Hernandez-Rodriguez v. Pasquarell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-50876

RAYMUNDO HERNANDEZ-RODRIGUEZ,

Petitioner-Appellant,

versus

KENNETH L. PASQUARELL, District

Director of the Immigration

and Naturalization Service,

Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the

Western District of Texas

________________________________________________

July 24, 1997

Before GARWOOD, WIENER and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Raymundo Hernandez-Rodriguez, an alien,

in November 1987 was ordered excluded from the United States after

attempting to import marihuana through the Del Rio port of entry.

In April 1988, the exclusion order was affirmed by the Board of

Immigration Appeals (the Board). Over a year later, Petitioner

filed with the Board a motion to reopen his exclusion proceeding

alleging that familial developments warranted the grant of

discretionary relief pursuant to section 212(c) of the Immigration

and Nationality Act. In December 1991, the Board denied

Petitioner’s motion on the basis of statutory ineligibility. Some

six months thereafter, Petitioner instituted the instant habeas

corpus proceedings in the district court below challenging the

Board’s 1991 decision. In August 1995, the district court denied

the Petitioner’s habeas application, from which action Petitioner

brings this appeal. We affirm.

Facts and Proceedings Below

Petitioner is a citizen of Mexico who entered the United

States in 1965 and became a lawful permanent resident on November

1, 1974. He fathered five children with his wife, Irma Orona

Hernandez, who is a United States citizen. Their children were

born on February 24, 1974 (Raymundo Jr.), May 20, 1975 (Francisco),

April 20, 1980 (Albert), August 6, 1983 (Veronica), and April 18,

1986 (Juan). Petitioner is a construction worker by trade,

specializing in concrete. He has worked in the Texas construction

industry for most of his adult life.

The events giving rise to the instant habeas action began

December 19, 1983, when Petitioner attempted to enter the United

States as a returning resident at the port of entry in Eagle Pass,

Texas. Concealed in Petitioner’s vehicle were twenty-eight pounds

of marihuana. On December 22, 1983, Petitioner was served with a

“Notice to Applicant for Admission Detained for Hearing before an

Immigration Judge” charging him with excludability under 8 U.S.C.

§ 1182(a)(23).1 Petitioner was also indicted for the underlying

federal drug offense. On March 15, 1984, in the United States

1

8 U.S.C. § 1182(a)(23) was the precursor to current section

1182(a)(2)(A)(i)(II) (West Supp. 1996), which permits exclusion for

violations of laws relating to controlled substances.

2

District Court for the Western District of Texas (Del Rio

Division), Petitioner was convicted of unlawfully, knowingly, and

intentionally importing and causing to be imported a quantity of

marihuana into the United States from Mexico in violation of 21

U.S.C. §§ 952(a), 960(a)(1). Petitioner was sentenced to 4 years’

imprisonment, a special parole term of 4 years, and a fine of

$1,000. The district court suspended the imprisonment, placed the

Petitioner on probation for 5 years, and ordered him to perform 300

hours of community service.

In October 1985, while still on probation, Petitioner was

again involved in a drug-related offense, culminating in his guilty

plea on October 31, 1985, to a state charge of delivery of

marihuana. The 204th Judicial District Court in Dallas County,

Texas, sentenced Petitioner to two years’ deferred adjudication.

As a result of Petitioner’s subsequent drug offense, the United

States District Court for the Western District of Texas revoked his

probation on March 20, 1986, and, on April 8, 1986, committed him

to prison for two years, with a four-year special parole term.

After Petitioner completed his federal sentence in 1987, he

was transferred to the INS Processing Center in El Paso, Texas.

Petitioner’s request for release pending completion of the

exclusion proceedings was denied by the District Director on

October 5, 1987. The Immigration Judge conducted hearings on

October 9, 1987, and on October 29, 1987. Before the Immigration

Judge, the Petitioner conceded excludability and applied for a

waiver of exclusion pursuant to section 212(c) of the Immigration

3

and Nationality Act, 8 U.S.C. § 1182(c). The Immigration Judge,

acknowledging that the Petitioner met the statutory eligibility

requirements of seven years’ unrelinquished domicile and lawful

permanent resident status, nevertheless determined that

discretionary waiver under section 212(c) was not warranted in

light of his prior drug-related activity. The Immigration Judge

noted that Petitioner’s “favorable factors,” in this case his

American wife, his five American children, and his construction

trade skills, did not weigh sufficiently in favor of granting a

waiver. Accordingly, on November 2, 1987, nearly ten years ago,

the Immigration Judge ordered Petitioner excluded and deported to

Mexico.

Petitioner filed a Notice of Appeal to the Board of

Immigration Appeals on November 12, 1987. In an opinion issued

April 29, 1988, the Board affirmed the Immigration Judge’s

decision. The Board, as had the Immigration Judge, noted the

Petitioner’s “unusual or outstanding equities,” but concluded that,

given the seriousness of Petitioner’s drug trafficking conviction,

he had failed to demonstrate rehabilitation. In this regard, the

Board found significant the Petitioner’s involvement in 1985 in

marihuana-related activity.2

2

As the district court correctly observed, the Board did not

treat the Petitioner’s 1985 guilty plea as a “conviction,” but

rather as evidence that he had failed to rehabilitate himself. The

district court, citing Martinez-Montoya v. INS, 904 F.2d 1018 (5th

Cir. 1990), cautioned that Petitioner’s 1985 guilty plea pursuant

to a deferred adjudication procedure utilized by the Texas state

court was not a “‘conviction’ for the purposes of immigration law.”

This Court has indicated that a conviction by guilty plea pursuant

to the Texas deferred adjudication procedure can carry consequences

4

In July 1989, approximately fourteen months after the Board

had denied his appeal, Petitioner filed a Motion To Reopen and/or

Motion for Reconsideration with the Board. The motion declared

that, since his return to Frisco, Texas, in November 1987,

Petitioner had become divorced from his American wife and had

subsequently been awarded custody of his three oldest American

children, Raymundo Jr., Francisco, and Albert. In July 1989, their

ages were fifteen, fourteen, and nine, respectively.3

Characterizing his family developments as “new material evidence,”

Petitioner also repeated his contentions that his extended

residence in the United States, his ownership of a trailer, and his

construction skills would render his exclusion and deportation an

extreme hardship to his family.

On December 31, 1991, five years after Petitioner had been

ordered excluded and deported, the Board issued a per curiam denial

of Petitioner’s motion to reopen. Citing Matter of Cerna, Int.

under immigration law only if the three-prong Ozkok standard is

met. See Wilson v. INS, 43 F.3d 211, 215 (5th Cir.) (discussing

application of Matter of Ozkok, Int. Dec. 3044 (B.I.A. Apr. 26,

1988), and noting that “Ozkok’s rule applying a federal

‘conviction’ standard rather than a state standard is reasonable

and is consistent with congressional intent and the relevant case

law”), cert. denied, 116 S.Ct. 59 (1995); Martinez-Montoya at

1024-26 (holding that conviction under Texas deferred adjudication

procedure was not final because further adjudication was available

and time for appeal had not expired). In any event, the Board used

Petitioner’s drug-related activity solely as evidence of a lack of

rehabilitation, and neither party seeks to raise any issue in

regard to the Board’s use of Petitioner’s 1985 guilty plea.

3

The motion alleged that his two youngest children, Veronica

and Juan, remained with Petitioner’s ex-wife, who had remarried.

At the time Petitioner filed his habeas action with the district

court, Raymundo Jr. was over eighteen. By the time Petitioner

filed this appeal in November 1995, only Albert was under eighteen.

5

Dec. 3161 (B.I.A. Oct. 7, 1991), the Board held that, as

Petitioner’s “lawful permanent resident status terminated with the

entry of the final administrative order of exclusion and

deportation, i.e., when the Board dismissed the applicant’s

appeal,” the Petitioner was statutorily ineligible for section

212(c) relief, which applies only to “[a]liens lawfully admitted

for personal residence.”

On June 30, 1992, Petitioner filed the instant petition for a

writ of habeas corpus in the United States District Court for the

Western District of Texas (El Paso Division) asserting that the

Board’s 1991 denial of his July 1989 motion to reopen was arbitrary

and capricious. 8 U.S.C. § 1105a(b); 28 U.S.C. § 2241. Defendant-

appellee District Director of the Immigration and Naturalization

Service filed a Motion To Dismiss/Motion for Summary Judgment

arguing that the Board’s decision in Cerna was controlling. On

August 18, 1995, the district court entered an order denying

Petitioner’s habeas petition. The district court, citing our

decision in Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), cert.

denied, 113 S.Ct. 1412 (1993), held that the Board’s determination

that Petitioner was no longer eligible for section 212(c) relief

after the Board’s April 1988 affirmance of the Immigration Judge’s

decision was not an abuse of discretion.

Petitioner brings this appeal, and we affirm.

Discussion

“The exclusion of aliens is a fundamental act of sovereignty.”

Gisbert v. United States Attorney General, 988 F.2d 1437, 1440 (5th

6

Cir. 1993) (citing Shaughnessy v. United States ex rel. Mazei, 73

S.Ct. 625, 628 (1953) (“Courts have long recognized the power to

expel or exclude aliens as a fundamental sovereign attribute

exercised by the Government’s political departments largely immune

from judicial control.”); United States ex rel. Knauff v.

Shaughnessy, 70 S.Ct. 309, 312 (1950)). The right to exclude

aliens is vested in the political branches which “have plenary

authority to establish and implement substantive and procedural

rules governing the admission of aliens.” Id.

The statutory scheme governing immigration affairs in the

United States is the Immigration and Nationality Act (the Act).

Under the Act, an order of deportation is reviewable directly by

this Court pursuant to a petition for review, 8 U.S.C. § 1105a(a).

The only review of an order of exclusion is pursuant to a petition

for a writ of habeas corpus, 8 U.S.C. § 1105a(b). Included within

the scope of habeas review of orders of exclusion, however, is the

Board’s compliance with prescribed procedures.

Throughout the Petitioner’s exclusion proceedings and before

the district court, he has conceded excludability. In his

application to the district court for habeas relief and on appeal

before this Court, Petitioner raised the sole issue of whether the

Board’s refusal to reopen or reconsider his exclusion case on the

grounds that he was statutorily ineligible was based on an

erroneous construction of section 212(c). There is no statutory

provision for Petitioner’s motion to reopen his exclusion

proceeding; the authority for his motion derives entirely from the

7

regulations promulgated by the Attorney General. INS v. Doherty,

112 S.Ct. 719, 724 (1992); INS v. Rios-Pineda, 105 S.Ct. 2098, 2100

(1985); Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.), cert. denied,

114 S.Ct. 345 (1993). The pertinent regulation, 8 C.F.R. § 3.2,

permits the Board to reopen exclusion proceedings provided certain

circumstances are met and subject to other stated restrictions.

The three principal, independent grounds on which the Board might

deny a motion to reopen are (1) statutory or “prima facie”

ineligibility for section 212(c) relief, (2) “failure to introduce

previously unavailable, material evidence,” and (3) “a

determination that even if these requirements were satisfied, the

movant would not be entitled to the discretionary grant of relief

which he sought.” Doherty, 112 S.Ct. at 725. We have noted the

“broad discretion” conferred to the Board over motions to reopen

and have held consistently that the Board’s denial is reviewed only

for an abuse of discretion. Pritchett, 993 F.2d at 83. When the

Board denies a motion to reopen on the basis of statutory

ineligibility, as in this case, we exercise de novo review over all

questions of law. Ghassan, 972 F.2d at 637. The Board’s

interpretation of the Act and implementing regulations, however,

are entitled to great weight. Carbajal-Gonzalez v. INS, 78 F.3d

194, 197 (5th Cir. 1996) (citing Chevron USA Inc. v. NRDC, 104

S.Ct. 2778 (1984)); Ka Fung Chan v. INS, 634 F.2d 248, 252 (5th

Cir. 1981).

I.

Petitioner’s principal argument in support of his habeas

8

application is a challenge to the legitimacy of our decision in

Ghassan. According to Petitioner, Ghassan’s approval of the

Board’s position advanced in Cerna runs counter to a perceived

congressional desire to alleviate hardship for those in

Petitioner’s position and therefore represents an erroneous

construction of section 212(c).

Ghassan and Cerna both involved application of the Attorney

General’s discretionary relief authority conferred by section

212(c) of the Act.4 In Cerna, the Board denied a deportable

alien’s motion to reopen on the grounds that, as he was subject to

an administratively final order of deportation, he was unable to

establish prima facie eligibility for such relief under section

212(c), which requires an applicant for relief to be a lawful

permanent resident. Matter of Cerna, Int. Dec. 3161 (B.I.A. Oct.

4

Section 212(c) of the Act, in pertinent part provided:

“Aliens lawfully admitted for permanent residence who

temporarily proceeded abroad voluntarily and not under an

order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may

be admitted in the discretion of the Attorney General

without regard to [the subsections setting forth classes

of excludable aliens].” 8 U.S.C. § 1182(c).

Although facially applicable only to excludable aliens, this

section has been extended by judicial and administrative decisions

to apply to a person who has never left the United States if the

ground of deportation would also be a ground of exclusion. See

Rodriguez v. INS, 9 F.3d 408, 411-412 (5th Cir. 1993) (“Courts

reviewing the decisions of the BIA have upheld the initial

expansion of section 212(c) to grounds for deportation which have

corresponding grounds for exclusion, and most courts have taken

positions similar to that of the Attorney General and refused to

extend section 212(c) relief to grounds of deportation which are

not also grounds of exclusion.”); see also Ghassan, 972 F.2d at 634

n.2 (discussing origins of the policy).

9

7, 1991); see also Garcia-Hernandez v. INS, 821 F.2d 222, 224 (5th

Cir. 1987). Such a conclusion stems from the INS’s position,

approved by this Court, that a deportability decision becomes final

at the time the Board renders its decision. See Rivera v. INS, 810

F.2d 540, 541-42 (5th Cir. 1987).

In Ghassan, this Court addressed whether a deportable alien

whose original petition for section 212(c) relief was filed before

a final decision of deportability could move to reopen the

proceeding after the Board’s decision. 972 F.2d at 637. Finding

no reason to depart from the rationale of Rivera, we held:

“In Garcia-Hernandez we concluded that the BIA was

correct in holding that the petitioner was no longer

eligible for section 212(c) relief because he was no

longer a lawful resident and so could not obtain

reopening. Under Rivera an alien’s lawful status ends

when the BIA rules him deportable. Thus, after the BIA

decides that an alien is deportable, he is no longer a

legal resident and thus is not eligible for section

212(c) relief, so his petition for reopening must be

rejected. Accordingly, the BIA did not err in denying

Ghassan’s motion to reopen.” Ghassan, 972 F.2d at 637-38

(footnote and citations omitted).

Although Petitioner correctly observes that the circuit courts are

not entirely in agreement concerning the eligibility of an

excludable alien subject to a final exclusion order to section

212(c) relief,5 we have neither the inclination nor the ability to

5

Together with this Court, the Third and Fourth Circuits have

approved the Board’s interpretation of section 212(c). Katsis v.

INS, 997 F.2d 1067 (3d Cir. 1993), cert. denied, 114 S.Ct. 902

(1994); Nwolise v. INS, 4 F.3d 306, 310-12 (4th Cir. 1993), cert.

denied, 114 S.Ct. 888 (1994). The First, Second, Seventh, Ninth

and Eleventh Circuits have rejected this interpretation. Gonclaves

v. INS, 6 F.3d 830 (1st Cir. 1993); Vargas v. INS, 938 F.2d 358 (2d

Cir. 1991); Henry v. INS, 8 F.3d 426, 433-39 (7th Cir. 1993);

Butros v. INS, 990 F.2d 1142 (9th Cir. 1993) (en banc); Acosta-

Montero v. INS, 62 F.3d 1347 (11th Cir. 1995).

10

revisit the merits of our prior decision. United States v. Zuniga-

Salinas, 952 F.2d 876, 877 (5th Cir. 1992) (en banc).

Had Petitioner’s challenge to the legitimacy of Ghassan been

his only argument, this would be an easy case indeed. The district

court correctly dismissed his habeas petition, citing Ghassan,

after correctly determining that Petitioner——whose denial of section

212(c) relief by the Immigration Judge had long ago been affirmed

by the Board——was in a position clearly no better than the appellant

in Ghassan. During the pendency of this appeal, however, the

Attorney General amended the regulations governing section 212(c)

relief in a manner favorable to Petitioner.6 Accordingly, the

6

The pre-amendment regulation provided:

“The Board may on its own motion reopen or reconsider any

case in which it has rendered a decision. Reopening or

reconsideration of any case in which a decision has been

made by the Board, whether requested by the Commissioner

or any other duly authorized officer of the Service, or

by the party affected by the decision, shall be only upon

written motion to the Board. Motions to reopen in

deportation proceedings shall not be granted unless it

appears to the Board that evidence sought to be offered

is material and was not available and could not have been

discovered or presented at the former hearing; nor shall

any motion to reopen for the purpose of affording the

alien an opportunity to apply for any form of

discretionary relief be granted if it appears that the

alien’s right to apply for such relief was fully

explained to him and an opportunity to apply therefor was

afforded him at the former hearing unless the relief is

sought on the basis of circumstances which have arisen

subsequent to the hearing. A motion to reopen or a

motion to reconsider shall not be made by or on behalf of

a person who is the subject of a deportation proceedings

subsequent to his departure from the United States. Any

departure from the United States of a person who is the

subject of deportation proceedings occurring after the

making of a motion to reopen or a motion to reconsider

shall constitute a withdrawal of such motion. For the

purpose of this section, any final decision made by the

11

parties were given an opportunity to submit briefs addressing the

applicability of the new regulations as well as the applicability

of the changes made by the passage of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-32,

110 Stat. 1214 (1996), and the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRAIRA), Pub. L. No. 104-208, Div.

C, 110 Stat. 3009 (1996).

II.

The current regulations permit the reopening of exclusion

proceedings to entertain requests for section 212(c) relief even

after the entry of a final exclusion order.7 Under the new

Commissioner prior to the effective date of the Act with

respect to any case within the classes of cases

enumerated in § 3.1(b)(1), (2), (3), (4), or (5) shall be

regarded as a decision of the Board.” 8 C.F.R. § 3.2

(1992).

On April 29, 1996, the Attorney General promulgated new

regulations, effective July 1, 1996, that amended § 3.2. Section

3.2(c)(1) currently provides, in pertinent part:

“Subject to the other requirements and restrictions of

this section, and notwithstanding the provisions in §

1.1(p) of this chapter, a motion to reopen proceedings

for consideration or further consideration of an

application for relief under section 212(c) of the Act (8

U.S.C. 1182(c)) may be granted if the alien demonstrates

that he or she was statutorily eligible for such relief

prior to the entry of the administratively final order of

deportation.” 61 Fed. Reg. 18,900, 18,905 (1996) (to be

codified at 8 C.F.R. § 3.2(c)(1)).

7

Supplementary comments by the Attorney General explain that

the regulations were amended to ensure that “lawful permanent

resident” would include an excludable alien who was eligible for

section 212(c) relief prior to the Board’s final decision:

“[I]f an alien accrues the seven years of lawful

unrelinquished domicile necessary for eligibility for a

12

regulations, an excludable alien must file a motion to reopen

within ninety days of the date of the final administrative decision

or on or before September 30, 1996, whichever is later.8

In his two supplemental briefs, Petitioner argues that the new

section 3.2(c) governs the denial of his motion to reopen because

the regulations tacitly adopt the Second Circuit’s interpretation

of section 212(c) advanced in Vargas v. INS, 938 F.2d 358 (2d Cir.

1991), which was contrary to our decision in Ghassan. Although

never addressing whether his status as a habeas petitioner——as

opposed to an applicant to the Board requesting it to reopen its

direct review of a denial of discretionary relief——affects his

ability to benefit from the change in the regulations, Petitioner

asserts that because he filed his motion to reopen seven years

before the change in the regulations, and because his appeal of the

district court’s dismissal of his habeas action was pending on the

date the regulations became effective, he was under no obligation

waiver under section 212(c) of the Act prior to the entry

of an administratively final order of exclusion or

deportation, he or she may file a motion to reopen for

consideration or further consideration of such an

application. An alien may not accrue time toward the

seven years of lawful unrelinquished domicile required

for section 212(c) purposes after the entry of a final

administrative order of exclusion or deportation.” 61

Fed. Reg. 18901.

8

This restriction does not apply to (1) certain deportation

orders entered in absentia, (2) applications for asylum based on

changed circumstances in the country of nationality that could not

have been discovered or presented at the former hearing, or (3)

motions in which all parties agree that the restrictions should not

apply. 61 Fed. Reg. 18905 (to be codified at 8 C.F.R. §

3.2(c)(3)).

13

to file a new motion to reopen.9

The District Director argues that the effective date of the

new regulations precludes their retroactive application, that

Petitioner’s failure to file a subsequent motion to reopen after

July 1, 1996, and before October 1, 1996, precludes relief under

the current regulations, and that Petitioner’s claim fails as he

never sought the District Director’s consent to file an out-of-time

motion to reopen under the new regulations.

We agree with the District Director and, for the following

reasons, hold that a habeas petitioner cannot take advantage of

procedural changes in the regulations governing section 212(c)

relief on a collateral habeas challenge to the order of exclusion

when the Board’s denial of a motion to reopen was proper under the

standards applicable at the time it denied the motion.

To begin with, there is the simple fact that Petitioner has

never sought relief under the amended regulation. The District

Director, in his first supplemental brief filed on August 6, 1996,

essentially invited Petitioner to file a new motion to reopen and

conceded that any such motion would be reviewed under the new

regulations.10 Even after the expiration of the September 30, 1996,

9

Petitioner accurately summarized his argument in his first

supplemental brief as follows: “Petitioner submits that the short

answer to the Court’s inquiry of what effect the April 29, 1996

amendment to 8 C.F.R. § 3.2(c) has on this appeal is that

Petitioner wins.”

10

The District Director’s First Supplemental Brief stated:

“The effect of this regulation appears to open the door to

consideration of a motion to reopen from the Petitioner, unhindered

by the precedent case law that formed the basis of the Board’s

original denial. In other words, if the Petitioner were to file a

14

deadline, Petitioner failed to seek the District Director’s consent

to file a motion to reopen pursuant to section 3.2(c)(3)(iii) of

the amended regulation. Petitioner, for reasons unknown, chose

instead to rely entirely on his Ghassan-as-bad-law argument and on

the notion that the promulgation of new regulations governing Board

procedure can serve to invalidate final decisions of the Board on

habeas review. It is to that contention we now turn.

The regulations at issue do not operate retroactively to

invalidate the Board’s 1991 denial of Petitioner’s motion to

reopen; the regulations do not purport to apply retroactively, the

Board’s decision was, and had long been, “final” when the new

regulations were promulgated, and the regulatory changes in

procedure wrought by the new regulations are not of sufficient

dimension to justify interference with a final decision by the

Board under the guise of habeas review.

First, the regulations do not purport to apply retroactively.

“Generally, courts will not apply regulations retroactively unless

their language so requires.” Sierra Med. Ctr. v. Sullivan, 902

F.2d 388, 392 (5th Cir. 1990). Although the traditional

justification for judicial reluctance to apply regulations

retroactively——interference with settled expectations and antecedent

rights——are diminished when the change is beneficial to the

claimant, “[n]evertheless, the general rule barring retroactivity

still applies.” Id.; see also Carpenters Dist. Council v. Dillard

motion to reopen or reconsideration of his motion to reopen, the

Board would consider the request in light of the new regulation.”

15

Dep’t Stores, 15 F.3d 1275, 1291 (5th Cir. 1994) (stating that

“administrative rules should not be construed as having retroactive

effect unless their language requires that result”), cert. denied,

115 S.Ct. 933 (1995). The new regulations do not purport to apply

retroactively; rather, they provide only that they become effective

on July 1, 1996. An effective date provision “does not even

arguably suggest that it has any application to conduct that

occurred at an earlier date.” Landgraf v. USI Film Prods., 114

S.Ct. 1483, 1493 & n.10 (1994) (citing Jensen v. Gulf Oil Ref. &

Mktg. Co., 623 F.2d 406, 410 (5th Cir. 1980)). But cf. id. at 1523

(Scalia, J., concurring) (finding that an effective date provision

“is presumed to mean ‘shall have prospective effect upon

enactment’”). As the language of the new regulation does not

require its application to conduct (or completed proceedings)

antedating its adoption, we refuse to impose its requirements to

proceedings that have achieved finality. See Landgraf, 114 S.Ct.

at 1505 (“When, however, the statute contains no such express

command, the court must determine whether the new statute would

have retroactive effect, i.e., whether it would . . . impose new

duties with respect to transactions already completed.”); see also

Hughes Aircraft Co. v. United States, 65 U.S.L.W. 4447 (U.S. June

16, 1997).

Second, the 1991 Board’s denial of Petitioner’s motion to

reopen the Board’s 1988 affirmance of the exclusion order was a

final decision. Application of a subsequent change in a statute or

regulation to a final decision implicates concerns not present when

16

the change occurs while the decision is pending before the initial

tribunal or on direct appeal. “New legal principles, even when

applied retroactively, do not apply to cases already closed.”

Reynoldsville Casket v. Hyde, 115 S.Ct. 1745, 1751 (1995).

Although unquestionably the judiciary must generally apply changes

in the law to cases pending on appeal, Robertson v. Seattle Audubon

Soc’y, 112 S.Ct. 1407, 1414 (1992), and “[w]hen a new law makes

clear that it is retroactive, an appellate court must apply that

law in reviewing judgments still on appeal that were rendered

before the law was enacted, and must alter the outcome

accordingly,” Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447, 1457

(1995) (citing Landgraf, 114 S.Ct. at 1500-08; United States v.

Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801)), nevertheless

“[h]aving achieved finality[,] . . . a judicial decision becomes

the last word of the judicial department with regard to a

particular case or controversy, and Congress may not declare by

retroactive legislation that the law applicable to that very case

was something other than what the courts said it was,” id.

(emphasis in original). When a case achieves finality under a

statutory scheme that precludes direct review by an Article III

court,11 the judicial interest in finality is also substantial. See

Rivera, 810 F.2d at 541-42. Both the public and the Board have

significant, cognizable interests in the finality of immigration

proceedings. See INS v. Abudu, 108 S.Ct. 904, 913 (1988) (“There

11

Unlike the situation respecting deportation orders, direct

judicial review of exclusion orders is not available. 8 U.S.C. §

1105a(b); Delgado-Carrere v. INS, 773 F.2d 629 (5th Cir. 1985).

17

is a strong public interest in bringing litigation to a close as

promptly as is consistent with the interest in giving the

adversaries a fair opportunity to develop and present their

respective cases. The relevance of this interest to deportation

proceedings was pointedly explained in [Jong Ha Wong].”); INS v.

Jong Ha Wong, 101 S.Ct. 1027, 1031 n.5 (1981) (“‘Granting such

motions [to reopen] too freely will permit endless delay of

deportation by aliens creative and fertile enough to continuously

produce new and material facts sufficient to establish a prima

facie case. It will also waste the time of immigration judges

called upon to preside at hearings automatically required by the

prima facie allegations.’”). Indeed, “Congress’ ‘fundamental

purpose’ in enacting § 106 of the INA was ‘to abbreviate the

process of judicial review . . . in order to frustrate certain

practices . . . whereby persons subject to deportation were

forestalling departure by dilatory tactics in the courts.’” Stone

v. INS, 115 S.Ct. 1537, 1546 (1995) (quoting Foti v. INS, 84 S.Ct.

306, 311 (1963)).

These finality considerations have particular force in a case

such as this for two reasons. First, neither Petitioner’s habeas

action nor his July 1989 motion to reopen questions the legal

validity, substantively or procedurally, of the Board’s April 1988

decision affirming the Immigration Judge’s November 1987 decision

finding Petitioner excludable and denying section 212(c) relief on

the basis that the factors favoring such discretionary relief were

outweighed by those pointing in the contrary direction.

18

Petitioner’s July 1989 motion asserts that changed circumstances

arising after the April 1988 Board decision, principally his

divorce from his wife and the award to him of custody of three of

his minor children, sufficiently alter the mix of circumstances

relevant to section 212(c) as to warrant the granting to him of

discretionary relief thereunder. Petitioner’s habeas action merely

asserts that the Board’s 1991 denial of his July 1989 motion to

reopen was legally erroneous because it was based on the allegedly

incorrect theory that, by virtue of the April 1988 decision, he was

no longer eligible for section 212(c) relief under any

circumstances as he was no longer an alien “lawfully admitted for

personal residence.” There is nothing even allegedly illegal or

invalid about the April 1988 Board decision, and its finality

should not be undermined by using April 1996 regulations to mount

a habeas attack on the 1991 Board decision. In the second place,

Petitioner, prior to the April 1996 regulations, had received

Article III judicial review and determination and rejection of his

challenge to the 1991 Board decision, in the form of the district

court’s August 1995 decision herein, a decision which was

unquestionably correct when rendered. Ghassan. Failure to apply

the April 1996 regulations does not deprive Petitioner of Article

III review of the 1991 Board decision, to say nothing of the 1988

Board decision.12

12

Even were this case on direct appeal from the Board’s 1991

decision to this Court, we would consider the change in the

regulations to be the type of procedural change——discussed in both

Landgraf and Plaut——that would not require the Board to revisit its

1991 denial of the Petitioner’s 1989 motion to reopen. Procedural

19

Of course, the amended regulation at issue neither expressly

directs this Court to apply its terms retroactively to motions to

reopen denied prior to its effective date nor constitutes the type

of procedural or jurisdictional change that this Court can itself

apply at this stage of the proceedings.13 Assuming the ability to

alterations to a process legitimately completed, as were the

Board’s 1988 and 1991 decisions, do not require a tribunal to set

aside results and commence afresh under the new rules. See

Landgraf, 114 S.Ct. at 1502 n.29 (“[T]he promulgation of a new rule

of evidence would not require an appellate remand for a new trial.

Our orders approving amendments to federal procedural rules reflect

the common-sense notion that the applicability of such provisions

ordinarily depends on the posture of the particular case.”); id. at

1505 n.34 (“[T]he promulgation of a new jury trial rule would

ordinarily not warrant retrial of cases that had previously been

tried to a judge.”); Plaut, 115 S.Ct. at 1458 (“Petitioners’

principle would therefore lead to the conclusion that final

judgments rendered on the basis of a stringent (or, alternatively,

liberal) rule of pleading or proof may be set aside for retrial

under a new liberal (or, alternatively, stringent) rule of pleading

or proof. This alone provides massive scope for undoing final

judgments and would substantially subvert the doctrine of

separation of powers.”); see also Shipes v. Trinity Indus., 31 F.3d

347, 349 (5th Cir.) (“[T]he Court [in Landgraf] indicated that when

a procedural matter has been properly decided under the old rule,

and a new procedural rule is subsequently enacted while the

ultimate resolution of the case is still pending, no reversal is

required.”), cert. denied, 114 S.Ct. 548 (1993). Further, as noted

in the text, what Petitioner seeks is in substance a second

exercise of discretion on his section 212(c) application, the first

having been the Board’s 1988 decision, which is not claimed to have

been legally erroneous. But even if Petitioner had alleged that in

its 1988 decision the Board abused its discretion in determining,

upon a weighing of the relevant factors, that he did not then merit

the favorable exercise of section 212(c) discretionary relief, such

an allegation would not properly assert the denial of a substantive

right for purposes of retroactivity analysis. Mendez-Rosas v.

INS, 87 F.3d 672, 675 (5th Cir. 1996).

13

We readily accept the proposition, advanced in Landgraf, that

an intervening rule authorizing prospective relief raises no

retroactivity concerns when applied to cases pending on appeal.

See Landgraf, 114 S.Ct. at 1501. Such has been the position of the

District Director in this case; he conceded that the new regulation

would apply both to motions to reopen filed after the effective

date of the regulation and to those pending before the Board on

20

alter by regulation the judgment of a non-Article III

administrative tribunal, see Plaut, 115 S.Ct. at 1459-60, the

amended regulation at issue does not attempt to do so; it simply

alters prospectively the procedure by which excluded aliens may

file (or refile) motions to reopen.

Finally, we refuse to construe the narrow authority of the

federal courts to recognize certain procedural changes on habeas

review to extend to the circumstances here presented. We are not

faced with the question, left open in United States v. Andrade, 83

F.3d 729, 730 n.1 (5th Cir. 1996), concerning the applicability of

“decisions interpreting substantive criminal statutes” to habeas

review. Nor are we faced with the situation addressed by the

Supreme Court in Teague v. Lane, 109 S.Ct. 1060 (1989), concerning

the application of decisions announcing “new constitutional rules

of criminal procedure” to cases on habeas review. Rather, we deal

only with a newly-adopted administrative regulation that, although

evincing a different “interpretation” of statutory eligibility for

section 212(c) relief than had been advanced previously, did not

call into question the decisions under the regulations as

previously worded. As discussed above, “‘congressional enactments

and administrative rules will not be construed to have retroactive

effect unless their language requires this result.’” Landgraf, 114

S.Ct. at 1496 (quoting Bowen v. Georgetown Hosp. Ass’n, 109 S.Ct.

that date. Petitioner is in neither situation; his motion had

already been denied years before the time the regulation became

effective and he refused the District Director’s invitation to file

a new motion under the new regulation.

21

468, 471 (1988)); see also Hughes Aircraft Co. Section 3.2(c)

represents a change in the law governing the procedure the Attorney

General must follow when determining the eligibility for

discretionary relief under section 212(c). A change in the law,

whether statutory or administrative, cannot form the basis for

habeas relief. Cf. Dunn v. Maggio, 712 F.2d 998, 1001 (5th Cir.

1983), cert. denied, 104 S.Ct. 1297 (1984); Rubio v. Estelle, 689

F.2d 533, 536 (5th Cir. 1982). The amended regulation does not

illuminate the initial threshold inquiry in this habeas review of

Petitioner’s exclusion proceeding: whether the procedures

prescribed for determining the propriety of a motion to reopen were

followed by the Board.

The district court concluded that the Board properly denied

the 1989 motion to reopen on the grounds that Petitioner, because

he was subject to a final order of exclusion when (and ever after)

he filed the motion, was hence statutorily ineligible for the

section 212(c) relief his motion to reopen sought to bring about.

The Board’s decision (and that of the district court as well) was

in keeping with both published INS policy and with our Circuit’s

precedent. Although after the district court decision the INS

adopted regulations that reflect a somewhat more favorable policy

for those in a position similar to Petitioner’s,14 Petitioner does

14

The new regulation did not, however, alter the requirement

that a statutorily eligible alien must also present previously

unavailable material evidence. 61 Fed. Reg. 18,900, 18,905 (1996)

(to be codified at 8 C.F.R. § 3.2(c)(1)). The Board addressed only

the issue of the Petitioner’s statutory eligibility in its denial

of his motion to reopen. Statutory eligibility and the

availability/materiality of the evidence proffered are preliminary

22

not contend that the Board’s denial failed to adhere to then-

existing procedures for motions to reopen. Nor does Petitioner

argue that the Board failed to follow the current section 3.2(c);

Petitioner concedes that he has never filed a motion to reopen

after the effective date of the new regulation. The Petitioner has

failed to identify any procedural infirmity that might satisfy a

minimum threshold requirement for the grant of habeas relief.

III.

Although ultimately grounding our affirmance of the district

court’s denial of Petitioner’s application for habeas relief on the

inapplicability of amended section 3.2, we further note that the

passage last April of the AEDPA may have eliminated the substantive

relief sought by Petitioner. Section 440(d) of the AEDPA amended

section 212(c) of the Act to prohibit the Attorney General from

extending discretionary relief to aliens who, like Petitioner, have

been convicted of crimes involving controlled substances.15

Petitioner argues that, as section 440(d) of the AEDPA speaks only

to those aliens who are “deportable,” it is inapplicable to

prerequisites; even if these are both met, the Board would retain

discretion to deny section 212(c) relief on the merits. Abudu, 108

S.Ct. at 912.

15

8 U.S.C. § 1182(c), as amended by AEDPA § 440(d), provides:

“This subsection shall not apply to an alien who is

deportable by reason of having committed any criminal

offense covered in section 1251(a)(2)(A)(iii), (B), (C),

or (D) of this title, or any offense covered by section

1251(a)(2)(A)(ii) of this title for which both predicate

offenses are, without regard to the date of their

commission, otherwise covered by section 1251(a)(2)(A)(i)

of this title.”

23

excludable aliens; and, in a recent en banc opinion, the Board

agreed with Petitioner’s interpretation of section 440(d) in this

respect. Matter of Fuentes-Campos, Int. Dec. No. 3319 (BIA May 14,

1997). Respondent District Director contends that section 440(d)’s

restriction applies to both exclusion and deportation proceedings

because section 212(c) addresses waivers of inadmissability.

Although Petitioner does not address the issue of whether section

440(d) should apply to cases pending as of its effective date,

Respondent argues that, as section 212(c) relief operates

“prospectively,” no retroactivity concerns are implicated and the

AEDPA would eliminate the relief sought by Petitioner should the

motion to reopen be granted.

We have previously held that section 440(a) of the AEDPA

operated to divest the federal courts of jurisdiction to review, on

appeal from the Board, final orders of deportation pending on the

date of enactment.16 Mendez-Rosas v. INS, 87 F.3d 672, 675 (5th

16

The parties agree that AEDPA section 440(a) does not divest

this Court of jurisdiction as it applies exclusively to review of

“final order[s] of deportation.” AEDPA section 440(a), unlike

AEDPA section 440(d), amends section 106(a)(10) of the Act, a

section governing habeas review of deportation orders. We need

not, and do not, decide what effect, if any, section 440(a) has on

our ability to review final orders of exclusion pursuant to our

habeas jurisdiction because we have determined that Petitioner is

in any event not entitled to any relief. Regardless of how the

jurisdictional issue is resolved, the result would be the same:

the district court is affirmed. In such circumstances, we have

refrained from reaching the jurisdictional question. See Texas

Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 496 n.8 (5th Cir.

1988) (en banc) (“While such pretermitting of a jurisdictional

issue is rare, there is respected precedent for it in analogous

circumstances.”) (citing Norton v. Matthews, 96 S.Ct. 2771, 2775

(1976); Secretary of Navy v. Avrech, 94 S.Ct. 3039, 3040 (1974);

United States v. Augenblick, 89 S.Ct. 528, 531 (1969)), cert.

denied, 109 S.Ct. 1932 (1989); see also In re DN Assocs., 3 F.3d

24

Cir. 1996), cert. denied, 117 S.Ct. 694 (1997); Williams v. INS,

114 F.3d 82, 83-84 (5th Cir. 1997); see also Fernandez v. INS, 113

F.3d 1151 (10th Cir. 1997); Boston-Bollers v. INS, 106 F.3d 352

(11th Cir. 1997); Kolster v. INS, 101 F.3d 785 (1st Cir. 1996);

Salazar-Havo v. INS, 95 F.3d 309 (3d Cir. 1996); Hincapie-Nieto v.

INS, 92 F.3d 27 (2d Cir. 1996); Qasguargis v. INS, 91 F.3d 788 (6th

Cir. 1996), cert. denied, 65 U.S.L.W. 3585 (U.S. Feb. 24, 1997)

(No. 96-806); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996), cert.

denied, 117 S.Ct. 694 (1997). But see Reyes-Hernandez v. INS, 89

F.3d 490 (7th Cir. 1996) (section 440(a) inapplicable to alien who,

prior to its enactment, conceded deportability despite having at

least colorable defense thereto, and sought section 212(c) waiver).

To date, no federal court of appeals has addressed whether section

440(d)’s elimination of section 212(c) relief for aliens convicted

of certain drug offenses applies to aliens who filed applications

for waiver prior to the enactment of the AEDPA. Recently, however,

the Attorney General issued a decision holding that it does.

Matter of Soriano, Int. Dec. 3289 (B.I.A., Att’y Gen. Feb. 21,

1997).17

512, 515 (1st Cir. 1993) (same); FDIC v. Scarsella Bros., Inc., 931

F.2d 599, 602 (9th Cir. 1991) (same).

17

In Soriano, the Attorney General considered whether AEDPA

section 440(d) applied to applications for relief under section

212(c) pending when the AEDPA was enacted. Concluding that

application would raise no retroactivity concerns, the Attorney

General stated:

“[T]he application of AEDPA § 440(d) to pending

applications for section 212(c) relief does not impair a

right, increase a liability, or impose new duties on

criminal aliens. The consequences of Respondent’s

25

The Supreme Court, in Lindh v. Murphy, 65 U.S.L.W. 4557 (U.S.

June 23, 1997) (No. 96-6298), held that the provision in AEDPA

section 107(c), which created chapter 154 of Title 28 (setting

forth special habeas corpus procedures for capital cases applicable

upon a state’s attainment of certain conditions) and called for its

application to “cases pending on or after the date of enactment of

this Act,” favored an expressio unius est exclusio alterius

construction of the AEDPA such that, by negative implication,

certain amendments to chapter 153 (which were silent in this

regard) would not apply to pending habeas cases. Id. Section

440(d), located in Title IV of the AEDPA (an entirely different

title denominated “Terrorist and Criminal Alien Removal and

Exclusion”), contains no language addressing application to cases

seeking section 212(c) relief pending on the date of the AEDPA’s

enactment or, for that matter, habeas petitions seeking review of

a Board decision not to reopen a final decision denying such relief

pending on the same date. In this regard, section 440(d) is

conduct remain the same before and after the passage of

AEDPA: criminal sanctions and deportation. AEDPA §

440(d) is best understood as Congress’s withdrawal of the

Attorney General’s authority to grant prospective relief.

Thus the statute alters both jurisdiction and the

availability of future relief, and should be applied to

pending applications for relief.” Id. at 4-5 (discussing

Landgraf, 114 S.Ct. 1483).

In response to concerns raised that aliens may have conceded

deportability in reliance on the availability of section 212(c)

discretionary relief, the Attorney General directed the Board to

reopen cases upon petition for the limited purpose of contesting

deportability. Id. at 8. This narrow class would not appear to

include Petitioner, as in his case denial of section 212(c) relief

became final long prior to the AEDPA.

26

similar to section 440(a), which we have held (prior to Lindh) to

apply to pending deportation cases. Mendez-Rosas, 87 F.3d at 675.

We have no occasion to pass on the merits of the Attorney

General’s Soriano opinion or on the effect thereon (or on

application of AEDPA sections 440(d) or 440(a)) of the Supreme

Court’s opinion in Lindh,18 as we have determined that Petitioner

is in any event entitled to no relief (see note 16, supra). For

the same reason, we do not pass on the correctness of the Board’s

recent opinion in Matter of Fuentes-Campos that AEDPA section

440(d)’s withdrawal of section 212(c) relief from those deportable

due to drug-related convictions does not apply to those who are

excludable for the same reasons.19

18

In Yesil v. Reno, 1997 WL 394945 No. 96-CIV-8409 (S.D.N.Y.

July 15, 1997), the court found Lindh’s analysis of Title I of the

AEDPA applicable to the immigration provisions of Title IV of the

AEDPA. Accordingly, the court held that AEDPA section 440(d) did

not apply to applications for section 212(c) relief pending on the

effective date of the AEDPA. A similar conclusion was reached in

Mojica v. Reno, Nos. 97-CV-1085-JBW, 1997 WL 357808 (E.D.N.Y. June

24, 1997).

19

On September 30, 1996, the IIRAIRA was signed by the

President. The IIRAIRA repeals section 106 of the Act and replaces

it with a new section, to be codified at 8 U.S.C. § 1252,

prohibiting judicial review of any final order of removal against

an alien who is removable by reason of having committed certain

drug-related offenses, whether pursuant to an exclusion or

deportation proceeding, Pub. L. No. 104-208, Div. C, Title III, §

306(a) & (b), 110 Stat. 3009 (1996). The new section 1252,

however, applies only to “motions to reopen filed on or after the

date of enactment.” Id. § 306(c). Petitioner and the District

Director agree that IIRAIRA section 306(b) does not apply to this

case. They are correct.

We note that IIRAIRA section 304(b) repeals section 212(c).

Pursuant to IIRAIRA section 309(a), that provision did not become

effective until 180 days after September 30, 1996. Further,

IIRAIRA section 309(c) provides for certain transitional rules.

Petitioner and the District Director both take the position that

the IIRAIRA has no effect on this appeal. As we hold that

27

Conclusion

We affirm the district court’s denial of Petitioner’s

application for a writ of habeas corpus.

AFFIRMED

Petitioner is otherwise in no event entitled to any relief, we do

not address whether any provision of the IIRAIRA is applicable to

preclude relief to Petitioner or render his claims essentially moot

(see note 16, supra).

28