# Mayers v. United States Department of Immigration & Naturalization Service > Court of Appeals for the Eleventh Circuit · May 20, 1999 · 175 F.3d 1289 URL: https://www.frixlaw.com/law-library/cases/73718 ## Case - **Full name:** Trevor MAYERS, Petitioner-Appellant, v. UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION SERVICE; Attorney General, Janet Reno, Et Al., Respondents-Appellees; Efrain Gutierrez-Martinez, Petitioner-Appellant, v. Janet Reno, Attorney General of the United States; Doris Meissner, Commissioner of Immigration and Naturalization, Et Al., Respondents-Appellees - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** May 20, 1999 - **Citations:** 175 F.3d 1289 - **Precedential status:** Published - **Opinion:** Opinion by Birch - **Judges:** Birch, Hatchett, Keith - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/73718 ## Opinion text PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _______________ ELEVENTH CIRCUIT 05/20/99 No. 97-5537 THOMAS K. KAHN _______________ CLERK D. C. Docket No. 97-2443-CV-FAM TREVOR MAYERS, Petitioner-Appellant, versus UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION SERVICE; ATTORNEY GENERAL, Janet Reno, et al., Respondents-Appellees. ______________________________ Appeal from the United States District Court for the Southern District of Florida ______________________________ ----------------------------------------------------------------- _______________ No. 98-8185 _______________ D. C. Docket No. 1:97-CV-3361-TWT EFRAIN GUTIERREZ-MARTINEZ, Petitioner-Appellant, versus JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commissioner of Immigration and Naturalization, et al., Respondent-Appellees. ______________________________ Appeal from the United States District Court for the Northern District of Georgia ______________________________ (May 20, 1999) Before BIRCH and HATCHETT, Circuit Judges, and KEITH*, Senior Circuit Judge.** BIRCH, Circuit Judge: Efrain Gutierrez-Martinez (“Gutierrez-Martinez”) and Trevor Mayers (“Mayers”) appeal the orders of the district courts denying their petitions for habeas corpus, in which they sought review of their claim that section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) should not apply to their pending applications for waiver of deportation. _______________ *Honorable Damon J. Keith, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation. **This decision is rendered by a quorum, due to the retirement of then-Chief Judge Hatchett on May 14, 1999. 28 U.S.C. § 46(d). 2 I. BACKGROUND We must consider, as an initial matter, the immigration scheme that provides the controlling law for the habeas corpus petitions of Gutierrez-Martinez and Mayers. In 1996, within a span of five months, Congress passed two separate pieces of legislation affecting the judicial review process for certain aliens. The more recent legislation further divided this group of aliens into those who would fall under transitional rules and those who would be considered under the permanent judicial review procedures outlined in the new legislation. For the sake of clarity, we provide below a brief overview of the statutory schemes that are relevant to this action. A. Reform of Immigration Laws 1. AEDPA On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Portions of AEDPA amended the Immigration and Naturalization Act (“INA”), Pub. L. No. 87-301, 75 Stat. 651 (1961). Prior to the enactment of AEDPA, judicial review of deportation orders generally proceeded by a petition for review filed in the court of appeals. See 8 U.S.C.A. § 1105a(a)(2) (West 1995). In addition, INA § 106(a)(10), codified at 8 U.S.C.A. § 1105a(a)(10) (West 1995), also provided for 3 review of an order of deportation by habeas corpus. Finally, aliens could challenge INS detention or deportation proceedings through a petition for habeas corpus review pursuant to 28 U.S.C. § 2241. See, e.g., Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990). AEDPA § 401(e)1, a non-codified provision, eliminated the earlier INA § 106(a)(10) and under AEDPA § 440(a) substituted the following language: [A]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense [as set forth in the INA] shall not be subject to review by any court. AEDPA § 440(a), codified at 8 U.S.C.A. § 1105a(a)(10) (West Supp. 1998). AEDPA § 440(a) also eliminated immediate review in the court of appeals for 1 AEDPA § 401(e) states (e) ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS. – Section 106(a) of the Immigration and Nationality Act (8 U.S.C. § 1105a(a)) is amended – ****** (3) by striking paragraph (10). INA § 106(a)(10) had provided that “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.” 8 U.S.C.A. § 1105a(a)(10) (West 1995). 4 some categories of deportation cases. See Boston-Bollers v. INS, 106 F.3d 352, 355 (11th Cir. 1997).2 Under the law in effect prior to the enactment of AEDPA, certain aliens, otherwise determined to be deportable, were entitled to apply for a waiver of deportation under INA § 212(c). The granting of a waiver was a discretionary act of the Attorney General, or her representatives, that would allow the alien to remain in the United States. The alien presented his application to the Immigration Judge (“IJ”), who had discretion to waive the deportation of an alien based upon such factors as time spent and family ties in the United States and restitution for criminal activity. Section 440(d) of AEDPA greatly expanded the category of criminal convictions that would render an alien, including petitioners here, ineligible to apply for relief under INA § 212(c). See AEDPA § 440(d), codified at 8 U.S.C.A. § 1182(c) (West Supp. 1997).3 2 In Boston-Bollers, we held that § 440(a) divested the courts of appeals of initial jurisdiction to consider petitions for review brought by aliens deportable on the basis of one of the specified criminal offenses, but we specifically did not address whether the district court retained habeas corpus jurisdiction. 106 F.3d at 354 n.1. 3 8 U.S.C.A. § 1182(c)(West Supp. 1997) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) § 304(b), and replaced by new INA § 240A, codified at 8 U.S.C.A. § 1229b (West 1999). INA § 240A consolidates “suspension of deportation” relief with provisions of the old INA § 212(c) to create a new form of relief called “cancellation of removal.” “Cancellation of removal” relief is available for aliens whose criminal convictions do not qualify as “aggravated felonies.” See IIRIRA § 304(a), codified at 8 U.S.C.A. § 1229b (West 1999). These permanent provisions of IIRIRA apply only to those aliens ordered deported after April 1, 1997, the effective date for IIRIRA, and are not applicable 5 2. IIRIRA Several months after the enactment of AEDPA, the judicial review process for deportation orders once again was restructured when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C., 110 Stat. 3009-546, on September 30, 1996. Section 306 of IIRIRA repealed the judicial review process set out in INA § 106, as amended by AEDPA § 440(a), and replaced it with a new structure for judicial review in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999).4 Under the transitional rules provided for in IIRIRA, judicial review for most aliens is to take place without regard to IIRIRA's amendments. See IIRIRA § 309(c)(1), as amended by Act of Oct. 11, 1997, § 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657, set out as a note following 8 U.S.C.A. § 1101 (West 1999).5 IIRIRA's here. 4 AEDPA § 440(a) governs deportation orders that became final before October 31, 1996. Orders that became final after this date, but before April 1, 1997, are governed by IIRIRA's transitional rules (set forth in § 309(c) and not codified in the United States Code). All proceedings that commence after April 1, 1997, are governed by IIRIRA's permanent rules, set forth in new INA § 242 and codified at 8 U.S.C.A. § 1252 (West 1999). Because the deportation proceedings for both petitioners in the present case commenced before April 1, 1997, the effective date of IIRIRA, and became final after October 30, 1996, IIRIRA's transitional rules apply to both petitioners. See IIRIRA, § 309(c), set out as a note following 8 U.S.C.A. § 1101 (West 1999). 5 IIRIRA § 309(c)(1) provides: Subject to the succeeding provision of this subsection, in the case of an alien who is in exclusion or deportation proceedings [before April 1, 1997] -- A. the amendments made by this subtitle shall not apply, and 6 transitional rule § 309(c)(4)(G), however, provides that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed” one of the enumerated crimes. This section applies to both Gutierrez-Martinez and Mayers. The permanent rules for judicial review of aliens' claims are set forth in IIRIRA § 306. IIRIRA's permanent rules repeal the judicial review provisions of 8 U.S.C.A. § 1105a and create new, more narrowly-drawn rules regarding judicial review, located in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999). Because petitioners in the present case fall under the transitional rules of IIRIRA, only one provision of the permanent rules potentially impacts the instant case. IIRIRA § 306(a) adds INA § 242(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.A. § 1252(g) (West 1999). The special effective date for the new INA § 242(g) directs that it shall apply “without limitation to claims arising from all past, pending, or future exclusion, B. the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments. 7 deportation, or removal proceedings under [this] Act.” IIRIRA § 306(c), as amended by Act of Oct. 11, 1997, § 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657, set out as a note following 8 U.S.C.A. § 1252 (West 1999). The special effective date creates a statutory inconsistency whereby § 309(c) is to apply to defined transitional cases, but § 306(a), through the new INA § 242, is to apply to all cases, past, pending, or future, which would seem to include transitional cases. The question we face here is whether the provisions of AEDPA and IIRIRA preclude any exercise of habeas corpus jurisdiction over claims, constitutional or otherwise, of Gutierrez-Martinez and Mayers. B. Petitioners 1. Gutierrez-Martinez Gutierrez-Martinez is a citizen of Colombia who entered the United States as a lawful permanent resident on January 30, 1986. On September 29, 1988, Gutierrez-Martinez pled guilty to and was convicted of one count of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. On October 15, 1995, the Immigration and Naturalization Service (“INS”) ordered Gutierrez-Martinez to show cause why he should not be deported on the basis of his conviction for possession of a controlled substance in violation of INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994), (current version codified at 8 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 1999)). On March 26, 1996, the IJ found Gutierrez-Martinez deportable because of his status as a convicted drug offender, but granted him additional time to file an application for waiver of deportation under the earlier INA § 212(c). On April 26, 1996, Gutierrez-Martinez filed his application for a § 212(c) waiver. At a hearing on May 14, 1996, the IJ held that under the new provisions of the AEDPA, which became effective two days before Gutierrez-Martinez filed his waiver application, Gutierrez-Martinez was statutorily ineligible for § 212(c) relief. The Board of Immigration Appeals (“BIA”) affirmed this holding and dismissed Gutierrez-Martinez' appeal. Gutierrez-Martinez filed a petition for review of the BIA's order with this court. We dismissed that petition for lack of jurisdiction, citing IIRIRA §§ 309(c)(4)(E) & (G).6 On November 6, 1997, Gutierrez-Martinez then filed a petition for habeas corpus review under 28 U.S.C. § 2241 in the district court. 6 Another panel of this court dismissed Gutierrez-Martinez’ petition for review in an unpublished, two sentence order. Subsequent to that dismissal, we held in Lettman v. Reno, 168 F.3d 463 (11th Cir. 1999) (per curiam), that the court of appeals has jurisdiction to determine whether an alien is deportable under § 309 (c)(4)(G). As explained in Lettman, this determination involves considering two questions: whether the petitioner is (1) an alien and (2) deportable by reason of a criminal offense listed in the statute. Id. at 465. If these questions are answered in the affirmative, then the court loses its jurisdiction pursuant to § 309(c)(4)(G). Lettman did not address whether this avenue of review would encompass any substantial claims. We need not reach this issue because it is clear that the claims of Gutierrez-Martinez were not reviewed under his petition for review. 9 The district court found that habeas corpus jurisdiction under § 2241 survived the enactment of AEDPA and IIRIRA. The court held, however, that “habeas relief is available only if the Petitioner can identify a grave constitutional error or a fundamental miscarriage of justice in his deportation proceedings.” R1- 5-6. The district court further determined, however, that retroactive application of AEDPA § 440(d) to eliminate Gutierrez-Martinez' eligibility for the § 212(c) waiver process was not a constitutional error and, therefore, could not be reviewed on the limited scope of habeas corpus review available under the new immigration regime. The district court also rejected Gutierrez-Martinez' claim that AEDPA § 440(d) violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment because it distinguished between deportable and excludable aliens. As a result, the district court denied Gutierrez-Martinez' petition for habeas corpus review. Gutierrez-Martinez now appeals that decision. 2. Mayers Mayers is a citizen of Barbados admitted to the United States as a lawful permanent resident on July 19, 1977. On January 20, 1993, Mayers pled guilty to and was convicted of possession with intent to distribute more than fifty kilograms of marijuana in violation of 21 U.S.C. § 841. On November 15, 1993, the INS commenced deportation proceedings against Mayers based on his criminal 10 conviction, pursuant to INA § 241(a)(2)(A)(iii), 8 U.S.C.A. § 1251(a)(2)(A)(iii) (1994), (current version codified at 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999)). On July 7, 1994, Mayers filed for a waiver of deportation under INA § 212(c). At the first hearing to consider the waiver application, the IJ indicated that she was inclined to grant a § 212(c) waiver. A second hearing on the waiver was not held until April 30, 1996, six days after President Clinton signed the AEDPA into law. The IJ granted Mayers' § 212(c) waiver petition, and the BIA affirmed this decision. On March 17, 1997, however, the BIA reconsidered its decision in light of a new opinion by the Attorney General indicating that AEDPA § 440(d) applies to pending deportation cases. As a result, the BIA found Mayers to be statutorily ineligible for relief under § 212(c) and ordered Mayers deported. Mayers filed a petition for habeas corpus review in the district court on July 31, 1997, seeking review of the final deportation order and challenging on due process and equal protection grounds the application of AEDPA § 440(d) to his § 212(c) waiver request. In contrast to Gutierrez-Martinez' petition, the district court reviewing Mayers' habeas corpus petition found it lacked subject-matter jurisdiction because “Congress has eliminated all avenues of judicial review of criminal orders of deportation, including the writ of habeas corpus” in the new immigration regime. 11 Mayers v. Reno, 977 F. Supp. 1457, 1461 (S. D. Fla. 1997). The district court held that this elimination of review suffered no constitutional infirmities because “[n]o judicial review [of deportation orders] is guaranteed by the Constitution.” Id. (quoting Carlson v. Landon, 342 U.S. 524, 537, 72 S. Ct. 525, 533, 96 L.Ed. 547 (1952)). In the alternative, the district court found that even if there were still some form of habeas corpus review of constitutional claims, Mayers' claim that AEDPA § 440(d) should not apply retroactively to his deportation proceedings did not rise to the level of “grave constitutional error or fundamental miscarriage of justice.” Id. at 1462. The district court concluded, therefore, that it lacked jurisdiction to review Mayers' claim. Upon a motion by Mayers, these cases were consolidated for appeal on September 9, 1998. We therefore refer to Mayers and Gutierrez-Martinez collectively as “petitioners” when discussing common claims. Petitioners argue that under the new immigration schemes, the district court retains habeas corpus jurisdiction under 28 U.S.C. § 2241. Petitioners further argue that AEDPA § 440(d), which makes certain aliens ineligible for relief under the old INA § 212(c) waiver application process, should not apply retroactively to their deportation proceedings. We review de novo issues of subject-matter jurisdiction. See Jairath v. Dyer, 154 F.3d 1280, 1281-82 (11th Cir. 1998). We also review de novo the 12 purely legal question of whether a statute's provisions apply retroactively. See United States v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir. 1997). II. JURISDICTION A. Habeas Corpus Jurisdiction The petitioners argue that AEDPA and IIRIRA did not repeal habeas corpus jurisdiction in the district court under 28 U.S.C. § 2241 to review deportation orders. In the alternative, petitioners argue that the Suspension Clause of the Constitution entitles them to judicial review of their constitutional and statutory claims. On the merits, petitioners contend that AEDPA § 440(d), which restricts the old INA's § 212(c) waiver application process, should not be applied retroactively. Finally, petitioners argue that § 440(d) violates equal protection because deportable criminal aliens inside the country are not eligible for § 212(c) waivers, while identically situated aliens seeking reentry are eligible to request a waiver. The government argues that by enacting AEDPA § 401(e), Congress expressly repealed the grant of habeas corpus jurisdiction to district courts found in the former INA § 106(a)(10). Furthermore, the government contends, the new INA § 242 places “exclusive jurisdiction” over deportation matters in the courts of appeals. The government asserts that there is review available by means of a 13 petition for review in the court of appeals for “substantial constitutional challenges” to the final deportation orders of aliens. The government contends, however, that petitioners' claims do not rise to this level. The government recognizes that under our decision in Boston-Bollers, aliens with certain criminal convictions may not obtain judicial review of their deportation orders in the court of appeals and, therefore, its interpretation of the immigration statutes would leave petitioners here with no judicial review outside the administrative agency process.7 1. Exclusive Jurisdiction under INA § 242(g). The Supreme Court recently has addressed the scope of the new INA § 242(g) in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. ___, 119 S. Ct. 936, ___ L.Ed.2d. ___ (1999) (“AADC”). In AADC, the Court 7 The government makes several attempts throughout its argument to diminish the severity of the petitioners’ position here. First, the government asserts that whatever kind of review available to petitioners must be done in the court of appeals. The government then contends that petitioners would be able to raise at least “substantial constitutional challenges” to their deportation proceedings at the court of appeals. Gutierrez-Martinez did file a petition for review. As previously mentioned, his petition was dismissed by this court for lack of jurisdiction under IIRIRA § 309(c)(4)(G). As we discussed in note 6, under Lettman, the court of appeals now has jurisdiction to determine whether an alien is deportable. Lettman did not consider whether substantial claims affecting the deportability of an alien can be addressed under § 309(c)(4)(G). As the district court noted, “a conclusion that the Petitioner must seek whatever relief is available in the court of appeals is somewhat of a red herring.” Mayers, 977 F. Supp. at 1460 (footnote omitted). In the alternative, the government next argues that should we exercise habeas corpus jurisdiction, review must be limited to “fundamental miscarriage[s] of justice.” This standard is extracted from cases involving successive petitions for habeas corpus, implicating abuse of the writ. See, e.g., Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L.Ed.2d 203 (1993). We decline to apply that standard here to a first-time habeas corpus petitioner in detention as a result of an executive, rather than judicial, process. 14 recognized an “interpretive anomaly” with respect to the tension between IIRIRA's transitional rules and the new INA § 242(g). The Court described the “horns of this dilemma” by noting: If the jurisdiction-excluding provision of § 1252(g) [INA § 242(g)] eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) “[e]xcept as provided in this section” incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) [IIRIRA’s transitional rules] would be rendered a virtual nullity. To say that there is no jurisdiction in pending INS cases “except as” § 1252 provides jurisdiction is simply to say that § 1252's jurisdictional limitations apply to pending cases as well as future cases – which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase “[e]xcept as provided in this section” were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252 – if § 1252(g) stood alone, so to speak – judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order. AADC, 525 U.S. at ___, 119 S. Ct. at 941 (emphasis in original). The Court declared this “seeming anomaly” to be a “mirage” by narrowing the universe to which § 1252(g) applies to “three discrete actions that the Attorney General may take: her