Appendix — Reno v. Goncalves

Supreme Court, U.S.

No.

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1998

JANET RENO, ET A

RAUL PERCIRA GON

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

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TABLE OF CONTENTS

Appendix A (court of appeals’ opinion, May 15,

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Appendix B (order of the immigration judge,

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Appendix C (oral decision of the immigration judge,

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Appendix D (decision of the Board of Immigration

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Appendix E (memorandum order of the district

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Appendix F (order of dismissal of the district court,

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Appendix G (court of appeals’ order denying

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Appendix H (constitutional and statutory provisions

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Appendix I (decision of Board of Immigration

Appeals in Jn re Soriano, June 27, 1996) ..........0++

Appendix J (order of Attorney General vacating BIA

decision in Jn re Soriano, Sept. 12, 1996) ........0....

Appendix K (decision of the Attorney Generai in

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Page

APPENDIX A

UNITED STATES COTIRT OF APPRALS

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JANET HENG, ATTORNEY GENERAI

OF THE UNITED BTAT ES: DORIS MEISSNER,

COMMISSIONER OF THE IMMIGHATION AND

NATURALIZATION BERVICK, STEVE FARQUHAKSON,

INS DISTRICT DIRECTOR, HOSTON DietRict

DEPARTMENT OF JUSTICE: AND IMMIGRATION AND

NATURALIZATION SERVICE, RESPONDENTS, APPELLEES

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deportation because he has committed crimes of moral

turpitude such as theft, possession of marijuana and the

like. He filed an application in 1994 for discretionary

relief from deportation with the immigration authori-

(la)

2a

ties under § 212(c) of the Immigration and Nationality

Act (INA), as the law permitted him to do.

While Goncalves’ application was still pending, Con-

gress enacted the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub.L. No, 104-122, 110

Stat. 1214 (Apr. 24, 1996), which, at § 440(d), restricted

the availability of diseretionary relief. The ion

then arose as to whether Congress intended ¢ Ke-

strictions to apply retroactively, The Hoard of tnmi-

eration Appeals (MIA) said that Congress did not

intend the restrictions to be fully retroactive, and that

al least those aliens whose applications were pending

on the date of AE DPA's enactment, like Goncalves,

could continue to pursue their applications for relief,

The Attorney General disagreed, reversed the RIA,

and required the dismissal of all pending applications

for $ Vt2e) rehief (ever appeals from cases where dm:

eration judges had said relief should be gramtedh As &

Detter heard by the REA amd he was talem inte custedir

by Sedieral officuals,

Genezives Gied 2 petitiem fer Indbees carges im the

Gort caurt, rather them Gime fer direct rewiew m tins

court. Tis he wes regured te de by the weredem of

ths court. See Kolsier e. INS, Wi F324 7S (st Cr.

1996). The district court dismissed the petition, finding

the Attorney General, and not the BIA, was correct in

the interpretation of the statute.

Goncalves appealed, raising pure issues of law, in-

cluding a challenge to the Attorney General’s inter-

pretation of the statute and constitutional claims. The

Attorney General defends on two fronts. Goncalves

3a

filed in the wrong court, she says. He should have filed

in the court of appeals, he missed the deadline to do so,

and so the case must be dismissed. In fact, she says,

Congress sub silentio stripped the district courts of

their traditional habeas jurisdiction under 28 U.S.C.

§ 2241 to hear claims of the type Goncalves asserts,

Seconly, she says, no court may review her decision as

to whether Congress intended the restrictions in

AIDA § 440(4) to apply to pending applications. Con-

“ress exempled her decision from any judicial review

when it enacted the Hlegal Lmmigration Neform and

lrimnigranit +E Act of 1906 (TERA), Pub,

No, 104-208, Div, Co 110 Stat, 4000646 (enacted Sept,

40, 1900). Th any event, she argues, her decision is

entitled to deference. We find the Attorney General's

arguments unpersuasive and agree that Goncalves may

still pursue his chai for $ Sto relief We reverse and

renamed this case te the REA.

A summary ef eur reasoning may be helpfal This

CaSe Presemts twe sets ef majer Rcues. The first ik

whieh federal court. if amy. bes jurisdiction te heer Gan

calves chums. We comelade that Compress hes divested

the United States Courts of Appedi of ther former

Statiery jJersdictuen te heer such cases on Great re

wiew of the admmstrative apency’s decision. We fur-

ther conclude, isliowing Felker x. Turpim, 518 US. 61.

116 S. Ct 2333, 135 L.Ed 24 827 (1996), that Congress

of jurisdiction in 28 U_S.C. § 2241 to issue writs of

habeas corpus to persons in federal custody which the

federal district courts have had since 1789 and which

has always been available in immigration cases.

4a

If there is jurisdiction, we ask whether Congress

intended nevertheless to restrict the scope of review to

preclude review of Goncalves’ claims. To the extent

that Congress intended to narrow the scope of review

of discretionary decisions by the administrative agency,

we note that this case does not involve any such

exercise of discretion, but rather concerns a pure issue

of law. That pure issue of law, of whether Congress

intended to make a particular provision of a statute

retroactive, is of a type traditionally resolved by the

courts. We discern no intent by Congress to restrict

the scope of judicial review of that question. Our

conclusion avoids the need to reach novel and complex

constitutional issues under the Suspension Clause,

Article II], the Due Process Clause and the Equal Pro-

tection Clause.

The second major set of issues addresses the merits:

is the Attorney General correct in her interpretation

that AEDPA § 440(d), as amended by IIRIRA, elimi-

nates eligibility for § 212(c) relief retroactively for

aliens convicted of crimes involving moral turpitude?

We analyze the question under Landgraf v. USI Film

Prods., 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229

(1994), and Hughes Aircraft Co. v. United States ex rel.

Schumer, 520 U.S. 939, 117 S. Ct. 1871, 188 L.Ed.2d 135

(1997), cases concerning the temporal application of new

statutes. We conclude, contrary to the Attorney

General, that Congress did not intend its new pro-

visions restricting such discretionary relief to apply

retroactively. The statute’s text reveals numerous in-

stances where Congress used explicit language to make

its new restrictions apply retroactively; for example, it

used such language with respect to alien terrorists. But

-

oa

there is no such explicit text as to aliens in Goncalves’

position.

We check our interpretation of the text against the

legislative history to ensure we have not gone astray.

That history shows three things. First, Congress ex-

pressly considered a provision which would have explic-

itly made the new restrictions on § 212(c) relief applica-

ble retroactively and chose not to enact that provision.

Second, Congress was keenly aware of the problem of

whether restrictions on relief should apply retroac-

tively. Third, Congress enacted IIRIRA against the

backdrop of an administrative ruling by the BIA that

the restrictions on § 212(c) relief for aliens convicted of

crimes involving moral turpitude, contained in AEDPA

§ 440(d), was not fully retroactive and did not apply to

pending applications. In the face of that ruling, the

same Congress that had enacted AEDPA chose, in

IIRIRA, not to amend AEDPA explicitly to provide

that the AEDPA § 440(d) restrictions applied retroac-

tively. It made that choice even though, in IIRIRA

§ 306, it amended AEDPA § 440(d), the very subsection

at issue, in other respects. We therefore conclude that

the BIA is required to consider Goncalves’ application

for § 212(c) relief from deportation. Whether the immi-

gration authorities grant or deny that application, is, of

course, within their discretion.

I. Facts and Procedural History

Raul Percira Goncalves is a lawful permanent re-

sident of the United States. He committed a series of

thefts, he says while under the influence of alcohol, and

was incarcerated. He has been convicted of charges of

breaking and entering, larceny, possessing burglary

|

6a

tools, receiving stolen property, and one charge of

possession of marijuana. Those non-violent offenses,

Goncalves conceded, are crimes “involving moral

turpitude” and subjected him to deportation. See Immi-

gration and Nationality Act (old INA) § 241(a)(2)(A)(ii),

House Judiciary Comm. Print, 104th Cong., 1st Sess.

(10th ed.1995) (reflecting laws enacted as of May 1,

1995), now renumbered as INA § 237(a)(2)(A)(ii) and

codified at 8 U.S.C.A. § 1227(a)(2)(A)(ii) (West Supp.

1998)! (“Any alien who at any time after entry is con-

victed of two or more crimes involving moral turpitude,

not arising out of a single scheme of criminal mis-

conduct . . . is deportable.”). On his release from

prison in May of 1994, he was taken into custody for

deportation, although he was released on bail while his

petition was pending before the INS. In the interim he

attended meetings of Alcoholics Anonymous. He has

since earned his high school equivalency diploma,

married, had a child, and been gainfully employed.

At the time the deportation proceedings against him

commenced, Goncalves was eligible to apply to the

Attorney General for a discretionary waiver of deporta-

tion. That is because he was a lawful permanent

resident, had seven years of “lawfully unrelinquished

domicile” and the crimes he committed were not

“aggravated” felonies. See old INA § 212(c); see also

1 Citation to “INA” refers to the INA as currently in effect,

whether or not the specific provision has been changed by AEDPA

or IIRIRA. For ease of reference, we provide parallel citations to

the current version of the United States Code Annotated. Citation

to “old INA” refers to the INA as in effect on May 1, 1995, as set

forth in the tenth edition of House Judiciary Committee’s publi-

cation of the statute, i.e., as in effect prior to the amendments

wrought by AEDPA and IIRIRA.

a ee SE ON

7a

Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (§ 212(c)

relief is available in deportation as well as exclusion

proceedings); Matter of Silva, 16 I. & N. Dee. 26 (BIA

1976) (adopting Francis decision nationwide). He had

no right to remain in this country, but he was entitled

by § 212(c) to apply for a waiver of deportation and ask

the Attorney General, in the exercise of her discretion,

to allow him to remain here.

Goncalves applied for § 212(c) relief in September

1994. Under the law in effect in 1994, an alien applying

for a waiver first presented his case to an Immigration

Judge (IJ), as Administrative Law Judges are known in

the INS’s Executive Office for Immigration Review.

The IJ was required to balance the positive and adverse

factors in determining whether a waiver was war-

ranted, and to justify his or her decision, whether in

favor or against granting a waiver, to allow review by

the BIA and the courts. See Matter of Marin, 16 I. &

N. Dec. 581, 585, 1978 WL 36472 (BIA 1978) (listing

factors). The IJ agreed that Goncalves was statutorily

eligible to apply for § 212(c) relief but Goncalves failed

to convince the IJ that he was worthy of it. On Jan. 20,

1995 the IJ denied his application and Goncalves took a

timely appeal. And there the case sat for more than

two years, undoubtedly because of the very large

number of cases that were pending before the Board.

See H.R. Rep. No. 104-469, pt. 1, at 119 (1996) (noting

that over 17,000 aliens filed appeals to the BIA in 1995).

The BIA never reached the merits of Goncalves’

application. On March 24, 1997, the BIA dismissed Gon-

calves’ appeal on the grounds that he was no longer

statutorily eligible for § 212(c) relief, as a result of

enactment of AEDPA in the interim. The BIA was

cn aaaaaaa aia ati tein,

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compelled to do so by the decision of the Attorney

General in Matter of Soriano, Int. Dec. 3289, 1996 WL

426888 (Op. Att’y Gen. June 27, 1996) (beginning at

*16). The Attorney General’s decision in Soriano con-

cluded that Congress intended to make the new re-

strictions on § 212(c) relief contained in AEDPA

§ 440(d) retroactive and that the new restrictions

should be applied even to those applications filed before

the date of AEDPA’s enactment. Soriano required the

dismissal of all such pending applications, even if the

alien’s application had been granted by the IJ and the

case was pending on appeal. The Attorney General’s

Soriano decision reversed an earlier opinion by the

BIA, sitting en banc, that found no congressional intent

to apply the new restrictions to pending applications,

and so would have permitted Goncalves’ appeal to be

heard on the merits.

Because his application had been dismissed, Gon-

calves was taken back into federal custody on June 25,

1997 for deportation. On August 8, 1997, Goncalves

filed a petition for habeas corpus relief in the United

States District Court for the District of Massachusetts.

Goncalves’ petition asserted that Congress did not

intend AEDPA § 440(d) to apply retroactively, or at the

very least that Congress did not intend to disrupt

pending applications for relief. Goncalves also chal-

lenged, as a violation of the Equal Protection Clause,

the government’s decision to apply the statutes in a

manner which made the availability of discretionary

relief dependent on whether an alien was in deportation

proceedings, as Goncalves was, or in exclusion pro-

ceedings, as Goncalves would have been if he had taken

9a

a brief trip abroad.? The district court dismissed Gon-

calves’ petition for a writ of habeas corpus on August

14, 1997. On August 26, 1997, this court granted Gon-

calves’ motion to stay deportation and for expedited

consideration of his appeal. Goncalves has been in

federal custody since June 25, 1997. He was thus in

custody when his petition was filed and has apparently

remained in custody throughout these habeas proceed-

ings.

Il. Statutory Background

In order to understand the issues presented by this

case. we outline some of the recent changes to our

immigration laws. In the interim two years between

the IJ’s denial of Goncalves’ application for a discretion-

ary waiver of deportation and the BIA’s dismissal of his

application, Congress substantially altered the immi-

eration landscape by enacting two significant statutes,

AEDPA and IIRIRA.

a April 24, 1996, Congress enacted AEDPA, which,

§ 440(d), greatly expanded the category of criminal

pinches that would render an alien ineligible to

2 The BIA has interpreted AEDPA § 440(d) as precluding

relief only in deportation proceedings, not in exclusion pro-

ceedings. See Matter of Fuentes-Campos, Int. Dec. 3318, 1997 WL

269368 (BIA May 14, 1997). Although ITRIRA has abolished this

distinction by combining the two into a new proce eding known as a

“removal proceeding,” this change does not affect aliens subject to

the “transitional rules.” Relying on Francis, supra, Goncalves

argues that there is no rational basis for making the availability of

discretionary relief depend on the distinction between these two

forms of proceedings. We express no view on the merits of this

argument.

10a

apply for § 212(c) relief. Although AEDPA § 440 con-

tained an express “effective date” provision, that pro-

vision by its terms applied only to § 440(e) (expanding

INA definition of “aggravated felony”), and not to

§ 440(d), the subsection which concerns us.

Additionally, AEDPA § 440(a) eliminated statutory

review pursuant to the APA in the U.S. Courts of Ap-

peals for some categories of deportation cases. In cases

involving denial of an application for discretionary

waiver by an alien deportable by reason of commission

of aggravated felonies, this court held in Kolster, supra,

that Congress had eliminated the statutory grant of

jurisdiction in the courts of appeals over such claims.

Kolster also held that this posed no constitutional

problems because residual jurisdiction existed in the

district courts over habeas corpus petitions. That

holding was consistent with the position taken by the

INS; indeed, the INS conceded that there would be

some form of habeas jurisdiction in the district court.

Kolster expressly reserved issues concerning the

source of this habeas jurisdiction and the scope of

habeas review. See id. at 790 n. 4 & 791. It was in

apparent reliance on the Kolster case and this court’s

subsequent decision in Santos v. INS, 124 F.3d 64 (1st

Cir. 1997) (rejecting INS claim that, after passage of

IIRIRA, petition for review in court of appeals, rather

than petition for a writ of habeas corpus, was the

proper forum to raise a jurisdictional or constitutional

challenge to an order of deportation), that Goncalves

filed his petition for habeas corpus in the district court.

Within a short time Congress changed some of the

rules established by AEDPA. On September 30, 1996,

Congress enacted I[RIRA. Under IIRIRA there are

lla

two new sets of rules: the new permanent rules and the

“transitional rules.” See IIRIRA § 309(c), as amended

by Act of Oct. 11, 1997, § 2, Pub.L. No. 104-302, 110

Stat. 3656, 3657. As made clear by the technical amend-

ments, the new permanent rules under IIRIRA are

effective for cases in which the INS instituted removal

proceedings on or after April 1, 1997. See id. In con-

trast, the transitional rules are to be applied to deporta-

tion proceedings which were commenced before April 1,

1997. Because Goncalves’ deportation was initiated

before April 1, 1997, his claims are governed by the

transitional rules, as both the Attorney General and

Goncalves agree.

Goncalves’ petition, governed by the transitional

rules,’ raises pure issues of law. The first is whether,

under the transitional rules, Congress intended for

jurisdiction over this case to be vested, if indeed in any

3 The new permanent rules nevertheless have some relevance.

Under the permanent rules, Congress allowed a new form of dis-

cretionary relief from deportation for those aliens convicted of

crimes, but limited this new relief to a smaller category of aliens

than had historically been eligible (pre-AEDPA) to seek § 212(c)

relief. IIRIRA § 304, adding new INA § 240A, codified at 8

U.S.C.A. § 1229b (West Supp.1998), consolidates “suspension of

deportation” relief and aspects of the former § 212(c) relief into a

new form of relief called “cancellation of removal.” “Cancellation

of removal” relief restores discretionary relief for aliens who are

deportable because they have committed two or more crimes in-

volving moral turpitude under INA 8 237(a)(2)(A)(ii). Thus, if

Goncalves had been charged with deportability on this ground

after April 1, 1997, he would have been permitted to apply for this

new form of relief. “Cancellation of removal” relief, like § 212(c)

relief before AEDPA, is available for all aliens whose criminal

convictions do not qualify as “aggravated felonies.” See IIRIRA

§ 304(a) (adding new INA § 240A).

12a

court, in the court of appeals, as the Attorney General

argues, or in the district court on petition for habeas

corpus, as Goncalves argues. We pause to note that the

position taken by the Attorney General now is the op-

posite of the position she took in Kolster.4 If the

Attorney General is correct, then, she argues, Gon-

calves loses his case because he did not file a petition

with this court within the thirty day period of time

allotted.®

If Goncalves is correct, there is no time limitations

problem, but there is a different problem. We must

look at whether Goncalves may raise on habeas the

type of statutory claim he now makes: that as a pure

issue of law, the Attorney General is mistaken in her

conclusion that Congress intended its restrictions of

§ 212(c) relief to apply retroactively. If there was

jurisdiction over such a claim, then we must review de

4 The Attorney General has reversed her position on which

court has jurisdiction because of her interpretation of the judicial

review provisions of IIRIRA, which we discuss below.

5 Of course, this court’s Kolster and Santos decisions, and

petitioner’s apparent reliance on those decisions, complicate any

use of the thirty day limit to dismiss Goncalves’ case. Even if we

to were reverse Kolster and hold that Goncalves could have pre-

sented his claims on direct review in this court, a substantial

question would remain as to whether we would apply the thirty

day limit for filing to Goncalves. A long line of Supreme Court

cases, beginning with Chevron Oil Co. v. Huson, 404 U.S. 97, 92S.

Ct. 349, 30 L.Ed.2d 296 (1971), has refused to apply newly-specified

statutes of limitations retroactively to bar suits that, under con-

trolling precedent, were filed in a timely manner. See also Ameri-

can Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 110 S. Ct. 2323,

110 L.Ed.2d 148 (1990); Saint Francis College v. Al-Khazraji, 481

U.S. 604, 107 S. Ct. 2022, 95 L.Ed.2d 582 (1987). Thus, it is likely

we would have to reach the merits of this case in any event.

13a

novo the district court’s determination that the At-

torney General’s decision is correct.

Ill. Jurisdiction

A. Jurisdiction in the Court of Appeals

The Attorney General argues that Goncalves should

have presented any claims that he could have made ina

petition for review to this court within thirty days of

the INS’s final decision, and that he is therefore pre-

cluded from making such claims on habeas. The short

answer is that this argument is foreclosed by Kolster,

and that any argument that IIRIRA requires us to

reconsider Kolster is foreclosed by Santos. However,

as this court did not fully explain its reasoning in

Santos, and the Attorney General continues to press

this argument, we explain why Goncalves could not

have filed a petition for review in this court.

We start with the language of the transitional rules

provisions of the statute, for the general rule is that

““eJourts created by statute can have no jurisdiction

but such as the statute confers.’” Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 818, 108 S. Ct.

2166, 2179, 100 L.Ed.2d 811 (1988) (quoting Sheldon v.

Sill, 49 U.S. (8 How.) 441, 449, 12 L.Ed. 1147 (1850)).

IIRIRA § 309(c)(1), as amended by Act of Oct. 11, 1997,

§ 2. Pub. L. No. 104-302, 110 Stat. 3656, 3657, provides:

Subject to the succeeding provisions of this sub-

section, in the case of an alien who is in exclusion or

deportation proceedings [before April 1, 1997]—

l4a

(A) the amendments made hy this subtitle

shall not apply, and

(B) the proceedings (including judicial re-

view thereof) shall continue to be conducted

without regard to such amendments.

This provision of IIRIRA seemingly supports the

Attorney General because it makes judicial review of }

final orders of deportation for aliens under the transi-

tional rules subject to old INA § 106 (as then in effect),

which IITRIRA § 306(b) repeals. Old INA § 106 made

the judicial review provisions of the APA, codified at 28

U.S.C. ch. 158 (1994), applicable (with modifications) to

immigration decisions. The APA judicial review pro-

visions vest the courts of appeals with jurisdiction to

review final agency action. See 28 U.S.C. § 2344 (1994).

The IIRIRA provision establishing “transitional

rules,” ITRIRA § 309(c)(1), is, however, expressly sub-

ject to IIRIRA § 309(c)(4)(G), which provides:

(4) TRANSITIONAL CHANGES IN JUDICIAL

REVIEW.—In the cases described in paragraph (1)

in which a final order of exclusion or deportation is

entered more than 30 days after the date of enact-

ment of this Act, notwithstanding any provision of

section 106 of the Immigration and Nationality Act

(as in effect as of date of enactment of this Act) to

the contrary—

* * *

(G) there shall be no appeal permitted in the

case of an alien who is inadmissible or

deportable by reason of having committed a

criminal offense covered .. . by section

4

:

i

7

241(aX2 Ail) of such Act (as in effect on such

date) for which both predicate offenses are.

without regard to their date of commission,

otherwise covered by section 241(a)(2) (A)(i)

of such Act (as so in effect).

Goncalves falls within the language of subpart (G), as

the parties recognize.®

A straightforward reading of subpart (G) leads to the

conclusion that IIRIRA does not permit initial jurisdic-

tion in the courts of appeals to hear “appeals” by aliens,

like Goncalves, who have been convicted of two crimes

of moral turpitude. The section says “there shall be no

appeal,” a reference to an appeal to the courts of ap-

peals. From this, it is clear that there is no grant of

jurisdiction to the courts of appeals over this category

of transitional cases, i.e., claims by aliens deportable by

reason of having committed specified criminal offenses.

Despite the literal language of IIRIRA § 309(e)(4\(G ),

the Attorney General argues that subpart (G) should be

read differently, in light of the separate judicial review

provisions for aliens governed by the permanent rule:

found at IIRIRA § 306, The Attorney General relies on

IIRIRA § 806(a), which adds new INA & 242(),

U.S.C.A, § 1252(¢) (West supp, 1998)

" There ia no doubt that Goncalves’ concession that he had

been convicted of two or more “crimes invols ingg moral turpitude,

not arising out of a single scheme of criminal conduct.” rendered

him deportable pursuant to old INA § 241(a)(2)(A)(i). Before the

IJ, Goncalves conceded at least two convictions for which he was

punished by a term of imprisonment longer than one year, so “both

predicate offenses are . . . otherwise covered by section

241(a)(2)(A)(i) of [the old INA.]”

16a

“g) EXCLUSIVE JURISDICTION.—Except as

provided in this section [i.e new INA § 242] 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 pro-

ceedings, adjudicate cases, or execute removal

orders against any alien under this Act.”

Although IIRIRA § 306 is generally concerned with the

permanent rules and has an effective date of April 1,

1997 and so does not affect Goncalves, there is a special

effective date for that part of IIRIRA § 306 comprising

new INA § 242(g).7 Thus, new INA § 242(g) applies to

Goncalves’ claims. The Attorney General argues that

this provision was meant to consolidate all review in the

courts of appeals, so that Goncalves can make his

claims, if at all, only in the courts of appeals.

But new INA § 242(g) does not read as the Attorney

General suggests. The subsection does not refer to

consolidation of all cases in the courts of appeals or

state that the courts of appeals would have “exclusive

jurisdiction.” The “exclusive jurisdiction” title refers to

the grants of jurisdiction provided in new INA § 242 as

does the “except as provided in this section” language.

The language is not meant to consolidate all review in

the courts of appeals; indeed, new INA § 242 has ex-

plicit provisions referring to jurisdiction in courts other

than the courts of appeals, There are provisions gov-

‘ That special rule, contained in ITRIRA § 806(¢), as amended

by Act of Oet, 11, 1997, § 2, Pub. L. No, 104-302, 110 Stat, 8656,

3657, provides that new INA § 242(g) shall apply “without

lim'tation to claims arising from all past, pending or future ex-

clusion, deportation or removal proceedings under this Act.”

erning habeas corpus proceedings, and, in a defined

category of cases, providing for exclusive jurisdiction in

the District Court of the District of Columbia,

Indeed, new INA § 242 contradicts the Attorney

General’s argument. Of particular significance is new

INA § 242(e)(2), which states that the habeas corpus

review of orders denying aliens entry to the United

States is restricted to certain narrow questions. This

section assumes that such jurisdiction exists, pre-

sumably pursuant to 28 U.S.C. § 2241. As the courts of

appeals ordinarily may not issue original writs of

habeas corpus but instead will refer such petitions to

the appropriate district court, see Fed. R. App. P. 22(a),

and as the Supreme Court will only consider a petition

for an original writ of habeas corpus in very limited

circumstances, see Sup. Ct. R. 20(4)(a), the statute ap-

parently assumes that such review will initially be in

the district courts. Thus, the language of new INA

§ 242(¢) assumes the existence of some habeas jurisdic-

tion in the district court.

We do not, in conclusion, read the new INA § 242 as

granting jurisdiction to the courts of appeals in transi

tional rules cases over this category of claims, The

more difficult question, we believe, is whether these

provisions, were meant to preclude any exercise of

jurisdiction, even on habeas, over claims, constitutional!

or otherwise, by aliens in the posit ion of Goncalves,

lSa

B. Habeas Jurisdiction in the District Courts

l. Positions of Parties

We wish to be clear about the Attorney General’s

position. She argues not that all review is precluded

but rather that some limited scope of review is avail-

able to hear certain sorts of claims, and that Goncalves’

claims do not fall within the permissible scope of re-

view. The Attorney General argues that there must be

an Article III court available to hear substantial claims

of violation of constitutional rights amounting to a

fundamental miscarriage of justice.6 But Goncalves

himself presents no such claim, she asserts. In addition,

the Attorney General argues, there must be inherent

authority in the judiciary to review certain non-

constitutional claims, i.e., whether the person being de-

ported meets the statutory prerequisites: that the

person is an alien, has been convicted of the crimes, and

the convictions are of the sort which meet the statutory

definitions. But Goncalves, she notes, does not present

We express no opinion on the Attorney General's con-

stitutional arguments. We note, however, that the Attorney

General’s formulation of the standard of constitutionally-compelled

review is drawn from the very different context of successive

federal habeas corpus petitions by prisoners in state custody who

have already had one or more opportunities for full judicial process

and appeals in the state system, with an opportunity for further

review in the Supreme Court by a writ of certiorari, and one or

more opportunities for review in the federal judiciary on their first

habeas petition. See Herrera v. Collins, 506 U.S. 390, 404, 113 S.

Ct. 853, 862-63, 122 L.Ed.2d 203 (1993). Goncalves, in contrast, is

in federal custody and has only been afforded the first level of

administrative review of his case. Indeed, the Attorney General’s

position is that there should be no judicial review in any court of

Goncalves’ claims.

——————————

|

19a

these types of claims either. The Attorney General

essentially argues there is an inherent jurisdiction to

hear these constitutional and statutory prerequisite

categories of claims, although IIRIRA itself makes no

provisions for either type of review as to aliens like

Goncalves.

It is far from clear from what source the Attorney

General finds the authority for such review. One

theory is that the authority may be derived not from an

explicit statutory text but, at best, from the interstices

of the various immigration statutes. Another theory is

that the source of jurisdiction is the Constitution itself.

Both theories present obvious problems.

Goncalves asserts that the question he poses—a

question of statutory construction—is subject to

judicial review. In contrast to the Attorney General,

Goncalves grounds judicial review directly on statutory

authority: the grant of habeas corpus juri: liction under

28 U.S.C. § 2241. This grant has been part of the

juridical fabric of this nation since its enactment in the

first Judiciary Act. See Judiciary Act of 1789, § 14, 1

Stat. 73, 81-82; see generally Richard H. Fallon, Daniel

J. Meltzer & David L. Shapiro, Hart and Wechsler’s

The Federal Courts and the Federal System ch. 11, § 1

(4th ed.1996); Erwin Chemerinsky, Federal Jurisdic-

tion § 15.1, at 780 (2d ed. 1994) (noting Blackstone’s

reference to the writ of habeas corpus as “the most

celebrated writ in English law”). It is only if we

conclude that Congress intended in IIRIRA to elimi-

nate that grant of habeas jurisdiction that we must face

the question of whether some form of review on habeas

20a

is mandated by the Suspension Clause,’ or, as Gonc-

alves argues, by the Due Process Clause of the Fifth

Amendment or by Article III itself, and, if so, the

nature of that review.

2. Congressional Intent to Repeal 28 U.S.C. § 2241

The Attorney General argues that Congress has

repealed 28 U.S.C. § 2241, as applied to immigration

cases such as this one. Under Felker, supra, the ques-

tion we must decide is whether Congress has expressly

repealed or modified the federal courts’ habeas author-

ity, here under § 2241. Felker makes clear that if Con-

gress intends to repeal or restrict habeas jurisdiction

under § 2241, it must say so explicitly. Thus, we will

not find a repeal of § 2241 merely by implication, but

only by express congressional command.

In Felker, the issue was whether Title I of AEDPA,

which through §§ 106(b)(1) and (b)(2) amended 28

U.S.C. § 2244(b), also was meant to eliminate the

Supreme Court’s original habeas jurisdiction under 28

U.S.C. §§ 2241 and 2254. In concluding that AEDPA

tit. I preserved the Supreme Court’s jurisdiction to

issue original habeas petitions, the Felker court applied

the model of decision the Supreme Court had used more

than a century earlier in Ex parte Yerger, 75 U.S. (8

Wall.) 85, 19 L.Ed. 332 (1869).

9 The Suspension Clause provides that “(t]he privilege of the

Writ of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may require it.”

U.S. Const. art. I, § 9, el. 2.

21a

Ex parte Yerger refused to read an act of Congress as

impliedly impairing habeas corpus jurisdiction in light

of its constitutionally protected status. Previously, in

Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264

(1869), the Supreme Court had upheld an act of Con-

gress that expressly restricted appeals of habeas

cases under the Judiciary Act of 1867, 15 Stat. 385, for

prisoners in state custody. In Ex parte Yerger, the

Court avoided impairing the historical core of habeas

jurisdiction, and addressing the attendant Suspension

Clause issues, by interpreting the repeal at issue in Ex

parte McCardle as affecting only appeals under the

1867 Act, and not appeals under the Judiciary Act of

1789, which provided the grant of habeas jurisdiction

for prisoners in federal custody. As Goncalves is in

federal custody and seeks review of an administrative

proceeding, not collateral review of a judicial pro-

ceeding, his case is directly governed by Ex parte

Yerger.

Felker regarded Ex parte Yerger as adopting a

general rule of construction that any repeal of the

federal courts’ historic habeas jurisdiction, whether for

prisoners in federal or state custody, must be explicit

and make express reference specifically to the statute

granting jurisdiction. Application of the Ex parte

Yerger rule to Goncalves’ case is thus even more ap-

propriate than in Felker itself, as Goncalves is in federal

custody and has had no judicial review of his claims

whatsoever.

There is no question that, unless it has been ex-

pressly repealed, § 2241 provides a basis for reviewing

immigration decisions. Aliens in custody of federal

immigration officials have traditionally been able to

ee

22a

obtain review of immigration decisions by petitioning

for a writ of habeas corpus under what is now § 2241.

Soon after the federal government began to regulate

immigration, the Supreme Court considered an argu-

ment that the habeas corpus statute did not apply to an

alien under a theory that the only restraint on his

liberty was that “he was not permitted to enter the

United States.” United States v. Jung Ah Lung, 124

U.S. 621, 626, 8 S. Ct. 663, 666, 31 L.Ed. 591 (1888). The

Supreme Court rejected this argument as applied to

aliens in custody of federal officials. See id. Habeas

corpus review remained the principal avenue for judi-

cial oversight of immigration laws until the Supreme

Court’s decision to allow more expansive review of

immigration decisions under the APA, later codified in

old INA § 106. See Shaughnessy v. Pedreiro, 349 U.S.

48, 75 S.Ct. 591, 99 L.Ed. 868 (1955).

Although the Attorney General suggests that the

application of the APA to immigration decisions re-

pealed habeas review under § 2241, we find no

authority that supports this proposition. The decisions

that she says stand for the proposition that APA

review in the courts of appeals precluded any

jurisdiction in the district courts concern jurisdiction

under the APA, not habeas jurisdiction under § 2241.

See, e.g., Agosto v. INS, 436 U.S. 748, 752-53, 98 S. Ct.

2081, 2084-85, 56 L.Ed.2d 677 (1978) (old INA § 106

“eliminated district court review of deportation orders

under § 10 of the Administrative Procedure Act, and

replaced it with direct review in the courts of appeals .

.” (emphasis added)). Indeed, the Supreme Court

expressly stated that the vesting of jurisdiction to

review orders under the APA exclusively in the courts

of appeals “of course . . . inno way impairs the

23a

. . . availability of habeas corpus relief.” Foti v. INS,

375 U.S. 217, 231, 84 S. Ct. 306, 315, 11 L.Ed.2d 281

(1963). The Attorney Generals argument that

Congress’ decision to make available another avenue

for judicial review repeals by imp.ication the previous

jurisdiction exercised pursuant to § 2241 is precisely

what Felker and Ex parte Yerger do not permit.

The Attorney General contenas, in addition, that

AEDPA and IIRIRA have expressly repealed jurisdic-

tion under § 2241. We find no such express language.

First, the language in IIRIRA that restricts jurisdic-

tion over this category of aliens states:

——_——— tet withstanding any provision of section 106 of

the Immigration and Nationality Act (as in effect as

of the date of enactment of this Act) to the con-

trary—

(G) there shall be no appeal permitted in the

case of an alien who is . . . deportable by

reason of having committed [particular]

criminal offense[s].

ITRIRA § 309(c)(4). In Felker, the language at issue in

AEDPA provided that “the grant or denial of an

authorization by a court of appeals to file a second or

successive application shall not be appealable and shall

not be the subject of a petition . . . for a writ of

certiorari.” For present purposes we see no significant

distinction between the language faced by the Felker

Court that an order “shall not be appealable” and the

language we face that “there shall be no appeal per-

24a

mitted.” Both provisions restrict one avenue of

relief—in Felker, by restricting the Supreme Court’s

jurisdiction to hear appeals and to entertain writs of

certiorari, and in this case, by restricting an “appeal”

under the APA judicial review provisions. Felker holds

that such language is not explicit enough impliedly to

impair habeas corpus jurisdiction.

The Attorney General relies also on AEDPA § 401(e),

explicitly repealing old INA § 106(a)(10), which had

referred to habeas jurisdiction.!° Section 106(a)(10) had

provided:

(10) any alien held in custody pursuant to an order

of deportation may obtain judicial review thereof by

habeas corpus proceedings.

Thus, the Attorney General argues, AEDPA eliminates

not only the prior authorization for the exercise of

habeas jurisdiction (in addition to APA review) in old

INA § 106(a)(10), but also the basic grant of habeas

Jurisdiction contained in 28 U.S.C. § 224].

However, Congress was explicit that it was striking

the reference to habeas in old INA § 106(a)(10). It did

not, in contrast, expressly amend or alter 28 U.S.C.

‘0 AEDPA 8 401(e) provides

(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—

(5) by striking paragraph (10).

25a

3 2241. Old INA § 106(a)(10) was a specialized immi-

gration provision which had made clear that aliens with

access to the ordinary judicial review processes also

could seek habeas review if they were in custody. This

provision ensured that such aliens would have a supple-

mental collateral remedy," and did not apply to aliens

who could not obtain review under the APA judicial

review provisions. Aliens without other recourse had

traditionally been able to obtain review by habeas

corpus, even in the face of statutory language preclud-

ing all other review. See Heikkila v. Barber, 345 U.S.

229, 233-35, 73 S. Ct. 603, 605-06, 97 L.Ed. 972 (1953).

In enacting AEDPA, Congress was concerned about

abuses of duplicative judicial remedies, and the elimina-

tion of old INA § 106(a)(10) served that congressional

purpose.’* It does not follow from the repeal of this

provision of the INA that § 2241 habeas jurisdiction has

been repealed altogether in immigration cases. Had

Congress wished to eliminate any possible habeas juris-

diction under 28 U.S.C. § 2241, it could easily have in-

serted an explicit reference, but it did not.

This conclusion is reinforced by the fact that both

IIRIRA and AEDPA make specific reference when

they amend or repeal statutes granting jurisdiction to

the federal courts. See Felker, 518 U.S. at 659-63, 116

5. Ct. at 2338-39. For example, AEDPA § 440(a), the

‘! The provision may also have ensured that APA review

would be available, despite an argument that the existence of the

habeas remedy was an alternative “adequate” remedy that would

normally preclude such review. See Town of Sanford v. United

States, 140 F.3d 20, 22-23 (1st Cir. 1998).

12 See 141 Cong. Rec. $7823 (daily ed. June 7, 1995) (statement

of Senator Abraham) (decrying the capacity of aliens to seek

“repeated” or “successive” judicial review).

26a

provision at issue in Kolster, made specific reference to

old INA § 106, the judicial review provision, providing

that “Section 106 of the Immigration and Nationality

Act (8 U.S.C. § 1105a(a)(10)) is amended. . . .”

Likewise, AEDPA § 401(e), eliminating supplemental

habeas jurisdiction under the INA, refers specifically to

“Section 106(a) of the Immigration and Nationality

Act,” not 28 U.S.C. § 2241.13

Similarly, IIRIRA contains numerous provisions re-

stricting or altering various avenues for judicial review,

but in none of these provisions does IIRIRA mention

§ 2241. For example, IIRIRA § 306, enacting new INA

§ 242, refers specifically to several different grants of

jurisdiction. That new section contains provisions re-

ferring specifically to the judicial review provisions of

the APA, codified at 28 U.S.C. ch. 158, see new INA

§ 242(a)(1), and to the Declaratory Judgment Act,

codified at 28 U.S.C. § 2201, see new INA § 242(b)(5)(B),

(7)(B). The new INA § 242 purports to restrict the

jurisdiction of the federal courts in such proceedings.

Indeed, far from repealing § 2241 habeas jurisdiction,

new INA § 242 presumes the existence of on-going

habeas jurisdiction. This severely undermines the

Attorney General’s argument for implied repeal of

§ 2241 in immigration cases. IIRIRA was enacted after

Felker, and Congress was well aware of the need for

specific language if it wished to impair the Great Writ.

Nonetheless, the Attorney General argues that new

INA § 242(g), the exclusivity provision, can be read to

‘8 In AEDPA, when Congress wanted to amend habeas relief

for state and federal prisoners seeking post-conviction review, it

did so explicitly. See AEDPA tit. I.

a

27a

imply a repeal of § 2241 even without a specific re-

ference. She argues that new INA § 242(g) provides

that “notwithstanding any other provision of law, no

court shall have jurisdiction” “except as provided in this

section,” i.e. new INA § 242, and so there is no need

specifically to repeal § 2241. The new INA § 242,

argues the Attorney General, is the only source of

jurisdiction in immigration cases. Thus, it would re-

quire a specific reference to § 2241 to preserve such

jurisdiction, rather than a specific reference to abolish

it. But see Scripps-Howard Radio, Inc. v. FCC, 316

U.S. 4, 11, 62 S. Ct. 875, 880-81, 86 L.Ed. 1229 (1942)

(noting that, absent a specific repeal of jurisdictional

authority, “[t]he search for significance in the silence of

Congress is too often the pursuit of a mirage”).

This argument leads us to apply the long standing

rule disfavoring repeal of jurisdictional provisions by

implication, a rule which is particularly appropriate

here. See Felker, 518 U.S. at 659-63, 116 S. Ct. at 2338-

39. Although the breadth of the “notwithstanding”

clause is sweeping, a reading which provided for no

exceptions would have enormous consequences that are

contrary to clearly expressed congressional intent. If

the “notwithstanding” clause of subsection (g) is read to

preclude any jurisdiction except that specifically

authorized in new INA § 242, then that conflicts with

IIRIRA § 309. Judicial review would be blocked not

only for the narrow class of aliens in Goncalves’ posi-

tion, but for every alien subject to IIRIRA’s “transi-

tional rules.” As new INA § 242 is only applicable for

aliens subject to IIRIRA’s “permanent rules,” see

iIRIRA § 309, and as new INA § 242(g) is applicable

immediately, see IIRIRA § 306(c), aliens subject to the

transitional rules—i.e., every alien now in the admin-

28a

istrative process whose case began prior to April 1,

1997—could not obtain any judicial review because they

cannot take advantage of “this section,” i.e., new INA

§ 242. Such a reading would clearly conflict with the

congressional intent expressed in IIRIRA § 309 to pre-

serve review in the transitional period under old INA

§ 106.

Finally, our refusal to find express repeal of § 2241 in

new INA § 242(g) eliminates the need to address

serious, novel and complex constitutional issues We

would be loath to find a repeal where that repeal

creates serious constitutional problems. We note these

constitutional concerns briefly to underscore the wis-

dom of avoiding them.

First, a finding that there is no statutory provision

for any judicial review of the type of claim raised by

Goncalves would raise substantial and complex consti-

tutional questions concerning the limits of Congress’

power under Article III to control the jurisdiction of

the federal courts.14 The Supreme Court has often

interpreted statutes to avoid serious constitutional

questions presented where statutory provisions ap-

peared to foreclose review of constitutional claims by an

Article III court. See, e.g., Webster v. Doe, 486 U.S. 592,

108 S. Ct. 2047, 100 L.Ed.2d 632 (1988) (interpreting a

statute, to avoid constitutional questions, to preserve

review of a former CIA employee’s claim who chal-

lenged a decision to fire him because of his homo-

sexuality); United States v. Mendoza-Lopez, 481 U.S.

828, 838-39, 107 S. Ct. 2148, 2155-56, 95 L.Ed.2d 772

'4 Again, we distinguish such claims by aliens from post-

conviction habeas proceedings by state and federal prisoners.

29a

(1987) (requiring judicial review of the legality of a

deportation order if that order is used “to conclusively

establish an element of a criminal offense”).

Second, a decision that Congress has repealed § 2241

would require us to decide whether the Suspension

Clause of the Constitution permits Congress to do this.

Goncalves seeks review under this grant of jurisdic-

tion in a posture which the Shoreme Court has

recognized is the historical core of the Suspension

Clause—jurisdiction to review the legality of detention

by executive branch officers. See Felker, 518 U.S. at

661-65, 116 S. Ct. at 2339-40 (noting that the writ

originally only extended to prisoners in federal custody

who were not “detained in prison by virtue of the

judgment of a court” (citation and internal quotation

marks omitted)); see also Swain v. Pressley, 430 U.S

372, 386, 97 S. Ct. 1224, 1232, 51 L.Ed.2d 411 (1977)

(Burger, C.J., concurring) (“[T]he traditional Great

Writ was largely a remedy against executive deten-

tion.”).

Our interpretation also avoids the question of

whether the Constitution’s Suspension Clause alone,

unaided by statute, provides jurisdiction and the

equally vexing issue of what kinds of claims are permit-

ted under such novel jurisdiction. That, in turn, would

raise the further question of the constitutional mini-

mum content of judicial review for deportation de-

cisions. 5

The Attorney General cites to broad statements concerning

Congress’ power to entrust administrative officials with primar

adjudicating eer and exclusion cases. See, e.g., Carlso

Landon, 342 U.S. 524, 537, 72 S. Ct. 525. 532-33. 96 L.Ed. 5

pha

30a

For all of these reasons, we find no express con-

gressional intent in the language of either AEDPA or

IITRIRA that prevents an alien who is precluded from

seeking judicial review under the APA by IIRIRA

§ 309(c)(4)(G) from seeking a writ of habeas corpus

under 28 U.S.C. § 2241 to assert claims of the nature

being asserted here. “This is the reasonable construc-

tion of the acts of Congress here in question, and they

need not be otherwise interpreted. . . . The words

here used do not require an interpretation that would

invest executive or administrative officers with

absolute, arbitrary power.” Japanese Immigrant Case,

189 U.S. at 101, 23 S. Ct. at 615. Nor do they require a

construction that would force this court to resolve the

fundamental constitutional questions a repeal of § 2241

would provoke.

(1952). But those cases took the availability of habeas review for

granted. The question being asked was not whether Congress

could withdraw habeas, but whether the Due Process Clause re-

quired more than the limited review available on habeas. See

Heikkila, 345 U.S. at 233, 73 S. Ct. at 605 (Congress may consti-

tutionally entrust fact-finding to administrative officials because

review of the legality of the immigration authorities’ actions is

available on habeas). In Heikkila, for example, the Supreme Court

stated that prior Immigration Acts were intended to foreclose

judicial review to the fullest extent consistent with the Consti-

tution. See Heikkila, 345 U.S. at 234-35, 73 S. Ct. at 605-06. How-

ever, under those Acts the availability of review on habeas corpus

under § 2241 was never in doubt ana the Heikkila court regarded

that review as the constitutional floor. See id.; see also Landon v.

Plasencia, 459 U.S. 21, 32-34, 103 S. Ct. 321, 329-30, 74 L.Ed.2d 21

(1982) (affirming procedural due process rights of permanent

residents in exclusion proceedings); Japanese Immigrant Case

(Yamataya v. Fisher), 189 U.S. 86, 100-02, 23 S. Ct. 611, 614-15, 47

L.Ed. 721 (1903) (recognizing rights of aliens to due process in

administrative decisionmaking, enforceable on habeas corpus).

sla

3. Does the Scope of Review Include Goncalves’ Claims?

Jurisdiction being proper under 28 U.S.C. § 2241, we

address the further question of whether Congress in-

tended to restrict the scope of review on habeas to

preclude review of the questions Goncalves poses.

In determining the scope of habeas review, we again

start with the language of the statute, § 2241:

(a) Writs of habeas corpus may be granted by

the Supreme Court, any justice thereof, the

district courts and any circuit judge within their

respective jurisdictions. The order of a circuit

judge shall be entered in the records of the

district court of the district wherein the restraint

complained of is had .. .

(c) The writ of habeas corpus shall not extend to

a prisoner unless—

(1) He is in custody under or by color of the

authority of the United States .. . or

(3) He is in custody in violation of the Consti-

tution or laws or treaties of the United States.

Both subsections (c)(1) and (c)(3) are applicable here.

The language of § 2241 itself does not contemplate a

limitation of jurisdiction only to constitutional claims;

instead, it contemplates challenges based on the “Con-

stitution or laws or treaties of the United States.”

Indeed, numerous immigration cases under the

§ 2241 jurisdiction have considered claims of statutory

right, sometimes described as an integral part of ensur-

32a

ing due process of law. See, e.g., Brownell v. Tom We

Shung, 352 U.S. 180, 182-84 n. 1, 77 S. Ct. 252, 254-55 n.

1, 1 L.Ed.2d 225 (1956) (“due process,” enforceable on

habeas, includes “conformity to statutory grounds”):

Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S. Ct. 472.

97 L.Ed. 576 (1953) (rejecting, on habeas, executive

branch interpretation of procedural regulation); Wong

Yang Sung v. McGrath, 339 U.S. 908, 70 S. Ct. 564, 94

L.Ed. 1336 (1950) (rejecting, on habeas, executive

branch’s interpretation of APA procedural require-

ments); Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S. Ct.

374, 92 L.Ed. 433 (1948) (rejecting, on habeas, executive

branch’s interpretation of multiple criminal conviction

deportation provision); Delgadillo v. Carmichael, 332

U.S. 388, 68 S. Ct. 10, 92 L.Ed. 17 (1947) (rejecting, on

habeas, executive branch’s interpretation of statutory

term “entry”); Kessler v. Strecker, 307 U.S. 22, 59 S. Ct.

694, 83 L.Ed. 1082 (1939) (rejecting, on habeas, execu-

tive branch’s interpretation of provision making aliens

deportable on ideological grounds); Mahler v. Eby, 264

U.S. 32, 44S. Ct. 283, 68 L.Ed. 549 (1924) (rejecting, on

habeas, executive branch’s interpretation of findings

necessary for deportation after conviction under espion-

age act); Gegiow v. Uhl, 239 U.S. 3, 36 S. Ct. 2, 60 L.Ed.

114 (1915) (rejecting, on habeas, executive branch’s

interpretation of “public charge” ground of exclusion).

As Justice Holmes observed in Gegiow, the enforce-

ment of statutory claims is essential to ensuring that

the intent of Congress is observed when it chooses to

define the grounds for which aliens may be excluded or

deported:

The statute, by enumerating the conditions upon

which the allowance to land may be denied, pro-

hibits the denial in other cases. And when the

record shows that a commissioner of immigration is

exceeding his power, the alien may demand his

release upon hadeas COTDUS.

9° T ’ . ( DT he . ‘4 a+ 9 9 . hi : :

(7eG10W, Zod | <>. me . 50 SS. ( a i-oO emphasis nN

rig? |

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mm a ann mo 1; — : TO +0

ihe government relies on dictum in Yang v. INS, i09

t’.3d 1185 (7th Cir.1997), stating that “an error of law

es not support a writ of habeas corpus. . . .” Id. at

1196. That decision, however, was describing what the

seventh Circuit considered to be the minimum content

{ the constitutional writ; recently, the Seventh Circuit

has moderated its statement in Yang that new INA

242(g) had repealed 28 U.S.C. § 2241 in all cases. Se

khan v. INS, 123 F.3d 487, 489-90 (7th Cir. 1997

y

[In other respects, Yang and some similar statements

district court opinions, see, e.g., Mbiya v. INS, 930 F

Supp. 609, 612 (N.D.Ga.1996) (requiring a “fundamenta

carriage of justice” before a challenge can be made

n habeas corpus), have their origin in the very

lifferent standard that is applied to review of federa

and state court convictions under 28 U.S.C. 8§ 2254

2255. See United States v. Timmre ck, 441 U.S. 780. 784

I9 S. Ct. 2085, 2087-88, 60 L.Ed.2d 634 (1979) (requiring

#6 ‘omplete miscarriage OI justice to set free a convicted

: > ih | . cania+

isoner who alleges violatio1

jaya ‘ tiite 1

ai < i

34a

In neither AEDPA nor IIRIRA did Congress pur-

port to apply state prisoner post-conviction relief rules

to the entirely different provisions about deportation of

aliens. We are disinclined automatically to import this

standard into cases at the core of the traditional writ of

habeas corpus—initia! review of the legality of execu-

tive branch detention. This is especially so in light of

the long line of precedent allowing aliens to make statu-

tory claims on habeas. In cases concerning collatera!

review of state and federal convictions, a prisoner has

already had substantial judicial review of his claims,

including a trial and direct review of his conviction,

often with multiple levels of review, and is seeking

post-conviction relief. In Goncalves’ case, by contrast,

no court, state or federal, has heard his claims. In fact,

it is the Attorney General’s position that no court will

ever have jurisdiction or authority to review her

decision interpreting AEDPA § 440(d). The pure statu-

tory claims Goncaives makes here are well within pre-

cedent interpreting the core habeas protection provided

by § 2241.16

We address one final argument in favor of the

Attorney General. The Attorney General contends

that, because she has discretion to grant or deny this

relief from deportation in any event, her decision

concerning Goncalves’ statutory eligibility for this form

of relief is itself not reviewable on habeas. We dis-

16 Indeed, the existence of this jurisdiction over statutory

claims provides a ready basis for the federal courts to examine one

category of questions that the Attorney General says must be

allowed: prerequisite questions such as whether the petitioner is in

fact an alien, whether he or she has been convicted of crimes that

render him deportable within the meaning of the statute, and the

like.

ree

35a

agree. Analytically, the decision whether an alien is

eligible to be considered for a particular discretionary

form of relief is a statutory question separate from the

discretionary component of the administrative decision

whether to grant relief. See, ¢.g., Ipina v. INS, 868 F.2d

511, 513 (1st Cir. 1989) (contrasting legal question of

whether an alien is a “refugee,” and thus eligible for

asylum, with discretionary decision whether to grant

asylum).

Supreme Court precedent also requires us to reject

this argument. The Court has determined that the

refusal of the BIA to consider an alien’s request for dis-

cretionary relief, in violation of statute or regulations, is

a valid claim on habeas corpus. See United States ex

rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 8. Ct. 499,

98 L.Ed. 681 (1954). In making certain aliens eligible

for discretionary relief, Congress intended the

Attorney General or her designated subordinates to

make a judgment. A refusal to make that judgment

would frustrate Congress’ intent. “[I]f the word ‘dis-

cretion’ means anything in a statutory or administra-

tive grant of power, it means that the recipient must

exercise his authority according to his own understand-

ing and conscience.” Id. at 266-67, 74 S. Ct. at 503.

Thus it is no answer to Goncaives’ argument to empha-

size the broad discretion of the political branches in

immigration matters. It was the intent of Congress

that such discretion be exercised.

Our holding is narrow and nothing we say should be

taken to suggest that such review as is available on

habeas is necessarily as broad as the traditional admin-

istrative review available under old INA § 106. For

example, we are not being asked to “review| ] and

36a

revers[e] the manner in which discretion was exer-

cised” by examining “the evidence in the record sup-

porting or undermining the alien’s claim to discre-

tionary relief.” Jd. at 268, 74 S. Ct. at 503. Whether

such review is now available on habeas presents a

different question than Goncalves’ claim. The Supreme

Court noted, in rejecting early attempts to apply the

APA to immigration decisions, the very different scope

of review required by “deciding on ‘the whole record’

whether there is substantial evidence to support ad-

ministrative findings of fact,” required by the APA, and

the more basic review available on habeas that provides

for “enforcement of due process requirements.” Heik-

kila, 345 U.S. at 235-36, 73 S. Ct. at 606. That more

basic review includes claims of Statutory right, but not

the broad review of administrative decisionmaking

available under the APA. New INA § 242(a)(2)(B)

denies jurisdiction to review discretionary decisions, at

least for most cases under the permanent rules. We

leave to future cases the task of defining the precise

limit of the jurisdiction under 28 U.S.C. § 2241 in

immigration cases.!7 We hold only that § 2241 allows us

to consider the pure statutory question that Goncalves

raises in this case.

Amici law professors argue that habeas jurisdiction also

traditionally allowed review, under a “manifest abuse of discre-

tion” standard, of the exercise of discretion to deny relief. We do

not address the question, which we view as separate and not

presented by this case, of whether IIRIRA was intended to

foreclose or impose limits on any such review. We hold today only

that, on habeas, a petitioner may challenge the immigration

authorities’ failure to exercise discretion granted by statute.

1. Decisions of Other Circuits

Our approach to the jurisdiction-limiting provisions

of both AEDPA and IIRIRA is in conformity with that

of our sister circuits. Each circuit court has now_held

that AEDPA § 440(a), the initial limitation of juris-

diction which IIRIRA § 309(c)(4)(G) carries forward.

deprives the courts of appeals of jurisdiction to enter-

tain petitions for review of aliens convicted of specified

criminal offenses. In every circuit which has addressed

constitutional challenges to this withdrawal of juris-

diction, the court found that preclusion of all judicial

review would present serious constitutional questions,

and in every case those questions were avoided by

noting the continuing availability of habeas review

Although the cases diverge in their approaches, they all

agree on these two basic points—that Congress can

constitutionally withdraw jurisdiction over such peti

tions for review under old INA § 106, but that some

jurisdiction remains on habeas.!8 See Turkhan. 122

I'.3d at 489-90; Mansour v. INS. 123 F.3d 423, 426 (6th

Cir. 1997): Auguste v. Attorney General, 118 F.2d 723.

(26 n. 7 (11th Cir. 1997); Ramallo v. Reno, 114 F.3d

1210, 1214 & n. 1 (D.C. Cir. 1997); Williams v. INS. 114

K’.3d 82, 83-84 (5th Cir. 1997); Fernandez v. INS. 113

F.3d 1151, 1154-55 (10th Cir. 1997): Salazar-Haro 1

INS, 95 F.3d 309, 311 (3d Cir. 1996); incapie-Nieto v

Hose v. INS, 141 F.3d 932 (9th Cir. 1998) also concludes that

some form of review is constitutionally compelled. Hose inter

preted a different provision of IIRIRA and a different claim and

found that, in light of the availability of review in the court of

appeals over the petitioner’s claim, no habeas relief was available.

See id

38a

INS, 92 F.3d 27, 30-31 (2d Cir. 1996); Duldulao v. INS,

90 F.3d 396, 400 n. 4 (9th Cir. 1996).19 Indeed. many of

the courts which have considered constitutional chal-

lenges cited Felker in support of the view that some

jurisdiction remains on habeas, and some noted its

holding disfavoring repeal of 28 U.S.C. § 224] by impli-

cation.

Thus, although no circuit court has yet directly faced

the issue of whether a court has jurisdiction on habeas

to consider a claim like Goncalves’, the great weight of

circuit authority is in favor of some form of habeas

review for aliens in Goncalves’ position. We conclude

that Goncalves properly brought his claim in the

district court under its § 2241 habeas jurisdiction.

IV. Retroactivity of AEDPA § 440(d)

We turn to the statutory merits question: whether

Congress intended for AEDPA § 440(d)’s restrictions

on § 212(c) relief to apply retroactively to persons in

Goncalves’ position. The Attorney General’s Soriano

opinion concludes that the restrictions are fully retro-

active and are applicable even to pending applications.

We reject the Attorney General’s reading of Landgraf,

supra, a reading that the Supreme Court has also re-

cently rejected. See Hughes Aircraft, 520 U.S. at

—, 1175. Ct. at 1876-78. We conclude that Congress

'Y The Eighth Circuit and the Fourth Circuit have each applied

the jurisdiction-limiting provisions of AEDPA § 440(a) in short per

curiam decisions, without considering whether habeas review re-

mains available. See Mendez-Morales v. INS, 119 F.3d 738 (Sth

Cir. 1997) (per curiam); Dehaney v. INS, No. 96-1449, 1997 WL

135664 (4th Cir. 1997) (unpublished per curiam).

39a

did not intend AEDPA § 440(d) to apply retroactively

to Goncalves’ application.

A. Deference

Initially, we must consider what deference is owed to

the Attorney General’s Soriano decision holding that

AEDPA § 440(d) is retroactive and applies to pending

applications for § 212(c) relief. The Attorney General

argues that the plain text of AEDPA § 440(d) does not

answer the question of whether it is retroactive or

applies to pending cases and that her interpretation re-

garding its effective date is, at least, a reasonable one

under Chevron USA, Inc. v. Natural Resources De-

fense Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d

694 (1984).2° As the Attorney General notes, under the

“° Of course, the Attorney General’s argument assumes that it

is the Attorney General’s decision, not the contrary decision of the

Board of Immigration Appeals, that should be considered the

“ageicy interpretation” for Chevron purposes, but this is far from

clear. Chevron requires deference to an administrative agency’s

interpretation of the statutes implementing the programs it

admnisters. This stems from a recognition that Congress intends

certzin questions to be answered by expert administrative

agencies. See, e.g., Babbitt v. Sweet Home Chapter of Com

munties for a Great Oregon, 515 U.S. 687, 703, 115 S. Ct. 2407,

2415-16, 132 L.Ed.2d 597 (1995) (noting that “the degree of

reguatory expertise necessary to [the] enforcement” of the

Endmgered Species Act counseled deference to an agency inter-

pretation). Here, the immigration specialists at the Department of

Justice adopted a view directly contrary to the Attorney Generai’s

viewin Soriano. “An agency interpretation of a relevant provision

which conflicts with the agency’s earlier interpretation is entitled

to eosiderably less deference than a consistently held agency

view.” INS v. Cardoza-Fonseca, 480 U.S. 421, 446-47 n. 30, 107 S.

Ct. 207, 1221 n. 30, 94 L.Ed.2d 434 (1987) (internal quotation

marks omitted). On the other hand, it is the Attorney General

40a

familiar formulation, “[i]f the statute is silent or am-

biguous with respect to the specific issue, the question

for the court is whether the agency’s answer is based

on a permissible construction of the statute.” Jd. at 848,

104 8. Ct. at 2782.

We think it is a significant question whether the

determination of the application of the effective date of

a governing statute is the sort of policy matter which

Congress intended the agency to decide and thus

whether the doctrinal underpinnings of Chevron are

present here. When Congress wants an agency to

determine whether to apply new rules, it usually

delegates that discretion expressly. See, e.g., IRIRA

§ 309(c)(2), (3) (giving the Attorney General discretion

in some cases to determine whether to apply transi-

tional or permanent rules). The question of whether

AEDPA § 440(d) applies retroactively may be viewed

as a “pure question of statutory construction for the

courts to decide,” Cardoza-Fonseca, 480 U.S. at 446,

107 S. Ct. at 1221, a question that is “quite different

from the question of interpretation that arises in each

case in which the agency is required to apply

[statutory] standards to a particular set of facts” which

involves the agency’s particular expertise. Jd. at 448,

107 S. Ct. at 1221. Nonetheless, we will assume ar-

guendo that the Attorney General’s opinion is subject

to Chevron analysis. Sa

Chevron, though, requires a two-step analysis. The

Attorney General’s argument for deference bypasses

the first step, which is to determine whether Congress

rather than the BIA who is given final authority by Congress to

oversee the immigration laws.

4la

has provided an answer to the specific question pre-

sented. “If, by ‘employing traditional tools of statutory

construction,’ we determine that Congress’ intent is

clear, ‘that is the end of the matter.’” Regions Hosp. v.

Shalala, —- U.S. ; , 118 S. Ct. 909, 915, 139

L.Ed.2d 895 (1998) (quoting Chevron, 467 U.S. at 842-

43, 104 S. Ct. at 2781-82). Those traditional tools of

statutory construction include the familiar presump-

tions we employ, including Landgrafs presumption

against retroactivity.

A contrary approach would permit the executive

branch effectively to thwart the intent of Congress,

made plain through a careful reading of the statutory

provision at issue in context, so long as the executive

branch’s interpretation was a plausible reading of

isolated statutory terms. Instead, as Chevron itself

made clear, “[t]he judiciary is the final authority on

issues of statutory construction and must reject admin-

istrative constructions which are contrary to clear

congressional intent.” Chevron, 467 U.S. at 843 n. 9, 104

S. Ct. at 2781-82 n. 9.

The Supreme Court has consistently rejected agency

arguments for deference which would impair the courts’

ability to examine congressional intent using our

“traditional tools of statutory construction.’” Regions

Hosp., —- U.S. at —-, 118 S. Ct. at 915 (quoting

Chevron, 467 U.S. at 843 n. 9, 104 S. Ct. at 2781-82 n. 9).

Instead, to determine whether Congress intended

AEDPA § 440(d) to apply to such pending applications,

we examine that provision in the normal manner. We

look to that section not in isolation, but in the context of

Title IV of AEDPA (which contains its immigration

provisions) and in light of Title IV’s overall structure.

42a

We are guided by Landgraf principles and seek a

plain statement from Congress that expressly provides

for retroactive application. “The plainness or ambigu-

ity of statutory language is determined by reference to

the language itself, the specific context in which that

language is used, and the broader context of the statute

as a whole,” not by looking at Statutory terms in

isolation. Robinson v. Shell Oil Co., 519 U.S. 337, —.,

117 S. Ct. 843, 846, 136 L.Ed.2d 808 (1997). In United

States v. Rivera, 131 F.3d 222 (1st Cir. 1997) (en bane),

this court noted “ ‘the cardinal rule that a statute is to

be read asawhole .. . , Since the meaning of statu-

tory language, plain or not, depends on context.’” Jd. at

225 (quoting Conroy v. Aniskoff, 507 U.S. 511, 515, 113

S. Ct. 1562, 1565, 123 L.Ed.2d 229 (1993)).

We next examine AEDPA’s legislative history, not

as a substitute for examination of AEDPA’s text, but

only as a check to see that our initial textual interpreta-

tion does not conflict with “a clearly expressed legis-

lative intention contrary to the statutory language

Which would require the court to question the strong

presumption that Congress expresses its intent

through the language it chooses.” Rivera, 131 F.3d at

226 (citation, internal quotation marks and aiterations

omitted).

Throughout, our Statutory analysis is guided by the

Supreme Court’s retroactivity jurisprudence. In Land-

graf, supra, the Supreme Court noted that, while “a

court is to apply the law in effect at the time it renders

its decision,” id. at 264, 114 S. Ct. at 1496 (internal

quotation marks and citations omitted), there is a

strong presumption “deeply rooted in our jurisprudence

- and centuries older than our Republic” against

hg tinal lar Sala

43a

retroactivity. Jd. at 265, 114 S. Ct. at 1497. The

Attorney General’s application of the new AEDPA

restrictions takes away a form of relief that, while

discretionary, is plainly substantive, and so implicates

Landgrafs presumption agaist retroactivity.2! Such

discretionary relief has been available in our system in

some form since at least 1917; the origin of § 212(c)

relief is in the Seventh Proviso to § 3 of the Immigra-

tion Act of 1917. See Francis, 532 F.2d at 270. In a

substantial number of cases, aliens under deportation

orders were granted such relief, usually on a showing

that they had reformed their ways and become pro-

ductive members of society. Indeed, from fiscal years

1989 through 1994, it appears that over half of all

applications for § 212(c) relief were granted by the

agency. See Mojica v. Reno, 970 F. Supp. 130, 178

(E.D.N.Y.1997).22, AEDPA’s restrictions on § 212(c)

21 In Kolster, this court applied Landgraf principles and found

no retroactivity problems in applying AEDPA § 440(a), which

precluded judicial review in the courts of appeals for aliens who

are deportable for having committed aggravated felonies, immedi-

ately. The question Goncalves raises concerning AEDPA § 440(d)

is fundamentally distinct. Kolster concerned a purely jurisdictional

statute. Landgraf makes clear that the “[a]pplication of a new

jurisdictional rule usually takes away no substantive right but

simply changes the tribunal that is to hear the case.” Landgraf,

511 U.S. at 274, 114 S. Ct. at 1502 (internal quotation marks and

citation omittex).

22 The BIA was not bound by the decision of the IJ either as to

law or fact, but could review the record de novo. See Matter of

Adetiba, 20 I. & N. Dec. 506, 507, 1992 WL 195812 (BIA 1992),

Goncalves followed this system. If the BIA had been permitted to

hear his appeal on the merits, Goncalves would have argued that

the IJ had given insufficient weight to the many favorable factors

present in his case. See Matter of Marin, 16 I. & N. Dec. 581, 584-

85 (listing factors).

44a

relief, as applied to Goncalves, thus clearly raise retro-

activity concerns, requiring a close examination of

AEDPA’s text to determine whether Congress has

expressly chosen to make its restrictions retroactive.

B. Text

Title IV of AEDPA contains provisions restrict-

ing relief from deportation for two categories of

aliens—aliens involved in terrorism and aliens

convicted of ordinary crimes. Many of these provisions,

with the notable exception of the provision of concern

to us, AEDPA § 440(d), contain explicit subsections

Stating that they apply retroactively. We review these

other provisions in determining whether Congress

likewise intended to apply AEDPA § 440(d) retro-

actively. Two provisions restricting relief from de-

portation for aliens involved in terrorism, AEDPA

$§ 413 and 421, are particularly helpful in this respect.

Under AEDPA § 413, alien terrorists23 are made

ineligible for several different forms of relief from de-

portation. That section contains an explicit “effective

date” subsection, which provides:

“° An alien terrorist is defined by AEDPA § 401(a) as any alien

described in old INA § 241(a)(4)(B), now codified at 8 U.S.C.A.

§ 1227(a)(4)(B) (West Supp. 1998), which provides that “any alien

who has engaged, is engaged, or at any time after entry engages in

any terrorist activity . . . is deportable.” Terrorist activity, in

turn, is defined in old INA § 212(a)(3)(B)(iii), now codified at 8

U.S.C.A. § 1182(a)(3)(B)(iii) (West Supp. 1998). Goncalves does not

fit this defin* ion.

45a

The amendments made by this section shall take

effect on the date of the enactment of this Act and

shall apply to applications filed before, on, or after

such date if final action has not been taken on them

before such date.

Id. § 413(g). This language explicitly provides that the

restrictions on relief from deportation imposed on alien

terrorists should apply to all cases pending at the time

of AEDPA’s enactment, as long as “final action” had

“not yet been taken.

If Congress thought that such restrictions would as a

matter of course be applied to pending cases, as the

Attorney General’s argument requires, then this pro-

vision would have accomplished nothing. In Bennett v.

Spear, 520 U.S. 154, 117 S. Ct. 1154, 187 L.Ed.2d 281

(1997), the Court noted “the cardinal principle of statu-

tory construction that it is our duty to give effect, if

possible, to every clause and word of a statute.” Jd. at

, 1178. Ct. at 1166 (citations, internal quotation

marks and alterations omitted); accord Walters v.

Metropolitan Educ. Enters., 519 U.S. 202, ——, 117 S.

Ct. 660, 664, 136 L.Ed.2d 644 (1997). This is particularly

true when there is a contrast in language between two

sections of the same statute. “Where Congress in-

cludes 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.”

Cardoza-Fonseca, 480 U.S. at 432, 107 S. Ct. at 1213

(citation, internal quotation marks and alterations omit-

ted).

46a

The Attorney General responds by drawing a distine-

tion between provisions restricting discretionary relief,

such as § 440(d) (applicable here), and provisions re-

stricting relief that she says involve no exercise of

discretion. The Attorney General argues that discre-

tionary relief, such as § 212(c) relief, is best analogized

to prospective injunctive relief, restrictions of which,

under Landgraf’s judicial default rules, are generally

held to be applicable immediately and not to present

any retroactivity concerns. See Landgraf, 511 U.S. at

273-74, 114 S. Ct. at 1501-02. Thus, the Attorney

General concludes, Congress would have expected re-

strictions on such discretionary relief to apply to pend-

ing cases even in the absence of an explicit “effective

date” provision, and would have felt no need to include

an express provision making those restrictions retro-

active.

By contrast, the Attorney General continues,

AEDPA § 413 restricts several forms of relief for alien

terrorists, not all of which are discretionary. In the

absence of an explicit “effective date” provision, the

Attorney General concludes, Congress would expect

the courts to apply Landgraf’s normal presumption

against retroactivity. This, she Says, explains the

difference between § 413, denying relief for alien

terrorists, and § 440(d), denying relief for aliens con-

victed of ordinary crimes.

The Attorney General’s argument both misinterprets

Landgraf and fails on its own terms. The argument

misinterprets Landgraf because it effectively would

apply a presumption in favor of retroactive application

to any restriction of relief that could be described as

“discretionary.” The argument fails to recognize that

A abated tc aiacthanne dap lee is iden

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47a

“the only ‘presumption’ mentioned in that opinion is a

general presumption against retroactivity.” Hughes

Aircraft, —- U.S. at —, 117 S. Ct. at 1878. Following

the Attorney General’s position would have significant

consequences. It would require Congress to draft an

explicit “effective date” provision to ensure against

retroactive application in any case in which a statute

takes away relief to which a party was not automati-

cally entitled. But Landgraf requires an express

congressional command only to overcome its presump-

tion against retroactivity, not to ensure application of a

statutory term prospectively. See Lindh v. Murphy,

— US. —,—, 117 S. Ct. 2059, 2062, 138 L.Ed.2d 481

(1997).

Indeed, in Landgraf itself a similar argument was

made and rejected by the Supreme Court. Landgraf

refused to apply amendments to Title VII that enlarged

the damages that could be awarded to victims of

discrimination retroactively, despite the fact that the

employer would only face liability if he engaged in

conduct that was at the time illegal. “Even when the

conduct in question is morally reprehensible or illegal, a

degree of unfairness is inherent whenever the law im-

poses additional burdens based on conduct that occur-

red in the past.” Landgraf, 511 U.S. at 282-83 n. 35, 114

S. Ct. at 1506 n. 35. Similarly, in Hughes Aircraft, the

Court again rejected an argument that a statute is not

retroactive if the conduct for which it imposes addi-

tional consequences was already unlawful, and thus the

defendant had no “right” to engage in such conduct.

The Hughes Aircraft Court nevertheless determined

that the unfairness of imposing “additional burdens” on

such conduct retroactively invoked the Landgraf pre-

sumption. See id. at - , 1178. Ct. at 1876-77.

4&a

Thus, that Goncalves’ crimes made him deportable

prior to the passage of AEDPA and that the new re-

strictions merely eliminated a possible form of relief

from those consequences, do not suffice to rebut the

presumption against retroactivity.

Similarly, the Attorney General’s reliance on a de-

scription in Landgraf of the kinds of statutes that often

provoke retroactivity concerns is misplaced. In Land-

graf, the Court noted, with approval, Justice Story’s

“influential definition” of impermissibly retroactive

statutes:

Every statute, which takes away or impairs vested

rights acquired under existing laws, or creates a

new obligation, imposes a new duty, or attaches a

new disability, in respect to transactions or con-

siderations already past, must be deemed retro-

spective.

Landgraf, 511 U.S. at 269, 114 S. Ct. at 1499 (citations

and internal quotation marks omitted). In Hughes

Aircraft, however, the Court expressly held that this

language “does not purport to define the outer limit of

retroactivity;” that such effects on what may be con-

sidered “vested rights” “constitutel ] a sufficient,

rather than a necessary, condition for invoking the pre-

sumption against retroactivity.” 520 U.S. at , 117

5. Ct. at 1876. The Attorney General’s reliance on the

fact that aliens have no “vested right” to discretionary

relief thus “simply misreads [the Court’s] opinion in

Landgraf,” id., converting it from an opinion urging

against retroactive application to an opinion requiring

special congressional attention to avoid retroactive

application. Although crimes “involving moral turpi-

tude” did expose Goncalves to deportation before

Ais Sa a hi Ss Osa RL Se RL MR

49a

AEDPA, he had a statutory right to apply for § 212(c)

relief unless he had committed an aggravated felony.

To preclude Goncalves from applying for such relief

now plainly “attaches a new disability” and imposes

additional burdens on past conduct. Hughes Aircraft,

520 U.S. at , 1175. Ct. at 1876 (quoting Landgraf,

511 U.S. at 269, 114 S. Ct. at 1499).

Even if Supreme Court precedent permitted this

type of analysis, which it does not, the Attorney

General's argument fails on its own terms. She says

that the reason alien terrorists are subject to a specific

retroactivity provision applying the new restrictions to

pending applications (and criminal aliens are not) is that

the forms of relief that AEDPA precludes for alien

terrorists were not discretionary. In this, the Attorney

General misreads the statute.

Alien terrorists had been eligible for certain forms

of discretionary relief, and Congress nevertheless pro-

vided expressly for application of the new restrictions

on these forms of relief to pending applications. Of the

five forms of relief from deportation precluded by § 413,

only one, “withholding of deportation,” is a form of

relief to which an alien is entitled if eligible. The rest

were committed to the discretion of the Attorney

General. Thus, except for the relief precluded by

“4 The forms of relief that are precluded by § 413, applicable to

alien terrorists, include “withholding of deportation” under old

INA § 243(h)(1) (entitling an alien who is “likely” to face per-

secution in his home country to relief from deportation), and

“suspension of deportation” under old INA § 244(a) (giving dis-

cretion to the Attorney General to suspend deportation in certain

circumstances causing “exceptional and extremely unusual hard-

ship” to close family members). In addition, AEDPA § 413 makes

50a

AEDPA § 413(a), all of the relief precluded by § 413

was discretionary relief. The fact that § 413 contains an

“effective date” subsection that applies to the entire

section suggests that Congress thought it was neces-

sary to be explicit in making the new restrictions appli-

cable to pending applications for relief, regardless of

whether the relief was discretionary or mandatory;

otherwise, the retroactivity provision would not be

needed.

Finally, in another section, Congress explicitly made

a restriction on discretionary relief retroactive through

an express “effective date” provision. See AEDPA §

421. As that section concerns only asylum applications,

under the Attorney General’s reading no “effective

date” provisicn would be needed because asylum is a

discretionary form of relief. See Cardoza-Fonseca, 480

U.S. at 428-29 & n. 6, 107 S. Ct. at 1211-12 & n. 6. Thus,

§ 421 confirms our reading; Congress did not draft ex-

press retroactivity provisions only for mandatory forms

of relief.

aliens involved in terrorism ineligible to apply for “voluntary

departure” under old INA § 244(e)(1) (giving discretion to the

Attorney General in certain circumstances to allow deportable

aliens to leave the country voluntarily and thus avoid the negative

legal consequences of formal deportation). They are also made

ineligible to adjust their status from a nonimmigrant status to that

of an alien lawfully admitted for permanent residence under old

INA § 245(a), which is a discretionary form of relief, or to apply to

have their admission to this country recorded as lawful, despite the

lack of such a record, if they were admitted prior to certain dates

under old INA § 249, also a form of relief that is committed to the

discretion of the Attorney General.

5la

Thus, Congress expected, unless it said to the con-

trary, that new restrictions would not be applied retro-

actively to pending applications. This is the most

natural reading of Congress’ decision to include langu-

age in §§ 413 and 421 making the new restrictions

applicable to the pending applications of alien ter-

rorists, but omitting such language in § 440(d), the

provision denying relief to aliens convicted of specified

criminal offenses. Furthermore, Congress did not treat

discretionary restrictions on relief differently than re-

strictions on other forms of relief. The Attorney

General offers no other alternative explanation for the

different language that the statute uses in dealing with

these two categories of alien offenders.

Our interpretation is eminently rational when tested

in light of Congress’ principal purposes in enacting

AEDPA. Those purposes are announced in the Act’s

title—preventing terrorism and providing for an

“effective” death penalty. See AEDPA § 1. Congress

could well have decided that the unfairness of upsetting

settled expectations was outweighed by the importance

of fighting terrorism, while deciding against making

retroactive the new restrictions on § 212(c) relief for

aliens who are not terrorists but are convicted of

ordinary crimes.

C. Legislative History

We examine AEDPA’s legislative history to deter-

mine whether we have erred in our interpretation of

the text. See Landgraf, 511 U.S. at 262, 114 S. Ct. at

1495 (permitting resort to legislative history to confirm

textual analysis); Cardoza-Fonseca, 480 U.S. at 432-33,

107 S. Ct. at 1213-14; Rivera, 131 F.3d at 226. We do so

52a

only to determine if there is a clearly expressed legis-

lative intention contrary to our textual reading, not as a

substitute for a textual analysis. See Rivera, 131 F.3d

at 226. The history of AEDPA, far from demonstrating

a clearly expressed contrary intent, further demon-

strates Congress’ attention to “effective date” pro-

visions and thus supports our reading of AEDPA’s text.

One of the most striking things about the legislative

history is that the original Senate version of the bill

which became AEDPA did contain express language

making the provision which became AEDPA § 440(d)

retroactive; but this language was eliminated by the

conference committee and was not included in the final

bill. The origins of § 440(d) were in 1995, when Sena-

tors Dole and Hatch and several co-sponsors introduced

the restriction on § 212(c) relief that became AEDPA

§ 440(d). The restriction was introduced as part of an

amendment in the nature of a substitute for their own

antiterrorism bill, S. 735, 104th Cong. (1995) (the

“Senate bill”). See 141 Cong. Rec. 87553 (daily ed. May

25, 1995) (text of amendment). That amended Senate

bill, at § 303(e)(4), contained the provision that later be-

came AEDPA § 440(d), limiting relief for aliens con-

victed of ordinary crimes. Within that section, § 303(f)

then provided:

The amendments made by this section [i.e., § 303 of

the Senate bill] shall take effect on the date of the

enactment of this Act and shall apply to cases

pending before, on, or after such date of enactment.

141 Cong. Rec. 87559 (daily ed. May 25, 1995). Thus,

the amended Senate bill contained an “effective date”

provision, expressly applicable to what later became

AEDPA § 440(d), which provided for retroactive appli-

53a

cation of its restrictions on § 212(c) relief.2° The langu-

age is strikingly similar to-what later became AEDPA

§ 413, the provision restricting relief for alien terrorists.

The full Senate passed this version of the Senate bill on

June 7, 1995. See 141 Cong. Rec. S7857, S7863 (daily ed.

June 7, 1995).

Meanwhile, the House of Representatives was con-

sidering a different version of the antiterrorism bill,

H.R. 2703, 104th Cong. (1996) (the “House bill”). Like

the Senate bill, the House bill contained provisions

restricting relief from deportation both for terrorists

and for aliens convicted of ordinary crimes. However,

in the case of ordinary crimes, the House bill only

eliminated § 212(c) retief for aliens convicted of more

serious crimes and was prospective.”® See H.R. 2703,

104th Cong. § 662 (1996), at 142 Cong. Rec. H2295 (daily

2» The fact that the Senate bill contained such a subsection is a

telling refutation of the Attorney General’s argument that the

Congress did not believe that such a subsection was necessary for

provisions limiting discretionary relief.

26 The House bill’s provisions limiting relief for aliens convicted

of ordinary crimes*had its origins in H.R. 668, the “Criminal Alien

Deportation Improvements Act of 1995.” H.R. 668 was included as

subtitle E of title VI of the House bill, H.R. 2703. The House

version restricted relief by expanding the definition of “aggravated

felony,” which under old INA § 212(c) made an alien ineligible to

apply for such relief. See H.R. 2703, 104th Cong., § 662, at 142

Cong. Rec. H2295 (daily ed. Mar. 14, 1996). The House bill was

crafted to eliminate the availability of § 212(c) relief for violent and

other serious offenders. See H.R. Rep. 104-22, at 7-9 (1995). The

House bill did not eliminate § 212(c) relief for permanent residents

who committed less serious crimes that might nevertheless be said

to “involve moral turpitude.” Thus, under the House bill, Gon-

calves’ application for discretionary relief would still be heard by

the BIA.

54a

ed. Mar. 14, 1996). By contrast, the House bill, like the

final legislation, contained explicit “effective date” sub-

sections in its provisions limiting relief for alien

terrorists which made those restrictions retroactive.

See H.R. 2703 §§ 611(b), 612(f), at 142 Cong. Rec.

H2293, H2294 (daily ed. Mar. 14, 1996) (House bill pro-

visions corresponding to AEDPA §§ 421(b) and 413(g),

respectively). When the Senate bill was called up on

the House floor on March 14, 1996, the House amended

the Senate bill by replacing its text with the text of the

House version. See 142 Cong. Rec. H2268, H2304 (daily

ed. Mar. 14, 1996). The House asked for a conference

with the Senate, insisting on its version of the legis-

lation. See id. at H2304.

One month later, a bipartisan conference committee

emerged with a compromise in the form of AEDPA

§ 440. The legislation contained both the House bill’s

expanded definition of “aggravated felony” and the

Senate bill’s restrictions on § 212(c) relief for aliens con-

victed of ordinary “crimes involving moral turpitude,”

but notably did not contain the Senate bill’s original

language making those restrictions retroactive. See

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

U.S.C.C.A.N. 944, 952 (adopting § 303(e)(4) of the

Senate bill without adopting § 303(f), the subsection

that made those restrictions applicable to pending

cases). The legislation also contained the House version

of the provisions eliminating relief for alien terrorists,

and the House language making those provisions retro-

active. A contrast in statutory language is “particularly

telling” when it represents a decision by a conference

committee to resolve a dispute in two versions of a bill,

and the committee’s choice is then approved by both

Houses of Congress. See FEC v. NRA Political

Pe ee Te eee eae ee re

55a

Victory Fund, 513 U.S. 88, 95, 115 S. Ct. 537, 541-42,

130 L.Ed.2d 439 (1994).

This chronology also illustrates a second important

point: Congress’ awareness of the issue of whether

restrictions on relief should be applied retroactively. In

the final legislation, Congress decided to provide for

such retroactive application in §§ 413 and 421, but not in

§ 440(d), a position consistent with the House approach

of treating the two categories of aliens differently with

respect to AEDPA’s temporal reach. “‘Few principles

of statutory construction are more compelling than the

proposition that Congress does not intend sub silentic

to enact statutory language that it has earlier discarded

in favor of other language.’” Rivera, 131 F.3d at 227

(quoting Cardoza-Fonseca, 480 U.S. at 442-43, 107 S.

Ct. at 1218-19); cf. Lonchar v. Thomas, 517 U.S. 314,

325-27, 116 S. Ct. 1293, 1300, 134 L.Ed.2d 440 (1996)

(courts should not read habeas statute to impose a re-

quirement that Congress expressly “rejected, by re-

moving [it] from the draft Rule”). Adopting the Attor-

ney General’s interpretation would require us to do

precisely that, upsetting a compromise provision that

was intended to reconcile the House’s and Senate’s

very different approaches to aliens convicted of crimes.

A third point emerges from the legislative history.

We note that Congress amended AEDPA § 44(\d)

when it enacted IIRIRA on September 30, 1996. See

ITRIRA § 306(d). Three months earlier, on June 27, the

BIA had determined that Congress did not intend

AEDPA § 440(d) to apply to pending cases. Signifi-

cantly, the very same Congress that had enacted

AEDPA just five months earlier, on April 24, did not

take the opportunity to overrule that BIA decision by

56a

providing expressly that the new restrictions were fully

retroactive and applied to pending cases. This was true

even though Congress specifically amended AEDPA

§ 440(d) in other respects and was presumptively aware

of what was then the governing agency interpretation.

Cf. Lorillard v. Pons, 434 U.S. 575, 580, 98 S. Ct. 866,

869-70, 55 L.Ed.2d 40 (1978) (“Congress is presumed to

be aware of an administrative or judicial interpretation

of a statute and to adopt that interpretation when it re-

enacts a statute without change.” (citations omitted)).

Such subsequent legislative developments, although

never determinative in themselves, can be “significant”

clues to congressional intent. See Cardoza-Fonseca,

480 U.S. at 430, 107 S. Ct. at 1212; Sweet Home Chapter,

515 U.S. at 700-01, 115 S. Ct. at 2414-15. This is parti-

culavly so when the amendment to AEDPA § 440(d)

was enacted by the same Congress and was enacted

after an agency had interpreted the statute in a way

which would have required a more explicit statutory

statement if Congress intended the statute to be

interpreted differently. Cf Cardoza-Fonseca, 480 U.S.

at 430, 107 S. Ct. at 1212 (relying on the actions of

subsequent congresses as clues to legislative intent);

Sweet Home Chapter, 515 U.S. at 700-01, 115 S. Ct. at

2414-15 (same); Lomas Mortgage, Inc. v. Louis, 82 F.3d

1, 6-7 (1st Cir. 1996).

“We find these ordinary canons of statutory construc-

tion compelling, even without regard to the longstand-

ing principle of construing any lingering ambiguities in

deportation statutes in favor of the alien.” Cardoza-

Fonseca, 480 U.S. at 449, 107 S. Ct. at 1222. A careful

reading of the text of AEDPA, confirmed by an

examination of its legislative history, demonstrates that

Congress cid not intend AEDPA § 440(d) to apply

57a

retroactively to pending applications for § 212(c) relief

by persons convicted of ordinary “crimes involving

moral turpitude.”

V. Conclusion

Despite the length of this opinion, our holding is

narrow. The district court had jurisdiction over Gon-

calves’ petition for a writ of habeas corpus under 28

U.S.C. § 2241 given the precise nature of the claims

asserted. The scope of that habeas jurisdiction is not

limited to constitutional claims, but encompasses at

least the pure issues of law concerning the applicability

of statutory provisions to pending cases which Gon-

calves has raised. We have rejected an argument that

there is no jurisdiction to consider these pure issues of

law merely hecause Goncalves is not entitled to relief

from deportation. Rather the question is whether he is

entitled to be considered for such relief, and we have

determined that he is. However, we need not reach the

issue of what review (if any) may be available on habeas

in cases when an alien attempts to obtain review of

an individual § 212(c) or “cancellation of removal” deter-

mination by styling it as a pure issue of law, except to

note that Congress apparently intended the scope of

such review, if any, to be narrower than the “abuse of

discretion” review that was formerly available under

old INA § 106, at least for aliens subject to the perma-

nent rules.

We have also determined, through a careful reading

of AEDPA’s text, confirmed by its legislative history,

that Congress did not intend AEDPA § 440(d) to apply

retroactively to persons in Goncalves’ position. We do

not reach Goncalves’ constitutional challenges.

oa

The judgment of the district court is reversed, and

Goncalves’ petition for a writ of habeas corpus is

granted to this extent: the case is remanded to the

Board of Immigration Appeals for a discretionary

determination of the merits of Goncalves’ application

for relief under old INA § 212(c). It is, of course, up to

the Attorney General, through the BIA, whether to

exercise her discretion to allow Goncalves to avoid de-

portation.

%

2

a

;

5

4

4

%

4

EA IMS da te,

59a

APPENDIX B

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

JFK FEDERAL BLDG., ROOM 320

BOSTON, MA 02203

In the Matter of: Case No.: A34-282-192

GONCALVES, RAUL

PERCIRA Docket: BOSTON,

MASSACHUSETTS

RESPONDENT IN DEPORTATION

PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on Jan

20, 1995.

This memorandum is solely for the convenience of the

parties. If the proceedings should be appealed, the Oral

Decision will become the official decision in this matter.

(¥) The respondent was ordered deported to Portugal

( ) Respondent’s application for voluntary departure

was denied and respondent was ordered deported

to

( ) Respondent’s application for voluntary departure

was granted until with an alternate order of de-

portation to or

(J)

60a

Respondent’s application for asylum was

( )granted ( )denied ( )withdrawn ( )other.

Respondent’s application for withholding of de-

portation was ( )granted ( )denied ( ) withdrawn

( other.

Respondent’s application for suspension of de-

portation was ( )granted ( )denied ( )withdrawn

( other.

Respondent’s application for waiver under

Section 212 ¢ of the Immigration and Nationality

Act was ( )granted (v¥ )denied ( )withdrawn

( other.

Respondent’s application for was

( )granted ( )denied ( )withdrawn ( )other.

Proceedings were terminated.

The application for adjustment of status under

Section (216) (216A) (245) (249) was ( )granted

(-)\denied ( )withdrawn ( )other.

If granted, it was ordered that the respondent be

issued all appropriate documents necessary to

give effect to this order.

Respondent’s status was rescinded under Sec-

tion 246.

Other R reserves rt to appeal due by 1/30/95.

6la

( ) Respondent was advised of the limitation on

discretionary relief for failure to appear as

ordered in the Immigration Judge’s oral decision.

/s)\ LEONARD I. SHAPIRO

LEONARD I. SHAPIRO

Immigration Judge

Date: Jan 20, 1995

Appeal: WAIVED (A [I] B)

62a

APPENDIX C

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

Boston, Massachusetts

File No.: A 34 282 192 January 20, 1995 |

IN THE MATTER OF RAUL PERCIRA GONCALVES

RESPONDENT

IN DEPORTATION PROCEEDINGS

CHARGE: Section 241(a) (4) of the Immigration and

Nationality Act [redesignated as Section

241(a) (2) (A) (ii) of the Immigration and

Nationality Act by the Immigration Act of

1990] - convicted of two or more crimes

involving moral turpitude.

APPLICATIONS: I&N Act - Section 212(c) - waiver

of inadmissability.

ON BEHALF OF RESPONDENT:

Kathleen M. Curley, Esquire

145 Munro East, Suite 300

Lynn, Mass. 01901-1222

ON BEHALF OF SERVICE:

Frank J. Crowley, Esquire

JFK Federal Building

Room 425

Government Center

Boston, Mass. 02203

63a

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent herein is a 26-year-old single, native

and citizen of Portugal. Deportation proceedings were

instituted against him when the Immigration and

Naturalization Service issued an Order to Show Cause

on December 11, 1990, in accordance with the pro-

visions of 8 C.F.R. Section 242.1(a), as amended and

supplemented by a form I-261, additional charge of

deportability, issued on July 11, 1994, in accordance

with the provisions of 8 C.F.R. Section 242.16(d)

(Please see Exhibits R-1 and R-la). By way of these

documents, the Immigration Service contends that the

respondent is deportabie on the charge set forth above.

During the course of the hearing, the respondent,

through counsel, admitted the truth of factual allega-

tions 1 through 4 and factual allegation 6 in the Order to

Show Cause, admitted the truth of factual allegations 5

which was added by way of the form I-261, and con-

ceded deportability as charged in the Order to Show

Cause and additional charge of deportability. In addi-

tion, the respondent designated Portugal as the country

for deportation purposes if necessary (See Exhibit R-2).

Based upon these admissions and the respondent’s

concession of deportability, I find that deportability has

been established by clear, convincing, and unequivocal

evidence.

The respondent has submitted an application for a

waiver of inadmissability pursuant to the provisions of

Section 212(c) of the Immigration and N ationality Act

(See Exhibit R-4, as supplemented by Exhibits R-4a, R-

5 and R-6 through 9). Upon the basis of the evidence of

record, I find that the respondent is statutorily eligible

for a waiver under Section 212(c) of the Immigration

64a

and Nationality Act and the only issue which must be

resolved is whether he has established that the re-

quested relief should be granted in the outsize [sic:

exercise] the outsize of discretion.

In reaching a decision in this case, I have taken into

consideration the following factors as reflected by the

testimony at the hearing and the documentary evidence

of record:

The respondent has resided in the United States for

the past 22 years, ever since having arrived in this

country as a lawful permanent resident alien when he

was three and a half years old.

The respondent’s family in the United States consists

of his mother and two brothers, both of whom are

lawful permanent resident aliens, a sister-in-law, and

two nephews who are presumably United States

citizens.

The respondent alleges that at the present time he

lives with his married brother here in the Common-

wealth of Massachusetts, and that during the week

while he’s employed by his brother as a construction

worker on the island of Nantucket, that he and his

brother live together in an apartment with the project

director. However, the respondent alleges that on

weekends, he and his brother return to his brother’s

home where they spend the weekends with the family

of the respondent’s brother.

According to the testimony of the respondent’s

brother, the respondent now has become family

oriented and interacts to a large extent with the family

and with his nephews who are now ages 6 and 8.

The respondent’s mother has been, of recent years,

residing in a group home as a result of mental illness

65a

from which she suffers, and it is said that the

respondent’s brother Carlos, presently resides in South

Carolina. However there is evidence that the brother

Carlos has been ordered to be deported from the

United States.

It is the respondent’s contention that he came to the

United States when he was an infant and does not even

remember arriving in this country. He says that he

came with his mother and his brothers and perhaps his

father and that his father died when he was but five

years old.

The respondent further says that his mother worked

until he was approximately 12 years old, and then be-

cause of her mental illness she had to stop working and

the family lived on welfare.

The respondent says that as a result of his mother’s

mental illness and the manifestations thereof, including

loud and violent outburst, he came to feel ashamed,

seared and confused and while he attended school in

Falmouth up until that period of time, he began drink-

ing and skipping school and began to become involved

in criminal trouble. In addition, during that period of \

time, and for quite a period thereafter, the respondent

stayed away from home and lived with friends or with

whomever provided him with what apparently

consisted of temporary shelter.

The respondent does allege that when he was in

foster care for some period of time, that he stopped

getting into trouble. However, he says that he has a

serious drinking problem which has been the source of

all of his criminal and anti-social behavior. He says that

when he drank, he became drunk and got crazy and got

into trouble. He alleges that he was always drunk

66a

when he committed the crimes and that it was never

suggested to him in court that he stop drinking.

From the time that the respondent was 12 years old

and continuing up until his most recent incarceration in

1991, he has been involved in an astounding series of

criminal activities.

The respondent’s crimes which extend over a period

of some 12 years consist of larceny, receiving stolen

property, motor vehicle and insurance violations,

operating after his license was suspended, and operat-

ing to endanger, operating while under the influence,

assault, and most significantly are crimes of breaking

and entering into homes of private citizens and into

stores and shops.

According to his testimony, the respondent was

incarcerated for the first time in 1987 for having broken

and entered into a house in Falmouth. The probation

record reflects that upon each of his convictions the

respondent was convicted for several different breaks

and according to his testimony, he was breaking into

houses in order to get money to party with his friends.

The 1987 conviction involved a series of events which

took place during a one week period.

Thereafter, and after the respondent had served one

year of a two year sentence, and after he was released

in 1988 he was arrested and charged with parole

violation ostenisbly because of an assault and battery.

He had only been out of jail for a few months when he

was re-arrested and sent back to prison.

After his release, at some point in time, late in 1988

or early 1990 and when he had been out of prison for

approximately 19 months, the respondent was once

again, arrested and convicted for breaking and enter-

67a

ing, most specifically into a True Value Hardware store

and was given a 10 to 12 year sentence. The respon-

dent served some three years of this sentence and was

released from incarceration in July of 1994. It appears

as though he might have been in state custody until

May of 1994 and then was held in INS custody until

July of 1994.

The respondent says that since his release in July of

1994 he has recognized his alcohol problem, has con-

tinued with Alcoholics Anonymous program that he

started in prison and that he has recognized the source

of his problem and what needs to be done to resolve it.

As previously mentioned, the respondent now works

for a construction company in Nantucket through his

brother’s good offices and he is paid as a sub-contractor.

That is to say the he is paid in cash and is required to

report all of the income that he receives on his own

income tax returns.

The respondent has submitted a proposed income tax

return for the year 1994 as evidence of his intention to

pay income taxes. I will accept this as constituting

evidence of his intention to pay taxes for the tax year

1994 and I would also make note of the fact that one

who is self employed is required to file quarterly esti-

mated income tax returns and to deposit money with

the Federal Government for purposes of securing tax

payments and not to squirrel money away in the home

as is the practice adopted by the respondent. However,

at this point in time and inasmuch as the respondent

has generally not had a great deal of work experience in

the past, I wll attribute this to the fact he is unaware of

what must be done with respect to income tax quar-

terly payments.

68a

The respondent, while he has had some jobs over the

past 12 years or so, has really only been employed

sporadically and has devoted all of his energies to

breaking the laws of the United States.

The respondent’s brother testified on his behalf that

since his release from incarceration, the respondent has

been working on a daily basis, has demonstrated that

he is a great worker, shows up every day and he is a

much kinder person at the present time. The respon-

dent brother says that he has seen a great change in the

respondent since his release from incarceration.

The respondent himself says that he now recognizes

that what he has done is wrong, that he apologizes for

same, and he would like to have an opportunity to live

and work in the United States.

During the time of his incarceration the respondent

was cited for one disciplinary infraction for failure to

obey orders and on the other hand he also devoted

much of his time toward obtaining a GED degree and to

attending Alcoholics Anonymous and Narcotic Anony-

mous programs.

The respondent has very few, if any ties to Portugal

in that he has not returned to that country since his

arrival in the United States. He does have at least one

aunt and one uncle who reside in Portugal, those being

apparently the brother and sister of his mother.

The respondent is in good health, does not own any

property in the United States, has no other immigra-

tion violations, has never received welfare, has never

been a member or the military forces of the United

States and has not participated in any community

activities.

69a

With respect to the issue of rehabilitation while I

recognize and commend the behavior of the respondent

since his last release from incarceration, I think it is

clear to say it is way too early to conclude that the re-

spondent is in fact rehabilitated. In fact, during the en-

tire history of his residence in the United States, he has

repeatedly been in and out of jails, been charged with

crimes which in the opinion of the court are egregious

and has generally terrorized each community in which

he has resided. The respondent has, in part, attributed

his behavior to his mother’s illness and to the lack of

supervision during his youth, and while this is a terribly

tragic situation, as evidenced by the respondent’s

brother, the circumstances of his upbringing need not

have resulted in a criminal career.

The respondent’s brother is an upstanding citizen and

family man who has established a business, who is well

spoken and articulate and is commendably loyal to his

brother.

The respondent, on the other hand, has by his be-

havior, violated the privilege which was extended to

him to be able to live and work in the greatest county in

the world. The respondent has not only committed

i crimes in order to obtain money but in doing so has vio-

; lated the very sanctity and security of people’s homes.

It is this sort of behavior which has led to the general

: breakdown of our society at the present time in that

people are not only afraid to walk on the streets for fear

: of what might happen to them but they, at least, are

able to keep in the back of their minds that once they

reach the safety of their homes, that they will be able to

lead a safe and high quality life. The very idea of a

human being who is able to break into another persons

home and to ransack it in order to steal the property of

70a

those hard working and decent people is behond my

ability to understand. I always thought that there must

be some degree of evil which transcends that necessity

of committing a crime for the purpose of obtaining

money.

Imagine, if you will, breaking into a hardware store

of a hard working entrepreneur who has devoted his or

her whole life to the building up of a business, who

wakes up and gets to work early in the morning and

stays and works late at night, just manages to pay all

the bills and makes a life for him or herself, and then

receives a phone call that their business operation has

been violated and broken into and their goods and

money stolen. Imagine, if you will, the grief and emo-

tional upset of these people of having now to repair the

damage done to their profit and to suffer losses from

their own families income because some individual

needed money to party with his friends.

I do believe that this sort of criminal activity does

reflect a lack of character and integrity which is so per-

vasive as to require extensive evidence or rehabilita-

tion in order to wipe out the damage and destruction

caused in the past.

Certainly the respondent will suffer what I would

think to be a serious hardship if he were to be deported

from the United States to Portugal. I recognize the

fact that he will be separated from his immediate and

closet family and be required to return to a country to

which he has very few if any ties. On the other hand,

the respondent has acquired skills in the United States

of which he can avail himself and does at least have an

aunt and uncle who might be able to help him in the

transition period of his readjustment to another society.

oe

Tla

I also recognize that it would be a hardship on his

mother and the rest of his tamily to be separated from

the respondent, especially in light of the fact that

apparently the respondent’s other brother has also

been deported from the United States. However, I

consider the behavior of the respondent for the past 12

years to be so evil and that I cannot find that the

positive and equitable factors that he has demonstrated

are sufficient to outweigh his behavior.

As pointed out by the counsel for the Immigration

Service, the respondent was placed in deportation pro-

ceedings in December of 1990, and knowing that he was

facing deportation from the United States he still

continued on his course of criminal behavior without

regard to the consequences of his actions. Also, even

after he was released from jail on previous occasions, he

was rearrested and reconvicted of crimes within a short

period of time and was recommitted to jail therefore.

The respondent has had numerous opportunities to

reform his behavior in the past and has failed to do so. |

do take this as being evidentiary of his inability to do so

in the future, while all the while hoping that his partici-

pation in an Alcoholics Anonymous program and his

increased maturity will help him towards rehabilitation.

In any event, this is speculative at best.

To the extent that it might be argued that the

respondent is required to establish unusual or outstand-

ing equities in order to have discretion exercised favor-

ably on his behalf, I do conclude that his length of

residence in the United States, especially inasmuch as

it began when he was just three and a half years old,

does constitute such an unusual or outstanding equity.

Furthermore, when this is combined with the fact that

the respondent has never returned to Portugal it

72a

clearly does rise to the level of unusual and/or outstand-

ing.

However, in weighing these circumstances along

with the other equities established by the respondent, I

find that they are outweighed by the length and nature

and extent of his criminal behavior and activities in the

United States and I do not find that discretion ought to

be exercised favorably with respect to the respondent

herein.

One can only hope that the respondent is, as he

contends, on the way to his rehabilitation. In any

event, the respondent has come too far at this point to

be worthy of remaining in the United States and

accordingly the following orders will be entered:

ORDER

IT IS HEREBY ORDERED that the respondent’s

application for a waiver of inadmissibility pursuant to

the provisions of Section 212(c) of the Immigration and

Nationality Act be and the same is hereby denied.

IT IS FURTHER ORDERED that the respondent be

deported from the United States to Portugal on the

charge contained in the Order to Show Cause as

amended by form I-261.

/s/) LEONARD I. SHAPI

LEONARD I. SHAPIRO

Immigration Judge

en eae VN Pea eae

73a

APPENDIX D

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A34-282-192 — BOS Date: MAR 24 1997

Inre: GONCALVES, RAUL PERCIRA

IN DEPORTATION PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

CURLEY, KATHLEEN M.

145 Munroe St. Suite 300,

Lynn, MA 01901-1222

APPLICATION: Waiver of inadmissibility

ORDER:

PER CURIAM. You are seeking relief from deporta-

tion under section 212(¢) of the Immigration and Na-

tionality Act, 8 U.S.C. § 1182(c). However, you are

74a

statutorily ineligble for such relief as an “alien who is

deportable by reason of having committed any criminal

offense covered in section 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 covered by

section 241(a)(2)(A)(i).” See Antiterrorism and Effec-

tive Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 (“AEDPA”) § 440(d); Matter of Soriano, In-

terim Decision 3289 (A.G., Feb. 21, 1997). Accordingly,

your appeal is dismissed.

/s/' PAUL W.SCHMIDT

PAUL W. SCHMIDT

FOR THE BOARD

75a

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NUMBER 97-11795-RGS

RAUL PERCIRA GONCALVES

JANET RENO, ET AL.

MEMORANDUM ORDER ON PETITION FOR A WRIT

OF HABEAS CORPUS AND STAY OF DEPORTATION

AUGUST 14, 1997

STEARNS, D.J.

After a hearing, and after consideration of the plead-

ings, and in particular, the comprehensive and thorough

memorandum of law filed by Special Assistant U.S.

Attorney Crowley on behalf of the Immigration and

Naturalization Service, I determine as follows.

I agree with the government that the district court is

divested of statutory jurisdiction by operation of 8

U.S.C. § 1105a which commits review of a final order of

deportation to the Circuit Court of Appeals. See

Agosto v. Immigration & Naturalization Service, 436

U.S. 748, 752-753 (1978). I also note that it appears

uncontested that petitioner failed to seek such review

within the thirty days authorized by § 309(c)(4)(C) of

76a

the Illegal Immigration Reform and Immigrant Re-

sponsibility Act of 1996.

I am inclined to agree with the government that

amended § 242(g) of the Immigration and Nationality

Act (8 U.S.C. § 1252(g)) divests the district court of

subject matter jurisdiction, in that petitioner’s request

for a stay of deportation arises from a decision by the

Attorney General to execute a removal order. See

Auguste v. Attorney General, 1997 WL 400970 (11th

Cir. 1997).

Finally, to the extent that the district [court] retains

a residual power to provide habeas corpus review of

constitutional claims, cf. Kolster v. INS, 101 F.3d 785,

790-791 (ist Cir. 1996), I agree with the government

that petitioner has presented no claim of a substantial

enough nature to warrant relief. See Mbiya v.

Immigration & Naturalization Service, 930 F. Supp.

609, 612 (N.D. Ga. 1996). First, the Attorney General’s

determination that § 440(d) of the Antiterrorism and

Effective Death Penalty Act of 1996 applies retro-

actively to cases pending on its enactment is manifestly

correct. See Kolster, supra, 101 F.3d at 789. Second,

the distinction drawn by Congress between excludable

and deportable aliens rest on a “facially legitimate and

bona fide reason,” and therefore does not violate the

Equal Protection Clause. See Fiallo v. Bell, 430 U.S.

787, 794 (1977).

EE

77a

‘or the foregoing reasons, the motion to dismiss is

ALLOWED. The motion to stay deportation is

DENIED.

SO ORDERED.

s RICHARD G. STEARNS

RICHARD G. STEARNS

UNITED STATES DISTRICT JUDGE

78a

APPENDIX F

UNTIED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 97-11795-RGS

RAUL PERCIRA GONCALVES

Uv.

JANET RENO, ET AL.

ORDER OF DISMISSAL

STEARNS, DJ. AUGUST 14, 1997

In accordance with this Court’s Memorandum and

Order on Petition for a Writ of Habeas Corpus and Stay

of Deportation issued this dace,

IT IS HEREBY ORDERED: The Petition ‘s hereby

DISMISSED. The Motion to Stay Deportation is

DENIED.

SO ORDERED.

/s/ RICHARD G.STEARNS

RICHARD G. STEARNS

UNITED STATES DISTRICT JUDGE

By:

/s/ MARY JOHNSON ROBBINS

MARY JOHNSON ROBBINS

Deputy Clerk

79a

APPENDIX G

JNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-1953

RAUL PERCIRA GONCALVES,

PLAINTIFF, APPELLANT

a

JANET RENO, ATTORNEY GENERAL;

DORIS MEISSNER, COMMISSIONER OF THE IMMIGRATION

AND NATURALIZATION SERVICE; DISTRICT, BOSTON

DISTRICT INS; DEPARTMENT OF JUSTICE,

AND IMMIGRATION AND NATURALIZATION SERVICE.

DEFENDANTS, APPELLEES

Before: TORRUELLA, Chief Judge, CAMPBELL,

Senior Circuit Judge, and SELYA, BOUDIN, STAHL,

LYNCH, Circuit Judges

ORDER OF COURT

Entered. July 31, 1998

The panel of judges that rendered the decision in this

case having voted to deny the petition for rehearing

and the suggestion for the holding of a rehearing en

banc having been carefully considerated by the judges

of this Court in regular active service and a majority of

said judges not having voted to order that the appeal be

heard or reheard by the Court en banc,

80a

It is ordered that the petition for rehearing and the

suggestion for rehearing en banc be denied.

By the Court:

Phoebe D. Morse, Clerk.

By JANICE M.0O’NEIL

JANICE M. O’NEIL

Chief Deputy Clerk

(cc: Messrs. Watt, Gelernt, Stern, Crowley, Duffy,

Howard, Vargas]

8la

APPENDIX H

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Suspension of Habeas Corpus Clause of the

United States Constitution, Art. I, § 9, Cl. 2, provides:

The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion

or Invasion the public Safety may require it.

2. Prior to April 24, 1996, section 106(a) of the Immi-

gration and Nationality Act, 8 U.S.C. 1105a(a) (1994),

provided in pertinent part:

Exclusiveness of procedure

The procedure prescribed by, and all the

provisions of chapter 158 of title 28, shall apply to,

and shall be the sole and exclusive procedure for,

the judicial review of all final orders of depor-

tation, heretofore or hereafter made against aliens

within the United States pursuant to admini-

strative proceedings under section 1252(b) of this

| title or pursuant to section 1252a of this title or

; comparable provisions of any prior Act, except

that—

(10) Habeas corpus

any alien held in custody pursuant to an order

of deportation may obtain judicial review thereof

by habeas corpus proceedings.

3. After April 24, 1996, and before September 30,

1996, Section 106(a) of the Immigration and Nationality

82a

Act, 8 U.S.C. 1105a(a) (to be codified), provided in per-

tinent part:

Exclusiveness of procedure

The procedure prescribed by, and all the

provisions of chapter 158 of title 28, shall apply to,

and shall be the sole and exclusive procedure for,

the judicial review of all final orders of deporta-

tion, heretofore or hereafter made against aliens

within the United States pursuant to administra-

tive proceedings under section 1252(b) of this title

or pursuant to section 1252a of this title or com-

parable provisions of any prior Act, except that—

* * * * X

(10) Any final order of deportation against

an alien who is deportable by reason of having

committed a criminal offense covered by sec-

tion [1251](a)(2) (A)(iii), (B), (C), or (D), or any

offense covered by section [1251](a)(2)(A)(ii)

for which both predicate offenses are covered

by section [1251](a)(2)(A)(Gj), shall not be sub-

ject to review by any court.

4. Prior to April 24, 1996, Section 212(c) of the

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

(1994), provided:

Nonapplicability of subsection (a)

Aliens lawfully admitted for permanent resi-

dence who temporarily proceeded abroad volun-

tarily and not under an order of deportation, and

who are returning to a lawful unrelinquished

domicile of seven consecutive years, may be ad-

mitted in the discretion of the Attorney General

83a

without regard to the provisions of subsection (a)

of this section (other than paragraphs (3) and

(9)(C)). Nothing contained in this subsection shall

limit the authority of the Attorney General to

exercise the discretion vested in him under section

1181(b) of this title. 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.

o. Effective April 24, 1996,' Section 212(c) of the

Immigration and Nationality Act, 8 U.S.C. 1182(c) (to

be codified), provided:

Nonapplicability of subsection (a)

Aliens lawfully admitted for permanent resi-

dence who temporarily proceeded abroad vol-

untarily and not under an order of deportation,

and who are returning to a lawful unrelinquished

domicile of seven consecutive years, may be ad-

mitted in the discretion of the Attorney General

' Section 212(c) was amended by Section 440(d) of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1277, on April 24, 1996. Further

technical amendments were made by Section 306(d) of the Illegal

Immigration Reform and Immigrant Responsibility Act, Pub. L.

No. 104-208, Div. C, 110 Stat. 3009-612, on September 30, 1996, and

those technical amendments were made effective as if they were

enacted on the original enactment date of AEDPA. See p. 87a,

infra. The version set forth in the text reflects both sets of amend-

ments. In addition, Section 304(b) of ITRIRA, 110 Stat. 3009-597,

repealed Section 212(c) entirely, but Sections 306 and 309 of

ITRIRA, 110 Stat. 3009-607, 3009-625, make clear that this repeal

applies only to aliens placed in removal proceedings on or after

April 1, 1997. See pp. 86a-89a, infra.

6.

Act, 8 U.S.C. 1252 (Supp. II 1995), provides in pertinent

part:

84a

without regard to the provisions of subsection (a)

of this section (other than paragraphs (3) and

(9)(C)). Nothing contained in this subsection shall

limit the authority of the Attorney General to

exercise the discretion vested in him under section

1181(b) of this title. This subsection shall not

apply to an alien who is deportable by reason of

having committed any criminal offense covered by

section [1251](a)(2)(A)(iii), (B), (C), or (D), or any

offense covered by section [1251](a)(2) (A)(ii) for

which both predicate offenses are, without regard

to the date of their commission, otherwise covered

by section [1251 }(a)(2)(A)(W.

Section 242 of the Immiration and Nationality

(a) Applicable provisions

(1) General orders of removal

Judicial review of a final order of removal

(other than an order of removal without a hear-

ing pursuant to section 1225(b)(1) of this title)

is governed only by chapter 158 of title 28,

except as provided in subsection (b) of this

section and except that the court may not

order the taking of additional evidence under

section 2347(c) of such title.

(g) Exclusive jurisdiction

Except as provided in this section and notwith-

standing any other provision of law, no court shall

85a

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.

7. Section 401(e) of the Antiterrorism and Effective

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

132, 110 Stat. 1268 (Apr. 24, 1996), provides:

ELIMINATION OF CUSTODY REVIEW BY

HABEAS CORPUS.—Section 106(a) of the Im-

migration and Nationality Act (8 U.S.C. 1105a(a)) is

amended—

(1) in paragraph (8), by adding “and” at

the end;

(2) in paragraph (9), by striking “; and” at

the end and inserting a period; and

(3) by striking paragraph (10).

8. Section 440 of the Antiterrorism and Effective

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

132, 110 Stat. 1276 (Apr. 24, 1996), as amended by the

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-

208, Div. C, 110 Stat. 3009-546 (Sept. 30, 1996),

provides in pertinent part:

CRIMINAL ALIEN REMOVAL.

(a) JUDICIAL REVIEW.—Section 106 of the

Immigration and Nationality Act (8 U.S.C.

1105a(a)(10)) is amended to read as follows:

* Section 306(d) of IIRIRA, Pub. L. No. 104-208, Div. C, 110

Stat. 3009-612, made certain technical amendments to Section 440

of AEDPA, Pub. L. No. 104-132, 110 Stat. 1276, effective as if in-

cluded in the original enactment of AEDPA. See p. 87a, infra.

86a

“(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), 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, other-

wise covered by section 241(a)(2)(A)(i), shall

not be subject to review by any court.”

* * %* * *

(d) CLASSES OF EXCLUDABLE ALI-

ENS.—Section 212(c) of such Act (8 U.S.C. 1182(c))

is amended—

(1) by striking “The first sentence of

this” and inserting “This”; and

(2) by striking “has been convicted of

one or more aggravated felonies” and all that

follows through the end and inserting “is

deportable by reason of having committed any

criminal offense covered in section 241(a)(2)

(A)(iii), (B), (C), or (D), or any offense covered

by section 241(a)(2)(A)(Gji) for which both

predicate offenses are, without regard to the

date of their commission, otherwise covered by

section 241(a)(2)(A)(i).”

9. Section 304(b) of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, 110 Stat. 3009-597 (Sept. 30, 1996)

provides:

REPEAL OF SECTION 212(c).—Section 212(c)

(8 U.S.C. 1182(c)) is repealed.

87a

10. Section 306 of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, Div. C, 110 Stat. 3009-607 (Sept. 30, 1996), as

amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct.

11, 1996),’ provides in pertinent part:

APPEALS FROM ORDERS OF REMOVAL (NEW

SECTION 242).

(b) REPEAL OF SECTION 106.—Section 106

(8 U.S.C. 1105a) is repealed.

(ec) EFFECTIVE DATE.—

(1) IN GENERAL.—Subject to para-

graph (2), the amendments made by subsec-

tions (a) and (b) shall apply as provided under

section 309, except that subsection (g) of

section 242 of the Immigration and Nationality

Act (as added by subsection (a)), shall apply

without limitation to claims arising from all

past, pending, or future exclusion, deportation,

or removal proceedings under such Act.

(d) TECHNICAL AMENDMENT.—Fffective

as if included in the enactment of the Antiterrorism

and Effective Death Penalty Act of 1996 (Public

Law 104-132), subsections (a), (c), (d), (g), and (h) of

section 440 of such Act are amended by striking

3 Public Law No. 104-302, 110 Stat. 3656 (Oct. 11, 1996) made

certain technical amendments to Sections 306 and 309 of IIRIRA,

Pub. L. No. 104-208, Div. C, 110 Stat. 3009-607, 3009-625, effective

as if enacted on the original date of enactment of IIRIRA.

SSa

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

which both predicate offenses are covered by

section 241(a)(2)(A)(i)” and inserting “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)”.

11. Section 309 of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No.

104-208, Div. C, 110 Stat. 3009-625 (Sept. 30, 1996), as

amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct.

11, 1996), provides in pertinent part:

EFFECTIVE DATES; TRANSITION.

(a) IN GENERAL.—Except as provided in

this section and sections 303(b)(2), 306(c), 308(d)(2)

(D), or 308(d)(5) of this division, this subtitle and the

amendments made by this subtitle shall take effect

on the first day of the first month beginning more

than 180 days after the date of the enactment of this

Act (in this title referred to as the “title III-A

effective date”).

(c) TRANSITION FOR ALIENS IN PRO-

CEEDINGS.—

(1) GENERAL RULE THAT NEW

RULES DO NOT APPLY.—Subject to the

succeeding provisions of this subsection, in the

case of an alien who is in exclusion or

deportation proceedings before the title III-A

effective date—

89a

(A) the amendments made by this

subtitle shall not apply, and

(B) the proceedings (including judi-

cial review thereof) shall continue to be

conducted without regard to such amend-

ments.

(4) TRANSITIONAL CHANGES IN

JUDICIAL REVIEW.—In the case in which a

final order of exclusion or deportation is

entered more than 30 days after the date of the

enactment of this Act, notwithstanding any

provision of section 106 of the Immigration and

Nationality Act (as in effect as of the date of

the enactment of this Act) to the contrary—

* * * * *

(G) there shall be no appeal per-

mitted in the case of an alien who is inad-

missible or deportable by reason of having

committed a criminal offense covered in

section 212(a)(2) or section 241(a)(2)(A)(iii),

(B), (C), or (D) of the Immigration and

Nationality Act (as in effect as of the date of

the enactment of this Act), or any offense

covered by section 241(a)(2)(A)(ii) of such

Act (as in effect on such date) for which

both predicate offenses are, without regard

to their date of commission, otherwise

covered by section 241(a)(2)(A)(i) of such

Act (as so in effect).

40a

12. Section 2241 of Title 28, United States Code,

vides in pertinent part:

(a) Writs of habeas corpus may be granted by

he Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdictions. The order of a circuit judge shall be

entered in the records of the district court of the

district wherein the restraint complained of is had.

it of habeas corpus

ner uniess

7 ° : |

>) ne 1s in custody

in violation of the

yr treaties of the United

;

PA =

LGA WV ‘

Sla

APPENDIX I

U.S. Department of Justice -

Executive Office for Immigration Review

Board of Immigration Appeals

Interim Decision #3289

In re Bartolome Jhonny Soriano, Respondent

File A39 186 067 - Napanoch

Decided June 27, 1996

Before: Board En Bane: SCHMIDT, Chairman:

HEILMAN, HOLMES, VILLAGELIU, MATHON,

and GUENDELSBERGER, Board Members.

Concurring and Dissenting Opinion:

ROSENBERG, Board Member. Dissenting

Opinion: VACCA, Board Member, joined by

DUNNE, Vice Chairman; HURWITZ, FILPPU,

and COLE, Board Members.

HEILMAN, Board Member:

In a decision dated October 12, 1995, an Immigration

Judge found the respondent deportable as charged, de-

nied his application for a waiver of inadmissibility pur-

suant to section 212(c) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(c) (1994), and ordered

him deported from the United States to the Dominican

Republic. The respondent appealed from that decision

92a

on October 23, 1995. Subsequent to the respondent’s

appeal, Congress amended section 212(c) of the Act, and

the Immigration and Naturalization Service has now

filed a supplementa! brief in response to the re-

spondent’s argument, asserting that the recent legis-

lative amendments preclude the respondent from

demonstrating his continuing eligibility for section

212(c) relief.’ Thus, we are faced with the issue re-

garding the effective date of section 440(d) of the

Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214, 1277 (““AEDPA”).

We find the respondent eligible for section 212(c) relief,

but will deny his appeal as a matter of discretion.

I. PROCEDURAL HISTORY

The respondent is a native and citizen of the Domini-

ean Republic. He entered the United States on March

28, 1985, as a lawful permanent resident. On May 20,

1992, the respondent was convicted under the law of

the State of New York of the offense of attempted

criminal sale of a controlled substance. Based on this

conviction, the Service initiated deportation proceed-

ings against the respondent with the issuance of an

Order to Show Cause and Notice of Hearing (Form

1-221) dated June 3, 1994. On April 28, 1995, the re-

spondent filed an Application for Advance Permission

to Return to Unrelinquished Domicile (Form I-191)

pursuant to section 212(c) of the Act. By order dated

October 12, 1995, the Immigration Judge found that the

respondent was eligible for relief under section 212(c) of

the Act, but denied that application in the exercise of

1 We acknowledge the contribution of amici in the briefing

of this issue to the Board.

93a

discretion. On appeal, the respondent argues that the

Immigration Judge erred in the exercise of that dis-

cretion.

II. APPLICABLE LAW

Prior to considering the respondent’s appeal of the

Immigration Judge’s discretionary determination, this

Board must first address the Service’s contention that

the recent amendments to section 212(c) of the Act

statutorily bar the Board from considering the merits of

the respondent’s appeal from his section 212(c) appli-

cation. We note initially that the respondent was

clearly eligible for such relief under the law in effect at

the time the Immigration Judge rendered his decision.”

However, during the pendency of the respondent’s

appeal from the Immigration Judge’s discretionary

denial of his application, Congress amended section

212(c) of the Act to read as follows:

* Until April 24, 1996, section 212(c) of the Act read as

follows:

Aliens lawfully admitted for permanent residence who tem-

porarily proceeded abroad voluntarily and not under an order

of deportation, and who are returning to a lawful unrelin-

quished domicile of seven consecutive years, may be admitted

in the discretion of the Attorney General without regard to the

provisions of section (a) (other than paragraphs (3) and (9)(C)).

Nothing contained in this subsection shall limit the authority of

the Attorney General to exercise the discretion invested in

{her} under section 211(b). 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.

a

94a

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and

not under an order of deportation, and who are

returning to a lawful unrelinquished domicile of

seven consecutive years, may be admitted in the

discretion of the Attorney General without regard

to the provisions of section (a) (other than para-

graphs (3) and (9)(C)). Nothing contained in this

subsection shall limit the authority of the Attorney

General to exercise the discretion invested in [her]

under section 211(b). This section shall not apply to

an alien who is deportable by reason of having com-

mitted any criminal offense covered in section

241(a)(2)(A) (iii), (B), (C), or (D), or any offense

covered by section 241(a)(2)(A)(i1) for which

both predicate offenses are covered by section

241(a)(2)(A)(V).

Section 440(d) of the AEDPA, 110 Stat. at 1277 (empha-

sis added).

The respondent, deportable by reason of hav-

ing committed an offense covered by sections

241(a)(2)(A)(iii) and (B) of the Act, falls within the last

sentence of the AEDPA amendment. Thus, we must

decide whether Congress intended the respondent to

remain eligible for section 212(c) relief after April 24,

1996.

Ill. EFFECTIVE DATE

Congress did not incorporate an express provision

regarding the effective date of section 440(d) of the

AEDPA. Initially, then, we must discern the date on

which this section of law became effective, and, if

effective immediately, whether it applies to those aliens

; ty be be an :

NWA cbr. Vain onan a

A GON Et VAL ab no NS Maa 6s 9 us

95a

already in proceedings as of April 24, 1996. If it does so

apply to those aliens in proceedings, we must further

determine whether the amendment applies to those

aliens who filed their section 212(c) applications by

April 24, 1996. In resolving these issues of the

AEDPA’s temporal applicability, we first look to the

language of the statute itself. We begin by noting that

the paramount index of congressional intent is the plain

meaning of the words used in the statute taken as a

whole. See Matter of Grinberg, 20 I&N Dee. 911 (BIA

1994) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431

(1987)); see also K Mart Corp. v. Cartier, Inc., 486 U.S.

281, 291 (1988) (stating that in ascertaining the “plain

meaning” of a statute, one “must look to the particular

statutory language at issue, as well as the language and

design of the statute as a whole”),

A. SECTION 440(D) AND PENDING PROCEEDINGS

Initially, we find persuasive evidence to conclude

that Congress intended section 440(d) to apply immedi-

ately, regardless of whether the Service had placed an

alien in proceedings by April 24, 1996. Both general

statutory construction and an examination of Congress’

inclusion of other effective dates in the AEDPA lead us

to this result. General rules of Statutory construction

hold that the lack of an effective date for legislation

indicates that the law should be effective on the date of

passage. See generally 2 C. Sands, Sutherland Statu-

tory Construction § 33.08 (4th ed. 1973). We find no

obstacle to the application of this rule in the language of

the AEDPA,; rather, we find such an interpretation but-

tressed by Congress’ decision to expressly delay the

effective date of other subsections of the AEDPA. For

example, in section 414(b) of the AEDPA, 110 Stat. at

96a

1270, Congress expressly provided that this amend-

ment “shall take effect on the first day of the first

month beginning more than 180 days after the date of

the enactment of [the AEDPA].” Similarly, in section

442 of the AEDPA, 110 Stat. at 1280, Congress

amended section 242A(b) of the Act with regard to

certain procedural aspects of deportation hearings and

stated, in subsection 442(d), that those amendments

“shall apply to all aliens against whom deportation

proceedings are initiated after the date of the enact-

ment of [the AEDPA].” The absence of similar

language in section 440(d) supports the conclusion that

Congress intended section 440(d) of the AEDPA to

apply to aliens already in proceedings on April 24, 1996.

These express declarations in other subsections of the

AEDPA, in conjunction with Congress’ silence in

section 440(d) of the AEDPA, lead us to conclude that

section 440(d) was effective immediately upon enact-

ment and was not limited in applicability to those aliens

whose proceedings were initiated after that date.

B. PENDING APPLICATIONS

However, this finding that section 440(d) of the

AEDPA was effective immediately and not limited in

application to those aliens brought into proceedings

after April 24, 1996, does not finally resolve whether

this respondent is barred from section 212(c) relief.

There remains a subcategory of aliens, including the

respondent, who already had applications for section

212(c) relief pending on April 24, 1996. Such aliens

include those deportable aliens awaiting their section

212(c) merits hearings, as well as those aliens who have

appealed the Immigration Judge’s denial of their

applications, and those who, having received a grant of

97a

section 212(c) relief, are subject to a Service appeal of

the Immigration Judge’s decision. In determining con-

gressional intent from the language and design of the

AEDPA as a whole, we do not find that Congress’

silence regarding the effective date of section 440(d)

reflects an intent for the amendment to bar pending

applications for section 212(c) waivers. In reaching this

conclusion, we note that in section 413 of the AEDPA,

which bars alien terrorists from most forms of relief

from deportation, Congress expressly indicated that

those bars to relief “shall take effect on the date of

enactment of the AEDPA and shall apply to appli-

cations filed before, on, or after such date if final action

has not been taken on them before such date.” See

section 413(g) of the AEDPA, 110 Stat. at 1269-70.

Another basic rule of statutory construction instructs

that no provision of law should be so construed as to

render a word or clause surplusage. See Kungys v.

United States, 485 U.S. 759 (1988); Colautti v. Frank-

lin, 439 U.S. 379 (1979). By adding the effective date

found at section 413(g) of the AEDPA, Congress ex-

pressed its clear intent that section 413 of the AEDPA

apply specifically to pending applications of alien

terrorists. To construe this same intent by Congress’

silence in section 440(d) of the AEDPA would require

us to conclude that the “before, on, or after” language of

section 413(g) of the AEDPA is unnecessary and irrele-

vant to whether that section applies to applications for

asylum pending before the AEDPA’s enactment. This

we decline to conclude. Rather, we interpret Congress’

omission of the “before, on, or after” language in section

440(d) to indicate its intent that aliens with applications

pending on April 24, 1996, should not be statutorily

98a

barred from section 212(c) relief by operation of the

AEDPA.’

This conclusion is consistent with the approach to

statutory interpretation set forth by the United States

Supreme Court in Landgraf v. USI Film Products, 114

S. Ct. 1483 (1994). In that case, the Supreme Court

observed that when deciding whether changes in law

should be applied to pending controversies in the

absence of express congressional directive, “settled

expectations should not be lightly disrupted.” Land-

graf v. USI Film Products, supra, at 1497. By applying

section 440(d) of the AEDPA to only those applications

for section 212(c) relief filed on or after the date of the

enactment of the AEDPA, the unique expectations of

aliens whose applications for section 212(c) relief were

pending prior to the enactment of the AEDPA are not

disrupted. Such aliens demonstrated, with the filing of

their pre-AEDPA applications, their expectation that

although they were deportable under various provis-

3 Similarly, we note that silence cannot reasonably be

interpreted as evidencing a congressional intent to apply the new

limitations in section 212(c) only to those aliens whose convictions

for the relevant offenses occurred on or after the date of enact-

ment of the AEDPA because Congress expressly stated that

result in the AEDPA when such was its intent. See section 440(f)

of the AEDPA, 110 Stat. at 1278 (stating that the amendments to

the aggravated felony definition “apply to convictions entered on

or after the date of enactment”). Moreover, as regards the issue

of “settled expectations” discussed below, both the Board and the

__ courts have noted that aliens eannot reasonably argue “ ‘that they

somehow relied on the availability of a discretionary waiver of

deportation when choosing to engage in [criminal] activity.’”

Matter of Gomez-Giraldo, 20 I&N Dec. 957, 964 (BIA 1995) (quot-

ing DeOsorio v. United States INS, 10 F.3d 1034, 1042 (4th Cir.

1993)).

99a

ions of the Act, they would be able to present evidence

of favorable social and humane considerations that

might countervail evidence of their undesirability as

lawful permanent residents. See generally Matter of

Marin, 16 I&N Dec. 581 (BIA 1978). The interpretative

approach enunciated by the Supreme Court in Land-

graf supports the conclusion that Congress did not in-

tend by its silence to disrupt the expectations of those

aliens whose applications for section 212(c) relief were

pending on April 24, 1996.

Moreover, this conclusion is consistent with the ap-

proach adopted by Congress with its amendment of

section 212(c) of the Act by the Immigration Act of

1990, Pub. L. No. 101-649, 104 Stat. 4978, in which a

statutory 5-year aggravated felony bar to that relief

was made applicable to aliens who applied after the

date of the enactment of that 1990 amendment. See

Matter of Gomez-Giraldo, 20 I&N Dec. 957, 963 (BIA

1995).

C. APPLICABILITY TO RESPONDENT’S

SECTION 212(C) REQUEST

The respondent applied for section 212(c) relief on

April 28, 1995, prior to the April 24, 1996, enactment of

the AEDPA. Accordingly, the bar to section 212(c)

relief added by the amendment of that section by sec-

tion 440(d) of the AEDPA does not apply to the re-

spondent’s application for relief. There is no question

that the respondent is eligible for section 212(c) relief

by the version of that section that was in effect prior to

its amendment by section 440(d) of the AEDPA. That

is, the respondent is not an alien convicted of an ag-

gravated felony who served for such felony a term of

imprisonment of at least 5 years. Thus, we find the

100a

respondent eligible for relief under section 212(c) of the

Act, and we proceed to the question of whether he

merits that relief in the exercise of discretion.

Ill. DISCRETION

Notwithstanding the respondent’s continued eligibil-

ity for a waiver of inadmissibility, we ultimately dis-

agree with his appellate argument that the Immigra-

tion Judge erred in finding that he did not warrant a

discretionary waiver pursuant to section 212(c) of the

Act. As the Immigration Judge correctly noted, the

respondent’s attempted criminal sale of cocaine, in

addition to his three other drug-related felonies, re-

quire a demonstration of outstanding or unusual

equities before the respondent may receive a section

212(c) waiver of inadmissibility. See Matter of Marin,

supra; cf. Matter of Burbano, 20 I&N Dec. 872, 879

(BIA 1994). We agree with the Immigration Judge

that the respondent has failed to demonstrate such

equities so that he may overcome his serious and recent

drug trafficking crimes.

The respondent testified at the hearing that he has

various family ties in the United States, including his

mother, two siblings, and his United States citizen son.

Moreover, the respondent explained that his son lives

with his ex-wife, and that his family assists them finan-

cially. The respondent’s mother and sister also testified

on his behalf, and while we find it noteworthy that the

respondent’s family members attended the hearing, we

do not find that this familial support alone rises to the

level of outstanding or unusual. The respondent main-

tains various family ties in the Dominican Republic,

including three daughters and four siblings. He arrived

10la

in the United States only 10 years ago as a 25-year-old

adult, and his employment during his residence in the

United States has been sporadic.

Regarding his rehabilitative efforts, we note that the

respondent testified that he has participated in a drug

rehabilitation program while he has been incarcerated,

and that after 18 years of drug use, he has maintained a

drug-free lifestyle while in prison. Moreover, he testi-

fied that he has also received his GED while incarcer-

ated, and he has recently strengthened his religious

beliefs. We agree with the Immigration J udge that the

respondent has demonstrated a willingness to continue

his progress towards a drug-free and crime-free life-

style and has taken steps towards rehabilitation. See

Matter of Arreguin, Interim Decision 3247 (BIA 1995).

However, considering these factors in conjunction with

his family ties here and abroad, and his relatively short

period of residence in the United States, we can not

find that the respondent has demonstrated sufficient

equities to overcome his four recent drug trafficking

felonies. Cf. Matter of Burbano, supra. Accordingly,

we will dismiss the respondent’s appeal.

ORDER: The appeal is dismissed.

102a

CONCURRING AND DISSENTING OPINION: Lory D.

Rosenberg, Board Member

I respectfully concur in part and dissent in part.

Our decision today seeks to resolve the ambiguity

presented by section 440(d) of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214, 1277 (enacted Apr. 24, 1996)

(“AEDPA”), which amends the category of otherwise

eligible lawful permanent resident aliens precluded

from a waiver under section 212(c) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(¢c)(1994).

The text of this section, as set forth by the majority,

contains no express provision specifying an effective

date for this amendment. The majority opinion

properly recognizes that the fact that the AEDPA

became law on April 24, 1996, is not dispositive of the

effect of section 440(d) on an alien who “is deportable”

on the grounds of deportability designated in that

section.’

In essence, we hold that two related factors, tradi-

tional principles of statutory construction and Supreme

| This “ill-advised” provision of AEDPA is less than artfully

drawn, having been enacted at the 11th hour as part of a bill

ostensibly addressing the deportation of terrorists, not the de-

portation of “long-term legal residents.” See President’s Remarks

on Signing the Antiterrorism and Effective Death Penalty Act of

1996, 32 Weekly Comp. Pres. Doc. 717 (Apr. 29, 1996). While sec-

tion 440(d) refers to those “deportable by reason of having com-

mitted any criminal offense covered” by specified sections of the

Immigration and Nationality Act, the only aliens so deportable are

aliens who actually have been convicted of such offenses.

103a

Court law interpreting the application of new statutes

to pre-existing circumstances, must control the reach of

this provision of the AEDPA. See Landgraf v. USI

Film Products, 114 S.Ct. 1483 (1994). In the context of

the appeal before us, it is necessary only to find, as the

majority does, that the amendment does not apply to

pending applications already filed by aliens in

deportation proceedings. Thus, the respondent, who is

deportable by reason of a conviction for a covered

offense, remains eligible to have his pending application

for a waiver of deportability under section 212(c)

determined. For purposes of the scenario presented in

this appeal, I concur.

I. THE SILENCE OF THE STATUTE

The silence of the statute with regard to its impact

upon conduct and other events which already have

taken place is significant. Nothing in the text or the

legislative history of the AEDPA indicates that section

440(d) should be applied retroactively to pending cases

or pre-amendment circumstances, or that this silence

was due to an “accident of draftsmanship.” JNS v.

Phinpathya, 464 U.S. 183, 191 (1984). By contrast, as

the majority discusses, other sections of the AEDPA

expressly address the effect of the particular provision

on circumstances existing prior to its enactment. See,

e.g., section 413(g) of the AEDPA, 110 Stat. at 1269-70.

As recognized consistently by the Supreme Court,

retroactivity is not favored in the law. Bowen v.

Georgetown University Hosp., 488 U.S. 204, 208 (1988).

A presumption against retroactivity generally is con-

sistent with legislative and public expectations as a

safeguard against unfairness. Landgraf v. USI Film

104a

Products, supra, at 1501. This principle dates back to

English common law, and eve

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