# Appendix — Reno v. Goncalves

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1004

## Text

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-

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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

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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? |
AS LLLCA
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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1213%3A2. Public record. Not legal advice.