Appendix — INS v. St. Cyr

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OF v67 NOV 1 3 2000

wrrice OF Ile CLERK

In the Supreme Court of the Gnited States

No.

IMMIGRATION AND NATURALIZATION SERVICE,

PETITIONER

Vv.

ENRICO ST. CYR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

PAUL R.Q. WOLFSON

Assistant to the Solicitor

General

STEPHEN C. ROBINSON

DONALD E. KEENER

ALISON R. DRUCKER

ERNESTO H. MOLINA

JAMES K. FILAN, JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A (court of appeals opinion, Sept. 1, 2000) ...

Appendix B (court of appeals opinion in Calcano- la

Martinez v. INS, Madrid v. INS, and Khan v. INS.

Sept. 1, 2000) 40a

Appendix C (district court decision, Aug. 30, 1999) ...... 75a

Appendix D (district court judgment, Aug. 30, 1999)... 92a

Appendix E (decision of Board of Immigration

Appeals, Nov. 10, 1998) ... . &

Appendix F (decision of immigration judge, Jan. 12

1998) ..... , 96a

Appendix G (constitutional and statutory provisions

PUTED seviiniiecisvistioninstitenstanininiesiinininsimnctants 98a

; (I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 99-2614

ENRICO ST. CYR, PETITIONER-APPELLEE

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT-APPELLANT

[Argued: Mar. 30, 2000]

{[Decided: Sept. 01, 2000]

Before: OAKES, WALKER and KEITH,”

Circuit Judges.

OAKES, Senior Circuit Judge:

The case before us presents legal questions of re-

viewability and retroactivity under the 1996 amend-

ments to the Immigration and Nationality Act (“INA”).

Congress amended the INA through the enactment of

the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 et seq.

(1996) and the Illegal Immigration Reform and Immi-

* The Honorable Damon J. Keith of the United States Court of

Appeals for the Sixth Circuit, sitting by designation.

(la)

2a

grant Responsibility Act (““IIRIRA”), Pub. L. No. 104-

208, 110 Stat. 3009-546 et seq. (1996). These laws se-

verely narrowed the rights of certain classes of aliens, —

including those like St. Cyr who were ordered deported

because of a prior drug conviction, and have spawned a

multitude of judicial decisions.

AEDPA § 440(d) and IIRIRA § 304 significantly

limit the cases where discretionary relief from removal

can be sought. They effectively preclude an alien, who

- Is removable from the United States because of a

conviction of a crime that qualifies as an “aggravated

felony” under the law, from applying for discretionary

relief from removal. St. Cyr’s removal proceedings

were commenced after the enactment of the AEDPA

and IIRIRA. However, St. Cyr pled guilty to the drug-

related offense that rendered him deportable and in-

eligible under the AEDPA and ITRIRA to apply for

discretionary relief a year before the statutes were

enacted. He argues that applying the AEDPA § 440(d)

and IIRIRA § 304 bar to his removal proceedings

would have an impermissible retroactive effect. Thus,

in this case, we must determine whether the bar to

discretionary relief from removal is properly applied

retroactively to pre-enactment guilty pleas.

BACKGROUND

Enrico St. Cyr, a native of Haiti, was admitted to the

United States as a lawful permanent resident on June

17, 1986. St. Cyr’s family lives in the United States.

His parents and sister are citizens of this country and

his brother is a lawful permanent resident.

3a

On March 8, 1996, prior to the enactment date of the

AEDPA and IIRIRA, St. Cyr pled guilty to the sale of

a controlled hallucinogenic narcotic in violation of Con-

necticut General Statutes § 21a-277(a). At the time that

St. Cyr pled guilty to the charge, the drug conviction

rendered him deportable under the immigration

laws. See INA § 241(a)(2)(B)(i), codified at 8 U.S.C.

§ 1251(a)(2)(B)(i) (1994), now renumbered as INA

§ 237(a)(2)(B)(i), codified at 8 U.S.C. § 1227(a)(2)(B)(i)

(1999); see also INA § 241(a)(2)(A)(iii), codified at

8 U.S.C. § 1251(a)(2)(A)(iii) (1994), now renumbered

as INA § 237(a)(2)(iii), codified at 8 U.S.C.

§ 1227(a)(2)(A)(iii) (1999); INA § 101(a)(43), codified at 8

U.S.C. § 1101(a)(48) (1999).’

On April 10, 1997, the Immigration and Naturali-

zation Service (“INS”) issued St. Cyr a Notice to

Appear, charging him as removable under INA

§ 237(a)(2)(A)(iii) because he had been convicted of an

aggravated felony. On January 12, 1998, an immi-

gration judge (“IJ”) found that St. Cyr was removable

under INA § 237(a)(2)(_:)Gii). In the time between St.

Cyr’s conviction and his receipt of a Notice to Appear,

Congress enacted the AEDPA and IIRIRA. These

laws significantly limited the cases where discretionary

1 INA § 237(a)(2)(B)(i) provides that “Any alien who at any

time after admission has been convicted of a violation of (or a

conspiracy or attempt to violate) any law or regulation of a State,

the United States, or a foreign country relating to a controlled

substance . . . other than a single offense involving [a small

amount of marijuana for one’s own use] is deportable.”; INA

§ 237(a)(2)(A)(iii) provides that “Any alien who is convicted of an

aggravated felony at any time after admission is deportable.”; INA

§ 101(a)(43), codified at 8 U.S.C. § 1101(a)(43) defines “aggravated

felony” to include illicit trafficking in a controlled substance.

4a

relief from deportation could be sought and rendered an

alien who was removable because of an aggravated

felony conviction statutorily ineligible to apply for relief

from deportation.

At his hearing, St. Cyr sought to prevent his removal

by applying for a discretionary waiver of deportation

under former INA § 212(c). See 8 U.S.C. § 1182(c)

(1996) (repealed by IIRIRA, § 304(b), 110 Stat. at 3009-

597, September 30, 1996). The IJ denied St. Cyr’s

§ 212(c) application. St. Cyr appealed his removal order

to the Board of Immigration Appeals (“BIA”). Because

of the changes made by Congress to the immigration

laws, specifically IIRIRA § 304(b)’s repeal of the avail-

ability of § 212(c) relief to aliens such as St. Cyr, the

BIA dismissed his appeal on November 10, 1998.

On April 27, 1999, St. Cyr filed a habeas corpus peti-

tion in the United States District Court for the District

of Connecticut. In his petition, he argued that § 440(d)

of the AEDPA and IIRIRA § 304 should not be applied

retrospectively to bar his eligibility for § 212(c) relief

because both his criminal conduct and his conviction

occurred prior to the statutes’ enactment. The INS

argued that the 1996 amendments to the INA divested

the district court of jurisdiction to hear St. Cyr’s habeas

petition. On the merits, the INS argued that § 440(d) of

the AEDPA was applicable to St. Cyr’s case because

removal proceedings had been commenced against him

after the effective date of the AEDPA. Specifically, the

INS argued that applying § 440(d) to aliens ordered de-

portable because of a criminal conviction that was

entered prior to the AEDPA’s effective date was not an

unjustified retrospective application of § 440(d).

5a -

On August 23, 1999, the district court rejected the

INS’s arguments and held that it had jurisdiction to

hear the habeas petition because the 1996 amendments

to the INA did not explicitly divest a district court of

its habeas jurisdiction over final removal orders under

28 U.S.C. § 2241. It concluded that the scope of its re-

view pursuant to 28 U.S.C. § 2241 included St. Cyr’s

statutory claim that the BIA had misapplied the immi-

gration laws.

In addressing the merits of St. Cyr’s habeas petition,

the district court held that AEDPA § 440(d) is inappli-

cable to an alien placed in removal proceedings after

the AEDPA’s enactment if the relevant convictions,

criminal proceedings, or underlying criminal conduct

occurred prior to enactment. The court reasoned that

Congress did not intend AEDPA § 440(d) to be applied

retroactively to such pre-enactment events because it

would unfairly attach new legal consequences to pre-

AEDPA criminal conduct. Thus, the district court

concluded that St. Cyr’s removal proceedings should be

governed by the laws that were in effect at the time he

committed the crime. The INS timely appealed.

DISCUSSION

I. Jurisdiction.

Because the question whether the district court had

subject matter jurisdiction in this case is a question of

law, we review it de novo. See Conntech Dev. Co. v.

University of Connecticut Educ. Properties, Inc., 102

F.3d 677, 681 (2d Cir. 1996).

The INS’s arguments that the district court lacked

jurisdiction under 28 U.S.C. § 2241 to decide St. Cyr’s

6a

claim are foreclosed by our decision in Calcano-

Martinez v. Reno, Civ. Nos. 98-4033, 98-4214, 98-4246

(2d Cir. 2000), a case argued on the same day as this

one. In that case, we held that the permanent rules of

IIRIRA do not divest Article III courts of their habeas

jurisdiction under 28 U.S.C. § 2241 to review statutory

and constitutional challenges to final removal orders

when no other avenue for judicial review is available.

Here, no such avenue existed because St. Cyr, con-

victed of a crime involving a controlled substance, is an

alien deportable under INA § 237(a)(2)(A)(iii). A peti-

tion in the court of appeals pursuant to INA § 242(a)(1)

is, therefore, unavailable to him. See 8 U.S.€.

§ 1252(a) (2)(C) (1999).

Although a federal court’s habeas jurisdiction does

not include all challenges that an alien may launch

against his or her removal order, St. Cyr’s habeas peti-

tion raises pure questions of law. He is not challenging

the BIA’s refusal to exercise its discretion in his favor.

Rather, he is challenging the BIA’s determination that

it cannot legally consider St. Cyr’s request to exercise

its discretion. Therefore, his habeas challenge to his

final order of removal is the type of claim that is

cognizable in the district court under 28 U.S.C. § 2241.

Because there is no other avenue for judicial review

available and St. Cyr’s petition raises a purely legal

challenge to his final order of removal, the district court

had subject matter jurisdiction to review his habeas

petition.

II. Availability of § 212(c) relief.

Having determined that the district court had juris-

diction to decide St. Cyr’s claim, we turn to the issue

Ta

raised by St. Cyr in his habeas petition: whether

AEDPA § 440(d) and IIRIRA § 304, which essentially

make discretionary relief unavailable to an alien like St.

Cyr, apply to his removal proceeding.

A. History of Discretionary Relief.

Under the law in effect prior to the enactment of the

AEDPA, certain aliens otherwise determined to be de-

portable were entitled to apply to the Attorney General

or her delegates’ for a waiver of deportation under INA

§ 212(c), 8 U.S.C. § 1182(c) (1994). Former § 212(¢) pro-

vided:

Aliens lawfully admitted for permanent residence

who temporarily proceeded abroad voluntarily and

not under an order of deportation, and who are re-

turning to a lawful unrelinquished domicile of seven

consecutive years, may be admitted in the discretion

of the Attorney General without regard to [pro-

visions setting forth various grounds for exclusion].

. . . The first sentence of this subsection shall not

apply to an alien who has been convicted of one or

more aggravated felonies and has served for such

felony or felonies a term of imprisonment of at least

five years.

8 U.S.C. § 1182(c) (1994) (repealed by IIRIRA § 304(b),

110 Stat. at 3009-597, Sept. 30, 1996).

Although the literal terms of § 212(c) appeared to

apply only to resident aliens who had temporarily pro-

ceeded abroad and were returning to the United States,

since 1976 the section has been-interpreted by this

Court to permit the Attorney General to waive the

2 The Attorney General’s delegates include [Js and the BIA.

8a

grounds for deportation under certain conditions in the

case of a lawfully admitted permanent resident in de-

portation proceedings. See Buitrago-Cuesta v. INS,

7 F.3d 291, 292 (2d Cir. 1993); Francis v. INS, 532 F.2d

268, 272-73 (2d Cir. 1976).

Discretionary relief from deportation, which has been

available in our system in some form since at least 1917,

- see Francis, 532 F.2d at 270, provides the Attorney

General with a mechanism to consider the impact of

immigration on an alien’s family. Prior to 1996, INA

§ 212(c) gave power to the Attorney General to permit

a worthy alien to stay in this country in order to avoid

extraordinary hardship to the alien’s family in the

United States. See id. at 272. In a case where a con-

victed alien demonstrated that he or she had a lawful

unrelinquished domicile in the United States for at least

seven years and that his or her conviction was not for

an “aggravated felony,” for which he or she had served

a term of imprisonment of five years or longer, the

Attorney General could, in her discretion, waive de-

portation. See 8 U.S.C. § 1182(c) (1994). Under the law

in effect before 1996, if the Attorney General denied

relief, the alien could challenge that denial by filing a

petition for review in the court of appeals. See 8 U.S.C.

§ 1105a(a) (1994) (repealed by IIRIRA § 306(b), 110

Stat. at 3009-612, Sept. 30, 1996).

On April 24, 1996, Congress enacted the AEDPA, of

which § 440(d) expanded the category of criminal con-

victions that would render an alien ineligible to apply

for § 212(c) relief. The explicit goal of the AEDPA was

to enhance “the ability of the United States to deport

criminal aliens.” H.R. Conf. Rep. No. 104-518, at 119

9a

(1996), reprinted in 1996 U.S.C.C.A.N. 924, 9523 Sec-

tion 440(d) struck the language “has been convicted of

one or more aggravated felonies” and that which

followed in § 212(c) and inserted the following bar:

This section shall not apply to 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).

AEDPA § 440(d), 110 Stat. at 1277.4 Under the

amended version, a waiver could not be granted to an

alien convicted of certain enumerated offenses including

a drug-related crime, two or more offenses involving

3 This was by no means Congress’s first attempt to narrow a

criminal alien’s eligibility for a waiver from deportation) Congress

passed the Anti-Drug Abuse Act of 1988 and made conviction of an

aggravated felony an additional ground for deportation. See Anti-

Drug Abuse Act of 1988 § 7344, 102 Stat. at 4470-71 (codified at 8

U.S.C. § 1251(a)(2)(A)(iii) (1996)). In 1990, Congress amended

§ 212(c) and precluded waiver for aliens convicted of aggravated

felonies who had served at least five years in prison for the con-

viction. See Immigration Act of 1990, Pub. L. No. 101-649,

§ 511(a), 104 Stat. 4978, 5052 (1990), codified at 8 U.S.C. § 1182(c).

Also in 1990, Congress expanded the definition of aggravated

felony to include more offenses and render a greater number of

criminal aliens ineligible for discretionary relief. See id. § 501, 104

Stat. at 5048. Again, in 1994, Congress expanded the definition of

aggravated felony to include more classes of crimes. See Immi-

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

No. 103-416 § 222(a), 108 Stat. 4805, 43822 (1994), codified at

8 U.S.C. § 1101(a)(48).

* INA § 241, codified at 8 U.S.C. § 1251 (1994) was renumbered

by IIRIRA as INA § 287, codified at 8 U.S.C. 8 1227. See IIRIRA

§ 305(a)(92), 110 Stat. at 3009-598.

10a

moral turpitude, and an aggravated felony, regardless

of time served in prison.

Just a few months later, on September 30, 1996, Con-

gress enacted IIRIRA, which wrought further changes

to the availability of deportation waivers. IIRIRA in-

cluded temporary transitional rules and permanent

rules. Under the statutory interplay of IIRIRA’s tran-

sitional rules and the AEDPA, the Attorney General

was able, in her discretion, to grant relief from de-

portation under INA § 212(c) as amended by § 440(d).

See IIRIRA § 309(c)(1), 110 Stat. at 3009-625 (most

of IIRIRA amendments to the INA do not apply to

aliens placed in deportation proceedings prior to April

1, 1997); see also Tasios v. Reno, 204 F.3d 544, 547 n.1

(4th Cir. 2000).

The permanent provisions of IIRIRA, however, re-

peal INA § 212(c) altogether and consolidate prior “sus-

pension of deportation” relief and aspects of former

§ 212(c) relief into an entirely new form of relief. See 8

U.S.C. § 1229b(a)(3) (1999). Section 304(a) of IIRIRA,

entitled “Cancellation of removal for certain permanent

residents,” found at INA § 240A, provides:

The Attorney General may cancel removal in the

case of an alien who is inadmissible or deportable

from the United States if the alien- :

(1) has been an alien lawfully admitted for perma-

nent residence for not less than 5 years,

(2) has resided in the United States continuously

for 7 years after having been admitted in any status,

and

lla

(3) has not been convicted of any aggravated fe-

lony.

8 U.S.C. § 1229b(a) (1999). Cancellation of removal is

thus limited to a smaller category of aliens than had

historically been eligible for pre-AEDPA § 212(c) relief

because it is unavailable to all aliens convicted of

aggravated felonies and not just to those imprisoned for

more than five years. Compare 8 U.S.C. § 1182(c)

(1994) with 8 U.S.C. § 1129b (1999). Cancellation of re-

moval, however, is categorically available to a larger

number of aliens than those eligible under AEDPA

§ 440(d) because it restores the availability of dis-

cretionary relief for aliens deportable because they

‘ committed two or more crimes of moral turpitude under

INA § 237(a)(2)(A)(ii). Compare 8 U.S.C. § 1182(c) as

amended by AEDPA § 440(d) with 8 U.S.C. § 1229b

(1999).

This complex statutory history applies to St. Cyr as

follows: when St. Cyr pled guilty to drug trafficking i in

March of 1996, he was deportable under the immigra-

tion laws as an alien convicted of a drug-related offense

which constituted an aggravated felony as defined

under the INA. See 8 U.S.C. § 1251(a)(2)(B)(i) (1994); 8

U.S.C. § 1251(a)(2)(A)(iii) (1994); 8 U.S.C. § 1101(a)(43).

At the time he pled guilty to the deportable offense, he

was eligible to apply for a waiver of deportation under

§ 212(c) of the INA. On April 24, 1996, before removal

proceedings were commenced against St. Cyr, AEDPA

§ 440(d) was enacted, making aliens such as he ineligible

to apply for a § 212(c) waiver. By April 10, 1997, the

date that removal proceedings against St. Cyr were

commenced, INA § 212(c) relief had been repealed by

ITRIRA § 304(b) and replaced by “cancellation of re-

12a

moval” in § 304(a). St. Cyr was ineligible to apply for

“cancellation from removal” by its terms because he

was convicted of an aggravated felony. See 8 U.S.C.

§ 1101(a)(43). Thus, if either AEDPA § 440(d) or

IIRIRA § 304 apply to this case, as the INS argues, St.

Cyr is removable because he pled guilty to a deportable

offense and is statutorily ineligible to apply to the BIA

for discretionary relief from deportation.

B. Retroactivity.

Our analysis of whether AEDPA § 440(d) and

IIRIRA § 304 (referred to collectively as “the bar to

relief”) apply to removal proceedings against an alien

who pled guilty to a deportable crime before the date of

IIRIRA’s enactment is governed by the legal principles

announced by the Supreme Court in its landmark de-

cisions, Landgraf v. USI Film Prod., 511 U.S. 244

(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). The Supreme Court directs that we begin

with the “presumption . . . deeply rooted in our

jurisprudence,” against the retroactive application of

legislation. Landgraf, 511 U.S. at 265; Hughes Aircraft,

520 U.S. at 946 (quoting Landgraf). This “principle that

the legal effect of conduct should ordinarily be assessed

under the law that existed when the conduct took place

has timeless and universal appeal.” Landgraf, 511 U.S.

at 265 (quoting Kaiser Aluminum & Chem. Corp. v.

Bonjorno, 494 U.S. 827, 855, 110 S. Ct. 1570, 108

L.Ed.2d 842 (1990) (Scalia, J., concurring)). “Elemen-

tary considerations of fairness dictate that individuals

should have an opportunity to know what the law is and

to conform their conduct accordingly; settled expecta-

tions should not be lightly disrupted.” Jd. Application

of this presumption requires that statutes are not

13a

afforded retrospective effect unless “Congress has

clearly manifested its intent to the contrary.” Hughes

Aircraft, 520 U.S. at 946.

The Supreme Court in Landgraf provided the

following framework for determining whether a law

should apply to cases where the underlying conduct

occurred prior to enactment:

When a case implicates a federal statute enacted

after the events in suit, the court’s first task is to

determine whether Congress has expressly pre-

scribed the statute’s proper reach. If Congress has

done so, of course, there is no need to resort to

judicial default rules. When, however, the statute

contains no such express command, the court must

determine whether the new statute would have

‘retroactive effect, i.e, whether it would impair

rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new

duties with respect to transactions already com-

pleted. If the statute would operate retroactively,

our traditional presumption teaches that it does not

govern absent clear congressional intent favoring

such a result. |

Id. 511 U.S. at 280. Landgraf therefore contemplates a

two-step inquiry: (1) whether Congress prescribed the

statute’s temporal reach and, if not, (2) a determination

whether retrospective application would have a “retro-

active effect.” If application of the statute to the con-

duct at issue would have a retroactive effect, “then, in

keeping with our ‘traditional presumption’ against re-

troactivity, we presume that the statute does not apply

to that conduct.” Martin v. Hadix, 527 U.S. 3438, 352,

l4a

119 S. Ct. 1998, 144 L.Ed.2d 347 (1999) (quoting

Landgraf, 511 U.S. at 280).

1. Congressional Intent.

Our first step under J andgraf is to determine, using

ordinary tools for statutory interpretation, whether

Congress expressly prescribed that AEDPA § 440(d)

and IIRIRA § 304 should be applied to rem val pro-

ceedings involving convictions entered prior to its

enactment. See 511 U.S. at 280. In Henderson v. INS,

157 F.3d 106, 129-30 (2d Cir. 1998), cert. denied, Reno v.

Navas, 526 U.S. 1004, 119 S. Ct. 1141, 148 L.Ed.2d 209

(1999), we analyzed whether AEDPA § 440(d) applied

to deportation proceedings pending on the date of

enactment. Our analysis ended after the first Landgraf

step because there existed “abundant direct evidence

-that the section was not intended to apply retro-

actively” to deportation proceedings pending on the

date of enactment. See id. at 129. Our decision that

Congress clearly intended that AEDPA § 440(d) not

apply to aliens for whom deportation proceedings had,

on the date of AEDPA’s enactment, already com-

menced, was in accord with the majority of U.S. Courts

of Appeals to consider the same question. See Magana-

Pizano v. INS, 200 F.3d 608, 611 (9th Cir. 1999); Pak v.

Reno, 196 F.3d 666, 675-76 (6th Cir. 1999); Shah v.

Reno, 184 F.3d 719, 724 (8th Cir. 1999); Mayers v. INS,

175 F.3d 1289, 1303-04 (11th Cir. 1999); Goncalves v.

Reno, 144 F.3d 110, 133 (ist Cir. 1989), cert. denied,

Reno v. Goncalves, 526 U.S. 1004, 119 S. Ct. 1140, 143

L.Ed.2d 208 (1999); Sandoval v. Reno, 166 F.3d 225,

241-42 (3d Cir. 1999); LaGuerre v. Reno, 164 ¥.3d 1035,

1040-41 (7th Cir. 1998), cert. denied, Reno v. LaGuerre,

— US. —, 1208S. Ct. 1157, 145 L.Ed.2d 1069 (2000).

15a

The specific issue raised in this case, however, is not

whether the bar to relief applies to pending removal

proceedings but whether it bars an alien who pled

guilty to the deportable crime before the AEDPA or

IIRIRA’s effective date from applying for a waiver.

The question whether Congress intended AEDPA

§ 440(d) to apply to removal proceedings against an

alien ordered removed because of a pre-enactment con-

viction or criminal conduct has been much discussed in

numerous published opinions of district courts and

courts of appeals. When the past conduct under the -

Landgraf analysis changes from the commencement of

removal proceedings to the conviction or criminal con-

duct, the majority of courts of appeals that have con-

sidered AEDPA § 440(d) conclude that Congress’s

intent whether to apply the law retrospectively is

ambiguous. See Mattis v. Reno, 212 F.3d 31, 36 (1st Cir.

2000); Tasios v. Reno, 204 F.3d 544, 550 (4th Cir. 2000);

Magana-Pizano, 200 F.3d at 612; Requena-Rodriquez v.

Pasquarell, 190 F.3d 299, 307-8 (5th Cir. 1999);

DeSousa v. Reno, 190 F.3d 175, 186-87 (3d Cir. 1999);

Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150 (10th

Cir. 1999), cert. denied Palaganas-Suarez v. Greene,

—__, US.__,__ U.S. __, 120S. Ct. 1589, 146 L.Ed.2d

352 (2000); Turkhan v. Perryman, 188 F.3d 814, 826

(7th Cir. 1999). We agree with the majority of courts

that have held that Congress’s intent whether to apply

AEDPA § 440(d) to pre-enactment convictions

is ambiguous and because the question has been

thoroughly analyzed in the foregoing opinions, we do

not set forth our own detailed analysis of AEDPA

§ 440(d).

We turn now to IIRIRA § 304(b). The INS argues

that, unlike AEDPA § 440(d), Congress provided

;

16a

specific “statutory guidance” in IIRIRA § 309(a) as to

whether IIRIRA § 304 reaches back to bar an alien who

pled guilty to a deportable crime before the effective

date of IIRIRA. IIRIRA § 309(a) provides that the

new rules added by IIRIRA §§ 301-308, including

IIRIRA’s repeal of § 212(c) relief and substitution of

cancellation of removal relief contained in IIRIRA

§ 304(a), apply to an alien covered by the rules unless

that alien is currently in removal proceedings. See

IIRIRA § 309(a), 110 Stat. at 3009-625 (new rules apply

except to “an alien who is in exclusion or deportation

proceedings as of [April 1, 1997]”). Thus, according to

the INS, Congress indicated that IIRIRA’s permanent

rules, including § 304, apply in cases such as St. Cyr’s

that are commenced after April 1, 1997.

We disagree that IIRIRA’s general effective date

provision set forth in IIRIRA § 309(a) demonstrates

that Congress carefully considered whether the repeal

of the only opportunity for relief from removal should

bar that relief for an alien who pled guilty prior to

IIRIRA’s enactment to the crime rendering him or her

removable. In Landgraf, the Supreme Court noted that

a provision stating that “[a] statute will become effec-

tive on a certain date does not even arguably suggest

that it has any application to conduct that occurred at

an earlier date.” 511 U.S. at 257. Although the lan-

guage in IIRIRA § 309(a) is arguably more direct than

a typical effective date provision, it is not precise

enough to mandate retroactive application of IIRIRA

§ 304 under the first step of the Landgraf inquiry.

“(Tjhe only presumption mentioned in [Landgraf] is a

.general presumption against retroactivity,” Hughes

Aircraft, 520 U.S. at 950. Accordingly, in its post-

Landgraf decisions, the Supreme Court has indicated

17a

that a “heightened level of clarity” is required to justify

the retroactive application of a law that implicates past

conduct. See Salahuddin v. Mead, 174 F.8d 271, 275 (2d

Cir. 1999) (citing Lindh v. Murphy, 521'U.S. 320, 328

n.4, 117 S. Ct. 2059, 1388 L.Ed.2d 481 (1997); Hughes

Aircraft, 520 U.S. at 946 (1997)). Therefore, Congress

must have used statutory language that can “sustain

only one interpretation” in order to make IIRIRA § 304

retroactive to pre-enactment guilty pleas. See Lindh,

521 U.S. at 328 n.4. We shall not infer from the general

language contained in IIRIRA § 309(a), making § 304

effective in pending proceedings, that Congress also

intended the bar to discretionary relief to apply to pre-

enactment guilty\ pleas, an application that we hold

today has an impermissible retroactive effect. See infra

at Section IIB(2).

An examination of other IIRIRA provisions demon-

strates that despite the general effective date pro-

vision, Congress made sure to use specific language,

capable of only one interpretation, when it clearly

intended a provision to apply to past conduct relevant

to the particular provision. See, é.g., IIRIRA § 321(c),

110 Stat. at 3009-628 (providing that amended defini-

tion of “aggravated felony” applies regardless of “when

the conviction occurred”) (emphasis added); IIRIRA

§ 322(c), 110 Stat. at 3009-629 (providing that new de-

finitions of “conviction” and “term of imprisonment”

shall apply “to convictions and sentences entered be-

fore, on, or after the date of the enactment of this Act”)

(emphasis added); IIRIRA § 324(c), 110 Stat: at 3009-

629 (providing that provision governing re-entry of

deported aliens applies to “departures that occurred

before, on, or after the date of enactment” of IITRIRA)

(emphasis added); IIRIRA § 347(c), 110 Stat. at 3009-

18a

639 (providing that provision rendering an alien deport-

able because he or she voted in violation of the law is

applicable to “voting occurring before, on, or after the

date of the enactment of this Act.”) (emphasis added).

Indeed, that Congress knew how to explicitly make an

IIRIRA provision applicable to “convictions and sen-

tences entered before, on, or after the date of the

enactment of the Act,” is demonstrated by IIRIRA

§ 321(c) and IIRIRA § 322(c). Because Congress made

some provisions specifically applicable to prior con-

victions but did not do so in regard to IIRIRA § 304, it

appears that Congress did not definitively decide the

issue of § 304’s retroactive application to pre-enactment

convictions.

The INS notes that the removal ground underlying

St. Cyr’s proceedings, made applicable by IIRIRA,

renders aliens subject to removal proceedings if they

were “convicted of an aggravated felony at any time

after admission.” 8 U.S.C. § 1227(a)(2)A)(iii) (1999)

(emphasis added). The INS argues that the use of past-

tense language to qualify the timing of a deportable

conviction shows that Congress clearly intended that

an alien, such as St. Cyr, who committed his or her

crime and was convicted prior to IIRIRA’s April 1,

1997, effective date would become subject to removal

proceedings in which § 212(c) relief is no longer avail-

able.

We are not persuaded that the use of the past tense

in INA § 237 is an indication that Congress intended

IIRIRA § 304 to apply retrospectively. A similar argu-

ment was considered and rejected by the Supreme

Court in Martin v. Hadix, 527 U.S. at 354-55. There,

the Court considered the retroactivity of the Prison

19a

Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C.

§ 1997e(d)(3), which limited the fees available to

prisoners’ attorneys who were monitoring prisons post-

judgment. See Martin, 527 U.S. at 347. The petitioners

argued that the language of § 803(d)(1)—"[iJn any

action brought by a prisoner who is confined [to a

correctional facility] . . . attorney’s fees . . . shall not

be awarded”—clearly expressed a congressional intent

that § 803(d) apply to pending cases. Id. at 2003-4

(emphasis added). The Court rejected the argument

that Congress’s use of a past-tense verb clearly indi-

cated Congress’s intent that the provision apply to

pending cases. The Court reasoned that § 803(d)(1)

“define[s] the substantive availability of attorney’s fees;

[it] [does] not purport to define the temporal reach of

these substantive limitations.” Jd. at 354. Thus, the

Court concluded that the language fell short of dem-

onstrating a clear congressional intent to apply § 803(d)

retrospectively to pending cases and that had Congress \

intended the provision to apply to all fee orders, in-

cluding those compensating work performed before the

effective date, “it could have used language more obvi-

ously targeted to addressing the temporal reach of that

section.” Id. |

Under the reasoning of Martin, the use of a past-

tense verb in INA § 237(a)(2)(iii) is not dispositive of

Congress’s intent to apply IIRIRA § 304 retroactively

to pre-enactment convictions. The language “convicted

of an aggravated felony” in INA § 237(a)(2)(iii) is used

to describe the substantive availability for removal

from the United States. It is not used to describe the

retrospective application of IIRIRA § 304. We there-

fore cannot and will not rely on the text of INA

§ 237(a)(2)(A)iii) to hold that IIRIRA § 304 applies.in_

20a

cases where an alien pled guilty to the underlying

deportable crime prior to IIRIRA’s enactment.

This is not to say that the INS’s argument is not

sophisticated. In Salahuddin, this Court relied on a

similarly formulated argument to hold that Congress

clearly intended that a statute be applied prospectively.

174 F.3d at 274-75. In that case, the appellant

argued that the exhaustion requirement of 42 U.S.C.

§ 1997e(a), as amended by the PLRA, should not apply

to an action pending at the time of its enactment. See

id. at 272. Because the new provision provided that no

action “shall be brought” until administrative remedies

are exhausted, we concluded that a plain reading of the

statute made it clear that Congress intended it to be

applied prospectively. Jd. at 274. We reasoned there

that the use of the future tense in the provision was

sufficient evidence of Congress’s intent to apply the

statute prospectively. Seeid. at 274-75. An inter-

pretation that supports the application of a statute

prospectively, however, does not justify its retroactive

application. See id. at 275 (distinguishing between

interpretations justifying prospective and retroactive

applications); see also Goncalves, 144 F.3d at 129 (refus-

ing to require that Congress draft an explicit effective

date provision to insure against retroactive application

because that rule would reflect a presumption in favor

of retroactive application). The longstanding presump-

tion is against, not in favor of, the retroactive appli-

cation of a statute to pre-enactment conduct. See

Landgraf, 511 U.S. at 265. Were we to infer from the

sole use of a tense that Congress intended the IIRIRA

§ 304 bar to apply to past conduct, we would reverse

this established presumption. Therefore, although we

interpreted a 42 U.S.C. § 1997e(a) in Salahuddin to

21a

apply prospectively based on the use of future tense

-phraseology, the presumption against retroactive appli-

cation requires a more explicit statement from Con-

gress to interpret IIRIRA § 304 to apply retroactively.®

In sum, we conclude that there is no clear evidence

that Congress considered and decided whether IIRIRA

§ 304’s bar to relief from removal applies retrospec-

tively to removal proceedings commenced after

IIRIRA’s enactment against an alien who pled guilty to

the underlying criminal conduct before its enactment.

The requirement that Congress “first make its inten-.

tion clear helps ensure that Congress itself has deter-

mined that the benefits of retroactivity outweigh the

potential for disruption or unfairness.” Landgraf, 511

® St. Cyr, relying on a brief submitted in the consolidated cases,

Calcano-Martinez v. INS, Civ. Nos. 99-4033; 98-4214; 98-4246 (2d

Cir. [Sept. 1, 2000]), agrees that IIRIRA lacks an express directive

that the statute apply retrospectively and contends that IIRIRA

reveals Congress’s explicit intent that “cancellation of removal” be

applied only to those cases involving post-enactment convictions.

According to St. Cyr, the absence of specific retrospective lan-

guage in IIRIRA § 304, when such language is used in other

IIRIRA provisions, requires the court to infer by negative impli-

cation that Congress clearly intended IIRIRA § 304 to apply

prospectively. We disagree. The provisions for which Congress

expressly provided a retroactive temporal reach cover distinct

subject matters that are too dissimilar to the-availability of dis-

cretionary relief to support a negative inference in favor of pro-

spective application of IIRIRA § 304. See Martin, 527 U.S. at 356-

57. In addition, the effective date provision in IIRIRA § 309(a),

although it does not make IIRIRA § 304 retroactive to pre-enact-

ment convictions, does render Congressional intent ambiguous.

Therefore, we decline to infer from this lack of guidance that Con-

gress intended IIRIRA § 304 to apply only prospectively and hold

that Congress’s intent as to the section’s temporal reach is ambig-

uous.

22a

U.S. at 268. The statutory language does not convince

us, and the INS has pointed to no legislative history in

support of the conclusion, that Congress specifically

considered the precise issue whether IIRIRA § 304

should be applied to an alien who rendered a pre-enact-

ment guilty plea. Therefore, we hold Congress’s intent

with respect to the application of IIRIRA § 304 to pre-

enactment convictions is unclear.°

2. Retroactive Effect.

Having concluded that no clear congressional intent

exists as to whether AEDPA § 440(d) or IIRIRA § 304

° In some cases, the interest in avoiding constitutional ques-

tions will cause a court to refrain from applying a statute retro-

actively. See Landgraf, 511 U.S. at 267 n.21 (citing Pension

Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.

Ct. 2709, 81 L.Ed.2d 601 (1984); Usery v. Turner Elkhorn Mining

Co., 428 U.S. 1, 17, 96 S. Ct. 2882, 49 L.Ed.2d 752 (1976)). Our

holding in this case is guided, in part, by that principle. Even when

Congress clearly intends that legislation is to be applied to past

conduct, Congress’s broad power to enact retroactive legislation

does not go completely unchecked. The Fifth Amendment’s Due

Process Clause places a narrow limit on Congress’s power to

sweep away citizens’ settled expectations under the law. The

Constitution’s safeguard against retroactivity is especially appro-

priate where it protects an unpopular group or individual. See

Landgraf, 511 U.S. at 266; Pottinger, 51 F. Supp. 2d at 361 (the

presumption against retroactivity “reflects our enduring commit-

ment to the protection of the unpopular and the voiceless from

the retributive and vindictive use of retroactive legislation.”).

Because, in our view, a profound constitutional question would

arise under the Fifth Amendment’s Due Process Clause were we

to interpret IIRIRA as precluding the availability of § 212(c) relief

in cases where an alien pled guilty or nolo contendere in reliance on

the availability of § 212(c) relief, our ruling today that IIRIRA

§ 304 does not apply retroactively to pre-enactment guilty pleas

avoids this result.

23a

apply to an alien who pled guilty to a removable crime

prior to the statute’s enactment, we must determine

whether a bar to relief has any retroactive effect. See

Landgraf, 511 U.S. at 280; Hughes Aircraft, 520 U.S. at

946. “A statute does not operate ‘retrospectively’

merely because it is applied in a case arising from

conduct antedating the statute’s enactment.” Land-

graf, 511 U.S. at 269. Rather, our inquiry requires a

“common sense, functional judgment” to determine

“whether the new provision attaches new legal conse-

quences to events completed before its enactment.”

Martin, 527 U.S. at 357-58 (quoting Landgraf, 511 U.S.

at 270). A statute that “would impair rights a party

possessed when he acted, increase a party’s liability for

past conduct, or impose new duties with respect to

transactions already completed” has retroactive effect.

Landgraf, 511 U.S. at 280.

We are the first U.S. Court of Appeals to consider

whether applying IIRIRA § 304 to pre-enactment con-

victions is impermissibly retroactive. A number of

our sister courts, however, have considered the similar

question of whether the scope of AEDPA § 440(d)

extends to deportation proceedings that involve con-

victions or guilty pleas that occurred prior to the

AEDPA’s enactment. The Tenth, Fifth, and Third Cir-

cuits have analyzed whether AEDPA § 440(d) was

retroactive as applied to aliens whose criminal convic-

tions occurred prior to the AEDPA’s effective date.

See Jurado-Gutierrez, 190 F.3d at 1147; Requena-

Rodriquez, 190 F.3d at 306; DeSousa, 190 F.3d at

185. Having found that Congressional intent to apply

AEDPA § 440(d) retrospectively was ambiguous, these

Courts, adopting the INS’s position, determined that

there existed no impermissible retroactive effect in

24a

applying AEDPA § 440(d) to pre-enactment convic-

tions. See Jurado-Gutierrez, 190 F.3d at 1150-52;

Requena-Rodriquez, 190 F.3d at 307-8; DeSousa, 190

F.3d at 187.

In three very recent cases, the First, Fourth, and

Ninth Circuits had occasion to consider specifically

whether AEDPA § 440(d) reached backward to cover a

pre-enactment guilty or nolo contendere plea to an

otherwise qualifying offense. See Mattis, 212 F.3d at

37; Tasios, 204 F.3d at 551; reh’g en banc denied, Tasios

v. Reno, No. 99-6061 (9th Cir.) (May 25, 2000); Magana-

Pizano, 200 F.3d at 612. In these cases, the relevant

conduct for the retroactive determination was specifi-

cally a guilty or nolo contendere plea. The Fourth Cir-

cuit concluded that application of AEDPA § 440(d)’s

bar on discretionary relief previously afforded by INA

§ 212(c) to guilty pleas made before the AEDPA’s

enactment “would upset reasonable, settled expecta-

tions and change the legal effect of prior conduct.”

Tasios, 204 F.3d at 552. Accordingly, that Circuit

adopted a blanket rule that AEDPA § 440(d) does

not apply retroactively. See id. The First and Ninth

Circuits, adopting a middle ground, determined that

AEDPA § 440(d) should not apply to an alien who can

make a specific showing that he or she entered a guilty

or nolo contendere plea in reliance upon the relief

afforded by INA § 212(c). See Mattis, 212 F.3d at 39-40;

Magana-Pizano, 200 F.3d at 613-14.

Finally, the Seventh Circuit has developed an ap-

proach that is in accord with the decisions of the First

and Ninth Circuits. It has announced a general rule

that AEDPA § 440(d)’s bar on INA § 212(c)’s discre-

tionary relief applies retroactively to pre-enactment

25a

guilty pleas. See LaGuerre, 164 F.3d at 1041; Turkhan,

188 F.3d at 827. It has also, however, identified a parti-

cular set of circumstances where applying AEDPA

§ 440(d) to past conduct would have an impermissible

retroactive effect. Under the law of the Seventh

Circuit, AEDPA § 440(d) applies retrospectively unless

an alien actually had conceded deportability, despite a

colorable defense, in reliance upon receiving a § 212(c)

waiver. See Turkhan, 188 F.3d at 827; Morales-

Ramirez v. Reno, 209 F.3d 977, 982 (7th Cir. 2000).

We conclude that AEDPA § 440(d) and IIRIRA § 304

as applied to a guilty or nolo contendere plea that pre-

-dates the statutes’ enactment has an impermissible

retroactive effect. In so holding, we follow the reason-

ing of the Fourth Circuit in Tasios v. Reno that such an

application of the bar to relief would upset settled

expectations and change the legal effect of prior con-

duct.

As an initial matter, we note that it is difficult to

argue that barring eligibility for discretionary relief

on the basis of pre-enactment criminal conduct—as

opposed to a plea going to the guilt of a deportable

crime—constitutes an impermissible retroactive appli-

cation of a statute. Indeed, we agree that,

It would border on the absurd to argue that these

aliens might have decided not to commit drug

crimes, or might have resisted conviction more vig-

orously, had they known that if they were not only

imprisoned but also, when their prison term ended,

ordered deported, they could not ask for a discre-

tionary waiver of deportation.

26a

Jurado-Gutierrez, 190 F.3d at 1150-51 (quoting La-

Guerre, 164 F.3d at 1041). Thus, we conclude that the

bar to discretionary relief applies regardless of whether

a legal permanent alien’s underlying criminal conduct

pre-dated the AEDPA or IIRIRA.

However, in Hughes Aircraft, the Supreme Court

conducted a retroactivity analysis that was not focused

solely on the petitioner’s primary conduct, but also on

the relevant secondary conduct. See 520 U.S. at 947-48.

Furthermore, “it is the conviction, not the underlying

criminal act, that triggers the disqualification from

§ 212(c) relief.” Mattis, 212 F.3d at 37. Thus, in _

considering whether the changes to the availability of

discretionary relief would alter the legal effect of

conduct that predates the AEDPA and IIRIRA’s

enactment, our analysis focuses on the decision to

enter a guilty plea to a crime—not on the criminal

conduct—that qualifies the alien for removal under the

immigration laws.

A “legal change that would have an impact on private

parties’ planning” triggers the presumption against

retroactivity. See Landgraf, 511 U.S. at 282-83. A

number of courts have documented that “an alien

charged with a crime [making him eligible for deporta-

tion] would factor the immigration consequences of

conviction in deciding whether to plead or proceed to

trial... .” Tasios, 204 F.3d at 552 (quoting Magana-

Pizano, 200 F.3d at 612); see also Pottinger v. Reno, 51

F. Supp. 2d. 349, 362-63 (E.D.N.Y. 1999); Wallace v.

Reno, 24 F. Supp. 2d 104, 110 (D. Mass. 1998), aff’d 194

F.3d 279 (1st Cir. 1999); Mojica v. Reno, 970 F.Supp.

130, 177 (E.D.N.Y. 1997), affd in part, dismissed in

part, Henderson v. INS, 157 F.3d 106 (2d Cir. 1998);

27a

Reyes-Hernandez v. INS, 89 F.3d 490, 492 (7th Cir.

1996).

As the Amici’ in this case demonstrate, a legal re-

sident who is charged with a crime that renders him

removable from the United States carefully considers

the immigration consequences of his or her conviction

- and, specifically, the availability of discretionary relief

from removal. It is not unreasonable to attribute

knowledge of the availability of relief to a legal resident

because it is a common requirement that defense

counsel and the court advise a criminal defendant of the

immigration consequences of a guilty plea. Addi-

tionally, an attorney’s professional duty to his or her

client includes advising that client of the immigration

consequences of a plea or conviction. See Magana-

Pizano, 200 F.3d at 612; see also ABA Standards for

Criminal Justice, Pleas of Guilty, Standard 14-3.2, com-

mentary at 75 (2d ed. 1982) (providing that where it is

apparent that a defendant faces deportation as a

result of conviction, counsel “should fully advise the

defendant of these consequences.”); National Legal Aid

and Defender Association Performance Guidelines for

Criminal Defense Representation, Guideline 6.2(a)(3)

and commentary (1994) (recognizing that it is defense

counsel’s duty to “be fully aware of, and make sure that

the client is fully aware of . . . consequences of

conviction such as deportation.”). A criminal defense

law treatise provides that:

” In regard to this point, Amici include The Legal Aid Society

of the City of New York, The New York State Association of

Criminal Defense Lawyers, and the New York State Defenders

Association. These briefs were submitted in Calcano-Martinez v.

INS, Civ. Nos. 99-4083; 98-4214; 98-4246 (2d Cir. 2000).

28a

Preserving the client’s right to remain in the United

States may be more important to the client than any

potential jail sentence. Thus, the immigration

consequences of a prosecution may totally alter the

strategies chosen . . . a[ny] attorney who suspects

that this client is an alien has a duty to inquire and

to protect his client’s immigration status. Pleas and

admissions must be approached with caution and

with knowledge of the consequences. . . .

3 Bender’s Criminal Defense Techniques (1999)

§ 60A.01 and § 60A.2[2]. Furthermore, lawful perma-

nent residents are typically part of a resident alien

community and are likely aware of what happens to

other members of the community who engage in

criminal conduct. See Pottinger, 51 F. Supp. 2d at 363.

There is also little doubt that before the AEDPA and

IIRIRA were enacted, an alien’s reliance on the possi-

bility of receiving a waiver of deportation was reason-

able because there was a strong possibility that he or

she would receive relief. See Tasios, 204 F.3d at 551

(“in the years immediately preceding the enactment of

AEDPA, immigration judges and the BIA granted over

half of the § 212(c) applications they decided”). When

a request was denied, an alien could petition a court of

appeals for review and, “on a nontrivial number of

occasions,” these denials were overturned. See id. at

551-52 (quoting Reyes-Hernandez, 89 F.3d at 492).

When, in March of 1996, St. Cyr pled guilty to his

drug-trafficking offense, he and legal residents in his

position were removable from the United States. He

and others like him, however, could depend on the

availability of a hearing to determine his eligibility for

29a

relief from removal. Given the dramatic impact re-

mova! would have on a legal resident’s life, it is likely

that a legal resident would, because of the possibility of

receiving a lighter sentence, only decide to concede

guilt to a crime that renders him or her removable in

order to be eligible to apply for relief from removal.

Under the law today, this settled expectation is upset

dramatically. For certain classes of aliens, there is

currently no reason to forgo fighting the conviction of a

qualifying crime and enter a plea because, pursuant to

the AEDPA and IIRIRA, there is no possibility of

relief from removal as a result of the plea.

“(Individuals should have an opportunity to know

what the law is and to conform their conduct accord-

ingly.” Landgraf, 511 U.S. at 265. Because there is

sufficient evidence that a legal resident accused of a

crime that renders him or her removable from this

country would have conformed his or her conduct ac-

cording to the availability of relief when he or she pled

guiity, AEDPA § 440(d) and IIRIRA § 304 would

severely upset settled expectations were it applied

retroactively to pre-enactment guilty pleas. A repeal of

the eligibility to apply for relief from removal would

attach new legal consequences to a legal resident’s

guilty plea to a removal crime. Therefore, AEDPA

§ 440(d) and IIRIRA § 304 have an impermissible

retroactive effect as applied to pre-enactment guilty

pleas.

We are not persuaded that, as the INS argues, be-

cause the bar to relief can be described as a new

jurisdictional rule—in that it gives the Attorney

General jurisdiction to grant a waiver in her discretion

—it automatically has no retroactive effect. It is true

30a

that a change in law that “speak[s] to the power of the

court rather than to the rights or obligations of the

parties” may be applied in a case without raising con-

cerns that it is impermissibly retroactive. Landgraf,

511 U.S. at 274 (quoting Republic Nat'l Bank of Miami

v. United States, 506 U.S. 80, 100, 118 S. Ct. 554, 121

L.Ed.2d 474 (1992) (Thomas, /. concurring). In Hughes

Aircraft, however, the Supreme Court explained that a

jurisdictional statute that does not “merely address [ ]

which court shall have jurisdiction to entertain a parti-

cular cause of action” but, rather, affects “whether [a

claim] may be brought at all” should not presumptively

be given retroactive effect. 520 U.S. at 951. AEDPA

§ 440(d) and IIRIRA § 304 do not merely change the

degree of deference to be afforded a § 212(c) request or

change the judicial or administrative forum in which

relief may be granted. Rather, they alter the sub-

stantive rights of aliens subject to removal proceedings

because it eradicates a form of relief previously avail-

able. By their terms, AEDPA § 440(d) and IIRIRA

§ 304 attach new substantive legal consequences to a

guilty or nolo contendere plea to a deportable crime and

would have an impermissible retroactive effect if ap-

plied to pre-enactment pleas.

Our conclusion here is consistent with the law of this

Circuit. In Buitrago-Cuesta, we considered a 1990

amendment to INA § 212(c) which precluded an alien

who had “been convicted of an aggravated felony and

has served a term of at least 5 years” from seeking a

discretionary waiver from deportability. See 7 F.3d at

292. The petitioner in that case argued that because at

the time of his conviction his crime was not defined as

an “aggravated felony,” the 1990 amendment should not

apply to his deportation proceeding commenced prior to

3la

the amendment. See id. We decided that Congress

intended that the 1990 amendment be applied retro-

spectively. See id. at 295. Since we decided Buitrago-

Cuesta, however, the Supreme Court has decided

Landgraf, Hughes Aircraft, and Martin, cases that

honed retroactivity principles. See id. at 293 (“{at time

of decision] [t]he Supreme Court’s position on the retro-

activity of civil statutes is somewhat unclear.”).

Moreover, the petitioner in Buitrago-Cuesta did not

pled guilty to a deportable crime but instead was

convicted after a jury trial in state court. See id. at 293.

Therefore, our ruling today that the 1996 amendments

insofar as they bar relief afforded prior to their

enactment have a retroactive effect as applied to pre-

enactment guilty pleas—a situation where an alien is

likely to strategize according to the availability of

discretionary relief—does not contradict our earlier

ruling in Buitrago-Cuesta.

The INS’s warning against “an absurd superpro-

spective result” is also unfounded. We do not rule

today that application of the 1996 amendments to pre-

enactment convictions has an impermissible retroactive

effect. Rather, we hold that AEDPA § 440(d) and

ITRIRA § 304 do not apply to pre-enactment guilty

pleas or pleas of nolo contendere because such an appli-

cation would upset reasonable, settled expectations and

change the legal effect of prior conduct. Our ruling

affects the narrow class of cases where an alien pled

guilty to a criminal offense that qualifies as a removable

crime. Discretionary relief as amended by AEDPA

§ 440(d) still applies to all aliens with convictions pre-

dating its enactment and to all guilty pleas entered

after its effective date. Likewise, cancellation of re-

moval still applies to all aliens with convictions pre-

32a

dating IIRIRA and to all guilty pleas entered by aliens

to deportable crimes after it took effect.

CONCLUSION

In sum, we hold that the district court had habeas

corpus jurisdiction under 28 U.S.C. § 2241 to review St.

Cyr’s challenge to the BIA’s interpretation of AEDPA

§ 440(d) and IIRIRA § 304. On the merits, we hold

that the bar on applying for relief enacted in AEDPA

§ 440(d) and IIRIRA § 304 does not apply to an alien

who pled guilty or nolo contendere to an otherwise

qualifying crime prior to IIRIRA’s enactment date.

Because we determine that these laws do not apply

retroactively to St. Cyr, we do not decide his consti-

tutional challenges. The district court is affirmed

insofar as it held that the bar to discretionary relief

from removal does not apply to guilty and nolo con-

tendere pleas entered before IIRIRA’s enactment.

33a

JOHN M. WALKER, Jr., Circuit Judge, Dissenting:

There is no doubt that it is within Congress’s power

to redefine what will subject an alien to removal, see

Mathews v. Diaz, 426 U.S. 67, 81, 96 S. Ct. 1883, 48

L.Ed.2d 478 (1976), and that Congress may effect such

changes to require removal of an alien who would not

have been subject to removal before the changes be-

came effective,* see United States v. Koziel, 954 F.2d

831, 834 (2d Cir. 1992) (upholding retroactive repeal of

Judicial Recommendations Against Deportation for

certain criminal aliens); Marcello v. Bonds, 349 U.S.

302, 314, 75 S. Ct. 757, 99 L.Ed. 1107 (1955) (permitting

deportation based on conviction that would not have

been a basis for deportation when the crime was com-

mitted). Indeed, there is a long tradition of Congress

retroactively changing the qualifications for aliens’ con-

* The majority hints that removing 8 U.S.C. § 1182(c¢)

(“$ 212(c)”) relief retroactively would raise “a profound consti-

tutional question.” Supra at [24 n.6). I share no such concern.

remove § 212(c) relief, as advocated by the INS. I do not dispute

the general presumption against the retroactive application of

congressional enactments, especially where the rights of “an un-

popular group or individual” are affected. Jd. But this is not an

issue of constitutional dimension. Accordingly, I share the view of

the majority, as expressed in the body of its opinion, that our

inquiry here is governed by retroactivity analysis and not by the

canon of construction requiring us to avoid constitutional ques-

tions.

34a

tinued residence in the United States. See, eg.,

Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S. Ct.

512, 96 L.Ed. 586 (1952); Mahler v. Eby, 264 U.S. 32, 39,

44 S. Ct. 283, 68 L.Ed. 549 (1924); Bugajewitz v. Adams,

228 U.S. 585, 592, 33 S. Ct. 607, 57 L.Ed. 978 (1913).

While there is little doubt that Congress may alter the

requirements for continued residence in this country,

identifying when Congress has chosen to exercise its

power retroactively has proven a more difficult pro-

blem and it is here that my views diverge from those of

my colleagues.

The majority’s opinion has correctly identified the

nature of the inquiry that we must undertake. See

supra [13a-14a] (quoting Landgraf v. USI Film Prods.,

511 U.S. 244, 280 (1994)). The threshold question in the

Landgraf framework is whether Congress has ex-

pressly provided for a statute’s retroactive application.

If so, our inquiry is at an end. See id.; Martin v. Hadiz,

527 U.S. 343, 352, 119 S. Ct. 1998, 144 L.Ed.2d 347

(1999). The majority has found ambiguity in the tem-

poral reach of Congress’s repeal of § 212(c) relief for

criminal aliens. I disagree.

I believe that Congress’s intent is clear on the face of

the statute and that IIRIRA, Pub. L. No. 104-208, 110

Stat. 3009-546 et seg. (1996), has removed the avail-

ability of § 212(c), or equivalent relief, from criminal

aliens like the petitioner here, regardless of when they

entered their guilty pleas. This plain congressional

intent is evident from IIRIRA’s general statutory

framework and its comprehensive method of imple-

mentation. See Robinson v. Shell Oil Co., 519 U.S. 337,

341, 117 S. Ct. 843, 1386 L.Ed.2d 808 (1997) (“The plain-

ness or ambiguity of statutory language is to be deter-

35a

mined 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.” (emphasis added)).

IIRIRA § 309 fixed April 1, 1997 as IIRIRA’s effec-

tive date. See 110 Stat. at 3009-625. While § 309 con-

tains a general savings clause listing those aliens for

whom IIRIRA does not apply as of its effective date,

none of those exceptions are relevant here. See

§ 303(b)(2), 110 Stat. at 3009-586; § 242(g¢), 8 U.S.C.

§ 1252(g); § 306(c), 110 Stat. at 3009-612; §§ 308(d)(2)(D)

& (d)(5), 110 Stat. at 3009-617, 619. Moreover, Con-

gress, intending that IIRIRA be a complete break from

the past, enacted transitional provisions that would

operate during a phase-in period ending on IIRIRA’s

effective date. See Calcano-Martinez v. Reno, Civ.

Nos. 98-4033, 98-4214, 98-4246, at [50a-54a] (describing

ITRIRA’s transitional rules). This legislative scheme of

transitional provisions followed by permanent legisla-

tion can be reduced to one essential point relevant to

IIRIRA’s repeal of § 212(c): Congress intended the

whole of IIRIRA’s permanent provisions to apply to

every alien as of April 1, 1997, except where it ex-

pressly exempted those provisions that were not meant

to apply as of that date. The provision repealing

§ 212(c) was not one of them. Included in the provisions

generally effective as of April 1, 1997 is § 304(b),

repealing § 212(c), and § 304(a), replacing § 212(c) with

new provisions entitled “Cancellation of Removal.” See

§ 304, 110 Stat. at 3009-594-97. The new cancellation of

removal proceedings exclude Specified classes of

criminal aliens, including the petitioner here, from

seeking discretionary relief.

36a

Congress could not have been more express about its

intent to have ILRIRA apply to all aliens against whom

deportation or removal proceedings were not yet pend-

ing as of April 1, 1997. See generally § 309. If, as peti-

tioner necessarily concedes, it is IIRIRA and not the

old INA that subjects him to removal, then it is

IIRIRA’s provisions that provide for the limits of judi-

cial review and for cancellation of removal proceedings.

I need look no farther to find that Congress made

express its intention to disallow the relevant aliens

against whom removal proceedings were filed after

April 1, 1997 from seeking the protection of-§ 212(c)

relief. Because petitioner falls generally within

IIRIRA’s provisions, he is subject to IIRIRA’s “Can-

cellation of Removal” proceedings—from which, be-

cause of his criminal past, he is expressly excluded—

and does not have access to § 212(c) relief.

The majority discounts this argument, suggesting

that it is based on nothing more than the statute’s

effective date and that such reasoning is impermissible

because of the pronouncement in Landgraf that “[a]

statement that a statute will become effective on a

certain date does not even arguably suggest that it has

any application to conduct that occurred at an earlier

date.” Landgraf, 511 U.S. at 257. But the Court’s

statement in Landgraf is inapplicable here. Changes to

the Civil Rights Act of 1991, at issue in Landgraf,

created new rights of employees “to recover com-

pensatory and punitive damages for certain violations

of Title VII of the Civil Rights Act of 1964,” id. at 247,

and the Court had to decide only whether a Title VII

plaintiff whose suit was on appeal when the 1991 Act

was enacted should be retroactively entitled to the

Act’s punitive damages provisions. In that context, the

37a

fact that the 1991 Act was enacted on November 21,

1991 did not help the Court to decide whether it was

intended to apply to claims predating the Act. But

here, where the entirety of the new IIRIRA applies

generally to the petitioner— indeed, if it did not, he

would not be subject to removal at all—IIRIRA’s

complex provisions governing its effective dates are

Squarely relevant to determining the extent of

ITRIRA’s application as to him. In my view, these

provisions plainly provide that petitioner is not entitled

to § 212(c) relief.

The awkward statutory patchwork sewn together by

-the majority from scraps of IIRIRA and the former

INA reveals Congress could not have intended the ma-

jority’s conclusion. The majority’s opinion faces insur-

mountable hurdles even on a linguistic level. The peti-

tioner here is subject to removal under the new

IIRIRA. With this opinion, the majority has permitted

petitioner access to a waiver of deportation hearing

under § 212(c) that was part and parcel of a statutory

scheme that no longer exists. Under IIRIRA, there is

no such thing as deportation that can be waived. In

order to reach the result they want, the majority has

effectively taken a provision that they like from a

Statute that has been substantially replaced, and

grafted it onto the replacement.

Insofar as the Landgraf presumption against retro-

activity is a canon of construction that permits us to

divine the intent of Congress, I cannot concur in a

conclusion that flies so indisputably in the face of Con-

gress’s express denial of cancellation of removal hear-

ings for this alien. Combined with what I think are

compelling expressions of Congress’s actual intent to

38a

repeal § 212(c) retroactively as to the broader class of

criminal aliens described in IIRIRA § 304, I respect-

fully dissent from my colleagues’ view that § 304 may

only be applied prospectively to pleas antedating

IIRIRA’s enactment.

Because Congress’s intent is plain on the face of the

statute, I see no reason to reach the second step of the

Landgraf analysis which requires us to determine

whether IIRIRA’s provisions governing cancellation of

removal have genuine retroactive effect. Nevertheless,

if I were to reach Landgraf’s second step, I would con-

clude that provisions denying cancellation of removal do

not operate retroactively. I believe that analysis of this

question should be governed by cases arising in the

context of the substantially analogous 1990 amendment

to the INA.

The 1990 amendment limited the relief afforded by

§ 212(c)’s waiver of deportation by excluding aggra-

vated felons who were sentenced to terms of imprison-

ment of at least five years. In holding that the 1990

amendment did not have a retroactive effect, the Ninth

Circuit persuasively held that “[clongressional repeal of

a discretionary power to relieve an alien from deporta-

tion does not attach any new legal consequences to the

pre-enactment events.” Samaniego-Meraz v. INS, 53

F.3d 254, 256 (9th Cir. 1995). As in the present case,

“the consequences of petitioner’s criminal conduct were

clear at the time of that conduct and they remain un-

changed today. He was subject to possible criminal

sanctions and deportation.” Scheidemann v. INS, 83

F.3d 1517, 1523 (8d Cir. 199€.. “In general, the concern

regarding retroactive application of statutes is the

deprivation of rights without notice and fair warning;

39a

such concerns are not present in this case... . In

this case, Congress did not attach additional conse-

quences [to past criminal activity] but merely withdrew

a previously available form of discretionary relief.” Jd.

(quoting De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.

1993)) (alterations in original). True retroactivity

would occur if IIRIRA revoked § 212(c) relief from

those who had received it prior to IIRIRA’s effective

date. IIRIRA § 304(b), like the 1990 amendment, “is

not made retroactive merely because it applies to

convictions for aggravated felonies before that time.

The past aggravated felony conviction is only the pre-

requisite for the prospective denial of discretionary

relief.” De Osorio, 10 F.3d at 1042.

As of IIRIRA’s April 1, 1997 effective date, Congress

plainly changed the category of aliens who thereafter

may seek cancellation of removal, and I disagree that

the new scheme has a genuinely retroactive effect.

Accordingly, I would conclude that the Landgraf pre-

sumption against retroactivity has no effect on our

analysis. In the absence of any such presumption

against retroactivity, our more traditional tools of

construction apply, including the usual deference

afforded to agency interpretations under Chevron,

U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694

(1984). Thus, even were I to agree that the temporal

reach of § 304(b) is ambiguous, I still believe that

petitioner here would not be entitled-to withholding of

deportation or cancellation of removal proceedings.

40a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket Nos. 98-4033, 98-4214, 98-4246

DEBORIS CALCANO-MARTINEZ, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT

SERGIO MADRID, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT

FAZILA KHAN, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT

[Decided: Sept. 1, 2000]

4la

Before: OAKES, WALKER, and KEITH,"

Circuit Judges.

OAKES, Senior Circuit Judge:

The consolidated cases before the Court require us to

interpret the effect of the permanent rules of the Illegal

546 (1996), on the jurisdiction of federal courts to hear

challenges raised by criminal aliens with respect to

handed down in the last three years, we considered the

effect of various provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), Pub.

L. No. 104-132, 110 Stat. 1214 (1996) and the transi-

tional rules of IIRIRA ona federal court’s jurisdiction

to review removal proceedings. This is our first occa-

sion tu examine the effect of ITRIRA’s permanent rules

In enacting the AEDPA and IIRIRA in 1996, Con-

gress reworked the role of the courts in immigration

decisions by severely limiting judicial review of final

orders of deportation for certain classes of aliens. By

* The Honorable Damon J. Keith of the United States Court of

Appeals for the Sixth Circuit, sitting by designation.

42a

1997 WL 563320. In our first decision interpreting Con-

gress’s 1996 amendments, we held that the AEDPA

“repealed the jurisdiction a court of appeals formerly

had over petitions for review filed by aliens convicted of

[certain criminal offenses].” Hincapie-Nieto v. INS, 92

F.3d 27, 28 (2d Cir. 1996). Two years later, we held that

under the transitional rules of IIRIRA, federal courts

retained habeas jurisdiction under 28 U.S.C. § 2241.

See Jean-Baptiste v. Reno, 144’ F.3d 212, 220 (2d Cir.),

reh’g denied, 175 F.3d 226 (2d Cir. 1998). Four months

after our decision in Jean-Baptiste, we examined the

scope of the remaining habeas review and held that

federal courts retained jurisdiction to review statutory

and constitutional challenges to deportation orders. See

Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998), cert.

denied, Reno v. Navas, 526 U.S. 1004, 119 S. Ct. 1141,

143 L.Ed.2d 209 (1999).

The three petitioners before us, Deboris Calcano-

Martinez, Sergio Madrid, and Fazila Khan, are legal

permanent residents of the United States who have

been ordered deported because of prior criminal con-

victions. Each has filed a petition for review in this

Court pursuant to INA § 242(a)(2), codified at 8 U.S.C.

§ 1252(a)(2), challenging the final orders of removal

entered against them by the Board of Immigration

Appeals (“BIA”). Each petitioner has also filed a

petition for habeas corpus in a United States district

court. The petitions of Caleano-Martinez and Madrid

were dismissed without prejudice to refiling after this

Court’s mandate in the present case, and Khan’s peti-

tion is pending in the Eastern District of New York.

On appeal, the petitioners do not dispute that they are

aliens with criminal convictions that render them

deportable under the Immigration and Naturalization

The INS argues that this Court does not have juris-

diction to hear these petitions. We hold, for the reasons

set forth herein, that INA § 242(a)(2)(C) bars this Court

interpreting the immigration laws. Accordingly, we

dismiss the petitions without prejudice to the same

claims being brought pursuant to habeas petitions.

I. BACKGROUND

A. Deboris Calcano-Martinez.

Deboris Calcano-Martinez is a native and citizen of

the Dominican Republic who was admitted to the

United States as a lawful permanent resident in 1971,

Law.

44a

On June 16, 1997, the INS commenced removal pro-

ceedings against Calcano-Martinez by filing a Notice to

Appear. See 8 C.F.R. § 239.1(a) (1999). The notice

charged that Calcano-Martinez’s narcotic conviction

rendered her deportable from the United States pur-

suant to INA §§ 237(a)(2)(A)(iii) and (a)(2)(B)(i), codi-

fied at 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)G) (1999),

as an alien convicted of an aggravated felony and as an

alien convicted of a violation of a controlled substance

law.”

A removal hearing, at which Calcano-Martinez was

represented by counsel, was held before an Immi-

gration Judge (“IJ”). At the end of the hearing, the IJ

ordered Calcano-Martinez deportable as charged by the

INS and ruled that, based on her criminal convictions,

she was statutorily ineligible for any relief from re-

moval. Calcano-Martinez timely appealed the IJ’s

decision to the BIA. The BIA dismissed her appeal. On

January 29, 1998, Calcano filed a petition for review in

this Court. On October 13, 1999, Calcano filed a petition -

for a writ of habeas corpus in the United States District

Court for the Southern District of New York. See

Calcano-Martinez v. Reno, No. 99 Civ. 10481 (S.D.N.Y.

filed Oct. 13, 1999). By stipulation and order dated

December 20, 1999, Calcano’s habeas petition was dis-

missed without prejudice to refiling after this Court’s

mandate in the instant case.

® INA § 237(a)(2)(A)(iii) provides that “[a]ny alien who is con-

victed of an aggravated felony at any ‘ime after admission is

deportable.” INA § 237(a)(2)(B)i) states that “[aJny alien who at

any time after admission has been convicted of a violation of . . .

any law or regulation of a State, the United States, or a foreign

country relating to a controlled substance . . . is deportable.”

45a

B. Sergio Madrid.

On June 24, 1997, the INS commenced removal pro-

ceedings against Madrid by filing a Notice to Appear.

The notice charged that Madrid’s narcotic conviction

rendered him deportable from the United States as an

alien convicted of an aggravated felony and as an alien

convicted of a violation of a controlled substance law.

See 8 U.S.C. §§ 1227(a)(2)(A)(iii), (a)(2)(B)(i); 8 U.S.C.

§ 1101(a)(43)." A removal hearing was held before an

IJ and at the close of the hearing, the IJ rendered

Madrid deportable. Madrid appealed the BIA’s

review in this Court. On October 13, 1999, Madrid filed

a petition for a writ of habeas corpus in the United

States District Court for the Southern

order dated December 20, 1999, Madrid’s habeas

petition was dismissed without prejudice to refiling

after this Court’s mandate in the instant case.

WINA § 101(a)(43), codified at 8 U.S.C. § 1101(a)(43), defines

“aggravated felony” as a crime involving “illicit trafficking in a

controlled substance.”

46a

C. Fazila Khan.

Fazila Khan is a native and citizen of Guyana who

was admitted to the United States as a lawful per-

manent resident on September 2, 1987. Khan’s family,

including her mother and sister as well as five of her

aunts and uncles, are also United States citizens. She

also has a four-year-old daughter who is a United

States citizen. On February 13, 1997, Khan was sen-

tenced to a prison term of four months, to be followed

by a period of supervised release for one year, in con-

nection with her November 6, 1996, guilty plea to the

use of a telephone to facilitate the distribution of heroin

in violation of 21 U.S.C. §§ 843(b), (d).

In May 1997, the INS commenced removal pro-

ceedings against Khan by filing a Notice to Appear.

The notice charged that her offense rendered her de-

portable as an alien convicted of an aggravated felony.

See INA § 237(a)(2)(A)(iii), codified at 8 U.S.C.

§ 1127(a)(2 Ail); 8 U.S.C. § 1101(a)(43)(B).

A removal hearing was held before an IJ and Khan,

represented by counsel, denied that she was deportable

as charged. On July 24, 1997, the IJ ordered her de-

portable. Khan timely appealed the IJ’s decision. On

May 28, 1997, the BIA issued a decision dismissing

Khan’s appeal. On June 29, 1998, Khan filed a petition

for review in this Court. On October 13, 1998, Khan

also challenged her removal order by filing a petition

for a writ of habeas corpus in the United States District

Court for the Eastern District of New York. Khan v.

Reno, No. CV 99-6515 (E.D.N.Y. filed Oct. 13, 1999).

That petition is pending.

47a

D. INA § 212(c) Waiver from Deportation.

Under former INA § 212(c), codified at 8 U.S.C.

§ 1182(c) (1996), the Attorney General had discre-

tionary authority to waive the deportation of an alien

deportable because of a prior conviction where de-

portation would cause extraordinary hardship to the

deportee or his or her family. The permanent rules of

IIRIRA, effective April 1, 1997, repealed § 212(c) in its

entirety and replaced it with another form of relief

entitled “cancellation of removal,” found at new INA

§ 240A, codified at 8 U.S.C. § 1229b (1999). See IIRIRA

$§ 304(a), (b), 110 Stat. at 3009-587-594. That relief,

permitting the Attorney Generai to waive deportation

for certain classes of aliens, is categorically not avail-

able to an alien convicted of a crime that qualifies as an

“aggravated felony” under the Statute. See id. The

petitioners are each ineligible for “cancellation of re-

moval” because their convictions qualify as “aggravated

felonies” under the INA. See IN A § 240A, codified at 8

U.S.C. § 1229b (1999): 8 U.S.C. § 1101(a)(43).

In their petitions for review to this Court, the peti-

tioners argue that the BIA erred by interpreting

IIRIRA § 304’s repeal of § 212(c) relief and replacement

with “cancellation of removal” to apply retroactively to

an alien who is convicted before April 1, 1997, the effec-

tive date of IIRIRA § 304(a)." The petitioners further

contend that if IIRIRA is interpreted to apply retro-

actively to pre-enactment convictions, § 304(a) of

ITRIRA is unconstitutional because it violates their

"| At argument, counsel for the petitioners alternatively argued

that IIRIRA §§ 304(a), (b) should not apply retrospectively to

guilty pleas entered to deportable crimes prior to IIRIRA’s effec-

tive date.

48a

rights guaranteed under the due process and equal

protection clauses of the U.S. Constitution.

II. DISCUSSION

We must consider whether we have jurisdiction over

the petition before us. Implicit in this question is

whether IIRIRA’s permanent rules repealed habeas

corpus jurisdiction to review final removal orders

entered against a legal resident alien who is removable

because of a prior conviction. See Liang v. INS, 206

F.3d 308, 312-13 (3d Cir. 2000) (noting the interrelation-

ship between jurisdiction over a petition for review and

habeas corpus). The permanent rules of IIRIRA are

Congress’s most recent enactment, in a line of many, on

the subject of the judicial review available over immi-

gration decisions. A complete discussion of the history

of judicial review of immigration orders is set forth in

this Court’s decision in Henderson, 157 F.3d at 112-17.

For our purposes on this appeal, it is necessary to begin ~

with the 1996 amendments to the INA.

A. The AEDPA.

In April of 1996, Congress enacted the AEDPA,

which included two provisions relevant to the judicial

review of immigration decisions. Prior to the enact-

ment of the AEDPA, INA § 106(a)(10) provided that

“any alien held in custody pursuant to an order of

deportation may obtain judicial review thereof by ha-

beas corpus proceedings.” 8 U.S.C. § 1105a(a)(10)

(1996). Section 401(e) of the AEDPA, entitled “Elimi-

nation of Custody Review by Habeas Corpus,” expli-

citly repealed prior INA § 106(a)(10). See AEDPA

§ 401(e), 110 Stat. at 1268. Section 440(a) was enacted

to replace the repealed provision and substitute the

following language:

49a

(10) Any final order of deportation against an alien

who is deportable by reason of having committed a

criminal offense covered in section 241(a)(2)(A)(iii),

(B), (C), or (D), or any offense covered by section

was repealed, we noted that “[t]he absence of an op-

arising in the course of deportation proceedings.” Jd. at

30. In Hincapie-Nieto, it was not necessary to deter-

mine whether district courts continued to have 28

50a

Our suggestion in Hincapie-Nieto that AEDPA

§ 440(a)’s bar of judicial review under the INA was

constitutional because courts might review deportation

orders through habeas corpus petitions was in accord

with the vast majority of courts of appeals to consider

the same issue. See Mansour v. INS, 123 F.3d 423, 426

(6th Cir. 1997); Mendez-Morales v. INS, 119 F.3d 738,

739 (8th Cir. 1997); Williams v. INS, 114 F.3d 82, 838-4

(5th Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154-

55 (10th Cir. 1997); Chow v. INS, 118 F.3d 659, 668-70

(7th Cir. 1997); Boston-Bollers v. INS, 106 F.3d 352, 354

n.1 (11th Cir. 1997); Kolster v. INS, 101 F.3d 785, 790-91

(1st Cir. 1996); Salazar-Haro v. INS, 95 F.3d 309, 311

(3d Cir. 1996); Duldulao v. INS, 90 F.3d 396, 400 n.4

(9th Cir. 1996).

B. IIRIRA’s Transitional Rules.

Five months after enacting the AEDPA, on Septem-

ber 30, 1996, Congress enacted IIRIRA, which further

narrowed judicial review for legal residents ordered

removable because they were convicted of certain

crimes. IIRIRA contains two sets of provisions. The

transitional rules (which are not codified in the U.S.

Code) control deportation proceedings commenced

prior to April 1, 1997. See IIRIRA § 309(c), 110 Stat. at

3009-625. Section 309(c)(4)(G) of IIRIRA’s transitional

rules is the successor to AEDPA § 440(a) and provides

in more absolute language that “there shall be no

appeal permitted in the case of an alien who is inadmiss-

ible or deportable by reason of having committed a

criminal offense covered in [the deportation proceed-

ings of the INA].” IIRIRA § 309(c)(4)(G), 110 Stat. at

3009-626, codified at 8 U.S.C. § 1101 note (1999).

5la

In addition, ITRIRA § 806(a) amends INA § 242(g) to

provide:

Exclusive Jurisdiction. Except as provided in this

section and notwithstanding any other provision of

law, no court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or exe-

cute removal orders against any alien under this

Chapter.

ITRIRA § 306(a), 110 Stat. at 3009-612, codified at 8

U.S.C. § 1252(g) (1999), Although INA § 242(g) is listed

with the permanent provisions, IIRIRA § 306(c) makes

§ 242(g) applicable to both transitional and permanent

rules cases. See IIRIRA § 306(c), 110 Stat. at 3009-612.

In Jean-Baptiste, 144 F.3d at 214-18, this Court

considered whether INA § 242(g) divested federal

courts of jurisdiction over a case where legal residents,

ordered deported because of a criminal conviction,

maintained that their right to due process was violated

because they had never been given notice that their

criminal conviction could subject them to consequences

under the immigration laws. Finding that plaintiffs’

claims arose out of “the decision of the Attorney

General to commence proceedings, adjudicate cases, or

execute removal orders,” this Court held that INA

§ 242(g) deprived federal courts of jurisdiction to hear

plaintiffs’ claims. See id. at 218.

We reasoned, however, that all review had not been

eliminated by INA § 242(g) or the AEDPA. See id.

Relying on the doctrine articulated in Felker v. Turpin,

518 U.S. 651, 659-61, 116 S. Ct. 2333, 185 L.Ed.2d 827

52a

(1996), that repeal by implication of the right to petition

for habeas corpus relief is disfavored, we held that:

Nothing in the language of either the [AEDPA] or

[IIRIRA] suggests that Congress expressly re-

pealed § 2241, limited its scope, or eliminated the

jurisdiction of the district courts under that statute

to entertain petitions seeking writs of habeas

corpus. Those two Acts therefore do not specifically

exclude habeas review in deportation cases under

San. ss

Id. at 219. Therefore, in Jean-Baptiste, this Court

concluded that the AEDPA and IIRIRA’s transitional

rules did not repeal the habeas jurisdiction granted to

federal courts by Congress in 28 U.S.C. § 2241 to re-

view challenges to final deportation orders. We left

open the question of the scope of the habeas review of

immigration decisions available under 28 U.S.C. § 2241.

See id. at 220.

Our decision in Jean-Baptiste is in accord with the

majority of circuits also to hold that the language of

§ 242(g) did not repeal habeas jurisdiction over immi-

gration decisions. The First, Third, Fourth, Fifth,

Sixth, Eighth, Ninth, Tenth, and Eleventh Circuit

Courts of Appeals held that habeas jurisdiction to

review final deportation decisions survived the AEDPA

and IIRIRA transitional rules’ streamline of the judi-

cial review available under the INA. See Magana-

Pizano v. INS, 200 F.3d 603, 609 (9th Cir. 1999); Pak v.

Reno, 196 F.3d 666, 673 (6th Cir. 1999); Bowrin v. INS,

194 F.3d 483, 489 (4th Cir. 1999); Requena-Rodriquez v.

Pasquarell, 190 F.3d 299, 306 (5th Cir. 1999); Jwrado-

Gutierrez v. Greene, 190 F.3d 1135, 1145-46 (10th Cir.

1999), cert. denied, Paluganas-Suarez v. Greene,

58a

Mayers v. INS, 175 F.3d 1289, 1801 (11th Cir. 1999);

Sandoval v. Reno, 166 F.3d 225, 236-37 (3d Cir. 1999);

Goncalves v. Reno, 144 F.3d 110, 119-23 (ist Cir. 1998),

Circuit has held that the transitional rules of IIRIRA

effected a repeal of habeas jurisdiction over final

deportation orders. See LaGuerre v. Reno, 164 F.3d

In Henderson, 157 F.3d at 118-22, we reaffirmed our

synthesized holding of Hincapie-Nieto and Jean-

Baptiste that under the INA, modified by the AEDPA

and IIRIRA’s transitional rules, an alien ordered de-

ported because of a criminal conviction cannot seek a

petition for review in the court of appeals but must

pursue a claim in a habeas proceeding pursuant to 28

U.S.C. § 2241. Although the panel questioned the wis-

dom of having the channel for review be by habeas in

the district court rather than by petition for review in

the courts of appeals, it acknowledged that it was

bound by a reasonable comprehension of the statute _

and Second Circuit precedent. See id. at 119 n.9; see

also Jean-Baptiste, 175 F.3d at 226 (denying a subse-

quent petition for rehearing despite the Henderson

panel’s questioning).

54a

that the courts were without power to review the

Attorney General’s interpretation of the immigration

laws. See Henderson, 157 F.3d at 119-20. We soundly

rejected the INS’s argument and held that federal

courts have jurisdiction under 28 U.S.C. § 2241 to

consider all claims that are purely legal in nature—

including constitutional challenges and claims that the

Attorney General misinterpreted the immigration laws.

See id. at 122.

C. IIRIRA’s Permanent Rules.

The permanent rules of IIRIRA govern deportation

proceedings initiated after April 1, 1997. See IIRIRA

§ 309(c), 110 Stat. at 3009-625. The parties agree that

because deportation proceedings were not initiated

against any of the petitioners until after April 1, 1997,

the permanent rules apply to their cases. The per-

manent rules revamp the INA by striking 8 U.S.C.

§ 1105(a) in its entirety and relocating the rules govern-

ing judicial review of deportation orders to 8 U.S.C.

§ 1252. See IIRIRA § 306(a), 110 Stat. at 3009-607-612.

The INS argues that the court of appeals is the

exclusive forum for all immigration matters, invoking

several provisions of the permanent rules in support of

its position that IIRIRA, in its final form, divests

district courts of their habeas jurisdiction. The INS

calls our attention to newly added INA §§ 242(a)(1),

242(a)(2)(C), 242(e)(2), 242(¢) and 242(b)(9). See

IIRIRA § 306(a), 110 Stat. at 3009-607-612. Section

242(a)(1) of the INA provides:

Judicial review of a final order of removal (other

than an order of removal without a hearing pursuant

to section 1225(b)(1) of this title) is governed only by

chapter 158 of Title 28 [the Hobbs Act]... .

55a

8 U.S.C. § 1252(a)(1) (1999). The INS argues that be-

cause the Hobbs Act gives exclusive jurisdiction to the

court of appeals, see 28 U.S.C. § 2342 (“The court of

appeals . . . has exclusive jurisdiction” over specified

agency orders), § 242(a)(1) evidences Congress's intent

to eradicate habeas review.

Seetion 242(a)(2)(C) of the INA is the successor to

AEDPA § 440(a) and ITRIRA § 309(c)(4)(g) and in its

final form now states:

Notwithstanding any other provision of law, no

court shall have jurisdiction to review any final

order of removal] against an alien who is removable

by reason of having committed a criminal offense

covered in [the deportation sections of the INA].

8 U.S.C. § 1252(a)(2)(C) (1999). The INS argues that

when it added the “notwithstanding any other provision

of law” phrase to the final incarnation of this section,

Congress explicitly repealed habeas jurisdiction.

The INS also relies on INA § 242(e)(2). This section

provides:

Judicial review of any determination made under

section 1225(b)(1) of this title is available in habeas

corpus proceedings, but shall be limited to

determinations of—(A) whether the petitioner is an

alien, (B) whether the petitioner was ordered re-

moved under such section, and (C) whether the

petitioner can prove by a preponderance of the

evidence that the petitioner is an alien lawfully

admitted for permanent residence, has been ad-

mitted as a refugee under section 1157, or has been

granted asylum under section 1158, such status not

having been terminated, and is entitled to such

56a

further inquiry as prescribed by the Attorney

General pursuant to section 12255(b)(1)(C) of this

title.

8 U.S.C. § 1252(e)(2) (1999). The INS contends that be-

cause INA § 242(e)(2) provides for statutory habeas

review under the delineated circumstances, Congress

knew how to create habeas review under the INA when

it so desires. It follows, according to the INS, that

Congress’s decision to omit analogous language in re-

gard to an alien’s challenge to his or her final deporta-

tion order demonstrates its intent that this review be

unavailable.

The INS additionally points to INA § 242(g), a

section already considered by this Court in Henderson.

Section 242(g) provides:

Except as provided in this section and notwith-

standing 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 Chapter.

8 U.S.C. § 1252(g) (1999).

Finally, § 242(b)(9), upon which the INS rests its

principal argument provides:

Judicial review of all questions of law and fact, in-

cluding interpretation and application of constitu-

tional and statutory provisions, arising from any

action taken or proceeding brought to remove an

alien from the United States under this subchapter

57a

shall be available only in judicial review of a final

order under this section.

8 U.S.C. § 1252(b)(9) (1999). The INS argues that be-

cause INA § 242(b)(2) requires that all petitions for

review “be filed with the court of appeals for the

judicial circuit in which the immigration judge com-

pleted the proceedings,” § 242(b)(9) necessarily divests

any court of jurisdiction other than the appropriate

court of appeals. In Support of this argument, the INS

points to the Supreme Court’s recent characterization

in dicta of § 242(b)(9) as a “zipper clause” that channels

all review of removal decisions under the INA into the

court of appeals. See Reno vy. American-Arab Anti-

Discrimination Comm., 525 U.S. 471, 483, 119 S. Ct.

936, 142 L.Ed.2d 940 (1999) (“AADC”).

Four courts of appeals have considered arguments

similar to those presented by the INS in this case. The

Fifth and Eleventh Circuit Courts of Appeals adopted

the INS’s position; the Third and N inth rejected it.

In Richardson v. Reno, 180 F.3d 1311, 1312-13 (11th

Cir. 1999) (“Richardson II”), cert. denied, Richardson

v. Reno, __, U.S. —__., 120 St. Ct. 1529 (2000), the

Eleventh Circuit reaffirmed its holding in Richardson

v. Reno, 162 F.3d 1388 (11th Cir. 1998) (“Richardson

I”), after reconsideration in light of the Supreme

Court’s decision in AADC, that IIRIRA’s permanent

rules eliminated § 224] habeas jurisdiction over an

alien’s challenge to his or her removal proceedings. The

court held that INA § 242(b)(2), § 242(e)(2) and the

AEDPA’s elimination of habeas review in § 401(e) evi-

denced Congress’s intent to preclude statutory habeas

review over immigration decisions. See id. at 1814.

58a

More specifically, the court held that INA § 242(b)(9)

and the Supreme Court’s description of that section in

AADC as a “zipper clause” that channels judicial re-

view of immigration decisions exclusively into that

provided by the INA, was evidence that Congress

intended to repeal all habeas review. See id. at 1314-15.

The court concluded that the repeal of habeas juris-

diction to review immigration decisions is not unconsti-

tutional because judicial review still remains under

INA § 242(a)(2)(C) to determine whether the petitioner

is an alien, is deportable, and deportable for a reason

covered by INA § 242(a)(2)(C). See id. at 1315-16.

Furthermore, the court said, review of substantial con-

stitutional questions and challenges to the consti-

tutionality of the INA itself remains available because

INA § 242(a)(2)(C) does not literally foreclose consti-

tutional challenges to the statute itself. See id. at 1316

n.d.

In Max-George v. Reno, 205 F.3d 194, 197-98 (5th Cir.

2000), the Fifth Circuit followed the lead of the

Eleventh Circuit and agreed with the INS that 28

U.S.C. § 2241 habeas jurisdiction had been repealed by

IIRIRA’s permanent rules. According to the Fifth

Circuit, Congress need not explicitly mention habeas

jurisdiction generally or § 2241 by name to repeal ha-

beas jurisdiction. See id. at 199 (“While Congress could

theoretically have been more explicit by specifically

mentioning habeas corpus in general or § 2241 in

particular, we believe the jurisdictiona! limitation de-

scribed throughout § 1252 was sufficiently explicit.”).

Accordingly, the court reasoned that, unlike the lan-

guage in IIRIRA’s transitional rules, the jurisdiction-

stripping provisions in the permanent rules, beginning

with the far more preclusive language “notwithstanding

59a

any other provisions of law,” explicitly repealed § 2241

habeas jurisdiction over immigration decisions. Jd. at

198. The Fifth Circuit, like the Eleventh Circuit, rea-

soned that the repeal was not unconstitutional because

sufficient judicial review remained available for

criminal aliens’ challenges against removal under INA

§ 242(a)(2)(C). See id. at 199-201. It did not go as far,

however, as the Eleventh Circuit to hold that review of

constitutional and statutory claims were preserved. It

held instead that the court of appeals retains juris-

diction under § 242(a)(2)(C) only to determine whether

the prerequisites for precluding review are met,

whether the provisions classifying the petitioner in a

Specific criminal category are constitutionally applied,

and whether the level of judicial review remaining in a

particular case satisfies the Constitution. See id.

In Liang v. INS, 206 F.3d 308, 316-18 (3d Cir. 2000),

the Third Circuit parted ways with the Fifth and

Eleventh Circuits, holding that because none of the

Sections in § 1252 expressly refers to habeas juris-

diction or to § 2241, none expressly revoked habeas

jurisdiction. The court reasoned that the Supreme

Court did not, in AADC, decide that § 242(b)(9) radi-

cally eliminated habeas jurisdiction because that was

not the issue raised in that case, and the Supreme

Court explicitly noted that courts were in disagreement

whether habeas jurisdiction remained after IIRIRA.

See id. at 319. The Third Circuit also disagreed with

the Fifth and Eleventh Circuits’ conclusion that suffi-

cient judicial review remained under § 242(a)(2)(C) so

that the repeal of habeas was not unconstitutional, and

continued to adhere to its earlier ruling in Sandoval,

166 F.3d 225, that the language of § 242(a)(2)(C) makes

clear that the court of appeals lacks jurisdiction over

60a

petitions of review filed by aliens removable because of

prior convictions. See id. at 321. Because no judicial

review of criminal aliens’ statutory and constitutional

claims remains under § 242(a)(2)(C), the court con-

cluded that a repeal of habeas jurisdiction over immi-

gration decisions raises serious constitutional questions.

See id. at 321-22.

The Ninth Circuit, following the lead of the Third

Circuit, held that IIRIRA’s permanent rules do not use

language explicit enough to repeal a federal court’s

habeas jurisdiction to review final removal orders. See

Flores-Miramontes v. INS, 212 F.3d 1133, 1137-38 (9th

Cir. 2000). The court reasoned that although the

language of the permanent rules is stronger than that

of the transitional provisions, the difference would not

cause it to depart from its decision in Magana-Pizano,

200 F.3d 603, to find a repeal of 28 U.S.C. § 2241

jurisdiction over final removal orders. See Flores-

Miramontes, 212 F.3d at 1137. Furthermore, the court

held that § 242(b)(9) and the Supreme Court’s remarks

about that provision did not require the conclusion that

habeas review is repealed. See id. at 1139. Finally, the

court found that an interpretation that IIRIRA does

not repeal habeas jurisdiction avoids a substantial

constitutional question. See id. at 1141-42. In so doing,

it rejected the INS’s argument that review of sub-

stantial constitutional claims remained in the court of

appeals under a petition for review. See id. at 1142.

We are persuaded by the Third and Ninth Circuits’

reasoning in Liang v. INS and Flores-Miramontes v.

INS that Article III courts continue to have habeas

jurisdiction under 28 U.S.C. § 2241 over legal chal-

lenges to final removal orders. We conclude that the

6la

constitutional questions that would arise were we to

find that IIRIRA eliminates habeas jurisdiction over

final immigration decisions.

We will not strain to infer that Congress radically

repealed the federal courts’ habeas jurisdiction to re-

- View final orders of removal. In Felker, 518 U.S. at 657,

the Supreme Court considered whether Title I of the

dictional statutes by implication are not favored. See

Felker, 518 U.S. at 660. This rule requires that a court

cannot presume that a congressional enactment effects

a repeal of a jurisdictional statute when it does not

explicitly mention the jurisdictional statute or the

general type of jurisdiction by name.

62a

In Jean-Baptiste, 144 F.3d at 220, we determined

that although the AEDPA and IIRIRA’s transitional

rules eliminated habeas corpus review under INA

§ 106(a)(10), neither specifically discussed 28 U.S.C.

§ 2241 or habeas jurisdiction generally. Following the

rule articulated in Felker, we held that Congress did

not repeal habeas corpus jurisdiction under 28 U.S.C.

§ 2241. See id. In order to find habeas jurisdiction

eradicated, our precedent thus requires an explicit

statement from Congress that mentions a repeal of

habeas jurisdiction. The majority of other circuit courts

have also held that Congress must explicitly mention

§ 2241 or general habeas jurisdiction to repeal it. See ~

Flores-Miramontes, 212 F.3d at 1137; Liang, 206 F.3d

at 320; Magana-Pizano, 200 F.3d at 608-09; Pak, 196

F.3d at 673; Bowrin, 194 F.3d at 489; Jwrado-Gutierrez,

190 F.3d at 1145-46; Shah, 184 F.3d at 724; Goncalves,

144 F.3d at 119; but see LaGuerre, 164 F.3d at 1038-39.

Nothing in IIRIRA’s permanent provisions requires

us to stray from our determination in Jean-Baptiste

that habeas review survives IIRIRA. Although the

language is arguably more restrictive, there is still

nothing in IIRIRA’s permanent provisions that consti-

tutes a sufficiently clear statement of congressional

intent to repeal the habeas jurisdiction granted Article

III courts by 28 U.S.C. § 2241. Although each new pro-

vision works to narrow or limit the judicial review

available to the criminal aliens under the INA, INA

§§ 242(a)(1), 242(a)(2)(C), 242(e)(2), and 242(g)" do not

2 Indeed, the INS’s argument that INS § 242(g) repeals § 2241

habeas jurisdiction over final deportation orders is foreclosed by

the Supreme Court’s decision in AADC, interpreting § 242(g) to

63a

explicitly mention a repeal of a federal court’s general

habeas jurisdiction or 28 U.S.C. § 2241. See 8 U.S.C.

$§ 1252(a)(1), (a)(2\C), (e)(2), and (g) (1999). Judicial

review and habeas corpus have distinct technical mean-

ings under the law. See Heikkila v. Barber, 345 U.S.

229, 235-36, 73 S. Ct. 603, 97 L.Ed. 972 (1953); see also

Flores-Miramontes, 212 F.3d at 1140 (citing Sandoval,

166 F.3d at 235). We will not infer that Congress meant

to repeal habeas corpus review under 28 U.S.C. § 2241

when it mentioned only judicial review, a distinct and

Separate concept from habeas.

Felker’s requirement that Congress provide an

explicit statement in order to repeal habeas jurisdiction

is particularly relevant in this case. As the Ninth

Circuit pointed out, Felker was decided three months

before IIRIRA became law. We assume that Congress

is aware of the law, see U.S. y. Georgopoulos, 149 F.3d

169, 172 (2d Cir. 1998) (citing Miles v. Apex Marine

Corp., 498 U.S. 19, 32, 111 S. Ct. 317, 112 L.Ed.2d 275

(1990)), and therefore aware of Felker’s mandate when

it considered the transitional and permanent rules of

IIRIRA. See Flores-Miramontes, 212 F.3d at 1139.

Had Congress intended that the avenue of review avail-

able under 28 U.S.C. § 2241 be repealed, it knew to use

more explicit language than it chose.

The INS rests heavily on the phrase “notwith-

standing any other provision of law” added to INA

§ 242(a)(2)(C), codified at 8 U.S.C. § 1252(a)(2)(C)

(1999). However, we were not persuaded that the same

exact phraseology repealed § 2241 habeas jurisdiction

apply only to the three discrete immigration decisions identified in

the section. See 525 U.S. at 482.

64a

when, in Jean-Baptiste, we examined the effect on ha-

beas jurisdiction of INA section 242(g). See 144 F.3d at

218. Other courts of appeals have also held that the

“notwithstanding” language was not strong enough to

repeal habeas jurisdiction. See Sandoval, 166 F.3d at

236; Goncalves, 144 F.3d at 122. Our holding and our

application of it in Jean-Baptiste controls our inter-

pretation of the permanent rules and requires a con-

clusion that the permanent rules do not divest federal

courts of jurisdiction to review a criminal alien’s legal

challenge to his or her removal order.

As for the INS’s reliance on § 242(b)(9), we first re-

cognize that § 242(b)(9) does not expressly mention

habeas jurisdiction or § 2241. INA § 242(b)(9) is a con-

gressional limitation on judicial review and does not

concern habeas jurisdiction. Thus, under Felker and

our decision in Jean-Baptiste, § 242(b)(9) does not con-

stitute a repeal of habeas corpus.

Furthermore, we are not persuaded by the INS

that the Supreme Court’s characterization of INA

§ 242(b)(9) as a “zipper clause” requires us to hold that

it effects a repeal of habeas jurisdiction. In AADC, a

group of temporary residents, who belonged to the

Popular Front for the Liberation of Palestine, sought

injunctive and declaratory relief on the ground that

the INS was selectively enforcing the immigration laws

against them in violation of their First and Fifth

Amendment rights. See 525 U.S. at 473-74. The INS

sought to dismiss the case for lack of jurisdiction, argu-

ing that INA § 242(g), made applicable to the case by

§ 306(c)(1) of IIRIRA, deprived the courts of power to

hear the appeal. See id. at 475. The Supreme Court

agreed with the INS that INA § 242(g) deprived

65a

federal courts of jurisdiction over the petitioners’ selec-

tive enforcement case until the deportation orders

against them became final, if ever. See id. at 482. The

Court, however, rejected the “unexamined assumption

that § 1252(g) covers the universe of deportation

claims” and held that the section covered only the three

discrete actions delineated by the statute: the Attorney

General’s decision to commence proceedings, adjudicate

cases, or execute removal orders. See id. In AADC,

the Supreme Court contrasted the narrow scope of INA

§ 242(g) with INA § 242(b)(9), which it described as an

“unmistakable zipper clause” that channels judicial

review of all immigration-related decisions and actions

to the court of appeals. Jd. at 482-83.

The Court’s description of INA § 242(b)(9) as a

“zipper clause” that “channels judicial review” of immi-

gration decisions to the court of appeals was not a

holding that § 242(b)(9) divests federal courts of § 2241

habeas jurisdiction. The discussion of § 242(b)(9) in

AADC pertained to whether § 242(g) was redundant of

§ 242(b)(9). By interpreting § 242(g) narrowly, the

Supreme Court held that the apparent redundancy was

a “mirage.” Id. at 482. Far from deciding the question

what habeas relief remained after IIRIRA, the Court

chose not to address the question. See id. at 480 n.7

(noting disagreement among the courts of appeals). To

repeat, that case did not concern a habeas petition but

'8 The Supreme Court thus held that INA § 242(g) applies in a

very narrow class of cases. This holding is contrary to our inter-

pretation of that section in Jean-Baptiste where we assumed that

it governed in the case before us. This distinction has no bearing,

however, on our holding in Jean-Baptiste that the language of

§ 242(g) was insufficient to repeal § 2241.

66a

was a case brought under a federal court’s federal

question subject matter jurisdiction. See id. at 474:

Therefore, “that case does not require a conclusion

contrary to the rule set forth in Felker.” Flores-

Miramontes, 212 F.3d at 1139. Accordingly, we will

not presume that the Supreme Court meant its decision

in AADC to have the radical effect of repealing habeas

jurisdiction when it declined to address the issue

directly.

As the Ninth Circuit points out, our interpretation

that INA § 242(b)(9) does not eradicate 28 U.S.C. § 2241

habeas jurisdiction does not render that section mean-

ingless. See Flores-Miramontes, 212 F.3d at 1140. Put

differently, § 242(b)(9) forces a legal resident alien in

removal proceedings to save all of his or her challenges

to an unlawful government decision or action until after

a final removal order is issued. Congress enacted INA

§ 242(b)(9) for the important purpose of consolidating

all claims that may be brought in removal proceedings

into one final petition for review of a final order in

the court of appeals. See id. at 1141. Before INA

§ 242(b)(9), only actions attacking the deportation order

itself were brought in a petition for review while

other challenges could be brought pursuant to a federal

court’s federal question subject matter jurisdiction

under 28 U.S.C. § 1331. Now, by establishing “exclu-

sive appellate court” jurisdiction over claims “arising

from any action taken or proceeding brought to remove

an alien,” all challenges are channeled into one petition.

See 8 U.S.C. § 1252(b)(9); Flores-Miramontes, 212 F.3d

at 1140-41. Hence, § 242(b)(9) concerns judicial review

in a civil action brought under 28 U.S.C. § 1331 rather

than review under habeas corpus. Finally, our inter-

pretation of IIRIRA’s permanent rules as preserving

67a

28 U.S.C. § 2241 habeas jurisdiction allows us to avoid

the serious constitutional question that a repeal of ha-

beas jurisdiction over removal proceedings involving

criminal aliens would raise under the Constitution. See

Webster v. Doe, 486 U.S. 592, 603, 108 S. Ct. 2047, 100

L.Ed.2d 632 (1988) (interpreting a federal statute to

avoid a serious constitutional question presented where

the statute appeared to foreclose review of consti-

tutional claims); Ashwander v. Tennessee Valley Auth.,

297 U.S. 288, 348, 56 S. Ct. 466, 80 L.Ed. 688 (1936)

(Brandeis J., concurring) (same). The Suspension

Clause mandates that “(t]he privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in

cases of rebellion or invasion of the public safety may

require.” U.S. Const. art. 1,§ 9, cl. 2. Just recently,

Justice Stevens, writing for the Supreme Court ma-

jority, remarked that “[t]he writ of habeas corpus plays

a vital role in protecting constitutional rights.” Slack v.

McDaniel, — U.S. ——, 120 S. Ct. 1595, 1603, 146

L.Ed.2d 542 (2000). Historically, legal permanent

residents ordered removable from this country have

been entitled to assert their legal rights in habeas

corpus proceedings. See ¢.g., Heikkila, 345 U.S. at 230;

Nishimura Ekiu v. United States, 142 U.S. 651, 660, 12

S. Ct. 336, 35 L.Ed. 1146 (1892); United States v. Jung

Ah Lung, 124 U.S. 621, 622-23, 8 S. Ct. 663, 31 L.Ed. 591

(1888). Indeed, non-citizens have long been permitted

to raise statutory claims, similar to those raised by the

petitioners before us, that are based on the executive

branch’s misinterpretation of the immigration laws. See

_ Kwong Hai Chew v. Colding, 344 U.S. 590, 596-600, 73

S. Ct. 472, 97 L.Ed. 576 (1953); Wong Yang Sung v.

McGrath, 339 U.S. 38, 48-53, 70 S. Ct. 445, 94 L.Ed. 616

(1950); Fong Haw Tan v. Phelan, 333 U.S. 6, 9, 68 S. Ct.

374, 92 L.Ed. 433 (1948); Delgadillo v. Carmichael, 332

68a

U.S. 388, 390-91, 68 S. Ct. 10, 92 L.Ed. 17 (1947);

Kessler v. Strecker, 307 U.S. 22, 28-32, 59 S. Ct. 694, 83

L.Ed. 1082 (19389); Mahler v. Eby, 264 U.S. 32, 45, 44

S. Ct. 283, 68 L.Ed. 549 (1924). An interpretation

that repeals habeas corpus jurisdiction as it applies to

legal permanent residents ordered removed from the

country because of prior crimes would therefore raise a

serious constitutional question under the Suspension

Clause of the Constitution.

The INS argues that a constitutional question does

not arise if 28 U.S.C. § 2241 jurisdiction is repealed be-

cause the constitutionally-mandated amount of judicial

review remains under the INA. Specifically, although

it acknowledges the broad preclusive language of

§ 242(a)(2)(C) and the majority of courts’ interpretation

of it, see supra at II. A, the INS assures us that a

criminal alien may still obtain review of his or her

removal orders pursuant to a petition for review in a

court of appeals. It argues that this review includes all

that is required by the Constitution—“substantial”

constitutional claims and “certain jurisdictional facts”

including whether the petitioner is an alien who is re-

movable by reason of having committed a specified

criminal offense.

It is true that the Supreme Court has held that

Congress may divest the district courts of habeas juris-

diction without violating the Constitution so long as it

substitutes “a collateral remedy which is neither inade-

quate nor ineffective to test the legality of a person’s

detention.” Swain v. Pressley, 430 U.S. 372, 381, 97

S. Ct. 1224, 51 L.Ed.2d 411 (1977). In accord with this

principle, we heretofore have recognized the need for

adequate judicial review of the legal challenges filed by

69a

a criminal alien. We have determined that, because

§ 242(a)(2)(C) eradicated all review for legal residents

ordered removed owing to a prior conviction, habeas

review of this class of claims remains. See Henderson,

157 F.3d at 119; Jean Baptiste, 144 F.3d at 219;

Hincapie-Nieto, 92 F.3d at 31.

The INS’s interpretation of INA § 242(a)(2)(C) and

its definition of what review is required by the Consti-

tution is a misapprehension of the law, in conflict with

our prior decisions, and difficult. to reconcile with the

INS’s earlier position taken in Hincapie-Nieto. A\-

though a-federal court of appeals generally retains

jurisdiction under INS § 242(a)(1) to review a legal

resident alien’s challenge to his or her final order of

removal, INA § 242(a)(2)(C) excepts this review for a

petition filed by a detained alien ordered removable

because of a criminal conviction. See 8 U.S.C. § 1252(a)

(2)(C). Thus, in Hincapie-Nieto and Jean-Baptiste, we

interpreted § 242(a)(2)(C) as barring all review of a final

order of removal entered against an alien removable

because of a prior conviction, Hincapie-Nieto, 92 F.3d

at 30; Jean-Baptiste, 144 F.3d at 219. Indeed, in

Hincapie-Nieto, the INS, contrary to what it asserts

here, assured the court that there was no constitutional

infirmity with this interpretation because a non-citizen

in executive detention could obtain judicial review of

his or her deportation order by habeas corpus. See 92

F.3d at 31. ;

Furthermore, in Jean-Baptiste, we rejected the very

same argument presented by the INS in this case.

There, the INS argued that it was unnecessary to pre-

serve habeas jurisdiction to avoid a constitutional

question because review of constitutional questions re-

70a

mained available under the INA. Relying on our prior

decision in Hincapie-Nieto, we held that the INA as

amended by IIRIRA takes away that review for legal

residents ordered removable because of prior con-

victions. See Jean-Baptiste, 144 F.3d at 219-20. The

INS’s arguments were “not well-taken” in that case, see

id. at 220, and are received with the same skepticism

here. There is nothing in IIRIRA’s permanent rules or

their legislative history that indicates that Congress

excepted review of substantial constitutional questions

under INA § 242.

In addition, the INS’s formulation of the review

required by the Constitution falls short of the review

that we held in Henderson is mandated. We found

there that even a partial repeal of habeas jurisdiction to

hear an executively detained alien’s statutory chal-

lenges may violate the Suspension Clause. See 157 F.3d

at 120. In that case, we reasoned that the INS’s

articulation of the review that is required under the

Constitution: .

is drawn from the very different context of succes-

sive 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.

Id. (quoting Goncalves, 144 F.3d at 118 n.8). The case of

a legal permanent resident alien, in contrast, arises in

the setting of executive detention, “a context in which

the petitioner[ ] ha[s] never had [his or her] claim[ ]

review[ed] by any court, federal or state.” Jd. In this

7la

context, circuit courts, including this one, have noted

that review of statutory questions similar to the one

presented in this case has long been deemed essential

to ensure that a detained alien receives full due process

of law. See Henderson, 157 F.3d at 121 (citing Gegiow

v. Uhl, 239 U.S. 3, 3, 36 S.Ct. 2, 60 L.Ed. 114 (1915);

Brownell v. We Shung, 352 U.S. 180, 182 n.1, 77 S. Ct.

252, 1 L.Ed.2d 225 (1956)); Goncalves, 144 F.3d at 124

(citing numerous immigration cases that have con-

sidered claims of statutory right)); see also Mayers, 175

F.3d at 1300 (citing United States ex rel. Hintopoulos v.

Shaughnessy, 353 U.S. 72, 78, 77 S. Ct. 618, 1 L.Ed.2d

652 (1957)); Accardi v. Shaughnessy, 347 U.S. 260, 268,

74 S. Ct. 499, 98 L.Ed. 681 (1954)).

Furthermore, the language of 28 U.S.C. § 2241 does

not contemplate that the writ only extends to a person

in custody in violation of the Constitution. Rather, the

statute also provides habeas jurisdiction over claims

that a person is in custody in violation of federal laws

and treaties. See 28 U.S.C. § 2241 (providing that

the writ of habeas corpus shall extend to a person in

custody “in violation of the Constitution or laws or

treaties of the United States”). Hence, the literal

terms of 28 U.S.C. § 2241 contemplate statutory claims

against executive detention.

The substitution of judicial review only of substantial

constitutional questions for the habeas review guaran-

teed under 28 U.S.C. § 2241 therefore does not cure the

constitutional infirmity that could result from a repeal

of the habeas statute. Without habeas jurisdiction to

review final orders, there is currently no judicial review

at all of a removal order issued against a non-citizen

who is ordered removable because he or she committed

72a

a certain crime. Because habeas jurisdiction is consti-

tutionally required where the immigration laws have

been interpreted to bar other forms of judicial review

under § 242(a)(2)(C), our decision that habeas review

remains for a criminal alien’s legal challenge to his or

her deportation order obviates the profound consti-

tutional questions that would arise if we concluded that

all judicial review had been eradicated.

Although not all challenges that an alien may launch

against his removal are cognizable under habeas, purely

legal statutory and constitutional claims are within

§ 2241’s scope. Thus, a federal court’s habeas review

includes the claim raised by the petitioners in these

consolidated cases—that IIRIRA does not apply to bar

the availability of § 212(c) relief for convictions that

occurred prior to its enactment. The petitioners chal-

lenge the government’s refusal to consider an appli-

cation for a waiver from deportation and do not ask the

court to determine whether the BIA exercised its

discretion appropriately. Their claim is a purely legal

question that is cognizable under the habeas statute.

We note, as did the Third Circuit in Liang, that if we

were legislators, rather than judges, we might opt for a

statutory scheme under which an alien’s constitutional

and statutory challenges are cognizable in the court of

appeals pursuant to a petition for review. This would

eradicate habeas corpus’s duplicative review of legal

questions in the district court and the court of appeals

and serve Congress’s goal to streamline judicial review.

However, we disagree with the Eleventh Circuit’s

interpretation of INA § 242(a)(2)(C) in Richardson II as

permitting review of both statutory and constitutional

claims. Although this interpretation may represent

73a :

sound legislative policy, we reiterate that we do not

read IIRIRA or our prior cases to permit such review

under INA § 242(a)(2)(C).

Notwithstanding, the question raised by the peti-

tioners is a purely legal matter appropriate for a court,

rather than the BIA, to determine. See Mayers, 175

F.3d at 1300; see aiso Goncalves, 144 F.3d at 113;

LaGuerre, 164 F.3d at 1041. It is the type of question

that, once answered by the highest court, is answered

for all cases that follow presenting the same issue. We

therefore believe our decision today that a legal re-

sident alien’s pure legal challenges are preserved via

habeas corpus to his or her removal order serves to

advance Congress’s goal of streamlining judicial review.

III. CONCLUSION

We affirm our adherence to the proposition that had

Congress intended to strip federal courts of habeas

jurisdiction under 28 U.S.C. § 2241 over criminal aliens’

statutory and constitutional challenges, it would have

done so by making its intent explicit. Because the

permanent rules do not mention a repeal of 28 U.S.C.

§ 2241 or habeas jurisdiction generally, we hold that

they do not deprive a federal court of its habeas juris-

diction under § 2241 to review the purely legal claims of

criminal aliens against final orders of removal. Because

we lack jurisdiction under INA § 242(a)(2)(C) over the

petitions for review brought by Calcano-Martinez,

Madrid, and Khan challenging their final orders of

removal, we dismiss the petitions without prejudice to

Khan’s pending petition or to the same claims being

brought by Calcano-Martinez and Madrid under habeas

corpus.

74a

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

Nos. 3:99ev260 (AHN), 3:99ev772 (AHN),

3:99ev773(AHN)

ROHAN P. DUNBAR

Vv.

INS

GYNO DOMOND

v.

INS

ENRICO ST. CYR

v.

INS

[Aug. 30, 1999)

75a

RULING ON PETITIONS FOR HABEAS CORPUS

The petitioners in these cases, Rohan P. Dunbar

(“Dunbar”), Gyno Domond (“Domond”), and Enrico St.

Cyr (“St. Cyr”), are Lawful Permanent Residents

(“LPRs”) of the United States currently facing deporta-

tion as a consequence of criminal acts they have com-

mitted. The Immigration and N aturalization Service

(“INS”) has agreed, through an oral stipulation entered

into via the United States Attorney’s Office for the

District of Connecticut, to suspend the deportation of

the petitioners pending the outcome of these actions.

In particular, the petitioners seek writs of habeas

corpus compelling the INS to allow them to apply for a

statutorily repealed form of discretionary relief from

deportation. For the following reasons, Dunbar’s

petition [doc. # 1 (3:99ev260(AHN))] is GRANTED,

Domond’s petition [doc. # 1 (3:99ev772(AHN))] is

GRANTED, and St. Cyr’s petition [doc. # 1 (3:99ev773

(AHN))] is GRANTED.

BACKGROUND

On April 24, 1996, Congress enacted the Anti-

Terrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”)

(effective date April 24, 1996). Later that year, Con-

gress enacted the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, Div. C, 110 Stat. 3009 (1996) (“IIRIRA”) (transi-

tional rules effective date October 30, 1996 and

permanent rules effective date April 1, 1997). As

discussed below, these acts established significant

76a

changes in the Immigration and Naturalization Act, 8

U.S.C. §§ 1101-1537 (“INA”), that affect, inter alia, (1)

the jurisdiction of federal courts to review immigration

decisions and (2) the relief available to aliens involvea

in deportation proceedings. The effects of these acts

underlie the current petitions.

I. Dunbar

Dunbar was admitted to the United States as an

LPR on March 27, 1984. Subsequently, he was

convicted of assault in the second degree on January 2,

1996. As a consequence, on March 22, 1996, INS issued

an Order to Show Cause which was served on Dunbar

on April 18, 1996, but not filed with the Office of the

Immigration Judge until May 1, 1996. An Immigration

Judge (“IJ”) held hearings on November 19, 1996, May

20, 1997, September 23, 1997, and January 12, 1998, and

determined that Dunbar was subject to deportation as

an alien who had committed an aggravated felony.

Dunbar appealed to the Board of Immigration Appeals

(“BIA”) which dismissed his appeal on January 20, 1999.

He filed the current petition for a writ of habeas corpus

on February 11, 1999.

Il. Domond

Domond entered the United States at an unknown

time in the past. He obtained LPR status on August 12,

1993. Subsequently, on November 8, 1996, he was

convicted of robbery. The robbery itself had occurred

on November 18, 1994. As a result of his conviction,

INS issued an Order to Show Cause on December 30,

1996, which was served on Domond on February 24,

1997, and filed with the Office of the Immigration Judge

77a

on February 27, 1997. On March 8, 1998, an IJ deter-

mined that Domond was subject to deportation as an

alien who had been convicted of an aggravated felony.

Domond appealed to the BIA which dismissed his

appeal on December 22, 1998. He then filed the current

petition for a writ of habeas corpus on April 27, 1999.

III. St. Cyr

St. Cyr was admitted to the United States as a LPR

on June 17, 1986. He was convicted of sale of a narcotic/

hallucinogen on March 8, 1996. As a consequence, INS

issued a Notice to Appear in removal proceedings on

April 10, 1997, which was served on St. Cyr on July 10,

1997 and filed with the Immigration Judge on July 23,

1997. On January 12, 1998, an IJ determined that St.

Cyr was subject to deportation as an alien convicted of

sale of a narcotic/hallucinogen. St. Cyr appealed to the

BIA which dismissed his appeal on November 10, 1998.

He filed the current petition for a writ of habeas corpus

on April 27, 1999. .

DISCUSSION

The INA provides that any alien who has been con-

victed of one of several various offenses, such as

an aggravated felony or a controlled substance viola

tion, is subject to deportation. See 8 U.S.C.A.

$§ 1227(a)(2)(A)(E) (West 1999). Prior to the 1996

amendments to the INA, an alien who faced

deportation due to a criminal conviction could request

discretionary relief from deportation pursuant to INA

§ 212(c). See 8 U.S.C.A. § 1182(c) (West 1995) (re-

pealed). If that request was denied, an alien could seek

review in the Courts of Appeals, see 8 U.S.C.A.

78a

§ 1105(a) (West 1995) (repealed), or could petition for a

writ of habeas corpus pursuant to either the INA, see 8

U.S.C.A. § 1105a(a) (10) (West 1995) (repealed), or the

general habeas statute, see 28 U.S.C. § 2241 (1999).

On April 24, 1996, Congress enacted AEDPA.

AEDPA § 440(d) barred INA § 212(c) relief for persons

subject to deportation due to having committed any of

certain enumerated crimina: offenses, including aggra-

vated felonies, and crimes involving “moral turpitude”

or controlled substances. See AEDPA § 440(d). Later,

in September 1996, Congress passed IIRIRA which

repealed iNA § 212(c) relief entirely and replaced it

with a new type of relief designated “cancellation of re-

moval.” See IIRIRA § 304(b); see also 8 U.S.C.

§ 1229(b).' Cancellation of removal relief cannot be

given to any alien that has been convicted of an aggra-

vated felony. See 8 U.S.C. § 1229b(a)(3). Included in

the definition of an aggravated felony is “illicit traf-

ficking in a controlled substance.” 8 U.S.C.A.

§ 1101(a)(43)(B).

In addition, IIRIRA supplanted the INA’s judicial

review provisions. See IIRIRA § 309(c)(1); see also 8

U.S.C. § 1252. In particular, the amended § 1252

1 IIRIRA contains two different sets of rules. First, there are

the “transitional rules” which apply to persons whose removal

proceedings were commenced before April 1, 1997, and against

whom a final deportation order issued after © »ber 30, 1996. See

IIRIRA §§ 309(c), as amended by the Act of U__ 11, 1997, § 2, Pub.

L. No. 104-302, 110 Stat. 3656, 3657. Second, there are the “perma-

nent rules” which apply to persons whose removal proceedings

commenced after April 1, 1997. Seeid. Given this Court’s con-

clusions, discussed infra, regarding the pending petitions, this dis-

tinction is not relevant for current purposes.

79a

generally limits the availability of judicial review of

deportation orders to the Courts of Appeals. See 8

U.S.C. §§ 1252(a)-(b). As relevant to the arguments

presented in this case, § 1252(g) provides that:

Except as provided in this section and notwith-

standing any other provision of law, no court shall

have jurisdiction to hear any cause or claim by cr 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.

8 U.S.C.A. § 1252(g).

Here, the government asserts that the 1996 amend-

ments to the INA deprive this Court of jurisdiction

over St. Cyr’s claim and preclude Dunbar and Domond

from requesting INA § 212(c) relief.

I. Jurisdiction

The government contends that this Court lacks

jurisdiction over St. Cyr’s action because his proceed-

ings before an IJ began after IIRIRA amended § 1252

to place severe limitations on judicial review of removal

orders. In support of this claim, the government relies

on Reno v. American-Arab Anti-Discrimination Com-

mittee, 525 U.S. 471, 119 S.Ct. 936, 941-42 & 942 n.7, 142

L.Ed.2d 940 (1999) (“AAADC “), and Fontes v. Reno,

No. 99cv10491-REK, slip op. at 8-9, (D. Mass. Mar. 9,

1999).

In AAADC, the Supreme Court held that § 1252(g)

deprived federal courts of jurisdiction over an action

that alleged that the INS had targeted certain

80a

individuals for deportation because of their affiliation

with a politically unpopular group. See 119 S. Ct. at

943. The Court ruled that § 1252(g) narrowly applies to

preclude judicial review of the Attorney General’s

“decision or action” to “commence proceedings, adjud-

cate cases, or execute removal orders.” Seeid. The

Court noted that many other actions exist that are part

of the deportation process that are not covered by

§ 1252(g), and that § 1252(g) should not be read as an

all-encompassing provision. See id. Indeed, the Court

recognized that the reason this provision focuses on

these discrete acts of the Attorney General is that they

all represent points in a deportation proceeding at

which the Attorney General could decide for humani-

tarian reasons to “defer action,” 7.e., to abandon de-

portation proceedings against an individual who is

subject to deportation. See id. at 943-44. This

provision, then, is designed merely to shelter the

Attorney General’s decision to continue or discontinue a

deportation proceeding, see id. at 944, and has no direct

relevance to questions regarding a federal court’s

habeas jurisdiction. Indeed, in regard to the continuing

validity of habeas jurisdiction, while the Supreme Court

in AAADC expressly noted that “disagreement” exists

between the Courts of Appeals concerning that issue,

see id. at 942 n.7, it never purported to resolve that

disagreement.

In pre-AAADC rulings, both the Second Circuit and

other Courts of Appeals have held that federa’ courts

continue even after the 1996 amendments tothe INA to .

have jurisdiction over petitions for habeas corpus pur-

suant to 28 U.S.C. § 2241. See Henderson v. INS, 157

F.3d 106, 118-20 (2d Cir. 1998), cert. denied sub nom.

Navas v. Reno, 526 U.S. 1004, 119 S. Ct. 1141, 143

8la

L.Ed.2d 209 (1999); Jean-Baptiste v. Reno, 144 F.3d

212, 219 (2d Cir. 1998), reh’g en banc denied, 175 F.3d

226 (1999); see also Goncalves v. Reno, 144 F.3d 110,

123 (1st Cir. 1998), cert. denied, 526 U.S. 1004, 119 S. Ct.

1140, 143 L.Ed.2d 208 (1999); Sandoval v. INS, 166 F.3d

225 (3rd Cir. 1999).

In Jean-Baptiste, the Second Circuit held that “in the

absence of language affirmatively and clearly elimi-

nating habeas review, we presume Congress did not

aim to bar federal courts’ habeas jurisdiction pursuant

to § 2241.” 114 F.3d at 219. In particular, the court

ruled that:

Nothing in the language of either the Antiterrorism

Act or the Immigration Reform Act suggests that

Congress expressly repealed § 2241, limited its

scope, or eliminated the jurisdiction of the district

courts under that statute to entertain petitions

seeking writs of habeas corpus. Those two Acts

therefore do not specifically exclude habeas review

in deportation cases under § 2241, and repeal by

implication of the rights to petition for habeas cor-

pus relief is disfavored.

See id. (citing, inter alia, Felker v. Turpin, 518 U.S.

651, 116 S. Ct. 2338, 185 L.Ed.2d 827 (1996)).

In Henderson, the Second Circuit reaffirmed that

§ 2241 habeas remains a valid option after the 1996

amendments although the scope of review permitted

has been narrowed. See 157 F.3d at 119. In particular,

the court stated that federal courts retain the “power to

review the Attorney General’s interpretation of the

immigration laws.” Jd. at 120 & nn. 10-12. Similarly,

the First and Third Circuits have held that the 1996

82a

INA amendments neither expressly nor implicitly re-

pealed the ability of a petitioner to seek judicial review

by a writ of habeas corpus pursuant to § 2241. See

Goncalves, 144 F.3d at 119-23 (discussing several

grounds for holding § 2241 not repealed); Sandoval, 166

F.3d at 238.

Here, the Court holds that it retains habeas juris-

diction over all of the petitioners’ claims. Following

Jean-Baptiste, the Court concludes that Congress has

not explicitly repealed or limited § 2241 habeas juris-

diction. See 144 F.3d at 219. Further, the basic issue of

retrospective application of the 1996 amendment and

eventual repeal of § 212(c) relief is the same variety of

issue over which the Henderson court concluded federal

courts retain habeas jurisdiction. Finally, as discussed

above, the Supreme Court’s ruling in AAADC is inap-

posite, as it merely clarifies that § 1252(g) primarily

applies to “deferred action” decisions by the Attorney

General and does not address the status of habeas

jurisdiction after the 1996 amendments.”

Il. Availability of INA § 212(c) Relief —

The government argues that the petitioners should

not be entitled to INA § 212(c) relief because their

deportation proceedings commenced after the effective

date of AEDPA, 2.e., April 24, 1996. In particular, the

government contends that application to the petitioners

of AEDPA § 440(d)—which significantly limited the

cases where section 212(c) relief could be sought—does

2 Based on this Court's interpretation of AAADC and relevant

Second Circuit precedent, this Court finds the reasoning of Fontes,

No. 99ev10491-REK, slip op. at 8-9, to be unpersuasive.

83a

not constitute an unjustified retrospective application

of § 440(d).

The Second Circuit has held in general “that § 440(d)

does not apply to cases initiated before the date of its

enactment.” Henderson, 157 F.3d at 129 (expressing

agreement with the First Circuit’s opinion in Gon-

calves, 144 F.3d at 126). In Support of this conclusion,

the Henderson court recognized that “statutes are not

ordinarily afforded retroactive effect unless ‘Congress

has clearly manifested its intent’ to have them so

applied.” Jd. (quoting Hughes Aircraft Co. v. United

States ex rel. Schumer, 520 U.S. 939, 117 S. Ct. 1871,

1876, 188 L.Ed.2d 135 (1997)). However, the court

found that it did not have to rely on that presumption

because “when § 440(d) is read in conjunction with the

rest of the AEDPA and with the legislative history of

the statute, there is abundant direct evidence that the

section was not intended to apply retroactively.” Jd. at

129-30 (discussing that other AEDPA sections contain

explicit language of their retrospective effect and that

compromise bill passed by Congress omitted Senate

language that would have applied § 440(d) retro-

actively).

Based upon this determination, the Second Circuit

held that when a petitioner’s “deportation proceeding

was pending on the date of the Statute’s enactment,

. . » § 440(d) does not apply to him.” Jd. at 130 (footnote

omitted). In particular, the court found that

§ 440(d) did not apply to a petitioner who requested

INA § 212(c) relief prior to AEDPA’s enactment even

though the deportation hearing was held after

AEDPA’s enactment. See id. at 110, 130. The court

also ruled that § 440(d) did not apply to a petitioner who

84a

was in exclusion proceedings prior to AEDPA’s enact-

ment, which were changed to deportation proceedings

after the enactment. See id. at 111, 130. However, due

to its reading of the facts of the petitions in Henderson,

the Second Circuit expressly stated that it “need not

reach [petitioner’s] broader argument that the statute

should not apply to primary conduct—~.e., criminal

convictions—that occurred prior to April 24, 1996.” Id.

at 128 n.28.

With this background in mind, the Court now turns

to the arguments advanced in these cases. Prelimi-

narily, the government argues that this Court should

not recognize a deportation proceeding as commencing

until after the Order to Show Cause has been filed with

the IJ. In support, the government points out that

under 8 C.F.R. § 242.1(a) deportation proceedings begin

when the Order is filed with the IJ. The government

contends that when the Order was issued is irrelevant

to whether deportation proceedings have commenced.

The Court is not convinced. This Court agrees with

the District of Oregon that:

the defendants’ argument that [petitioner] was not

in deportation proceedings until the order to show

cause was filed with the immigration court [is

unpersuasive]. As of the time the order to show

cause was issued, the INS had the power to arrest

him; commencement of the case in immigration

court was subject only to the vagaries of admini-

strative scheduling. From a due process standpoint,

[petitioner] was subject to the deportation power of

the INS as of the time the show cause order issued;

fairness requires that the INS, having placed [peti-

85a

tioner] under its authority, should also live with the

results of that decision.

Mercado-Amador v. Reno, 47 F. Supp. 2d 1219, 1223-

1224 (D. Or. 1999) (reaffirming ruling that § 440(d) did

not apply to petitioner where INS issued order to show

cause prior to AEDPA’s enactment but did not serve

order on petitioner until after AEDPA’s enactment).

Given this Court’s determination that a deportation

proceeding effectively begins once an Order to Show

Cause has been issued to a potential deportee, Hender-

son indicates that potential deportees who have been

issued Orders to Show Cause prior to the enactment of

AEDPA should be allowed to request INA § 212(c)

relief. See Henderson, 157 F.3d at 111, 130 n.30 (finding

petitioner whose case changed from exclusion to de-

portation after April 24, 1996 and who did not request

section 212(c) relief until August 2, 1996 should be

provided a hearing on such relief). Here, this reasoning

requires that Dunbar’s petition be granted. However,

as discussed below, this Court finds that alternate

grounds also compel this result.

As the primary argument in these cases, the peti-

tioners claim exactly what the Second Circuit declined

to address in Henderson—that § 440(d) should not

apply to persons whose convictions (or in Domond’s

case, criminal conduct only) occurred prior to April 24,

1996. The basic issue, then, is one of “retrospective

application.”

The Supreme Court, in Landgraf v. USI Film

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

86a

(1994), set forth the basic framework for addressing

‘whether a statute applies retrospectively:

When a case implicates a federal statute enacted

after the events in suit, the court’s first task is to

determine whether Congress has expressly pre-

scribed the statute’s proper reach. If Congress has

done so, of course, there is no need to resort to

judicial default rules. When, however, the statute

contains no such express command, the court must

determine whether the new statute would have

retroactive effect, 7.e., whether it would impair

rights a party possessed when he acted, increase a

party’s liability for past conduct, or impose new

duties with respect to transactions already com-

pleted. If the statute would operate retroactively,

our traditional presumption teaches that it does not

govern absent. clear congressional intent favoring

such a result.

Id. at 280, 114 S. Ct. 1488. The Court stated that in

making this determination:

[a] court must ask whether the new provision

attaches new legal consequences to events com-

pleted before its enactment. The conclusion that a

particular rule operates “retroactively” comes at the

end of a process of judgment concerning the nature

and extent of the change in the law and the degree

of connection between the operation of the new rule

and a relevant past event. Any test of retroactivity

will leave room for disagreement in hard cases, and

is unlikely to classify the enormous variety of legal

changes with perfect philosophical clarity.

However, retroactivity is a matter on which judges

tend to have “sound . . . instinct[s],” see Danforth

v. Groton Water Co., 178 Mass. 472, 476, 59 N.E.

87a

1033, 1034 (1901) (Holmes, J.), and familiar con-

siderations of fair notice, reasonable reliance, and

settled expectations offer sound guidance.

Id. at 269-70, 114 S.Ct. 1488.

Here, the Court holds that these principles dictate

that the current petitioners should have their de-

portation proceedings governed by the laws that were

in effect at the time they committed their crimes. See

Pottinger v. Reno, 51 F. Supp. 2d 349, 351 (E.D.N.Y.

1999) (stating “petitioners in all these cases should be

treated as if the laws governing their rights were those

in existence at the time they committed the crimes for

‘which the government now seeks to deport them”).

Alternatively, the Court believes that at the very least

the date of conviction should control the determination

of when a person is in deportation proceedings. See

Wallace v. Reno, 24 F. Supp. 2d 104, 111-12 (D. Mass.

1998) (holding that § 440(d) does not apply to indi-

viduals whose deportation proceedings resulted from

guilty pleas entered into prior to April 24, 1996). The

reasons for these conclusions are set forth below.

As an initial matter, the Court finds that the type of

discretionary relief the petitioners seek constitutes a

legal interest that is important enough for retro-

spective application concerns to apply. See Lee v. Reno,

15 F. Supp. 2d 26, 45-46 (D.D.C. 1998) (stating that

“even though [petitioner] never had a Tight’ to receive

a § 212(c) waiver, he certainly was entitled to have the

opportunity to be heard and to present his case in

accordance with the agency’s factors” and that “at the

time of [petitioner’s] conduct, he could have applied for

a § 212(c) wavier, and retroactive application of § 440(d)

88a

would ‘disable’ him from doing so”); see also AAADC,

119 S. Ct. at 950 (Ginsburg, J., concurring) (recognizing

that “[djeportation . . . is a grave sanction”);

Pottinger, 51 F. Supp. 2d at 362 (“A ‘legal change that

would have an impact on private parties’ planning’

triggers the presumption against retroactivity, even if

the change is only the attachment of additional civil

liability to conduct that was already deemed ‘morally

reprehensible or illegal’” (quoting Landgraf, 511 U.S.

at 282-83 & n.35, 114 S. Ct. 1483)).

Here, the Court finds that the operative event for

determining whether AEDPA § 440(d) and the ITRIRA

amendments should apply is the actual commission of

the crime for which the petitioners now face deporta-

tion. See Pottinger, 51 F. Supp. 2d at 355. “The time of

the conviction and the time deportation proceedings

commenced were happenstance, without relevance to

the reason for congressional treatment of criminal

permanent resident aliens.” Jd. Indeed, the very

purpose of the amendments was to change the legal

consequences of certain criminal conduct, not the conse-

quences of being convicted of that conduct or having

deportation proceedings commenced.

As recognized by the Second Circuit in Henderson

and expounded upon by the Eastern District of New

York in Pottinger, AEDPA contains several provisions

that provide varying degrees of retroactivity for their

application. See Pottinger, 51 F. Supp. 2d at 359 (re-

viewing how “AEDPA section 440(d)’s silence as to

temporal reach stands in stark contrast to the finely

calibrated retroactivity language of other AEDPA

sections”). This state of affairs leaves no doubt as to

the ability of Congress to delineate the temporal reach

89a

of a statute. The failure of Congress to explicitly and

clearly indicate whether the amendments limiting and

ultimately repealing INA § 212(c) relief should apply to

primary conduct predating the enactment of those

amendments leaves no room for doubt that they the

amendments should not be applied retrospectively. Cf.

id. at 360-361 (stating “Congress’s choice not to include

- + + any retroactivity language—in section 440(d) is

reasonably construed as evidence of its plan to de-

signate the section as applicable only to post-enactment

conduct”).

As noted in Pottinger, this conclusion is bolstered by

the Supreme Court’s recognition that statutes are

generally presumed not to apply retrospectively:

The presumption against retroactive legislation is

deeply rooted in our jurisprudence, and embodies a

legal doctrine centuries older than our Republic.

Elementary considerations of fairness dictate that

individuals should have an opportunity _te-know

what the law is and to conform their conduct accord-

ingly; settled expectations should not lightly be

disrupted. For that reason, the principle that the

legal effect of conduct should ordinarily be assessed

under the law that existed when the conduct took

place has timeless and universal appeal.

Id. (quoting Landgraf, 511 U.S. at 265, 114 S. Ct. 1483).

In addition, this Court concurs with the view that “the

rule of lenity complements Landgraf in requiring the

Statute to be read in favor of the petitioner.” Jd. at 363.

Here, this determination requires that all of the cur-

rent petitions be granted because all of the petitioners

90a

committed the crimes which provide the basis for their

deportation proceedings prior to April 24, 1996.

In the event of an appeal and rejection of the primary

holding in this case, the Court notes its belief that at a

minimum the date of conviction should govern a po-

tential deportee’s eligibility for INA § 212(c) relief. See

Wallace, 24 F. Supp. 2d at 111-12; see also Pottinger, 51-

F. Supp. 2d at 360-61. As recognized in Wallace, attor-

neys have a professional duty to discuss the immi-

gration consequences of a conviction with their non-

citizen clients and a large percentage of INA § 212(c)

requests for relief have been granted. See Wallace, 24

F. Supp. 2d at 110-11 (noting, in regard to guilty pleas,

that “a noncitizen criminal defendant would most likely

have been informed of and had good reason to consider

the immigration consequences of a guilty plea”). These

considerations indicate that potential deportees would

have had settled expectations and reasonably relied on

their eligibility for INA § 212(c) relief at the time of

their guilty pleas or convictions. Under these circum-

stances, the Court concludes that the Landgraf prin-

ciples counsel that the amendments to AEDPA and

IIRIRA at issue should not apply retroactively to bar

petitioners whose convictions predate those

amendments from requesting INA § 212(c) relief.’

A brief concluding remark is appropriate. These

consolidated cases represent yet another example of

the costly and unnecessary litigation that is spawned by

Congress when it fails to indicate whether legislation

3 The Court notes that if the operative date is found on appeal

to be the date of guilty plea or conviction, then all of the petitioners

except Domond will still be eligible to request INA § 212(c) relief.

9la

should be applied retrospectively. A one line sentence

could have avoided these and many other cases

currently pending before the courts of this Circuit and

its sister Circuits.

CONCLUSION

For the reasons stated above, Dunbar’s petition [doc.

# 1 (3:99ev260(AHN)) ] is GRANTED, Domond’s peti-

tion [doc. # 1 (3:99ev772(AHN)) ] is GRANTED, and

St. Cyr’s petition [doc. # 1 (3:99ev773(AHN)) ] is

GRANTED. The Clerk is ordered to CLOSE these

cases.

SO ORDERED this 28rd day of August, 1999 at

Bridgeport, Connecticut.

/s/

ALAN H. NEvas

United States District J udge

92a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

3:99CV773 AHN

ENRICO ST. CYR

V.

IMMIGRATION AND

NATURALIZATION SERVICE

[Filed Aug. 30, 1999]

JUDGMENT

This cause came on for consideration on a petition for

habeas corpus by the Honorable Alan H. Nevas, Senior

US. District Judge, and

The Court having -nsidered the petition and all the

papers submitted in connection therewith, filed its Rul-

ing on Petition for Habeas Corpus granting the petition

and allowing the petitioners to apply for a statutorily

repealed form of discretionary relief from deportation.

It is therefore ORDERED and ADJUDGED that the

writ of habeas corpus is granted and Immigration and

Naturalization is to allow petitioners to apply for dis-

cretionary relief from deportation pursuant to the

Court’s ruling. —

93a

Dated at Bridgeport, Connecticut, this 30th day of

August, 1999.

KEVIN F. ROWE, CLERK

By Si ;

Deputy Clerk

94a

APPENDIX E

U.S. Department of Justice

Executive Office for Immigration

Review Decision of the Board

of Immigration Appeals

Falls Church, Virginia 22041

File: A41 052 179 — Hartford Date: Nov 10 1998

Inre: ENRICO SAINT CYR a.k.a. Enrico St. Cyr

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF

RESPONDENT: Michael G. Moore, Esquire

[REDACTED]

_ [REDACTED]

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act

[8 U.S.C. § 1227(a)(2)(A)@iii)]

Convicted of aggravated felony

APPLICATION: Waiver of Inadmissibility;

cancellation of removal

ORDER:

PER CURIAM. The respondent’s appeal fee waiver

request is granted. See 8 C.F. R. § 3.8(c). The appeal is

dismissed. The respondent is a native and citizen of

Haiti, and a United States lawful permanent resident.

95a

The record reflects that in 1996, he was convicted of

sale of a hallucinogen/narcotic in the State of Connecti-

cut (Exh. 2). Based on this evidence, the Immigration

Judge found the respondent removable as charged. The

respondent requested a waiver of inadmissibility under

section 212(c) of the Immigration and N ationality Act, 8

U.S.C. § 1182(c), which the Immigration Judge denied.

On appeal, the respondent argues that he is elizible

for a section 212(c) waiver of inadmissibility. We dis-

agree as section 212(c) relief is not available in removal

proceedings, which the respondent is properly in.

Section 212(c) was repealed by section 304(b) of the

Illegal Immigration Reform and Immigrant Responsi-

bility Act of 1996 (“IIRIRA”), Division C of Pub. L. No.

104-208, 110 Stat. 3009 (enacted Sept. 30, 1996), and was

replaced with cancellation of removal under section

240A, 8 U.S.C. § 1229b. The respondent is statutorily

ineligible for cancellation of removal as his criminal con-

viction constitutes an aggravated felony. See sections

101(a)(43)(B), 8 U.S.C. §§1101(a)(43)(B), and 240A(a)(3).

Accordingly, the appeal is dismissed.

/s/

JOHN GUENDELSBERGER

FOR THE BOARD

96a

APPENDIX F

U.S. Department of Justice

Executive Office for Immigration Review

Office of the Immigration Judge

In the Matter of: Case No. A 41 052 179

ENRICO ST. CYR Docket: MACDOUGUAL

RESPONDENT REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on

1-12-98. This memorandum is solely for the con-

venience of the parties. If the proceedings should be

appealed, the Oral Decision will become the official de-

cision in this matter.

The respondent was ordered deported to HAITI.

[1 Respondent’s application for voluntary departure

was denied and respondent was ordered deported to

: or in the alternative to

O Respondent’s application for voluntary departure

was granted until , with an alternate

order of deportation to or

(1) Respondent’s application for asylum was ( ) granted

() denied ( ) withdrawn ( ) other.

© Respondent’s application for withholding of deporta-

tion was ( ) granted ( ) denied ( ) withdrawn ( ) other.

97a

C) Respondent’s application for suspension of deporta-

tion was ( ) granted ( ) denied ( ) withdrawn ( ) other.

Respondent’s application for waiver under Section

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

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

OQ Respondent's application for was

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

() Proceedings were terminated.

C1 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 appropri-

ate documents necessary to give effect to this order.

CJ Respondent’s status was rescinded under Section

246.

>

Other 2-11-98

CJ Respondent was advised of the limitation on dis-

cretionary relief for failure to appear as ordered in

the Immigration Judge’s oral decision.

Immigration Judge

Date: 1-12-98 .

Appeal: [RESERVEDJWAIVED (A/1/B)

98a

APPENDIX G

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Suspension of Habeas Corpus Clause of the

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

The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion

or Invasion the public Safety may require it.

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

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

_ provided in pertinent part:

Exclusiveness of procedure

The procedure prescribed by, and all the

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

and shall be the sole and exclusive procedure for,

the judicial review of all final orders of depor-

tation, heretofore or hereafter made against aliens

within the United States pursuant to admini-

strative proceedings under section 1252(b) of this

title or pursuant to section 1252a of this title or

comparable provisions of any prior Act, except

that—

* * KF K

(10) Habeas corpus

any alien held in custody pursuant to an order

_of deportation may obtain judiciai review thereof

by habeas corpus proceedings.

RD ee

99a

3. Effective April 24, 1996, Section 106(a) of the

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

provided in pertinent part:

Exclusiveness of procedure

The procedure prescribed by, and all the

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

and shall be the sole and exclusive procedure for,

the judicial review of all final orders of deporta-

tion, heretofore or hereafter made against aliens

within the United States pursuant to administra-

tive proceedings under section 1252(b) of this title

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

parable provisions of any prior Act, except that—-

a, ee ee

(10) Any final order of deportation against

an alien who is deportable by reason of having

committed a criminal offense covered by sec-

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

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

for which both predicate offenses are covered

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

ject to review by any court.

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

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

(1994), provided:

Nonapplicability of subsection (a)

Aliens lawfully admitted for permanent resi-

dence who temporarily proceeded abroad volun-

tarily and not under an order of deportation, and

who are returning to a lawful unrelinquished

domicile of seven consecutive years, may be ad-

100a

mitted in the discretion of the Attorney General

without regard to the provisions of subsection (a)

of this section (other than paragraphs (3) and

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

limit the authority of the Attorney General to

exercise the discretion vested in him under section

1181(b) of this title. The first sentence of this

subsection shall not apply to an alien who has been

convicted of one or more aggravated felonies and

has served for such felony or felonies a term of

imprisonment of at least 5 years.

5. Effective April 24, 1996,’ Section 212(c) of the

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

provided: =

Nonapplicability of subsection (a)

Aliens lawfully admitted for permanent resi-

dence who temporarily proceeded abroad vol-

untarily and not under an order of deportation,

and who are returning to a lawful unrelinquished

domicile of seven consecutive years, may be ad-

mitted in the discretion of the Attorney General

without regard to the provisions of subsection (a)

of this section (other than paragraphs (3) and

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

1 Section 1182(c) of Title 8 was amended by Section 440(d) of

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1277, on April 24, 1996.

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

Illegal Immigration Reform and Immigrant Responsibility Act,

Pub. L. No. 104-208, Div. C, 110 Stat. 3009-612, on September 30,

1996, and those technical amendments were made effective as if

they were enacted on the original enactment date of AEDPA. The

version set forth in the text reflects both sets of amendments.

10la

limit the authority of the Attorney General to

exercise the discretion vested in him under section

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

apply to an alien who is deportable by reason of

having committed any criminal offense covered in

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

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

which both predicate offenses are, without regard

to the date of their commission, otherwise covered

by section [1251](a)(2)(A)(i).

6. Section 235(b) of the Immigration and N ationality

“Act, 8 U.S.C. 1225(b) (Supp. IV 1998), provides in

pertinent part:

(b) Inspection of applicants for admission

(1) Inspection of aliens arriving in the United

States and certain other aliens who have

not been admitted or paroled

(A) Screening

(i) In general

If an immigration officer determines

that an alien (other than an alien described

in subparagraph (F)) who is arriving in the

United States or is described in clause (iii)

is inadmissible under section 1182(a)(6)(C)

or 1182(a)(7) of this title, the officer shall

order the alien removed from the United

States without further hearing or review

unless the alien indicates either an in-

tention to apply for asylum under section

1158 of this title or a fear of persecution.

102a

(ii) Claims for asylum

If.an immigration officer determines

that an alien (other than an alien described

in subparagraph (F’)) who is arriving in the

United States or is described in clause (iii)

is inadmissible under section 1182(a)(6)(C)

or 1182(a)(7) of this title and the alien indi-

cates either an intention to apply for asy-

lum under section 1158 of this titl. er a

fear of persecution, the officer shal!

the alien for an interview by an asylum

officer under subparagraph (B).

* * * * *

(B) Asylum interviews

(i) Conduct by asylum officers

An asylum officer shall conduct inter-

views of aliens referred under subpara-

graph (A)(ii), either at a port of entry or

at such other place designated by the

Attorney General.

(ii) Referral of certain aliens

If the officer determines at the time of

the interview that an alien has a credible

fear of persecution (within the meaning of

clause (v)), the alien shall be detained for

further consideration of the application for

asylum.

108a

(iii) Removal without further review if

no credible fear of persecution

(I) In general

Subject to subclause (III), if the

officer determines that an alien does

not have a credible fear of persecution,

the officer shall order the alien re-

moved from the United States without

further hearing or review.

(IIT) Record of determination

The officer shall prepare a written

record of a determination under sub-

clause (I). Such record shall include a

summary of the material facts as stated

by the applicant, such additional facts

(if any) relied upon by the officer, and

the officer’s analysis of why, in the light

of such facts, the alien has not estab-

lished a credible fear of persecution. A

copy of the officer’s interv

This text is long and has been trimmed here. Open the source document for the complete record.