LaFontant v. Immigration & Naturalization Service

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 21, 1998 Decided February 10, 1998

No. 96-1310

Jean Fritzner LaFontant,

Petitioner

v.

Immigration & Naturalization Service,

Respondent

On Petition for Review of an Order of the

United States Immigration and Naturalization Service

Susan M. Demske, student counsel, argued the cause for

petitioner, with whom Steven H. Goldblatt, appointed by the

Court, and Catherine E. Lhamon, were on the briefs.

Lisa M. Arnold, Attorney, United States Department of

Justice, argued the cause for respondent, with whom Frank

W. Hunger, Assistant Attorney General, and Michael P.

Lindemann, Assistant Director, were on the brief. Ethan B.

Kanter, Attorney, entered an appearance.

Before: Edwards, Chief Judge, Wald and Rogers, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Wald.

Wald, Circuit Judge: Petitioner Jean Fritzner LaFontant,

a resident alien living in the United States, brought this

action to challenge a deportation order issued by the Bureau

of Immigration Affairs ("BIA") based on his multiple convic-

tions for crimes involving moral turpitude, Immigration and

Naturalization Act ("INA") s 241(a)(2)(A)(ii), 8 U.S.C.A.

s 1251(a)(2)(A)(ii) (1995), and his firearm conviction, INA

s 241(a)(2)(C), 8 U.S.C.A. s 1255(a) (1995). LaFontant

claims that the BIA abused its discretion by failing to provide

him with a waiver of inadmissibility, as provided by INA

s 212(c), 8 U.S.C.A. s 1182(c) (1995), or an adjustment of

status to lawful permanent resident, as provided by INA

s 245(a), 8 U.S.C.A. s 1255(a) (1995). LaFontant further

claims that application to LaFontant's petition for review of

section 440(a) of the Antiterrorism and Effective Death Pen-

alty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)

(codified as amended at 8 U.S.C.A. s 1105a) ("AEDPA"),

which divests this court of jurisdiction to review certain

deportation orders, would be impermissibly retroactive be-

cause it would attach new legal consequences to events com-

pleted before the Act's enactment. The government, in turn,

argues that section 440(a) deprives this court of jurisdiction

over LaFontant's petition for review. It explains that appli-

cation of section 440(a) to LaFontant's petition is not imper-

missibly retroactive but is instead a permissible prospective

application of a jurisdictional statute. We hold that section

440(a) of the AEDPA is not impermissibly retroactive as

applied in this case.1 We therefore dismiss this case for lack

__________

1 We do not pass on whether section 440(a) may apply, retroac-

tively or otherwise, to bar review of a final order of deportation in a

case in which a constitutional infirmity in the deportation proceed-

ing itself is alleged. See, e.g., Turkhan v. INS, 123 F.3d 487, 489-

90 (7th Cir. 1997) (Petitioner claimed that he "received ineffective

assistance of counsel in his hearing before the immigration judge,"

and that "the BIA violated due process when it did not consider his

mislabeled brief.").

of jurisdiction. We also hold that the fee requirements of the

Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No.

104-134, 100 Stat. 1321 (1996), do not apply to LaFontant's

petition for review of the BIA's deportation order.

I. Factual and Procedural Background

Jean Fritzner LaFontant was born in Haiti on October 23,

1957. Transcript at 32, In re LaFontant, No. 17-018-333,

United States Department of Justice Executive Office for

Immigration Review, Immigration Court (Dec. 7, 1995)

("Imm. Ct. Tr."). He entered the United States as a lawful

permanent resident in 1966 at the age of eight and has not

returned to Haiti since. Id. at 32. He does not speak Creole,

the primary language spoken in Haiti, and his siblings and

parents all live in the United States. Id. at 34, 68, 117-18.

While residing in the United States, LaFontant has been

employed as a bicycle carrier and has filed tax returns for

years in which he earned more than $5,000. Id. at 36-37, 39-

40.

At his deportation hearing on November 20, 1995, LaFon-

tant acknowledged that he had been convicted on December

4, 1981, of the crimes of second degree burglary, grand

larceny, and the unauthorized use of a vehicle in the District

of Columbia. Id. at 42. The INS also presented evidence

that he had pled guilty on December 4, 1981, to the crimes of

receiving stolen property and carrying a dangerous weapon in

the District of Columbia and, in 1994, had pled guilty to

committing the crime of burglary in Alexandria, Virginia. Id.

at 49-54.

During his testimony, LaFontant admitted that he had

been arrested "roughly 20 or so" times. Id. at 42-43. A

copy of LaFontant's "rap sheet" was introduced into evidence.

Id. at 47, 86. The sheet indicated that from 1978 until he was

placed into custody pending deportation proceedings, LaFon-

tant had been arrested for forty-five crimes, eleven of which

resulted in criminal convictions. See Joint Appendix ("J.A.")

147-56.

On November 30, 1994, while LaFontant was on probation,

the INS detained him, took him into custody, and ordered

him to show cause why he should not be deported. See Order

to Show Cause and Notice of Hearing, No. A17-018-333, J.A.

112-18. LaFontant contested his deportability but presented

no evidence to support his claims. See Imm. Ct. Tr. at 4-10.

Instead, he relied entirely on his application for discretionary

relief under INA s 212(c) (waiver of inadmissibility) and INA

s 245(a) (adjustment of status to lawful permanent resident).

On December 7, 1995, the Immigration Judge issued a deci-

sion holding that LaFontant was deportable under section

241(a)(2)(a)(ii) of the INA for having committed two crimes

involving moral turpitude which did not arise out of a common

scheme or plan and, under section 241(a)(2)(C) of the Act, for

his firearms conviction. See In re LaFontant, No. 17-018-

333, United States Department of Justice Executive Office for

Immigration Review, Immigration Court (Dec. 7, 1995). The

Immigration Judge found that LaFontant was statutorily

eligible to be considered for a grant of discretionary relief

under sections 212(c) and 245(a). Id. After weighing the

equities, however, the Judge concluded that LaFontant's case

did not merit a favorable exercise of discretion. Id.

LaFontant filed his notice of appeal to the BIA on Decem-

ber 18, 1995. The BIA, after weighing the factors for and

against a granting of discretionary relief, also concluded that

LaFontant was not entitled to discretionary relief in the form

of either a waiver of inadmissibility or an adjustment of

status. See In re LaFontant, No. 17-018-333, United States

Department of Justice Executive Office for Immigration Re-

view, B.I.A. (Aug. 22, 1996). Consequently, on August 22,

1996, the BIA dismissed the appeal. Id.

On April 24, 1996, while LaFontant's appeal was still

pending before the BIA, the President signed into law the

Antiterrorism and Effective Death Penalty Act of 1996. Sec-

tion 440(a) of the Act provided that any final order of

deportation against an alien who is deportable by reason of

having committed a criminal offense shall not be subject to

review by any court. Four months later, on August 30, 1996,

LaFontant filed his petition for review with this court.

II. Analysis

A. Jurisdiction

Prior to the enactment of the AEDPA, section 106(a)(1)-(6)

of the INA authorized the circuit courts of appeals to review

final orders of deportation from the BIA. Section 440(a) of

the AEDPA amended section 106(a)(10) of the INA to exclude

final orders of deportation entered against certain criminal

aliens from judicial review. Section 440(a), as amended by

section 306(d) of the Illegal Immigration and Immigrant

Responsibility Act, provides:

(a) JUDICIAL REVIEW--Section 106 of the Immigra-

tion and Nationality Act (8 U.S.C. s 105a (a)(10)) is

amended to read as follows:

"(10) Any final order of deportation against an alien who

is deportable by reason of having committed a criminal

offense covered in section 241(a)(2)(A)(iii), (B), (C), (D),

or any offense covered by section 241(a)(2)(A)(ii) for

which both predicate offenses are, without regard to the

date of their commission, otherwise covered by section

241(a)(2)(A)(i), shall not be subject to review by any

court."

Pub. L. No. 104-132, s 440(a), 110 Stat. 1214, 1276 (1996), as

amended by Pub. L. No. 104-208, s 306(d), 110 Stat. 3009

(1996). The statute did not specify an effective date. It was

therefore effective on the date of enactment--April 24, 1996.

See United States v. Shaffer, 789 F.2d 682, 686 (9th Cir. 1986)

(" 'In the absence of an express provision in the statute itself,

an act takes effect on the date of its enactment.' ") (citation

omitted). LaFontant's petition for review was not filed with

this court until August 30, 1996.

LaFontant argues that section 440(a) of the AEDPA does

not apply to him because such an application would have an

impermissible retroactive effect. LaFontant explains that he

made strategic choices concerning what to argue at his depor-

tation hearing more than a year before the AEDPA was

enacted, when deportable aliens were authorized to seek

judicial review. Applying section 440 of the AEDPA to him

would therefore attach new legal consequences to events

completed before the Act's enactment, in violation of princi-

ples established by the Supreme Court in Landgraf v. USI

Film Prods., 511 U.S. 244, 270 (1994). The government, in

turn, argues that application of section 440(a) to this case is

not impermissibly retroactive, but is instead a permissible

prospective application of a jurisdictional statute. The pro-

hibitive nature of the bar holds especially true in this case,

the government argues, because LaFontant's petition for

review was not filed until four months after the AEDPA's

enactment. In addition, the government notes that, with the

exception of the Seventh Circuit, every circuit to consider this

issue has held that section 440(a) applies to cases pending at

the time of its enactment, justifying their immediate dismiss-

al. We similarly find that application of section 440(a) to

LaFontant's petition for review is not impermissibly retroac-

tive and that we do not have jurisdiction to hear this case.

The Supreme Court established the framework for evaluat-

ing retroactivity in Landgraf v. USI Film Prods., 511 U.S.

244 (1994). The Court explained that "[w]hen a case impli-

cates a federal statute enacted after the events in suit,"

absent an express provision regarding the statute's proper

reach, "the court must determine whether the new statute

would have retroactive effect." Id. at 280. If the statute

would operate retroactively, the court is to presume that the

new statute does not apply to that case, "absent clear con-

gressional intent favoring such a result." Id. The Court

further explained:

A statute does not operate "retrospectively" merely

because it is applied in a case arising from conduct

antedating the statute's enactment ... or upsets expecta-

tions based in prior law. Rather, the court must ask

whether the new provision attaches new legal conse-

quences to events completed before its enactment. The

conclusion that a particular rule operates "retroactively"

comes at the end of a process of judgment concerning the

nature and extent of the change in the law and the

degree of connection between the operation of the new

rule and a relevant past event.

Id. at 269-70 (citations omitted) (footnotes omitted). With

regard to jurisdiction in particular, the Court noted that it

had "regularly applied intervening statutes conferring or

ousting jurisdiction, whether or not jurisdiction lay when the

underlying conduct occurred or when the suit was filed." Id.

at 274. It continued: "Application of a new jurisdictional rule

usually 'takes away no substantive right but simply changes

the tribunal that is to hear the case.'.... Present law

normally governs in such situations because jurisdictional

statutes 'speak to the power of the court rather than to the

rights or obligations of the parties.' " Id. (citations omitted).

The Court further explained that "[c]hanges in procedural

rules may often be applied in suits arising before their

enactment without raising concerns about retroactivity" be-

cause "rules of procedure regulate secondary rather than

primary conduct." Id. at 275.

A great deal of debate has centered around the Landgraf

Court's statement that "[a]pplication of a new jurisdictional

rule usually 'takes away no substantive right but simply

changes the tribunal that is to hear the case.' " 511 U.S. at

274 (citing Hallowell v. Commons, 239 U.S. 506, 508-09

(1916)). Some have suggested (as does petitioner here) that

"Landgraf assumes that jurisdictional statutes only effect a

change in the tribunal that will hear the case and that the

presumption in favor of immediate application is therefore

inapposite where the statute's effect is to deprive a party of

access to any judicial review at all." See Kolster v. INS, 101

F.3d 785, 788 (1st Cir. 1996). However, the Landgraf Court's

citation to Hallowell v. Commons, 239 U.S. at 508, belies such

an inference. In Hallowell, the Supreme Court upheld the

application to pending cases of a statute that deprived the

federal district courts of jurisdiction over certain Indian

probate disputes and vested "final and conclusive" authority

in the Secretary of the Interior. The Court explained that

"the reference of the matter to the Secretary ... takes away

no substantive right, but simply changes the tribunal that is

to hear the case." Id. at 508. We conclude from this that the

Landgraf Court intended that a statute that takes away

jurisdiction from the federal courts and vests exclusive au-

thority in an executive agency to resolve certain disputes be

considered a "jurisdictional rule ... 'that simply changes the

tribunal that is to hear the case.' " 511 U.S. at 274 (citation

omitted); see Kolster v. INS, 101 F.3d 785, 788 (1st Cir. 1996)

(concluding that Landgraf 's citation to Hallowell indicates

that jurisdictional change from an Article III court to an

administrative decision maker is simply a change in the

"tribunal that is to hear the case"); Hincapie-Nieto v. INS,

92 F.3d 27, 29 (2d Cir. 1996) (same).

The Supreme Court applied and clarified the Landgraf

framework for determining retroactivity in its recent decision,

Lindh v. Murphy, 117 S. Ct. 2059 (1997). The Lindh Court

further elaborated on the distinction between procedural and

substantive changes. The Court noted that if a statute is

"merely procedural in a strict sense (say, setting deadlines for

filing and disposition ... ), the natural expectation would be

that it would apply to pending cases." Id. at 2063 (quoting

Landgraf, 511 U.S. at 275) (citations omitted). But, since the

Court found that the statutory changes at issue in the case--

the "revisions of prior law to change standards of proof and

persuasion in a way favorable to the state"--went "beyond

'mere' procedure to affect substantive entitlement to relief," it

held that the statute did not fall within the Court's "express

(albeit qualified) approval of applying such statutes to pend-

ing cases." Id. at 2063-64. Instead, the Court relied on

what it held to be a clear expression of congressional intent

that the AEDPA's amendments to chapter 153 not apply to

noncapital cases that were already pending when the AEDPA

was enacted. The Court explained, "[t]he statute reveals

Congress's intent to apply the amendments to chapter 153

only to such cases as were filed after the statute's enact-

ment." Id. at 2063.

The Court also discussed its position regarding the applica-

tion of principles of retroactivity to jurisdictional statutes in

Hughes Aircraft Co. v. United States, 117 S. Ct. 1871 (1997),

which was decided within several days of Lindh. The

Hughes case involved a 1986 amendment to the qui tam

provision of the False Claims Act. The amendment expanded

the circumstances in which private parties could bring suit on

behalf of the United States against a person submitting a

false claim to the government. The Court said that the mere

fact that a statute is jurisdictional in nature must not affect a

court's determination of the temporal reach of the statute.

The Court rejected the Ninth Circuit's holding that "absent a

clear statement of congressional intent, there is a strong

presumption in favor of retroactivity for jurisdictional stat-

utes." Id. at 1878. It explained:

The Ninth Circuit simply misread our decision in Land-

graf, for the only "presumption" mentioned in that opin-

ion is a general presumption against retroactivity. The

fact that courts often apply newly enacted jurisdiction-

allocating statutes to pending cases merely evidences

certain limited circumstances failing to meet the condi-

tions for our generally applicable presumption against

retroactivity, not an exception to the rule itself, as the

United States recognizes.... Statutes merely address-

ing which court shall have jurisdiction to entertain a

particular cause of action can fairly be said merely to

regulate the secondary conduct of litigation and not the

underlying primary conduct of the parties.... Such

statutes affect only where a suit may be brought, not

whether it may be brought at all.... [The 1986 amend-

ment] creates jurisdiction where none previously existed;

it thus speaks not just to the power of a particular court

but to the substantive rights of the parties as well. Such

a statute, even though phrased in "jurisdictional" terms,

is as much subject to our presumption against retroactiv-

ity as any other.

Id. at 1878 (citations omitted).

As these cases illustrate, the Supreme Court has clearly

established the principle that in determining retroactivity,

jurisdictional statutes are to be evaluated in the same manner

as any other statute. Thus, in order to determine whether a

statute applies to a case that was filed prior to passage of the

statute, courts must determine whether the statute is "proce-

dural" in nature, or whether it affects "substantive entitle-

ment to relief." Lindh, 117 S. Ct. at 2063. Does it merely

"regulate the secondary conduct of litigation" or does it

instead affect "the underlying primary conduct of the par-

ties"? Hughes, 117 S. Ct. at 1878. Does the statute speak

"just to the power of a particular court" or does it speak to

"the substantive rights of the parties as well"? Id.

Several circuit courts have considered cases similar to the

one at hand, and, with a single narrow exception, all have

concluded that applying section 440(a) is not impermissibly

retroactive. See Kolster v. INS, 101 F.3d 785, 786, 789 (1st

Cir. 1996) (holding that "section 440(a) does apply to peti-

tions, like Kolster's, which were pending on the date of

AEDPA's enactment" because "Kolster's substantive rights,

liabilities, and duties are not retroactively impaired by the

preclusion of judicial review"); Hincapie-Nieto v. INS, 92

F.3d 27, 28 (2d Cir. 1996) (holding that "the AEDPA has

repealed the jurisdiction a court of appeals formerly had over

petitions for review filed by aliens ... and that the Act's

removal of jurisdiction validly applies to petitions filed before

the Act's effective date"); Salazar-Haro v. INS, 95 F.3d 309,

310 (3d Cir. 1996), cert. denied, 117 S. Ct. 1842 (1997) (holding

s 440(a) applicable to pending petitions because "unlike situa-

tions where retroactivity would affect pre-existing rights,

withdrawal of jurisdiction, although realistically disrupting

settled expectations, does not preserve pending litigation");

Williams v. INS, 114 F.3d 82, 83 (5th Cir. 1997) (holding that

"[d]espite petitioner's protestations against retroactive appli-

cation, section 440(a) does apply to her petition, which was

filed several days after the effective date of April 24, 1997,

and would apply even if her petition had been pending on that

date"); Mendez-Rosas v. INS, 87 F.3d 672, 676 (5th Cir.

1996), cert. denied, 117 S. Ct. 694 (1997) (holding that

s 440(a) applies retroactively to appeals that were pending

before the circuit court when the AEDPA became law be-

cause s 440(a) "speaks to the power of the court, rather than

to the rights or obligations of the parties"); Figueroa-Rubio

v. INS, 108 F.3d 110, 112 (6th Cir. 1997) (holding that s 440

eliminates the court's jurisdiction to review petitions that

were pending at the time the AEDPA was enacted because

the statute is jurisdictional and " 'jurisdictional statutes

"speak to the power of the court rather than the rights or

obligations of the parties" ' "; also noting that "[a]pplying

s 440(a) to petitions for review of deportation orders pending

on the date of the AEDPA's passage 'is not retroactive

application affecting substantive rights, but is a prospective

application of a jurisdiction-eliminating statute' ") (citations

omitted); Qasguargis v. INS, 91 F.3d 788, 789 (6th Cir. 1996),

cert. denied, 117 S. Ct. 1080 (1997) (holding that because

s 440(a) took effect before the petition for review was filed,

the petitioner had no statutory right of review); Mendez-

Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997) (holding

that s 440 "is jurisdictional in nature and therefore must be

applied retroactively, in other words, to cases such as this

that were pending on its date of enactment"); Duldulao v.

INS, 90 F.3d 396, 399 (9th Cir. 1996) (holding that the

" 'presumption against retroactive application of new legisla-

tion to pending cases ... does not apply to rules conferring

or withdrawing jurisdiction,' " therefore "AEDPA section

440(a), which affects the power of the court rather than the

rights and obligations of the parties, ... revokes our jurisdic-

tion to review Duldulao's final order of deportation"); Fer-

nandez v. INS, 113 F.3d 1151, 1154 (10th Cir. 1997) (rejecting

the argument that "section 440(a) should not be applied to

petitions pending at the time of its enactment, because it

would eliminate judicial review and vest final authority in an

administrative agency"); Boston-Bollers v. INS, 106 F.3d

352, 354 (11th Cir. 1997) (holding that "[a]pplying section

440(a)(10) to petitions for review of deportation orders pend-

ing on the date of the passage of the AEDPA is not retroac-

tive application affecting substantive rights, but is a prospec-

tive application of a jurisdiction-eliminating statute").2

__________

2 All of these decisions took place before the Supreme Court

issued its decisions in Lindh and Hughes. Some of them state that

they rely on the presumption, which was explicitly rejected by the

Court in Hughes, that jurisdictional statutes are to be applied

retroactively. See, e.g., Kolster, 101 F.3d at 788 ("For jurisdictional

statutes, the presumption is in favor of immediate application....");

Mendez-Rosas, 87 F.3d at 674 ("[I]f the statute addresses jurisdic-

tional rules, we presume that it is to be applied retroactively.");

One circuit court has held that section 440(a) of the AED-

PA did not apply retroactively to a case in which deportability

was conceded before the AEDPA became law and the peti-

tioner would have had at least a colorable defense to deporta-

bility. In subsequent cases, however, the court made clear

that the holding was limited to the specific circumstances

presented in that case. In Reyes-Hernandez v. INS, 89 F.3d

490 (7th Cir. 1996), the Seventh Circuit held that section

440(a) did not prevent the court from hearing the appeal of a

legal resident who had conceded deportability and argued

only for discretionary relief in agency proceedings, and whose

case was only a few days away from oral argument in the

circuit court at the time the AEDPA became effective. The

court explained that since Reyes-Hernandez might have con-

tested deportability in agency proceedings had he known that

the option of judicial relief would be foreclosed, applying

section 440(a) to his pending case would be an impermissible

retroactive application of a statute. Immediately after decid-

ing Reyes-Hernandez, however, the Seventh Circuit began to

limit and clarify its holding in the case. In Arevalo-Lopez v.

INS, 104 F.3d 100 (7th Cir. 1997), the court held that it

lacked jurisdiction to review a BIA denial of discretionary

relief from deportation to a resident alien whose appeal was

pending before the court when the AEDPA was enacted

because section 440(a) of that Act divested the court of

__________

Duldulao, 90 F.3d at 399 (" '[The] presumption against retroactive

application of new legislation to pending cases ... does not apply to

rules conferring or withdrawing jurisdiction.' ") (citation omitted).

Nonetheless, it appears unlikely that the results would have been

different had the courts had the benefit of the Supreme Court's

recent decisions. Indeed, the one circuit court to explicitly consider

the impact of the Lindh and Hughes decisions on its earlier

conclusion that section 440(a) applies to pending cases found that

the Supreme Court's decisions had no effect. See Turkhan v. INS,

123 F.3d 487, 489 n.3 (7th Cir. 1997); see also Mansour v. INS, 123

F.3d 423, 424-25 (6th Cir. 1997) (restating earlier holding that

section 440(a) applies to petitions that were pending when AEDPA

took effect without specifically mentioning Supreme Court's inter-

vening decisions in Hughes and Lindh ); Okoro v. INS, 125 F.3d

920, 924 (5th Cir. 1997) (same).

jurisdiction. The court distinguished the case from Reyes-

Hernandez on the grounds that "in this case, petitioner

contested his deportability at his deportation hearing." Id. at

101. The court arrived at the same result in Chow v. INS,

113 F.3d 659, 670 (7th Cir. 1997) (holding that section 440(a)

"does not attach new rights or liabilities to existing actions"

and therefore must be applied to pending petition of alien

detainee). Thus, even if this court were to adopt the Seventh

Circuit's framework, we would not have jurisdiction to review

LaFontant's case because he contested, at least formally, his

deportability during his agency proceedings. See Imm. Ct.

Tr. at 5.

We join the majority of the circuits in concluding that

application of section 440(a) of the AEDPA to a petition for

review of a BIA deportation order is not impermissibly

retroactive. Section 440(a) of the AEDPA falls squarely onto

the procedure side of the substance/procedure dichotomy

established by the Supreme Court in Landgraf, Hughes, and

Lindh for evaluating whether a statute has impermissible

retroactive effects. Although section 440(a) does give LaFon-

tant's agency proceedings greater finality than LaFontant

expected at the time they were held, section 440(a) is not

impermissibly retroactive because it does not attach new

substantive legal consequences to those proceedings. It does

not create new legal liabilities, deprive a party of a legal

defense he would otherwise have had, or otherwise affect the

substantive rights of the parties before this court. Rather, it

simply speaks to the power of this court to hear an appeal

from an agency decision. Thus, even if we accepted petition-

er LaFontant's claim that he would have presented different

arguments and evidence during his agency proceedings

(though he has not explained exactly what different argu-

ments or evidence he would have offered), this would not be

sufficient to establish that section 440(a) has an impermissible

retroactive effect. We therefore hold that application of

section 440(a) of the AEDPA to LaFontant's petition for

review is not impermissibly retroactive, and LaFontant's

petition must be dismissed for lack of jurisdiction.

B. Fee Requirements of the Prison Litigation Reform Act

of 1996

Petitioner argues and the government concedes that the fee

requirements of the Prison Litigation Reform Act of 1996

("PLRA"), Pub. L. No. 104-134, 100 Stat. 1321 (1996), do not

apply to LaFontant's petition for review of the BIA's deporta-

tion order because an incarcerated alien facing deportation is

not a "prisoner" for purposes of the PLRA. We agree.

The PLRA defines "prisoner" as "any person incarcerated

or detained in any facility who is accused of, convicted of,

sentenced for, or adjudicated delinquent for, violations of

criminal law or the terms and conditions of parole, probation,

pretrial release, or diversionary program." 28 U.S.C.A.

s 1915(h). Although LaFontant was a "prisoner" for pur-

poses of the PLRA when he served time for past convictions,

he ceased being a "prisoner" at the time he was released on

parole. When LaFontant was detained by the Attorney

General under the INA for deportation purposes, he became

an "alien detainee," not a "prisoner." See Ojo v. INS, 106

F.3d 680, 683 (5th Cir. 1997) (holding that "the PLRA does

not bring alien detainees within its sweep"). Thus, we hold

that the fee requirements of the PLRA do not apply to

LaFontant's petition for review.

III. Conclusion

For the foregoing reasons, we hold that application of

section 440(a) of the AEDPA, which divests this court of

jurisdiction to review certain deportation orders, to petitioner

LaFontant's petition for review is not impermissibly retroac-

tive because section 440(a) is entirely procedural in nature

and attaches no new substantive legal consequences to events

that occurred prior to its enactment. We therefore dismiss

this case for lack of jurisdiction. We also hold that the fee

requirements of the PLRA do not apply to LaFontant's

petition for review of the BIA's deportation order because

LaFontant is not a "prisoner" under the PLRA.

So ordered.