separately. Although Fernandez-Vargas argues that he is being denied the chance to seek these forms of relief, he never applied for either of them and has not formally attempted to claim them in response to the reinstatement and removal proceedings.

       We understand Fernandez-Vargas’s claim as falling within the second of Justice Story’s categories of retroactivity (new consequences of past acts), not the first category of canceling vested rights. The forms of relief identified by Fernandez-Vargas as rendered unavailable to him by § 241(a)(5) include cancellation of removal, see 8 U. S. C. § 1229b(b), adjustment of status, see § 1255, and voluntary departure, see § 1229c. These putative claims to relief are not “vested rights,” a term that describes something more substantial than inchoate expectations and unrealized opportunities. In contrast to “an immediate fixed right of present or future enjoyment,” Pearsall v. Great Northern R. Co., 161 U. S. 646, 673 (1896) (internal quotation marks omitted), Fernandez-Vargas’s claim to such relief was contingent, and it was up to him to take some action that would elevate it above the level of hope. It is not that these forms of relief are discretionary, cf. St. Cyr, 533 U. S., at 325; it is rather that before IIRIRA’s effective date Fernandez-Vargas never availed himself of them or took action that enhanced their significance to him in particular, as St. Cyr did in making his quid pro quo agreement, see supra, at 43 and this page.

       In a series of letters submitted to the Court after oral argument, the parties dispute the consequences if Fernandez-Vargas had left voluntarily after IIRIRA’s enactment and, specifically, the period of inadmissibility to which Fernandez-Vargas would thereupon have been subject. Because we conclude that § 241(a)(5) does not operate on a completed preenactment act, we need not consider the retroactive implications either of the fact of his inadmissibility or of any variance between the period of inadmissibility upon a postenaetment voluntary return and that prescribed under the old regime. The period of inadmissibility stems from an alien’s illegal reentry within a specified time after a prior removal and is applicable to Fernandez-Vargas because he reentered shortly after his 1981 deportation, but Fernandez-Vargas does not challenge as impermissibly retroactive IIRIRA’s lengthening of that period from 5 to 10 or 20 years, see 8 U. S. C. § 1182(a)(6)(B) (1994 ed.); § 1182(a)(9)(A)(ii) (2000 ed.).
      In any event, any period of inadmissibility is subject to waiver by the Attorney General, see § 1182(a)(6)(B) (1994 ed.); § 1182(a)(9)(A)(iii) (2000 ed.), and presumably Fernandez-Vargas could plead his serious ease for such a waiver (his marriage, his child) in seeking legal reentry to the United States.

       See 394 F. 3d, at 890, and n. 11 (distinguishing Fernandez-Vargas’s circumstance from that of aliens who had married, or both married and applied for adjustment of status, before IIRIRA’s effective date).

       This is the nub of our disagreement with Justice Stevens. He says it misses the point to say that Fernandez-Vargas could avoid the new law by returning to Mexico, which he thinks is like saying that a defendant could avoid a retroactive criminal penalty by locking himself up for 10 years, post, at 48, n. 2. Justice Stevens thus argues that reimposing an order of removal to end illegal residence is like imposing a penalty for a completed act (the defendant’s unspecified act in his analogy). But even on his own analysis, Fernandez-Vargas continued to violate the law by remaining in this country day after day, and Justice Stevens does not deny that the United States was entitled to bring that continuing violation to an end. He says, however, that Congress should not be understood to provide that if the violation continues into the future it may be ended on terms less favorable than those at the beginning. But this is not the position that retroactivity doctrine imputes to an inexplicit Congress. Fernandez-Vargas may have an equitable argument that the Government should not, for the future, eliminate an opportunity for continuing illegality accompanied by the hopes that long illegal residence and a prospect of marriage gave him in the past. But Congress apparently did not accept such an argument, which could prevail here only if the presumption against retroactivity amounted to a presumption of legal stasis for the benefit of continuous lawbreakers.

       The statutory provisions expanding the class of people to whom criminal penalties for illegal reentry might apply, however, explicitly apply only to postenactment reentries. See IIRIRA, § 324(c), 110 Stat. 3009-629, note following 8 U. S. C. § 1326.

       The provision stated:
      “Should any alien subject to the provisions of subsection (c) unlawfully return to the United States after having been released for departure or deported pursuant to this section, the previous warrant of deportation against him shall be considered as reinstated from its original date of issuance.” 64 Stat. 1012, codified as 8 U. S. C. § 156(d) (1946 ed., Supp. V).

       Although petitioner became eligible for relief from deportation after being physically present in the United States for seven years, he could not apply for that relief until the Government placed him in deportation proceedings, at which point he could raise his eligibility as an affirmative defense. Cf. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 951-952 (1997) (applying presumption against retroactivity to statute eliminating affirmative defense).

       Even on its own terms the Court’s logic is troubling. The Court believes that petitioner could have avoided being affected by the 1996 reinstatement provision, not just retroactively but in any way whatsoever, by leaving the country prior to its effective date—a date that occurred six months after the statute’s enactment date not to give aliens “ample warning,” ante, at 43, 45, but instead to allow the Attorney General to prepare for the substantial changes caused by the IIRIRA and to promulgate regulations to effectuate that Act. See §309, 110 Stat. 3009-625. But had petitioner “take[n] advantage of the statutory warning,” ante, at 46, he would have imposed upon himself the very same punishment—the guarantee of removal to Mexico—that he hopes to avoid. Just as we would not say that a defendant may avoid the retroactive application of a criminal statute by locking himself up for 10 years, it cannot be that petitioner’s ability to leave the country of his own accord somehow helps to prove that the provision at issue has no retroactive effect.