concurring:

Judge Fisher, in his separate concurrence, states that he “reluctantly” agrees that our precedent governing similar claims under the transitional rules of IIRI-RA requires that Garcia-Ramirez’s petition be denied. See Mendiola-Sanchez v. Ashcroft, 381 F.3d 937 (9th Cir.2004) and Ram v. INS, 243 F.3d 510 (9th Cir.2001). My able colleague writes separately to explain his further view that, were he reviewing Garcia-Ramirez’s petition “on a blank slate,” he would proceed to the second step of the Landgraf retroactivity analysis 1 and conclude that the petition should be granted. I write separately, in turn, with my responsive views, as I conclude differently that, if we were called upon to apply Land-grafts second step, the application of the 90/180-day rule to Gareia-Ramirez would not result in an impermissibly retroactive effect under the Supreme Court’s precedent.

I

A new statute does not produce an im-permissibly retroactive effect “merely because it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Landgraf, 511 U.S. at 269, 114 S.Ct. 1483 (internal citation omitted). Rather, the question of whether constitutionally impermissible consequences result from a statute’s retrospective application is a “commonsense, functional judgment ... guided by ‘familiar considerations of fair notice, reasonable reliance, and settled expectations.’ ” Marlin v. Hadix, 527 U.S. 343, 357-58 , 119 S.Ct. 1998 , 144 L.Ed.2d 347 (1999) (quoting Landgraf, 511 U.S. at 270 , 114 S.Ct. 1483 ). “A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” St. Cyr, 533 U.S. at 321, 121 S.Ct. 2271 (internal quotation marks omitted). However, the “application of new statutes passed after the events in suit is unquestionably proper in many situations.” Landgraf 511 U.S. at 273 , 114 S.Ct. 1483 . St. Cyr is the Supreme Court’s most recent pronouncement on Landgraf s retro-activity analysis in the immigration context, and we must look to it to guide our own review. See Agostini v. Felton, 521 U.S. 203, 237 , 117 S.Ct. 1997 , 138 L.Ed.2d 391 (1997) (instructing lower courts to apply the Court’s most direct precedent— clearly St. Cyr in this case — when looking *948 for guidance and controlling authority). I begin by reviewing St. Cyr in some detail.

A

Enrico St. Cyr was a lawful permanent resident alien who pled guilty to an aggravated felony charge. St. Cyr, 533 U.S. at 293 , 121 S.Ct. 2271 . At the time of his guilty plea, St. Cyr’s conviction rendered him deportable; however, he was then still eligible for a discretionary waiver of deportation that was available for permanent resident aliens pursuant to INA § 212(c). Id. IIRIRA repealed the Attorney General’s discretion to waive deportation under § 212(c), replacing it in relevant part with 8 U.S.C. § 1229b(a)(3), which excluded anyone convicted of an aggravated felony from the relief of cancellation of removal. Id. at 297, 121 S.Ct. 2271 . Because his removal proceedings were not commenced until after IIRIRA’s effective date, St. Cyr could no longer avail himself on the possibility of discretionary relief. The Court granted certiorari on St. Cyr’s habeas appeal, to decide, inter alia, “whether depriving removable aliens of consideration for § 212(c) relief produces an impermissible retroactive effect for aliens who, like[St. Cyr], were convicted pursuant to a plea agreement at a time when their plea would not have rendered them ineligible for § 212(c) relief.” Id. at 320, 121 S.Ct. 2271 .

Proceeding under the second prong of the Landgraf analysis, the Court held that applying the repeal of § 212(c) to aliens “who entered into plea agreements with the expectation that they would be eligible for [ ] relief clearly ‘attaches a new disability, in respect to transactions or considerations already past.’ ” Id. at 321, 121 S.Ct. 2271 . (quoting Landgraf, 511 U.S. at 269 , 114 S.Ct. 1483 ) (emphasis added). Central to the Court’s conclusion was the alien’s “reasonable reliance” on the possibility of discretionary relief in deciding to waive his right to a trial and enter into the plea agreement:

St. Cyr, 533 U.S. at 321-23 , 121 S.Ct. 2271 (internal quotation marks, footnotes, and citations omitted). The Court concluded that because the respondent “almost certainly relied upon” the likelihood of receiving § 212(c) relief “in deciding whether to forgo [his] right to a trial, the elimination of [that possibility] by IIRIRA ha[d] an obvious and severe retroactive effect.” Id. at 325, 121 S.Ct. 2271 .

B

Judge Fisher in his separate concurrence acknowledges that Garcia-Ramirez lacks the quid pro quo that was central to the Court’s analysis in St. Cyr . Judge Fisher concurrence at 943-44. He does not view this omission as fatal to his analysis, however, contending that reasonable reliance is not the sine qua non for a holding of impermissible retroactive effect, and no doubt taking solace that Landgraf *949 did not “define the outer limit of impermissible retroactivity.” Hughes Aircraft Co. v. United States, 520 U.S. 939, 947 , 117 S.Ct. 1871 , 138 L.Ed.2d 135 (1997).

I agree that the Supreme Court has not heretofore made any one factor of our retroactivity analysis dispositive. However, I would not stray from the Court’s instructive example in the immigration context. See Agostini, 521 U.S. at 237, 117 S.Ct. 1997 . St. Cyr exchanged his “vested” legal right to trial relying on the assumption that it would not make him automatically deportable. This reliance was reasonable given the significant percentage of resident aliens granted § 212(c) relief at the time. See St. Cyr, 533 U.S. at 322-23 , 121 S.Ct. 2271 . By entering into a plea agreement, St. Cyr in turn “grant[ed] the government numerous ‘tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources.’ ” Id. at 322, 121 S.Ct. 2271 (quoting Newton v. Rumery, 480 U.S. 386 , 393 n. 3, 107 S.Ct. 1187 , 94 L.Ed.2d 405 (1987)).

Garcia-Ramirez, on the other hand, petitioned our court hoping for the possibility to avail herself of a five-month trip she took after having been in the country illegally for less than a year, and introduced no evidence whatsoever that she made her trip with any expectation about immigration law consequence. Unlike St. Cyr, Garcia-Ramirez did not bargain away any existing legal right in reliance on the pre-IIRIRA discretionary relief standard. In fact, in view of the absence of contrary evidence in the record, it seems very unlikely that, when she went to Mexico for five months, she was even conscious of the relief of suspension of deportation or its continuous physical presence requirement, to say nothing of its exception for “brief, casual, and innocent” trips. Even more unlikely is the possibility that she in any way tailored her trip to conform with that standard. The differences between St. Cyr’s predicament and Garcia-Ramirez’s status are telling and worth repeating: Unlike St. Cyr, Garcia-Ramirez had no “vested right” that she gave up or bargained away; she had no “reasonable reliance” on the law as it was before IIRIRA implemented Congress’s reforms; and she had no “settled expectations” of the effect of her action in departing the United States. See St. Cyr, 533 U.S. at 321 , 121 S.Ct. 2271 . 2

Downplaying the importance of reasonable reliance and vested rights to the St. Cyr analysis, my colleague Judge Fisher notes that the Court in its St. Cyr opinion “presume[d]” St. Cyr’s quid pro quo. Judge Fisher concurrence at 943, 946. He thus concludes that there is no need to address the fact that there is no evidence how Garcia-Ramirez could have reasonably relied on or even knew about pre-IIRIRA law. Instead, in his view, we can *950 simply assume and impute reasonable reliance to Garcia-Ramirez from nothing more than the “statutory structure in 1989.” See Judge Fisher concurrence at 946. I disagree.

In the case of St. Cyr , the reasonable reliance factor could be presumed by the Court because the evidence there made reliance both apparent and objectively reasonable. See St. Cyr, 533 U.S. at 322 , 121 S.Ct. 2271 (“There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.”); id. (“Preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.”); id. at 322 n. 48, 121 S.Ct. 2271 (citing state laws requiring trial judges to advise defendants of the immigration consequences of their plea agreements); id. at 323 n. 50, 121 S.Ct. 2271 (citing the Amicus Brief of the National Association of Criminal Defense Lawyers for the conclusion that “competent defense counsel, following the advice of numerous practice guides, would have advised St. Cyr concerning the provision’s importance”); id. at 325, 121 S.Ct. 2271 (“Prior to AEDPA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief.”).

In sharp contrast, the record in this case is void of any evidence that Garcia-Ramirez even knew of the “brief, casual, and innocent” standard, to say nothing of why it is a reasonable assumption that she could have timed her trip purposely to avail herself of it. But there is no question that reasonable rebanee, as illustrated in St. Cyr’s plea bargain, was central to the Court’s retroactivity analysis. E.g., at 323, 121 S.Ct. 2271 (“Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRI-RA, preserving the possibility of relief would have been one of the principal benefits St. Cyr sought.”) (footnote omitted). Faced with this predicament and with no evidence of reasonable reliance in sight, my able colleague makes two arguments. First, he points out that subjective actual reliance is not needed, and that Garcia-Ramirez’s case shows an objectively reasonable reliance. But the idea that reliance need not be an actual subjective reliance is nothing new, and does not address what evidence is necessary to show reasonableness. The Court in St. Cyr considered a quid pro quo to be an example of reasonable, not actual or subjective, reliance, presuming St. Cyr’s reliance because of the general course of immigrant reliance on the possibility of INA § 212(c) discretionary relief when guilty pleas were entered. By contrast, here, there is no suggestion that illegal immigrants generally display any reliance on the “brief, casual, and innocent” standard in leaving the country for many months before reentry in illegal status. 3

Second, Judge Fisher in his separate concurrence concludes that reasonable reliance can be assumed for Garcia-Ramirez (and thus in every similar case) from the general “old legal landscape” or “statutory structure in 1989.” Judge Fisher concurrence 946 & n. 3. But this assumption effectively casts out reasonable reliance from our retroactivity assessment, disre *951 garding the Court’s sensible instruction otherwise: “As we have repeatedly counseled, the judgment whether a particular statute acts retroactively should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.” St. Cyr, 533 U.S. at 321 , 121 S.Ct. 2271 (internal quotation marks omitted) (emphasis added). My colleague’s test would misapply the second step of the Court’s seminal Land-graf analysis, making this second step a formality of analysis that inescapably will lead to a jurisprudential dead-end whenever Congress alters the “statutory structure.” Under that form of analysis, were it adopted, the presumption against retroactive legislation likely would be applied whenever Congress has not explicitly declared retroactivity, satisfying the first prong of the Landgraf test. The line of analysis proposed by my colleague would go far to reduce Landgraf to a one-step analysis.

C

Recognizing that St. Cyr cannot support his position that this case is a “paradigm instance” of impermissible retroactivity, my colleague looks for help from our prior precedent. Judge Fisher concurrence at 944, 945-46 (citing Kankamalage v. INS, 335 F.3d 858, 863 (9th Cir.2003), and United States v. Velasco-Medina, 305 F.3d 839, 849-50 (9th Cir.2002)). But these cases do not assist in de-emphasizing the importance the Supreme Court in St. Cyr placed on reasonable reliance, settled expectations, and vested interests, as illustrated through the quid quo pro of a plea bargain. In fact, both Kankamalage and Ve-lasco-Medina hinge on the question of whether reliance on a pre-IIRIRA guilty plea was reasonable and created settled expectations.

Jayantha Kankamalage was an alien who, like St. Cyr, pled guilty to a conviction that would not have automatically disqualified him for relief from deportation under pre-IIRIRA law. Kankamalage, 335 F.3d at 860 . We reiterated the importance of reasonable reliance: “[tjhere can be little doubt that ... alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.” Id. at 863 (quoting St. Cyr, 533 U.S. at 322 , 121 S.Ct. 2271 ) (alteration in the original). Because the current regulations would automatically disqualify Kankamalage from relief, we viewed the case as “like St. Cyr,” concluding that the petitioner, again, based on the quid pro quo of his guilty plea, had legitimate settled expectations, and had reasonably relied on pre-IIRIRA law. Id. We therefore held that the regulation as applied to the petitioner was impermissibly retroactive. Id. at 864.

Pedro Velasco-Medina also pled guilty under pre-IIRIRA law and the statutory amendments retroactively made him ineligible for cancellation of removal. Velasco-Medina, 305 F.3d at 843-44 . However, in that case, we distinguished St. Cyr and concluded that, because the passage of AEDPA had already foreclosed any possibility of § 212(c) relief at the time Velas-co-Medina entered his guilty plea, the petitioner, unlike St. Cyr, never possessed

*952 Id. at 849, 850 (internal quotation marks and citations omitted). Far from minimizing the importance of St. Cyr’s quid pro quo, both Kankamalage and Velasco-Med-ina turn on whether an alien’s reliance and expectations stemming from a guilty plea were settled and reasonable. These cases mention the “legal landscape” in discussing the effect of plea bargains, but Kankama-lage and Velasco-Medina cannot correctly be urged to support making a change of the “legal landscape” — or the “statutory structure” as Judge Fisher also puts it — a test unto itself. 4

Nor can my colleague properly find support for his analysis in extra-circuit case law. He cites two cases, from the Third and Fourth Circuits respectively, which did not emphasize the importance of reasonable reliance. Judge Fisher concurrence at 944-45 (citing cases). While no court has addressed the exact question before us, my canvass of our sister circuits’ precedents addressing the retrospective application of other IIRIRA provisions reveals that the great weight of authority places a due emphasis on reliance. Far from minimizing reliance, courts analyzing the retroactivity of IIRIRA provisions under Landgraf s second prong routinely and properly stress the significance of reliance under St. Cyr. See, e.g., Rankine v. Reno, 319 F.3d 93, 102 (2d Cir.2003) (“[T]he issue of reliance has played a central role in the Supreme Court’s and the circuit courts’ reasoning with respect to the retroactivity of IIRIRA and AEDPA.”); Chambers v. Reno, 307 F.3d 284, 289-90 (4th Cir.2002) (recognizing that reliance was the “key event” in St. Cyr’s retroactivity analysis). 5

*953 Judge Fisher’s separate concurrence does not disclose a case, in our circuit or any other, in which a federal court has determined that there was reasonable reliance in the manner in which he would determine reliance, devoid of evidence or persuasive rationale why reliance, whether subjectively or objectively grounded, should be reasonably presumed for a class of persons situated similarly to the petitioner, save his general argument about change in the “statutory structure.” 6 Nor does my able colleague point to any other case holding § 1229b(d)(2) or a comparable temporal provision of IIRIRA impermissi-bly retroactive.

II

In almost any instance of immigration law reform, it will be the ease that a multitude of illegal aliens were residing within the United States and its “legal landscape” or “statutory structure” when Congress acted to change the immigration law. It perhaps should not need repeating that the Constitution gives the superordinate role to Congress, and not to the federal courts, in regulating the flow and content of immigration to the United States. The world changes rapidly, and illegal immigration may pose threats or disadvantage to the United States’ security, economy, and well-being. Congress needs flexibility in fine-tuning our immigration laws. St. Cyr carves out an exceptional area where reasonable reliance constrains the ability of Congress to alter immigration law. But nothing in St. Cyr or its immigration law progeny in the federal courts makes welcome a far-reaching pronouncement that impermissible retro-activity will likely follow from change to the “statutory structure.” Such a rationale would restrict the ability of Congress to implement law reform, in the absence of *954 explicit declarations of retroactivity, and would have unforeseen negative consequences for the immigration laws. 7

Mendiola-Sanchez supports our denial of the petition without reaching Landgrafs second step. However, were we to reach the second step, I would still deny the petition because the application of the 90/180-day rule would not have an “impermissible retroactive effect.”

. In St. Cyr , the Supreme Court affirmed and reiterated the two-part framework for addressing potentially retroactive statutes that was established in Landgraf v. USI Film Products, 511 U.S. 244, 280 , 114 S.Ct. 1483 , 128 L.Ed.2d 229 (1994). Applying the Landgraf test, a court must first ask "whether Congress has directed with the requisite clarity that the law be applied retrospectively.” St. Cyr, 533 U.S. at 316 , 121 S.Ct. 2271 ; see also Landgraf, 511 U.S. at 280 , 114 S.Ct. 1483 (holding that Congress must "expressly prescribe! ] the statute's proper reach”). If the statutory language does not meet this standard, our analysis must proceed to Landgrafs second prong, asking whether the application of the statute "produces an impermissible retroactive effect.” St. Cyr, 533 U.S. at 320 , 121 S.Ct. 2271 . In our per curiam opinion, we conclude our Landgraf analysis at step one, holding that our prior circuit law compels the conclusion that Congress intended IIRIRA's 90/180-day rule to apply retroactively.

. Moreover, the nature of the pre-IIRIRA "brief, casual, and innocent” standard belies the conclusion that Garcia-Ramirez or aliens in a similar circumstance could have reasonably relied on it, in connection with a five-month sojourn outside of the United States. The “brief, casual, and innocent" standard is vague and ambiguous, and Garcia-Ramirez's five-month excursion might not qualify as “brief, casual, and innocent” enough. If the pre-IIRIRA standard had permitted eligibility for suspension of deportation with departures of a longer duration than the 90/180 rule, and if a person could have relied objectively on a precise guideline for permissible absence, perhaps a better case could be made that aliens could objectively and reasonably rely on it in exiting and then reentering the country in accord with that time frame. In light of the ambiguity of the prior standard, and the apparent contrast of five months with its “brief” element, as it was written, any purported reliance — for a trip of five months— cannot properly be described as objectively "reasonable.”

. My colleague also relies on the Court’s phrase in St. Cyr that "[t]here is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation.” Judge Fisher concurrence at 943, 945 (quoting St. Cyr, 533 U.S. at 325 , 121 S.Ct. 2271 ). In my view, this phrase cannot be divorced from its context in St. Cyr , where it was tied to St. Cyr's reasonable reliance on the availability of discretionary relief from deportation when he pled guilty.

. A step two Landgraf analysis in Garcia-Ramirez's case would be akin to our analysis in Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir.2002). Jimenez-Angeles dealt with almost the exact same situation we face here: the retroactive application of the continuous presence requirement for cancellation of removal, 8 U.S.C. § 1229b(d). Like Garcia-Ramirez, Alma Delia Jimenez-Angeles had no vested rights under pre-IIRIRA law, expressed through a plea bargain or otherwise, but merely hoped to be processed under pre-IIRIRA suspension of deportation instead of cancellation of removal because she had fulfilled the temporal presence requirement for the former but not the latter. Jimenez-Ange-les, 291 F.3d at 597 . Analyzing the retroac-tivity claim under step two of Landgraf , we held that her “expectation” or "hope” that she could avail herself of suspension of deportation “was not equivalent to the settled expectation St. Cyr gained by entering into his plea bargain.” Id. at 602 (“A plea bargain is a formal exchange in which each side consensually gives, and gets, something of value. In Jimenez-Angeles' case, there was no such exchange.”). In contrast to a formal plea bargain or any other evidence of reasonable reliance and settled expectations, Garcia-Ramirez, like Jimenez-Angeles, "gave up only her ability to continue living illegally and undetected in the United States.” Id.

. Most circuits have declined to find reasonable reliance and impermissible retroactive effect beyond the plea agreement context of St. Cyr . The provision most frequently litigated has been IIRIRA’s repeal of INA § 212(c), the same provision at issue in St. Cyr . Most courts have held IIRIRA not impermissibly retroactive as applied to petitioners who did not enter a plea agreement like St. Cyr because, without the quid pro quo of the plea agreement, no evidence exists from which to show a petitioner's reasonable reliance on the pre-IIRIRA provision. See, e.g., Swaby v. Ashcroft, 357 F.3d 156, 161-62 (2d Cir.2004) (holding that IIRIRA's repeal of INA § 212(c) was not impermissibly retroactive because, unlike St. Cyr, the petitioner chose to proceed to trial instead of agreeing to a plea and therefore "did not detrimentally rely on the availability of § 212(c) relief”); Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir.2004) (per curiam) (holding that IIRIRA's repeal of INA § 212(c) relief not impermissibly retroactive as applied to petitioners who "did not abandon rights or admit guilt in reliance on continued eligibility for § 212(c) relief”); Rankine, 319 F.3d at 100 (same); Dias v. INS, 311 F.3d 456, 458 (1st Cir.2002) (holding that IIRIRA's repeal of § 212(c) was not imper-missibly retroactive to petitioners who did not rely on pre-IIRIRA law because the "retroac-tivity analysis must include an examination of *953 reliance”) (citing Mattis v. Reno, 212 F.3d 31 (1st Cir.2000)); Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir.2002) (holding that the repeal of § 212(c) was not impermissibly retroactive because, unlike St. Cyr, petitioner "did not so choose to rely upon the agreed upon terms of a plea” and because his case did not present "the same concerns of quid pro quo, benefit for an exchange, between a defendant and the government”).

Courts have declined to extend St. Cyr to other provisions of IIRIRA as well. See, e.g., Uspango v. Ashcroft, 289 F.3d 226, 230 (3d Cir.2002) (holding that the application of cancellation of removal's ten-year presence requirement to the petitioner was not impermissibly retroactive because ”[u]nlike the situation in St. Cyr , [the petitioner] can demonstrate no detrimental reliance on pre-[IIRIRA] law” and "[the petitioner] gave up no rights ... nor did [the government] receive any benefits from [the petitioner’s action]”); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 108-09 (4th Cir.2001) (holding that IIRIRA § 241(a), requiring removal of aliens previously ordered removed, did not operate in an impermissibly retroactive manner because, unlike St. Cyr, the petitioner could not show "a reasonable likelihood of success under pre-IIRIRA law nor a detrimental reliance on pre-IIRIRA law”).

. As explained above, the only cases that my colleague cites relying on language equivalent to its "statutory structure” language is the "legal landscape” language of Velasco-Medina, 305 F.3d at 849 , and Kankamalage, 335 F.3d at 863 . But neither of those cases in fact relies upon such a rationale, as both hinge upon the evidence of reasonable reliance (or lack thereof) arising from a plea agreement's quid pro quo, just as in St. Cyr. Kankamalage, 335 F.3d at 863-64 ; Velasco-Medina, 305 F.3d at 850 . More recently, in Kelava v. Gonzales, we held that IIRIRA’s repeal of INA § 212(c) is not impermissibly retroactive as applied to an alien who engaged in a terrorist activity that occurred prior to IIRIRA’s enactment. 410 F.3d 625, 630 (9th Cir.2005). As relevant here, in Rela-va we reiterated the importance of a plea showing reasonable reliance in applying the retroactivity analysis of St. Cyr : "We have cabined St. Cyr to the plea context, because of the alien’s reliance on existing law in that situation.” Id. at 629.

. For example, during the pendency of our deliberations on this matter Congress enacted the REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 231. The REAL ID Act alters several provisions of the Immigration and Nationality Act, amending the INA provisions governing our judicial review as well as amending certain standards governing asylum and other forms of relief from removal, including burdens of proof, testimonial corroboration, credibility determinations, and the definition of terrorist organizations and terrorist related activities. See, e.g., 8 U.S.C. § 1252 (a) as amended by § 106(a) of the REAL ID Act, 119 Stat. 305 , 310; 8 U.S.C. § 1158 (b) as amended by § 101(a)(3), (c), and (d)(2) of the REAL ID Act, 119 Stat. 302 , 303; 8 U.S.C. § 1182 (a)(3)(B) as amended by % 103 of the REAL ID Act, 119 Stat. 306 -309.