DeSousa v. Reno

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

8-25-1999

DeSousa v. Reno

Precedential or Non-Precedential:

Docket 99-1115

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Filed August 25, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1115

FERNANDO JORGE DESOUSA

v.

JANET RENO, Attorney General;

DORIS MEISSNER, Commissioner of Immigration

and Naturalization Service;

IMMIGRATION AND NATURALIZATION SERVICE;

DEPARTMENT OF JUSTICE;

J. SCOTT BLACKMAN,

Acting District Director,

Appellants

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 98-01470)

District Judge: Honorable Anita B. Brody

Argued July 13, 1999

BEFORE: GREENBERG, ALITO, and ROSENN,

Circuit Judges

(Filed: August 25, 1999)

Martin A. Kascavage (argued)

Schoener & Kascavage

400 Market Street, Suite 420

Philadelphia, PA 19106

Attorneys for Appellee

David W. Ogden

Acting Assistant Attorney General

Civil Division

Christopher C. Fuller

Senior Litigation Counsel

Michael P. Lindemann

Edward J. Duffy (argued)

Attorneys

Office of Immigration Litigation

Civil Division

U.S. Department of Justice

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Attorneys for Appellants

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Fernando Jorge DeSousa, seeking to avoid deportation

for crimes he committed while a legal resident of the United

States, applied for a discretionary waiver of inadmissibility

under former 8 U.S.C. S 1182(c). The Board of Immigration

Appeals ("BIA") ruled that as a deportable, rather than an

excludable, alien, DeSousa was not eligible for a

discretionary waiver. DeSousa then filed a petition for

habeas corpus in the district court against the Attorney

General and the Immigration and Naturalization Service

("INS"), arguing that former S 1182(c), as applied by the

BIA, violated the equal protection guarantee of the Fifth

Amendment's Due Process Clause by irrationally

distinguishing between aliens in deportation and in

exclusion proceedings. The district court concluded that it

had habeas corpus jurisdiction to hear DeSousa's claims

and granted him a writ based on his equal protection

challenge. Although we agree with the district court that

recent changes in the immigration laws have not eliminated

district courts' habeas jurisdiction over deportation-related

2

claims, at least in cases such as this in which deportation

proceedings were instituted before April 1, 1997, the

effective date of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.

104-208, 110 Stat. 3009 (1996), we find that S 1182(c), as

interpreted by the BIA, does not violate the Fifth

Amendment's equal protection guarantee and therefore will

reverse.

II. JURISDICTION

DeSousa claims that the district court had subject matter

jurisdiction over his habeas petition under 28 U.S.C.

S 2241. Whether changes in the immigration laws

eliminated the district court's habeas jurisdiction over

DeSousa's deportation-related challenge is the first issue

presented by this appeal and is discussed fully below. We

have appellate jurisdiction under 28 U.S.C. S 1291 over the

district court's final order granting DeSousa relief.

III. FACTS AND PROCEEDINGS

Fernando Jorge DeSousa, a citizen of Portugal, entered

the United States as a lawful permanent resident in

December 1969. In the 1970s, 1980s and early 1990s,

DeSousa was convicted of various crimes including

aggravated assault, recklessly endangering another person,

burglary and theft. For his second aggravated assault

conviction in 1992, DeSousa served four and one-half years

in prison. He was released from prison on December 15,

1996.

As an alien convicted of two crimes of moral turpitude

and also as an aggravated felon, DeSousa became subject

to deportation under the Immigration and Nationality Act

("INA") S 241(a)(2)(A)(ii), 8 U.S.C.S 1251(a)(2)(A)(ii) (two

crimes of moral turpitude), and S 241(a)(2)(A)(iii), 8 U.S.C.

S 1251(a)(2)(A)(iii) (aggravated felony). 1 On October 28,

1996, the INS issued an order to DeSousa to show cause

_________________________________________________________________

1. These sections are now renumbered as #8E8E # 237(a)(2)(A)(ii) and

237(a)(2)(A)(iii) and codified at 8 U.S.C. SS 1227(a)(2)(A)(ii) and

1227(a)(2)(A)(iii).

3

why he should not be deported because of his criminal

convictions.

At his immigration hearing, DeSousa sought to prevent

his deportation by applying for a discretionary waiver of

inadmissibility under former S 212(c) of the INA, codified at

8 U.S.C. S 1182(c) (repealed 1996). At the time of DeSousa's

convictions, S 212(c) permitted the Attorney General, in her

discretion, to issue waivers to legal aliens who had traveled

abroad voluntarily and were seeking entry back into the

country but who would be excludable based on their

criminal convictions. See former 8 U.S.C.S 1182(c) (1990).2

Although the waiver provision applied on its face only to

aliens in exclusion proceedings, the BIA and federal courts

routinely had applied it to aliens in deportation proceedings

as well. See, e.g., Katsis v. INS, 997 F.2d 1067, 1070 (3d

Cir. 1993); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).3

_________________________________________________________________

2. The version of S 212(c) as amended in 1990 provided in relevant part:

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 [despite being otherwise excludable].... The first sentence

of

this subsection shall not apply to an alien who has been convicted

of an aggravated felony and has served a term of imprisonment of at

least 5 years.

8 U.S.C. S 1182(c) (1990). Then the last sentence was amended further

in 1991 to provide that: "The first sentence of this subsection shall not

apply to an alien who has been convicted of one or more aggravated

felonies and has served for such felony or felonies a term of

imprisonment of at least 5 years." 8 U.S.C. S 1182(c) (1991). We see no

material difference between the two versions, at least in the context of

this case.

3. It must be said that this application was sometimes questioned. See

Morel v. INS, 90 F.3d 833, 842 (3d Cir. 1996) (Greenberg, J., dissenting

opinion). At the time of the events at issue in this appeal, deportable

aliens were defined in 8 U.S.C. S 1251(a) as those aliens who resided

within the United States but who could be deported for certain reasons.

In contrast, excludable aliens were defined in 8 U.S.C. S 1182(a) as those

aliens who could be denied entry into the United States. IIRIRA,

however, eliminated distinctions between exclusion and deportation

proceedings. Under the current statutory structure, an immigration

4

Moreover, at the time of DeSousa's latest conviction in

1992, S 212(c) waivers were unavailable only to those aliens

who had been convicted of an aggravated felony, and who

had served a term of imprisonment of at least five years for

such felonies. See former 8 U.S.C. S 1182(c) (1990).

Although DeSousa's convictions qualified as aggravated

felonies, see 8 U.S.C. S 1101(a)(43) (1990), he nevertheless

would have been eligible for a waiver under the previous

version of S 212(c) because he had served a prison term of

only four and one-half years for his convictions.

The immigration judge found, however, that DeSousa was

not eligible for the waiver under the new version ofS 212(c)

enacted by S 440(d) of the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110

Stat. 1214 (1996). As amended, S 212(c) precludes

"deportable" aliens who have been convicted of an

aggravated felony or two crimes of moral turpitude from

receiving waivers of inadmissibility, regardless of the prison

term served for such crimes. See AEDPA S 440(d).4

The BIA affirmed the immigration judge's decision.

Although DeSousa argued that new S 212(c) violated his

right to equal protection by withdrawing waivers only from

_________________________________________________________________

judge determines an alien's right either to be admitted to or to remain in

the United States in a removal proceeding. See 8 U.S.C. S 1229a.

Similarly, there is now a single provision, equally applicable to all

aliens,

that permits the Attorney General, in her discretion, to "cancel" the

removal of an alien. See 8 U.S.C. S 1229b.

4. AEDPA S 440(d), as itself amended byS 306(d) of the IIRIRA, amended

INA S 212(c) to read:

The subsection shall not apply to an alien who is deportable by

reason of having committed any criminal offense covered in [INA]

S 241(a)(2)(A)(iii), (B), (C), or (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).

Five months after the passage of AEDPA, Congress repealed S 212(c) in

its entirety, effective April 1, 1997. See IIRIRA S 304(b). Because

DeSousa's deportation proceedings were initiated in 1996, this repeal

does not affect his case.

5

aliens in deportation proceedings, rather than from those in

exclusion proceedings, the BIA, stating that it could not

rule on the constitutionality of laws enacted by Congress,

did not consider this argument on the merits.

DeSousa then brought a habeas corpus proceeding in the

district court under 28 U.S.C. S 2241 challenging the BIA's

final order. See DeSousa v. Reno, 30 F. Supp.2d 844 (E.D.

Pa. 1998). First, he contended that the BIA had erred in

applying the new S 212(c) to him because his criminal

convictions predated AEDPA's amendment of the statute.

Second, DeSousa argued that even if new S 212(c) did apply

to pre-AEDPA convictions, it violated the Fifth

Amendment's equal protection guarantee by preventing only

aliens in deportation proceedings, rather than those in

exclusion proceedings, from applying for waivers. Thus,

DeSousa sought an order directing the BIA to consider and

rule on the merits of his application for a S 212(c) waiver.

The Attorney General and the INS opposed DeSousa's

application for a writ, arguing primarily that AEDPA as well

as IIRIRA had eliminated habeas corpus jurisdiction over

deportation-related claims.

After a de novo review of a magistrate judge's report and

recommendation, the district court granted a writ to

DeSousa. It concluded first that neither AEDPA nor IIRIRA

had eliminated its habeas jurisdiction over cases like

DeSousa's. See DeSousa, 30 F. Supp.2d at 849. Then, it

found that AEDPA S 440(d), which amended the INA waiver

of inadmissibility provision, applied to cases pending at the

time of its enactment and therefore also applied to DeSousa

even though his criminal convictions predated AEDPA's

effective date. See id. at 855. The court also ruled, however,

that the amended S 212(c) violated DeSousa's right to equal

protection of the law by drawing an irrational distinction

between aliens subject to exclusion and those subject to

deportation. See id. at 857. The Attorney General and the

INS appeal, arguing that the court erred in finding habeas

jurisdiction, and that even if such jurisdiction exists,

S 212(c) is constitutional.

6

IV. DISCUSSION

A. Standard of Review

The district court's conclusion that AEDPA and IIRIRA

did not eliminate habeas corpus jurisdiction over all

deportation-related claims and that S 440(d) applies to pre-

AEDPA convictions relies on statutory interpretation, which

we review de novo. See Idahoan Fresh v. Advantage

Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998). We also

afford de novo review to the district court's conclusions

regarding the constitutionality of S 440(d). See Anker

Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 169

(3d Cir. 1999).

B. Did the District Court Have Jurisdiction Under 28

U.S.C. S 2241 to Review DeSousa's Habeas Petition

Challenging His Final Deportation Order on

Constitutional and Statutory Grounds?

Recognizing that we recently have addressed the

availability of habeas corpus jurisdiction after AEDPA and

IIRIRA, the Attorney General and INS argue that a later

Supreme Court decision requires us to reconsider our

opinion in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999).

In Sandoval, as in this case, an alien sought habeas corpus

review of a deportation order approved by the BIA. We held

that the district courts continued to have habeas corpus

jurisdiction to review deportation orders despite changes in

the law created by AEDPA and IIRIRA. See Sandoval, 166

F.3d at 238. The Attorney General and INS claim that Reno

v. American-Arab Committee, 119 S.Ct. 936 (1999),

undermines this conclusion.

1. Sandoval v. Reno

In Sandoval, we addressed a case nearly identical to this

one. Sandoval, like DeSousa, had petitioned for a writ of

habeas corpus in a district court seeking relief from a

deportation order. See Sandoval, 166 F.3d at 228. Because

the effective date of most IIRIRA provisions was April 1,

1997, and because Sandoval was placed in deportation

proceedings before that date, Sandoval, like DeSousa, was

not subject to IIRIRA's permanent rules. See id. at 229 n.1.

7

He was, however, subject to its transitional rules, and

arguably to at least some of AEDPA's provisions, as that act

became effective in April 1996, while Sandoval's case still

was pending in the immigration courts. See id.

The respondents in Sandoval argued that provisions in

the new statutes precluded habeas corpus jurisdiction in a

district court over aliens' challenges to deportation orders.

See id. at 232-38. Relying on Supreme Court precedent

establishing that only a clear statement of congressional

intent could eliminate a statutory grant of jurisdiction to

the district courts, we concluded that none of the

provisions the respondents cited ended habeas corpus

jurisdiction in cases like Sandoval's. See id. at 238. On this

appeal, the Attorney General and the INS do not quarrel

with this court's interpretation of two of the provisions

discussed in Sandoval, AEDPA S 401(e) and IIRIRA

S 309(c)(4)(G), a transitional rule. They do claim, however,

that American-Arab requires this court to reconsider its

construction of the other provision at issue in Sandoval,

IIRIRA's amendment of INA S 242(g).

IIRIRA S 306(a) amended INA S 242(g) to provide:

(g) Exclusive Jurisdiction.

Except as provided in this section and notwithstanding

any other provision of law, no court shall have

jurisdiction to hear any cause or claim by or on behalf

of any alien arising from the decision or action by the

Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien

under this chapter.

8 U.S.C. S 1252(g) (1999). Unlike IIRIRA's other provisions,

S 242(g) explicitly applies "to claims arising from all past,

pending, or future exclusion, deportation, or removal

proceedings." IIRIRA S 306(c)(1). Thus, although IIRIRA's

permanent rules generally do not apply to individuals like

DeSousa and Sandoval, whose deportation proceedings

were initiated before IIRIRA's effective date, even they are

subject to new S 242(g). See Sandoval, 166 F.3d at 230. We

ruled in Sandoval, however, that amendedS242(g) did not

eliminate habeas corpus jurisdiction because it did not

contain express language ending such jurisdiction. See id.

8

at 236-38. The Attorney General and INS argue that the

American-Arab decision has undermined this holding. We

disagree.

2. Reno v. American-Arab Committee

The issue before the Supreme Court in American-Arab

was whether S 242(g) had deprived the federal courts of

jurisdiction to review the respondents' claim that the

Attorney General was selectively enforcing the immigration

laws. See American-Arab, 119 S.Ct. at 940. After the

government had instituted deportation proceedings against

them, the respondents in American-Arab brought suit in a

district court, challenging the constitutionality of a relevant

statute, and seeking declaratory and injunctive relief

against the Attorney General, the INS, and various

immigration officials. See id. at 938-39. Eventually, the

respondents amended their complaint to include a claim

that the government had targeted them for deportation, in

violation of their First Amendment rights, because of their

participation in the Popular Front for the Liberation of

Palestine, a group that the government "characterizes as an

international terrorist and communist organization." Id. at

938, 939. The respondents argued that the government did

not enforce routine status requirements against immigrants

who were not members of disfavored terrorist groups. See

id. at 939.

In addressing whether S 242(g) deprived the district court

of jurisdiction over respondents' selective enforcement

claim, the Supreme Court stated that the new section

applies to cases that involve three specific decisions made

by the executive: decisions to "commence proceedings,

adjudicate cases, or execute removal orders." See id. at 943

(emphasis by Supreme Court). The Court stated that it

made sense for Congress to target these three stages

because at each stage the INS has discretion to abandon

the endeavor, and at the time S 242(g) was enacted, the INS

routinely had been defending suits challenging its exercise

of discretion in deportation cases. See id. at 943-44. These

suits stemmed from the INS's practice of "deferred action":

its willingness to choose not to deport based on

humanitarian reasons or for its own convenience. See id. at

9

943. Those individuals who failed to benefit from such

discretion were challenging the INS's decisions, and

therefore, the Supreme Court reasoned, Congress had

sought to preclude such suits. See id. at 944. The Court

stated: "Section [242(g)] seems clearly designed to give some

measure of protection to `no deferred action' decisions and

similar discretionary determinations, providing that if they

are reviewable at all, they at least will not be made the

bases for separate rounds of judicial intervention outside

the streamlined process that Congress has designed." Id.

Thus, the Court found that S 242(g) was a narrow provision,

"directed against a particular evil: attempts to impose

judicial constraints upon prosecutorial discretion." Id. at

n.9.

The Attorney General and INS argue in this case that

S 242(g) precludes DeSousa's habeas corpus suit even

though DeSousa brought a constitutional and statutory

challenge in his petition rather than a selective enforcement

claim. They claim that S 242(g) bars DeSousa's suit because

the suit, in essence, seeks to stop the government from

"executing" a deportation order. Clearly, then, they view

S 242(g) as an extremely broad provision that would apply

to every deportation-related challenge, because every such

challenge could be deemed a suit to stop the "execution" of

a deportation order.5

The Supreme Court, however, explicitly rejected a broad

interpretation of S 242(g) in American-Arab. As in this case,

the Attorney General argued in American-Arab that S 242(g)

_________________________________________________________________

5. It is possible that the Attorney General and INS are making a different

argument and suggesting that because DeSousa ultimately seeks a

discretionary waiver of inadmissibility, his case is covered by S 242(g).

It

is true that the government's refusal to grant DeSousa a S 212(c) waiver,

if he were eligible for such a waiver under the statute, might be the kind

of discretionary decision that S 242(g) was designed to protect.

Currently,

however, the unavailability of the waiver to DeSousa does not depend on

governmental discretion and instead is required by the language of the

statute itself. Thus, by challenging the statute's constitutionality and

its

alleged retroactivity, DeSousa is not challenging the government's

exercise of discretion. He merely seeks to have us interpret the statute

in his favor and then send his case back to the BIA for consideration of

his application for a waiver.

10

requires aliens "to bring all deportation-related claims in the

context of a petition for review of a final order of

deportation filed in the court of appeals." Id. at 941

(emphasis added). The heart of the Court's opinion was the

rejection of this interpretation because it would have

rendered IIRIRA's effective date provision, S 309(c)(1), a

nullity. See id. at 941-43. The Court reasoned that because

IIRIRA S 306 instructs that S 242(g) applies to previous and

pending cases, to interpret S 242(g) as applying to all

deportation-related claims would render senseless

S 309(c)(1), which states that IIRIRA generally does not

apply to previous or pending cases. See id. According to the

Court, the only interpretation that squared S 306 and S 309

was one that viewed S 242(g) as affecting a narrow class of

cases. See id. at 943. Thus, the Supreme Court in

American-Arab clearly rejected the interpretation of S 242(g)

that the Attorney General and INS advance here.

Because S 242(g) only applies to suits challenging the

government's selective enforcement of the immigration laws,

and because DeSousa's case was not brought on this

ground, S 242(g) does not bar his suit. See Richardson v.

Reno, ___ F.3d ___, 1999 WL 496241, at *2 (11th Cir. July

14, 1999) (interpreting American-Arab and ruling that

S 242(g) did not bar a habeas corpus petition that did not

challenge a decison to commence proceedings, adjudicate

cases or execute removal proceedings).6 As S 242(g) does not

apply to DeSousa, and American-Arab did not affect the

remainder of Sandoval's rulings, Sandoval remains the law

governing cases like DeSousa's. Under Sandoval, the

district court had jurisdiction to consider DeSousa's habeas

_________________________________________________________________

6. Richardson held that habeas jurisdiction was not available in that case

but predicated its opinion on post-IIRIRA law as Richardson was placed

in removal proceedings after IIRIRA's effective date. See Richardson 1999

WL 496241, at *6 n.2. Accordingly, Richardson distinguished Sandoval

because Sandoval was a pre-IIRIRA case so that only the IIRIRA

transitional provisions applied. Id. Thus, the Richardson court explained

that Sandoval did "not involve the full, and extensive, revisions to the

INA's judicial review scheme" under INA S 242 as amended by IIRIRA.

This case, like Sandoval, also involves only IIRIRA transitional rules.

Therefore, we have no reason to consider whether we agree with

Richardson.

11

petition, including both his constitutional and statutory

claims. See Sandoval, 166 F.3d at 238.

C. Does New S 212(c) Violate DeSousa's R ight to Equal

Protection of the Law?

DeSousa argues, and the district court found, that new

S 212(c) is unconstitutional because it irrationally

distinguishes between aliens in exclusion and in

deportation proceedings. We disagree.

DeSousa's equal protection challenge to amendedS 212(c)

stems from the BIA's decision in a different case, Matter of

Fuentes-Campos, Interim Decision 3318 (BIA 1997). In

Fuentes-Campos, the BIA addressed whether the

amendment to S 212(c) prohibiting "deportable" aliens with

aggravated felony or multiple moral turpitude convictions

from applying for waivers also applied to aliens in exclusion

proceedings. Focusing on the term "deportable" in the

amendment, the BIA ruled that new S 212(c) only barred

aliens in deportation proceedings, and not those in

exclusion proceedings, from applying for waivers. On this

appeal, both the Attorney General and DeSousa acquiesce

in the BIA's interpretation of Congressional intent in

amending the statute. Because of the parties' agreement on

this issue, we assume, without deciding, that the BIA

correctly construed S 212(c) when it concluded that only

aliens in deportation proceedings convicted of the specified

crimes are barred from applying for discretionary waivers.7

We therefore turn to address whether Congress's decision

_________________________________________________________________

7. Our decision not to question the BIA's conclusions in Fuentes-Campos

is also influenced by the fact that S 212(c)'s amended version was in

force for a limited time. Because IIRIRA repealed this section in its

entirety and replaced it with new INA S 240(a), which permits

discretionary "cancellation of removal" and explicitly applies to all

criminal aliens, amended S 212(c) was only in effect from the date of

AEDPA's passage on April 24, 1996, until the effective date of IIRIRA,

April 1, 1997. See IIRIRA S 304(a) (repealing former S 212(c) in its

entirety effective April 1, 1997); 8 U.S.C. S 1229b(a) (codifying new INA

S 240(a)). We do note, however, that at least one court of appeals has

found the BIA's construction of S 212(c) to be clearly contrary to the

plain meaning of the statute. See United States v. Estrada-Torres, 179

F.3d 776, 779 (9th Cir. 1999).

12

to distinguish between deportable and excludable aliens

violates DeSousa's right to equal protection of the laws.

DeSousa's equal protection argument rests primarily on

his claim that from the time that the Court of Appeals for

the Second Circuit decided Francis, courts have recognized

without exception the irrationality of distinguishing

between deportable and excludable aliens. A careful reading

of Francis, however, reveals that it did not directly concern

distinctions between excludable and deportable aliens, but

rather addressed disparate treatment of groups of

deportable aliens. Indeed it appears that over the years, by

force of repetition, Francis has come to stand for a rule of

law that its facts do not support.

In Francis, the court of appeals considered a series of

decisions by the BIA that had extended S 212(c) relief,

which on its face applied only to aliens in exclusion

proceedings, to certain aliens in deportation proceedings.

First, in Matter of G. A., 7 I. & N. 274 Dec. (1956), the BIA

found an alien eligible for S 212(c) relief because he had left

temporarily and then returned to the United States after he

had become deportable. See Francis, 532 F.2d at 271. The

BIA reasoned that since the alien would have been eligible

for S 212(c) relief if the INS had placed him into exclusion

proceedings at the time he sought reentry, relief could be

granted at his later deportation hearing. See id. Second, in

Matter of Smith, 11 I. & N. Dec. 325 (1965), the BIA

construed S 212(c) to apply to deportation proceedings

where an alien had requested an adjustment of status

under S 245 of the INA. See id. It concluded that because

the S 245 application subjected the alien to all bases for

exclusion, the alien should also benefit from the waiver

available in exclusion proceedings. See id. At the same

time, however, the BIA continued to refuse to grantS 212(c)

relief to an individual who did not fall into one of the above

two groups of deportable aliens. See id.

The petitioner in Francis argued that through its

interpretations, the BIA had created two classes of aliens

identical in every respect except for the fact that, after

becoming deportable, members of one class had departed

and returned to this country without being stopped at the

border. See id. at 272. He claimed that the BIA's extension

13

of S 212 relief to certain deportable aliens and not others

violated his right to equal protection. The Francis court

agreed with the petitioner's claim, finding that there was no

rational basis for rewarding with a potential waiver only

those deportable aliens who temporarily left the country

and returned without triggering exclusion proceedings at

the border.

But distinguishing between groups of deportable aliens

is, of course, not the issue in this appeal. Instead, the issue

we must decide, whether Congress can constitutionally

differentiate between excludable and deportable aliens,

simply was not addressed in Francis. Similarly, although we

have adopted the reasoning of Francis, this adoption should

stand for no more than Francis itself represented: the

conclusion that the distinctions drawn by the BIA among

certain deportable aliens were irrational. See, e.g., Katsis v.

INS, 997 F.2d at 1070. In this appeal we therefore are

confronted with addressing, for the first time, whether a

Congressional grant of discretionary relief to excludable,

but not deportable, aliens violates the Fifth Amendment's

equal protection guarantee.

It is undisputable that our constitution provides due

process and equal protection guarantees to aliens as well as

citizens. See Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct.

1064, 1070 (1886). But as DeSousa concedes and as the

Francis court recognized, disparate treatment of different

groups of aliens triggers only rational basis review under

equal protection doctrine. See Francis, 532 F.2d at 272.

Under this minimal standard of review, a classification is

accorded "a strong presumption of validity" and the

government has no obligation to produce evidence to

sustain its rationality. Heller v. Doe, 509 U.S. 312, 319,

320, 113 S.Ct. 2637, 2642, 2643 (1993). Indeed, such a

classification can be upheld as constitutional even when it

is based on rational speculation rather than on empirical

data. See id., 509 U.S. at 320, 113 S.Ct. at 2643. Once a

facially legitimate reason for the classification is found,

whether such a reason was articulated by Congress or not,

we must rule the classification constitutional. See id., 509

U.S. at 320, 113 S.Ct. at 2642. As always, when performing

such review, our role is not to judge the wisdom or fairness

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of Congress's policy choices, but rather their

constitutionality. See id., 509 U.S. at 319, 113 S.Ct. at

2642.

The legislative history of AEDPA clearly demonstrates

that Congress's goal in amending S 212(c) was to enhance

"the ability of the United States to deport criminal aliens."

H.R. Conf. Rep. No. 104-518, at 119 (1996), reprinted in

1996 U.S.C.C.A.N. 924, 952.8 In order to aid the United

States in expelling criminal aliens from the country,

Congress rationally could have decided to encourage such

aliens to voluntarily leave the country as a carrot to a

potential waiver of removal when they sought reentry.

Creating such an incentive may have appeared desirable to

Congress for several reasons. First, Congress could have

rationally speculated that not all aliens who voluntarily left

the country would return. Second, because exclusion

_________________________________________________________________

8. Indeed, the history of Congress's amendments to S 212(c) shows that,

throughout the 1990s, it had been tightening the controls over granting

such waivers. Before 1990, S 212(c) contained no bar to seeking a

discretionary waiver. Thus, as the section was applied through case law,

all aliens in deportation and exclusion proceedings, even those convicted

of aggravated felonies, were eligible to apply for a waiver. See

Scheidemann v. INS, 83 F.3d 1517, 1519 (3d Cir. 1996). In 1990,

however, Congress enacted an amendment restricting the availability of

S 212(c) relief. See Immigration Act of 1990, Pub.L. No. 101-649,

S 511(a), 104 Stat. 4978, 5052 (1990). Under the new amendment, aliens

who had been "convicted of an aggravated felony and ha[d] served a term

of imprisonment of at least 5 years" were barred from applying for

waivers. 8 U.S.C. S 1182(c) (1990). There was a further immaterial

amendment in 1991. See note 2, supra.

Moreover, in 1990 and 1994, Congress expanded the definition of

"aggravated felony" to include more classes of crimes. See Immigration

Act of 1990, Pub.L. No. 101-649, S 501(a), 104 Stat. 4978, 5048 (1990);

Immigration and Nationality Technical Corrections Act of 1994, Pub.L.

No. 103-416 S 222(a), 108 Stat. 4305, 4322 (1994). These amendments

rendered an even greater number of aliens ineligible for discretionary

relief. Finally, with the passage of AEDPA in 1996, Congress enacted the

latest version of S 212(c), which is at issue in this appeal. This version

makes waivers unavailable to all aliens who are "deportable" by reason

of having committed an aggravated felony or at least two crimes of moral

turpitude, regardless of the time served for such crimes. See 8 U.S.C.

S 1182(c) (1996).

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proceedings provide fewer procedural protections than

deportation proceedings, Congress may have reasoned that

encouraging aliens to seek waivers through the exclusion

process would decrease the United States' administrative

costs in expelling criminal aliens. See Landon v. Plasencia,

459 U.S. 21, 26-27, 103 S.Ct. 321, 325-26 (1982). We

recognize that such a policy might appear callous to the

affected individuals and their families. But, because there

is a rational reason for distinguishing between deportable

and excludable criminal aliens in the context of Congress's

policy to expel such aliens from the country, the distinction

drawn in S 212(c) does not violate DeSousa's right to equal

protection of the law. See LaGuerre v. Reno, 164 F.3d 1035,

1041 (7th Cir. 1998) (rejecting, on similar grounds,

identical equal protection challenge to amendedS 212(c)).

D. Alternatively, Is New S 212(c) Impermissibly

Retroactive When Applied to DeSousa?

DeSousa argues that even if we reverse the district

court's equal protection ruling, we can affirm on the

alternate ground that amended S 212(c) is retroactive as

applied to him. But DeSousa's mention of the retroactivity

argument in his appellate brief substantially is limited to

two short sentences that state: "[T]his Court can affirm the

decision of the district court under the reasoning set forth

in Sandoval, supra, i.e. principles of retroactivity" and "In

the alternative, this Court should affirm the decision of the

district court under the reasoning expressed in Sandoval v.

Reno, et al., 166 F.3d 225 (3d Cir. 1999)." However,

Sandoval concerned whether amended S 212(c) could be

applied to proceedings pending before AEDPA's effective

date and concluded that it could not so apply. See

Sandoval, 166 F.3d at 242. This reasoning is irrelevant to

DeSousa's case because the INS began his deportation

proceedings after AEDPA's effective date. As a result, we

cannot affirm the district court's decision based on "the

reasoning set forth in Sandoval."

It appears, however, that in the district court, DeSousa

had argued that AEDPA was retroactive as applied to him

because the underlying criminal convictions rendering him

ineligible for discretionary relief occurred prior to AEDPA's

effective date. Although DeSousa has failed to raise this

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issue specifically in his brief argument regarding

retroactivity, out of an abundance of caution, we

nevertheless address this argument.

The first step in a retroactivity analysis is to determine

whether Congress has expressed its views on the temporal

reach of the statute. See Sandoval, 166 F.3d at 240 (citing

Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct.

1483, 1505 (1994)). If it has, our role is simply to enforce

congressional intent. See id.

The text of S 212(c) provides support for the view that

pre-AEDPA convictions may be considered in denying relief.

The section, as applicable here, provides that waivers will

not be available to "an alien who is deportable by reason of

having committed any criminal offense." 8 U.S.C. S 1182(c)

(1996). The past tense of the underlined verb suggests that

on AEDPA's effective date, those who, like DeSousa,"have

committed" the specified criminal offense would be

ineligible for the waivers.

IIRIRA's amendment of S 212(c) also suggests that

Congress intended for earlier convictions to be considered.

In S 306(d) of IIRIRA, Congress made a technical correction

to S 212(c), and specifically provided that the correction was

retroactive to AEDPA's effective date. This correction

changed the section's language to provide: "This subsection

shall not apply to an alien who is deportable by reason of

having committed any criminal 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)." IIRIRA S 306(d)

(underlined text added by IIRIRA). INA Sections

241(a)(2)(A)(i) and (ii) concern moral turpitude convictions.

Importantly, subsection (i) states that an alien is deportable

for a single moral turpitude conviction if the conviction

occurs within a specified number of years from the date of

admission, and the crime carries a potential sentence of

one year or more. See 8 U.S.C. S 1227(a)(2)(A)(i).

Given the language of subsection (i), Congress may have

intended that the technical correction simply eliminate the

requirement that a moral turpitude conviction must have

occurred within a specified number of years from

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admission. On the other hand, given Congress's failure to

limit its language, the phrase "without regard to the date of

their commission" suggests that any two moral turpitude

convictions, even those that pre-date AEDPA, would render

an alien ineligible for a waiver.

The inclusion of limiting language in another related

AEDPA section provides further evidence that Congress

intended amended S 212(c) to apply to individuals with pre-

AEDPA convictions. In S 440(f), Congress provided that

"[t]he amendments made by subsection (e) shall apply to

convictions entered on or after the date of the enactment of

this Act . . . ." AEDPA S 440(f). By implication then, we can

assume that Congress intended for S 440(d) to apply to all

convictions, regardless of their date. See Sandoval, 166

F.3d at 241 ("Where Congress includes particular language

in one section of a statute but omits it in another section

of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.") (citations and quotation marks omitted).

Even though traditional rules of statutory construction

suggest that pre-AEDPA convictions are to be considered in

denying waivers, because the evidence is not absolutely

clear, we proceed to the next step in the retroactivity

analysis, whether the statute has a retroactive effect. See

Collins v. Montgomery County Bd. of Prison Inspectors, 176

F.3d 679, 685 (3d Cir. 1999) (en banc); Sandoval , 166 F.3d

at 240. On this issue, our precedent requires us tofind

that S 212(c) does not have "retroactive effect" even though

it removes discretionary relief for pre-AEDPA convictions.

See Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.

1996).

In Scheidemann, we considered two separate

amendments to S 212(c): the first was the addition of the

bar to waiver eligibility for aggravated felons, and the

second was an expansion of the definition of "aggravated

felony" to encompass a greater variety of crimes. See id. at

1519-20. The petitioner argued that because at the time of

his conviction there was no statutory bar to waiver

eligibility and his crime was not defined as an aggravated

felony, the amendments should not apply to his deportation

proceeding even though it was initiated after the effective

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date of the amendments. See id. at 1520. Thus, the

retroactivity issue before us in Scheidemann was

substantively identical to that before us on this appeal.

We resolved this issue by holding that the amendments

did not have a retroactive effect. We stated:

[T]he consequences of petitioner's criminal conduct

were clear at the time of that conduct and they remain

unchanged today. He was subject to possible criminal

sanctions and deportation. The only relevant change in

the law relates to the permissible scope of the Attorney

General's discretion to grant relief from one of those

consequences. Like statutes altering the standards for

injunctive relief, this change has only a prospective

impact. It is not designed to remedy the past but only

to affect petitioner's future status with regard to the

legality of his presence in the United States.

Scheidemann, 83 F.3d at 1523. The above reasoning clearly

applies to DeSousa's claims on this appeal and therefore

requires the finding that amended S 212(c) does not have

retroactive effect.

Because S 212(c) does not have retroactive effect, courts

construing it should "apply the law in effect at the time . . .

[of] decision." Landgraf, 511 U.S. at 264, 114 S.Ct. at 1496.

At the time of both the BIA's and the district court's

decisions in DeSousa's case, amended S 212(c) was in effect

and provided that waivers were unavailable to those aliens

who were deportable "by reason of having committed" an

aggravated felony or two crimes of moral turpitude.

Because DeSousa was deportable by reason of having

committed such crimes, the courts correctly found that he

was ineligible for a waiver. We therefore reject DeSousa's

alternative ground for affirmance.

V. CONCLUSION

We will affirm the district court's ruling that it had

habeas jurisdiction to review DeSousa's challenge to his

deportation order. Furthermore, we will affirm itsfinding

that Congress intended amended S 212(c) to apply to

individuals in DeSousa's situtation, and as applied,S 212(c)

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is not retroactive. However, we will reverse the district

court's grant of a writ to DeSousa because we conclude

that the distinction between excludable and deportable

aliens drawn in amended S 212(c) does not violate the equal

protection guarantee of the Fifth Amendment's Due Process

Clause. Accordingly, we will remand the case to the district

court to dismiss DeSousa's petition.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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