Appendix — Reno v. Navas

Supems Court, 08

FILED

98 996 DEC 171998

No.

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1998

TION FOR A WRIT OF CERTI

ITED STATES COURT OF

MR THE SECOND CIR

CT

APPENDIX TO

TITION FOR A WRIT OF CERTIORARI

Washington, dD ( ;

PLA ww dS

TABLE OF CONTENTS

Page

Appendix A (court of appeals’ opinion, filed

SE. BE, SIO seeieceenctetarshsnercindiniinecmnnninciomieniniciisiniiin la

Appendix B Gudgment of the court of appeals,

SERGE SOM. 20h, UMOIED sicinnsterntnenistsshiniesenbaieencienisimsniieiraoiensinnes 60a

Appendix C (order of the immigration judge in

Navas, filed May 9, 1996) es . 68a

Appendix D (or al decision of the immigration judge

IT NGUGS, THOG WARY BD, LGD) eccsecccessnsoscencsererssrsnesssstiutvinnsenam 66a

Appendix E (order of the Board of Immigration

Appeals in Navas, filed March 14, 1997) cnc 80a

Appendix F (opinion of the district court in Navas

ANd Mojica, filed July 11, 1997) scscccecrorrccrssssersorsesssssseees 82a

Appendix G (order of the immigration judge in

Mojzica, filed Aug. 2, 1996) ....ceccsccccccccccnvccceseesesssssveccscessesee 206a

Appendix H (transcripts of deportation hearing in

BEOTIOR LAE, Te CE teetitetctteetcanttrnsereteneniniininnte 208a

Appendix I (order of the Board of Immigration

Appeals in Mojica, filed Feb. 3, 1997) cesceccccssssssssssees 214a

Appendix J (order of the immigration judge in

FOC, TOG BU. Bh, SIE) cersiecnnenesinenteicisnnnmnsinintaris 218a

Appendix K (decision of the Board of Immigration

Appeals in Yeszl, filed Mar. 17, 1995) ..ec.csesessessne 222a

Appendix L (order of the Board of Immigration

Appeals denying motion to reopen in Yesil,

filed

SORE By TOD ictieaeiiiiicleadacieaiesaniaiiiagilactdiesnaaajmatsiahiantiieansiinn 232a

Appendix M (opinion of the district court in Yesz7l,

SEONG GRR, S65 RIPE D. senicntletemmentseinnstacenintiiemainnmannaes 248a

Appendix N (opinion of the district court denying

reconsideration in Yeszl, filed July 14, 1997) ...... 291la

Appendix O (memorandum of oral decision of the

immigration judge in Henderson, filed May 2

1996) . pahclieiisonineienaeiionh ww o20a

Appendix P (oral decision of the immigration judge

in Henderson, filed May 2, 1996) .........cssssssccccssssesessesess 323a

(IIT)

Table of Contents—Continued:

Appendix Q (decision of the Board of Immigration

Appeals in Henderson, filed Mar. 21, 1997) wu...

Appendix R (order of the court of appeals certifying

questions to New York Court of Appeals,

Smee) Sk. 1S, TOGG) wisccssicnmecesaaamee aan

Appendix S (order of the New York Court of

Appeais declining certified questions in Mojica

ores Feast, LOE. 1, TGGB) cccciicsreianiaenee

Appendix T (constitutional and statutory

DFOVISIONS INVORVOE) snnsmsinusnneemasaiaaiaenaies

Appendix U (decision of the Board of Immigration

Appeals in Jn re Soriano, June 27, 1996) ceecccccssmsec-.

Appendix V (order of the Attorney General

vacating the Board of Immigration Appeals’

decision in Jn re Soriano, Sept. 12, 1996) ...00...00....

Appendix W (decision of the Attorney General in

y ’ .% ‘ 1( wd

in re Sora? O, teb. 21. LYY 7)

APPENDIX A

UNITED STATES COURT OF APP]

FOR THE SECOND CIRCUI1

vy 4 — — Was

RENO, ATTORNEY GI

DORIS'MEISSNER,

COMMISSIONER OF THE IMMIGRA

AND NATURALIZATION SERVICE;

-RATION AND NATURALIZATION SEI

IN B. Z. CAPLINGER, DISTRICT DIRI

NANCY HOOKS, OFFICER IN CHARGI

~ ( iE VNTS-APPI

oad

Docket No. 97-2600

JUL NAVAS. PETITIONER-APPELLEE

JANET RENO, AS ATTORNEY GENERAL

OF THE UNITED STATES, ET AL.,

RESPONDENTS-APPELLANTS

(Argued: Jan. 21, 1998

Decided: Sept. 18, 1998]

Before: MCLAUGHLIN and CALABRESI, Circuit Judges,

and OWEN, District Judge.

e+

Consolidated appeals from various district cow

decisions on petitions for habeas corpus and for direct

review from decisions of the Board of Immigration

Appeals.

Nos. 97-4050 and 97-4070 dismissed. No. 97-2600

affirmed. Jurisdiction in Nos. 97-2629 and 97-2599

retained pending resolution of question certified to the

New York Court of Appeals.

CALABRESI, Circuit Judge:

These cases concern the scope of federal court

jurisdiction to review the legality of deportation orders

issued by the Immigration and Naturalization Service

(the “INS”). The petitioners before us are legal perma-

nent residents of the United States who have been

The Honorable Richard Owen, United States District Judge

tia?

or the Southern District of New York, sitting by designati

einai iain iliac,

4a

ordered deported because of their past criminal convic-

tions. They challenge the Attorney General’s interpre-

tation of the immigration laws under which they face

deportation. While the statutory provisions before us

today are new ones,’ the questions raised by these

cases are old. Guided by a century’s worth of Supreme

Court decisions, we conclude that the question of

whether the INS had the legal authority to act as it did

is within the jurisdiction of the federal courts. And

following recent decisions of this Circuit, we hold that

this jurisdiction is to be exercised under the general

habeas corpus statute, 28 U.S.C. § 2241 (Supp. 1998).

Because personal jurisdiction over the respondent cited

in two of the habeas petitions before us depends on

interpretations of New York law as to which we are

uncertain, we certify the relevant questions in those

cases to the New York Court of Appeals.

This case is concerned with the changes rendered to various

provisions of the immigration laws by the Antiterrorism and

Effective Death Penalty Act of 1996 (the “AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110

Stat. 3009 (1996) (the “IIRIRA”) (both its transitional and perma-

nent provisions). Collectively, we wili refer to these laws as “the

1996 amendments.”

“ But cf. note 8, infra, expressing a preference—were we

writing on a clean slate—for direct review over habeas jurisdiction

in eases of this sort.

5a

I. FACTS & PROCEDURAL HISTORY

A. Franklin Henderson

Petitioner Franklin Henderson has been a legal

permanent resident (“LPR”) of the United States for

thirty years. Most members of his immediate family

reside in this country, and some of them are citizens. In

May 1987, Henderson pled guilty to criminal possession

of cocaine in the second degree under New York law.

He was sentenced to a prison term of five-years-to-life,

and was incarcerated until April 1992. His conviction

rendered him deportable under the then-effective pro-

visions of § 241(a)(2)(B)(i) of the INA (codified at 8

U.S.C. § 1251(a)(2)(B)(i) (1994)). In February 1994, the

INS initiated deportation proceedings against

Henderson.

At a deportation hearing on May 3, 1994, Henderson

conceded that he was deportable under INA § 241, but

indicated his intent to apply for a discretionary waiver

of deportation pursuant to INA § 212(c) (codified at

8 U.S.C. § 1182(c) (1994)). Since 1952, long-time LPRs

like Henderson have been eligible to seek discretionary

waivers of deportation or exclusion based on factors

such as length of prior residence in the United States,

family and personal ties to this country, positive histo-

ries of employment and community service, evidence of

good character, and (for those persons deportable by

reason of having committed a crime) proof of genuine

rehabilitation. See 8 U.S.C. § 1182(c) (1994) (added by

the Immigration and Naturalization Act of 1952); see

also Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995)

(listing factors to be considered in an application for a

§ 212(c) waiver).

eee

6a

The first hearing on Henderson’s § 212(c) application

was held on October 12, 1995. At the hearing, the INS

stipulated that, based on the many positive factors in

his case, Henderson would warrant § 212(c) relief as a

matter of discretion, but raised a question as to

whether he was eligible for such relief under

then-existing law. At that time, aliens who had served

five years or more in prison for an aggravated felony

conviction were statutorily ineligible for § 212(c) relief,

and the law in this Circuit was unsettled as to whether

criminal possession of a controlled substance in the

second degree constituted an “aggravated felony.” The

hearing was adjourned so that the parties could brief

the issue.

On March 22, 1996, the Second Circuit held that

criminal possession was not an aggravated felony. See

Aguirre v. INS, 79 F.3d 315, 317 (2d Cir. 1996). Accord-

ingly, when Henderson’s case came before an Immigra-

tion Judge (“IJ”) on May 2, 1996, the IJ held that

Henderson was eligible for § 212(c) relief and granted

him a waiver of deportation.

While Henderson’s case was pending, Congress en-

acted a bill that made substantial changes to the im-

migration laws. This bill, the AEDPA, took effect on

April 24, 1996. Section 440(d) of the AEDPA greatly

expanded the range of crimes that rendered aliens

statutorily ineligible for § 212(c) relief. Under the new

law, a person convicted of criminal possession of a

controlled substance in the second degree was rendered

ineligible for a § 212(c) waiver.

The INS took the position that AEDPA § 440(d)

should apply retroactively to cases pending on the date

of its enactment. The Board of Immigration Appeals

(“BIA”) rejected this position, ruling that § 440(d) could

Ta

not be applied retroactively to persons who had applied

for § 212(c) relief before the AEDPA’s effective date.

See Matter of Soriano, Int. Dec. No. 3289, 1996 WL

426888 (BIA June 27, 1996) (“Matter of Soriano I’).

The Attorney General, exercising her statutory au-

thority over the whole of the INS, see 8 U.S.C.

§ 1103(a)(1) (Supp. 1998), reversed the BIA and issued

an opinion concluding that § 440(d) should be applied

retroactively to all pending cases regardless of when

the waiver application was made. See Matter of Sori-

ano, Int. Dec. No. 3289, 1996 WL 426888 (Op. Att’y

Gen. Feb. 21, 1997) (beginning at *16) (“Soriano IT’).

On the basis of the Attorney General’s ruling in

Soriano II, the BIA summarily reversed the waiver of

deportation that had been granted to Henderson.

Henderson, contending that the Attorney General’s

interpretation of § 440(d) in Soriano IJ was incorrect,

filed a petition for review of the BIA’s decision in this

Court on April 1, 1997. See Henderson v. INS, Docket

No. 97-4050. That petition is before us today.”

B. Saul Navas

Saul Navas has been a LPR of the United States

since he arrived here from Panama in 1987, when he

was twelve years old. His entire immediate family lives

in this country, either as LPRs or as citizens. He has no

close relatives in Panama. On May 2, 1995, Navas wes

convicted in New York state court as the result of

pleading guilty to two separate criminal charges. In the

first ease, which involved driving a stolen automobile,

> In addition, Henderson filed a petition for a writ of habeas

corpus in the United States District Court for the Southern

District of New York on August 6, 1997. The district court has not

yet ruled on Henderson’s habeas petition.

ne pied OULILV LO DOSSeSSION O] Stoien property in

+hiw ye +] . a, : Saal

nira degree. In ne second case, wnicn INnVvVOoOLVed

purse-snatching incident, he pled guilty to robbery in

the third degree. Navas received concurrent sentences

f one-and-a-half-to-four years, but satisfied his sen

tences by spending eight months in New York’s “Shoc!

incarceration Program.” While Navas was incarce!

ited, the INS began deportation proceedings agains

um. He first appeared before an IJ on October 11

995, but his case was continued until November §

1QQL — a : f a an (+4 4 no |

JID, WNen, acting pro se, Navas admit ed the alleg

} . 7 r

‘ + |

ONS ana Was found deportapbl The IJ encour 10"

x7 + )16) hi

. iS to apply for a § 212(c) waiver, for which he

NY a : ,

n ¢ r1IOL ind Navas dld So on Vecember &, 1995

{ }? Via U 1996. , Meé 1) n¢ Was fié id (7 N\ IVAS e)

‘ ‘ 1%) nit TY} T }

Mforas glial Walve) ine [J qaetermined [

Navas’ residence in the United States since a young

ye, his substantial family ties to this country, and hi:

story of steady employment weighed strongly

flavor of allowing him to remain in this country.

ordingly, the IJ granted him a § 212(c) waiver. Thi

BIA reversed, however, holding that, under the Atto1

ey General’s intervening opinion in Soriano

"

\EDPA § 440(d) applied retroactively to render Na

statutorily ineligible for § 212(c) relief.’

Navas then filed a petition for a writ of habeas cory

the United States District Court for the Eastern Di

‘t of New York (Jack B. Weinstein, Judge). Th

1 , } 1 1 . . 1° .

] . i. velbe ' t > nn ,/ } . ; > + .

rt concluded nat it nad jurisdiction O re

]

iS ClalmMmsS unde) ( vyenera I er S

9a

U.S.C. § 2241. See Mojica v. Reno, 970 F. Supp. 130

(E.D.N.Y. 1997). The court further held, as a matter of

statutory construction, that AEDPA § 440(d) should

not apply retroactively to Navas’ case. See id. at 165.

Accordingly, the court granted Navas’ habeas petition

and ordered the INS to adjudicate Navas’ application

for § 212(c) relief under pre-AE DPA standards. See id.

at 182. The INS appealed to this Court. See Navas v.

Reno, Docket No. 97-2600.

In addition to filing his habeas petition in the district

court, Navas also filed a petition for direct review of the

BIA’s March 14, 1997, decision with this Court on April

11, 1997. See Navas v. Reno, Docket No. 97-4070.

These cases have been consolidated on appeal and are

both before us today.

C. Guillermo Mojica

Guillermo Mojica. a citizen of Colombia, has been a

LPR of the United States since 1972. His wife is a

naturalized citizen, and his two children have citizen-

ship by virtue of their birth in this country. Mojica was

charged in 1988 with conspiracy to distribute cocaine in

violation of federal law. He pled guilty, was sentenced

to one year in prison, and, on completion of Ais term in

early 1990, was released.

In January, 1996, while returning from a brief trip to

Ecuador to visit family, Mojica disclosed his conviction

to border officials. He was detained overnight at John

F’. Kennedy International Airport and paroled into the

country the next morning. The INS seized his passport

and green card and told him to report to the INS on

February 12, 1996. On May 29, 1996, the INS officially

admitted him into the country, but immediately there-

10a

after began deportation proceedings against him.’

Mojica was taken into INS custody and transferred

from New York to the INS holding facility in Oakdale,

Louisiana on June 5, 1996.

Mojica’s next appearance before an IJ was on July 5,

1996, in Louisiana. His attorney in New York appeared

by telephone from Brooklyn and requested a change of

venue to New York, which was denied. The case was

adjourned until August 2, 1996, when Mojica conceded

deportability and requested a § 212(c) waiver. On that

same date, the IJ denied relief on the grounds that

Mojica was statutorily ineligible for such relief because

of § 440(d) of the AEDPA, and ordered him deported.

— appealed to the BIA, and lost.

veleased on bond on October 21, 1996, Mojica, with

the INS’ Ss permission, returned home to New York. He

then filed a habeas petition in the United States Dis-

trict Court for the Eastern District of New York on

March 4, 1997. The next day, the INS ordered him to

surrender to their agents in Oakdale, Louisiana, which

he did.

Mojica’s case was consolidated with the case of Saul

Navas before Judge Weinstein, who granted Mojica’s

Prior to the 1996 amendments, the law distinguished between

deportation and exclusion proceedings. Aliens who were physi-

cally present in the United States were placed into deportation

proceedings. Exclusion proceedings dealt with aliens who were

iterally at the border seeking entry as well as those who had been

aechersers 4 paroled into the country but who, through a legal mai

remained for immigration purposes at the border. See 8 U.S

§ 125 2b (repealed 1996). The 1996 law combined the two procee a

ings into a new process known as a “removal proceeding.” See &

| SC. $ 1229a (Supp. 1998) (added by the ITRIRA).

lla

habeas petition. See Mojica, 970 F. Supp. at 182. The

INS appealed.

D. Engin Yesil

Engin Yesil, a native of Turkey, arrived in this

country in 1979 on a student visa at the age of sixteen.

In 1987, he married a United States citizen, and the

following year applied for LPR status.

In 1990, Yesil pled guilty to aiding and abetting the

distribution of cocaine in violation of federal law. He

was sentenced to six years’ imprisonment, a three-year

special parole term, and a $150,000 fine. In lieu of for-

feiting his business (the eyewear distributor Lens Ex-

press), he paid $25,000.

Yesil was initially held at the Federal Correctional

Institution (“FCI”) in Tallahassee, Florida, but at some

point was transferred to the FCI at Oakdale, Louisiana.

While he was still incarcerated, the INS commenced

deportation proceedings against him in Louisiana on

January 5, 1994. Shortly thereafter, Yesil was trans-

ferred from the FCI to the INS’s Oakdale detention

facility. He was released on bond on April 12, 1994, and

told the INS that he would be living in New York City.

On April 15, 1994, his attorney moved to change the

venue of his deportation proceedings from Louisiana to

New York, but that motion was denied.

On May 4, 1994, the IJ found Yesil deportable, and on

August 31, 1994, the IJ ordered him deported. The IJ

held that Yesil had failed to demonstrate eligibility for

relief from deportation because he had not been a LPR

for the seven years required for a § 212(c) waiver.

Since —under Fifth Circuit law—Yesil had only been a

LPR for six years, the IJ determined that he was

statutorily barred from relief. The BIA dismissed his

Second or Fifth Cireuit law. Yesil had n

the requisite seven consecutive years of lawful unrelin

quished domicile necess e him eligible fo

uve)

On April 14, 1995, Y« filed a pe on f revi

BIA’s decision in this Court, claiming that ur

nd ¢ Ircult law ne had bee! ‘ PR lor Seven Ve

. In July 1995, he voluntarily withdrew this pet

i ending a decision by the BIA on his motion to reo

H e deportation order. One vear later, on July 3, 19!

: BIA denied the motion. Accordingly, on Jul

96, Yesil reinstated his original petition for our

ew of the BIA’s March 17, 1995 decision. and

Lugust 1, 1996 he nied in this Court a petitio

cing the BIA’s Ju », 1Y9Y6, de} r | n

eopen

On October 29, 199¢ O! Dane i tnis (

nted the government’s motion to dis1 Yes

ions for lack of subject matter jurisdiction, n¢

nat “[tjnis case is not sulliciently distinguishable iy

IY ncapue Nie LO V INS, YZ F.3d 27 (2d Ci LYYb

Hincapie-Nieto, we held—on the basis of governn

presentations that some degree of habeas re

emained that the AEDPA validly stripper the (

\ppeals of jurisdiction over petitions for dire

ew of BIA decisions filed by aliens ¢

‘ified criminal offenses. See id. at 31.

Yesil filed a petition for a writ of habeas a

nited States District Court for the Southern D

New York on November &, 199¢ That court (De

. n,. Judge) determined that Yesil did not pos

l3a

ana. It ordered instead that Yesil report once a month

to the INS’s offices in New York.

On February 27, 1997, the district court granted

Yesil’s habeas petition, finding that it had jurisdiction

to do so pursuant to 28 U.S.C. § 2241. See Yesil v.

Reno, 958 F. Supp. 828, 886 (S.D.N.Y. 1997). The court

then ruled that Yesil had acquired the necessary seven

years of lawful domicile required for § 212(c) relief, and

that he was otherwise statutorily eligible to seek such

relief. See id. at 841-43. It therefore ordered the BIA

to consider his application on the merits. See id. The

INS appealed.

IT. DISCUSSION

A. Subject Matter Jurisdiction

The first question before us is the extent of the

federal courts’ subject matter jurisdiction to review

removal orders issued by the INS against criminal

aliens under the 1996 amendments to the immigration

laws. We have previously found that the 1996 amend-

ments “repealed the jurisdiction a court of appeals

formerly had over petitions for review filed by aliens

convicted of” certain criminal offenses. Hincapie-

Nieto, 92 F.3d at 28. And we have recently stated that

this repeal of jurisdiction suffers from no constitutional

infirmity because the 1996 amendments left untouched

the courts’ jurisdiction under the general! habeas stat-

ute, 28 U.S.C. § 2241. See Jean-Baptiste v. Reno, 144

F.3d 212, 219-20 (2d Cir. 1998); Hincapie-Nieto, 92 F.3d

at 31. We adhere to these decisions.

Today, we consider one of the issues left open in

Hincapie-Nieto and Jean-Baptiste—the scope of the

review available under § 2241. We conclude that, what-

ever the outer perimeters of such review may be, the

Gd

courts have the power t to address the ure questions of

law presented in the instant cases.

When Congress acted in 1996, it did not write on an

mpty slate, but rather on one replete with century-old

le eon guidelines. Accordingly, to ascertain the impact of

the 1996 amendments on the scope and availability of

judicial review, we must examine the backdrop against

vhich Congress has legislated.

} 1. Judicial Review of Executive Deportation

Decisions, 1885-1952

' Before 1952, judicial review of immigration decisions

proceeded solely by way of the writ of prea Corpus.

[he scope of the courts’ authority to review executiv:

officials’ decisions in immigration matters in this man-

ler was first litigated in 1885. In the case of Jn re Jung

Ah Lung, 25 F. 141 (D. Cal. 1885), aff'd sub nom

United States v. Jung Ah Lung, 124 U.S. 621 (1888), the

eovernment challenged the jurisdiction of the federal

istrict courts to review habeas petitions filed by

Chinese immigrants. The government contended that

the youn of customs at the por of entry, an execu-

tive official, had final authority to determine whether

a were excludable under the Chinese Exclusion

Act and that his decisions were not reviewable by the

courts. The district court rejected the government’s

irgument that the Chinese Exclusion Act had moved

sat °1 ry ¢ ryt a} tT

authority to grant habe: as relie f, statins

(x

81-82. See Felker v. Turpin, 518 U.S. 651, 661 (1996 1escril

|

)

Lda

Such an abrogation of the writ of habeas corpus,

which has always been considered among English-

speaking peoples the most sacred muniment of

personal freedom, must be unmistakably declared

by congress before any court could venture to

withhold its benefits from any human being, no

matter what his race or color.

Jung Ah Lung, 25 F. at 142-43. Noting that “

to a writ of habeas corpus is the right to have

lawfulness of the restraint to which the petitioner is

subjected inquired into by the courts; to be adjudged

and determined by the law of the land,” the court

ordered briefing by the parties on the merits of the

collector’s findings of fact and conclusions of law with

respect to the petitioner. Jd. at 148-44. The Supreme

Court affirmed, holding that “[w]e see nothing in these

acts which in any manner affects the jurisdiction of the

courts of the United States to issue a writ of habeas

corpus.” Jung Ah Lung, 124 U.S. at 628-29.

tlhe right

[

Even before the Supreme Court expressly approved

of the practice in Jung Ah Lung, the district courts in

port cities had become quite active in granting writs of

habeas corpus to Chinese immigrants. The Department

of Treasury estimated that by 1885, the courts were

responsible for the admission of 2,695 Chinese, approxi-

mately one-fifth of the total number of Chinese landed

since the enactment of the Chinese Exclusion Laws. By

1888, at least 4,091 Chinese had petitioned the federal

courts for a habeas hearing and eighty-five percent of

those persons had been admitted. See Lucy E. Salyer,

Laws Harsh as Tigers: Chinese Immigrants and the

Shaping of Modern Immigration Law 20 (1995). The

result of the courts’ exercise of the habeas power was

that

l6a

[t]he Chinese litigants’ success increased the an-

tagonism between the federal judges and the

collector and fueled public opinion against the

courts. The collector . . . accused the court of

interfering with his job and argued that the cases

“should [not] come before the judiciary at all.”

Groups from the local community, incensed by the

court decisions, called for the impeachment of the

iner for the Department of Justice . . . re-

ported to the aitorney general: “Two coorfinate

sic| branches of the Government are engaged in a

hostile conflict, with the people and the press

on the side against the courts, accusing them

openly of all manner of bargain, intrigue and

corruption. i

Salyer, supra, at 20-21 (citations and endnotes omitted).

Apparently in response to these concerns, Congress

attempted to restrict the availability of judicial review

in its 1888 amendments to the Chinese Exclusion Act.

See Act of Sept. 13, 1888, 25 Stat. 476. Section 12 of this

act stated, “the collector shall . . . decide all questions

in dispute with regard to the right of any Chinese

passenger to enter the United States, and his decision

shall be subject to review by the secretary of the

treasury and not otherwise.” /d.§ 12. As one district

court explained:

The books are full of cases in which the rights of

Chinese persons to enter this country have been

re-examined on habeas corpus, after denials of such

rights by customs officials. . . . It was, doubtless,

in view of this unbroken line of decisions, and for

the purpose of changing the law . . . that congress

17a

enacted the twelfth section of the Act of September

13, 1888. With this section in force, the action of

the collector, in the absence of fraud, would be

conclusive and final.

United States v. Loo Way, 68 F. 475, 477 (S.D. Cal.

1895), aff'd, 72 F. 688 (9th Cir. 1896).

For reasons unrelated to this provision, however, the

entire 1888 Act was held invalid, first by the Ninth

Circuit, see United States v. Gee Lee, 50 F. 271, 273 (9th

Cir. 1892), and ultimately by the Supreme Court, see Li

Sing v. United States, 180 U.S. 486, 488-90 (1901). Ac-

cordingly, judicial review of immigration decisions con-

tinued apace.

Shortly after the passage of the 1888 Act, a congres-

sional joint committee on immigration began drafting

what would become the Immigration Act of 1891. The

committee sent representatives to the West Coast,

where they learned that executive immigration officials

considered meddling by the courts to be one of the most

serious hindrances to their work. See U.S. Congress,

Select Committee on Immigration and Naturalization,

51st Cong., 2d Sess., Chinese Immigration 272-73 (1890)

(cited in Salyer, swpra, at 264 n.151). And so it came to

pass that the 1891 law included a provision stating that

“{a]ll decisions made by the inspection officers or their

assistants touching the right of any alien to land, when

adverse to such right, shall be final unless appeal be

taken to the superintendent of immigration, whose

action shall be subject to review by the Secretary of the

Treasury.” Act of March 3, 1891, ch. 551, § 8, 26 Stat.

1084, 1085.

The finality provision was carried forward, with only

minor changes, in subsequent immigration acts. See

LSa

Heikkila v. Barber, 345 U.S. 229, 234 (1953) (citing

statutes from 1903, 1907, and 1917). And as the Su-

preme Court later explained, “(dJuring these years,”

(7.e., from 1891 to 1952), “the cases continued to recog-

nize that Congress had intended to make these admin-

istrative decisions nonreviewable to the fullest extent

possible under the Constitution.” J/d.; see also id. at

234-35 (noting that the statutes “clearly had the effect

of precluding judicial intervention in deportation cases

except insofar as it was required by the Constitution”).

While cognizant of the limits placed on their au

thority by Congress, the courts in this era continued to

review—on habeas—claims by aliens that the immigra-

tion officials had acted under erroneous interpretations

of the law. The first of these cases was Nishimura

Bkiu v. United States, 142 U.S. 651 (1892). The

petitioner in that case was excluded from entry by

customs inspectors in San Francisco. She filed a

petition for a writ of habeas corpus, “and contended

that the act of 1891, if construed as vesting in the

[executive] officers . . . exclusive authority to deter-

mine [her right to land] was in so far unconstitutional,

as depriving her of liberty without due process of law;

and that by the Constitution she had a right to the writ

of habeas corpus.” Id. at 656.

The Court responded to Nishimura Ekiu’s due pro-

cess argument by stating in sweeping terms that, as to

aliens outside the United States, “the decisions of ex-

ecutive or administrative officers, acting within powers

expressly conferred by Congress, are due process of

law.” Id. at 660. But the Supreme Court also held that

“lajn alien immigrant, prevented from landing by any

such officer claiming authority to do so under an act of

Congress, and thereby restrained of his liberty, is

19a

doubtless entitled to a writ of habeas corpus to ascer-

tain whether the restraint is lawful.” Id. (emphasis

added).

In other words, the alien was entitled to a judicial

determination of whether the executive was “acting

within powers expressly conferred by Congress.” And

so the Court went on to consider whether the actions of

the inspector were “in conformity with the act of 1891.”

Id. at 668. Specifically, the Court addressed the ques-

tion of whether the statutory language required the

inspector to take testimony “on oath.” Jd. Concluding

that the statute allowed, but did not require, the

inspector to take testimony on oath, the Court rejected

Nishimura Ejiku’s statutory claim on its merits. See id.

As to her claim that the customs inspector had based

his decision on erroneous factual findings, the Court, in

contrast to its review of the statutory interpretation

issue, held that “the final determination of those facts

[on which the right to land depends] may be entrusted

by congress to executive officers” and that the court

was therefore barred by the 1891 Act from second-

guessing those findings. Id. at 660.

In Yamataya v. Fisher (“The Japanese Immigrant

Case’), 189 U.S. 86 (1903), the Court reiterated that

Congress was entitled to entrust the “enforcement of

[immigration] provisions, conditions, and regulations

exclusively to executive officers without judicial inter-

vention,” id. at 97, and that the 1891 Act had, in fact,

invested executive officers “with the power to deter-

mine finally the facts upon which an alien’s right to

enter this country, or remain in it, depended,” 2d. at

100. The Court went on, however, to consider the peti-

tioner’s claim that a treaty signed in 1895 had, by

implication, altered the law that allowed the exclusion

20a

of Japanese subjects who are “paupers or persons likely

to become a public charge.” Jd. at 97. Concluding that

the provision excluding the indigent was still in effect,

the court rejected the immigrant’s petition. See id. at

102.

Similarly, in Gonzales v. Williams, 192 U.S. 1 (1903),

the Court entertained a habeas petition brought by a

Puerto Rican citizen who claimed that, although not a

citizen of the United States, she was not an “alien immi-

grant” under the 1891 statute and was, therefore, im-

properly excluded. The Court agreed with the peti-

tioner and rejected the government’s interpretation of

the statute. See id. at 18. As for the government’s con-

tention that judicial review was precluded by the

finality provisions of the immigration laws, the Court

concluded that “as Gonzales did not come within the act

of 1891, the commissioner had no jurisdiction to detain

and deport her by deciding the mere question of law to

the contrary; and she was not obliged to resort to the

Superintendent or the Secretary.” Jd. at 15.

The Court further expounded upon the necessity of

judicial review of statutory claims in Gegiow v. Uhl, 239

U.S. 3 (1915), stating:

The statute, by enumerating the conditions upon

which the allowance to land may be denied, pro-

hibits the denial in other cases. And when the

record shows that a commissioner of immigration is

exceeding his power, the alien may demand his

release upon habeas corpus. The conclusiveness of

the decisions of immigration officers under § 25 is

conclusiveness upon matters of fact. This was

implied in Nishimura Ekiu v. United States.

As was said in Gonzales v. Williams, “as Gonzales

did not come within the act of 1891, the Commis-

Zla

sioner had no jurisdiction to detain and deport her

by deciding the mere question of law to the con-

trary.” Such a case stands no better than a decision

without a fair hearing, which has been held to be

bad.

Id. at 9 (citations omitted).

As a result, the Court went on to consider the

petitioner’s claim that, under the immigration statute,

he should not have been deemed an individual likely to

become a public charge solely on the ground that the

labor market in the city of his immediate destination

was overstocked. The Court agreed with the alien and,

rejecting the executive branch’s interpretation of the

statute, held that the statute allowed only consideration

of the labor market in the country as a whole, and not in

any particular city. See id. at 9-10.

Other cases of this sort abound in the reporters. See,

e.g., Delgadillo v. Carmichael, 332 U.S. 388, 390-91

(1947) (granting habeas and rejecting the immigration

service’s interpretation of the statutory term “entry”);

Bridges v. Wixon, 326 U.S. 135, 149 (1945) (rejecting the

government’s interpretation of the term “affiliation”

with the Communist party and holding that habeas is

appropriate “where an alien is ordered deported for

reasons not specified by Congress”); Kessler v.

Strecker, 307 U.S. 22, 35 (1939) (holding, on habeas, that

“as the Secretary erred in the construction of the stat-

ute, the writ must be granted and the respondent dis-

charged from custody”); Mahler v. Eby, 264 U.S. 32

(1924) (rejecting, on habeas, the executive branch’s

interpretation of findings necessary for deportation

based on espionage); Howe v. United States ex rel.

Savitsky, 247 F. 292 (2d Cir. 1917) (rejecting, in a

habeas suit, the immigration authority’s “latitudinarian

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aliens are plenary and Congress may choose such

agencies as it pleases to carry out whatever policy or

rule of exclusion it may adopt, and, so long as such

agencies do not transcend limits of authority or abuse

discretion reposed in them, their judgment is not open

to challenge or review by courts.” Jd. at *2 (emphasis

added) (citing Yamataya v. Fisher, 189 U.S. 86 (1903)).

Similarly, a committee report for a predecessor bill

expressed Congress’ understanding of the constitu-

tional backdrop as established by the case law, namely

tnat:

Once the order and warrant of deportation are

issued, the administrative process is complete.

Under the fifth amendment to the Constitution, the

‘due process’ provision, the alien may, however,

petition for a writ of habeas corpus. In a habeas

corpus proceeding, based on a deportation case, the

court determines whether or not there has been a

fair hearing [and] whether or not the law has been

aad ] ]

LrLLeE rpreted correcti i.

». Rep. No. 1515, 81st Cong., 2d Sess., at 629 (1950)

quoted in Shaughnessy v. Pedreiro, 349 U.S. 48, 56

1955) (Minton, /J., dissenting)) (emphasis added).

Although the 1952 Act also contained a finality pro-

vision, this provision was held by the Supreme Court

not to preclude direct judicial review of INS decisions

under the APA. See Shaughnessy, 349 U.S. at 51-52

citing legislative history indicating that Congress

intended APA review to be available under the 1952

Act). Accordingly, the scope of review of immigration

decisions—particularly executive factual findings—was

substantially broadened by the 1952 Act. See Heikkila,

345 U.S. at 236 & n.11 (contrasting the due process

“some evidence” test applied on habeas in, « .; Bridge Ss

15), with the APA test of

; +. . — rr 9 > dade a | . ‘ ‘ rh ] 99

ibstantial evidence” on the “record as a whole

>

Immigration and Naturalization Act of 1961

Soon after, the government became worried that

liens were taking advantage of the availability of APA

review by filing duplicative petitions for habeas and

direct review, thereby delaying their departures.

President Eisenhower expressed this concern in special

the growing fre-

cases brought for purposes of delay,

messages to Congress, stating that “

juency of

particularly those involving aliens found to be criminals

: nd traffickers in narcotics and subversion, makes

mperative the need for legislation limiting and care

llv defining the judicial process.” Letter from Presi

ent Eisenhower to Congress, Jan. 31, 1957, H. Doc

No. 85, 85th Cong., Ist Sess. (quoted in H.R. Rep. No.

1086 (1961), reprinted in 1961 U.S.C.C.A.N. 2951

61 WL 4841, at *20) (“Letter of Jan. :

» same time, President Eisenhower stated that “

utional due process wisely confers upon any alie

itever the charge, the right to challenge in the

urts the Government’s finding of deportability.”

residential Message of Feb. 8, 1956. H. Doc. No. 329.

th Cong., 2d Sess. (quoted in H.R. Rep. No. 87-1086

1961), reprinted in 1961 U.S.C.C.A.N. 2950, 1961 WL

11, at *21); see also Letter of Jan. 31, 1957, at *20

“Whatever the ground for deportation, any alien has

he right to challenge the Government’s findings of

deportability through judicial process. This is as it

should be.”). And so President Eisenhower urged that

new legislation be enacted that would preserve judicial

review but would limit the ability of aliens to file

epetitious petitions in the courts. See Let

+ . * 3 ‘

Ler Ol Jan

1957, at *20.

The Immigration and Naturalization Act was

amended by the Act of Sept. 26, 1961, Pub. L. No.

87-301, § 5, 75 Stat. 650, 651-538. This Act was “in

accord” with former President Eisenhower’s recom-

mendations in this regard and was supported by the

new Kennedy administration. See H.R. Rep. No.

87-1086 (1961), reprinted in 1961 U.S.C.C.A.N. 2950,

1961 WL 4841, at *21. The Act created a “single, sepa-

rate, statutory form of judicial review of administrative

orders for the deportation and exclusion of aliens from

the United States.” Jd. at *19. Primary jurisdiction to

review final orders of deportation was vested in the

courts of appeals. See 8 U.S.C. § 1105a (repealed 1996).

The scope of this review was substantially the same as

that provided by the APA, and so was broader than

that allowed under the Heikkila-era habeas cases.

Aliens facing exclusion rather than deportation wer:

left with the sole remedy of a habeas corpus sult. Se

d. In addition, the law provided that aliens held “in

custody pursuant to an order of deportation may obtain

judicial review thereof by habeas corpus proceedings.

Id. The law also placed time barriers on the filing of

petitions for judicial review and limited repetitiou

petitions. See id.

4. The 1996 Amendments

In 1996, Congress enacted two bills that significantly

altered the immigration laws. The first, the AEDPA

took effect on April 24, 1996. Sections 401(e) and 440(a

of the AEDPA struck 8 U.S.C. § 1105a(a)(10), the sec

tion that had previously provided for habeas review for

aliens held in custody pursuant to deportation orders,

and replaced it with the following new text: “Any final

order of deportation against an alien who is deportable

by reason of having committed [certain crimes] shall

f P ] Ve 4 + 1*)° .

t+0(a), 110 Stat. at it

Congress undertook a more ambitious reform of the

immigration laws a few months later. The product of

this effort, the IIRIRA, took effect on September 30,

1996. The IIRIRA contains two sets of provisions. Th:

permanent changes govern removal proceedings com

menced after April 1, 1997. See IIRIRA § 309(a). The

transitional] provisions (which are not codified in cne

| SS. Code) control deport: tion proceedings Starter

rior to April 1, 1997, in which the deportation ord:

' ecame administratively final aft y Octoher 2 1QQ¢

- Caine aaministrative 1 \ lifldl allel iT ODE) ov. Ll.

, leportation orders that became final before Octobr

1996, are not affected b he IIRIRA and are

ed D e 1961 Immigration Act amendet

se, | ne AEDPA he cases before us are ¢

) e rules in effect during the IIRIRA tr:

nal period. Section 809(c)(4)(G) of the IIRIRA ft)

al rules 18 the immediate successor t \E] PA

tU( a and reiterated and expanded its overhau

rmer 8 U.S.( > 1105a(a)(10) [It } Vides

ere Snail be no ippeal permitted 1 the case o

en who ls iInadmiss ble O} deportabl. b reast

committed a criminal offense cover: n | ce

ms of the code IIRIRA § 309 1)((

e IIRIRA’s permanent p

re and relocated ne rule c,oOVve! O }

et § 1252 The new § 1252 governs re! ‘ proceeding

1 alter April 1, 1997. In the permanent py sions (

LEDPA § 440 nd transitional IIRIRA OS

d S$ U.S.C. § 1252 2)(( n states th:

ling any other provision of law. no irt s! have

ew any final order of removal ag: ! .

ald

5. Effect of the 1996 Amendments

The 1996 amendments were clearly meant to con-

strict the availability of judicial review of deportation

orders against criminal aliens. But how far did Con-

gress intend to go? As noted above, we have previously

found that the 1996 amendments “repealed the jurisdic-

tion a court of appeals formerly had over petitions for

review filed by aliens convicted of [certain criminal

ffenses].” Hincapie-Nieto, 92 F.3d at 28. And we have

joined our sister circuits in concluding that this repeal

of jurisdiction suffers from no constitutional infirmity

because the courts retain habeas jurisdiction under

28 U.S.C. § 2241. See Jean-Baptiste, 144 F.3d at 220:

/ neapr -Nieto, 92 F.3d at 31: see also Goncalves

eno, 144 F.3d 110, 128 (1st Cir. 1998): Mansow)

)

INS, 123 F.3d 423, 426 (6th Cir. 1997): Turkhan v. INS.

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

114 F.3d 82, 83-84 (5th Cir. 1997); Ramallo v. Reno. 114

3d 1210, 1214 & n.1 (D.C. Cir. 1997). vetition fon

A.

led, 66 U.S.L.W. 3264 (Sept. 24, 1997) (No. 97-526

a 2 BE 31 +4 ~~ 11 TA TE ‘ /. F

4 P | FA

LIL | \ “eB 113 od Llol, LidG-oe) LU Mm 4

ew Cc ( l A "ead ~

ie s SeCCLUL ind no » indi 4 i]

no court shall have iurisdiction to hear ar ee A)

LLU COUT Sildil lla Ve AP isSdait iUli LU llGal a Cau

¢ O in allen arising Irom tne decision or action D

torney General to commence proceedings, adiudicate cases.

ite removal orders against any alien under this Act.” IIRIRA

242(g) (codified at 8 U.S.C. §1252(g) (Supp. 1998)). This catch-:

: : : ° AYO IIxy « lene ] ‘ ' ‘ ler anlalx al;

rOvVision 1S generally applicable, and does not apply solely to alle

. . ‘= ’ } rr'L. >TpD a9 .

‘ted of specified crimes. Seeid. The IIRIRA furthe

that the nermanent Nrovision S 1? 2 ea imiting ] Iisdictic

£ALGaALv Lill } Liiicalil Ai wi A ily bet (lot \ bc52,,0iL1 Aid Al

apply witnout iimitatior O CialmS arising

lng, or ¢

IRA § 306

EF ce a a Tee

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aoa

1997); Salazar-Haro v. INS, 95 F.3d 309. 311 (3d Cir.

1996), cert. denied, 117 S.Ct. 1842 (1997).°

In Jean-Baptiste, we emphasized that although “Con-

gress exercises broad power over immigration mat-

ters,” that power is limited by the Constitution.

Jean-Baptiste, 144 F.3d at 219 (citing INS v. Chadha,

162 U.S. 919, 940-41 (1983) (“Congress has plenary

authority in all cases in which it has substantive

legislative jurisdiction, . . . so long as the exercise of

hat authority does not offend some other constitutional

restriction.” (internal quotation marks and citations

ymitted))); see gene rally Battaglia v. General Motors

rp., 169 F.2d 254, 257 (2d Cir. 1948) (“[Whhile

ongress has the undoubted power to give, withhold,

ind restrict the jurisdiction of the courts . .. , it must

so exercise that power as to deprive any person

life, liberty, or property without due process of law

a Henry M. Hart, Jr., The Power of ( ‘ongre ss to

the Jurisdiction of Federal Courts: An Exercis:

Dialectic, 66 Harv. L. Rev. 1362, 1397 (1953) (posit-

g constitutional limits on Congress’ control of federal

ourt jurisdiction); Lawrence Gene Sager, The Suprem

1

ourt, 1980 Term—Foreword: Constitutional Limita-

f

fv , J ») / tho “effin

ons on Congress’ Authority to Regulate the Jurisdic-

on of the Federal Courts, 95 Harv. L. Rev. 17, 42

[he Eleventh Circuit’s opinion in Auguste v. Reno, 140 F.3d

73 (11th Cir. 1998), holding similarly, see id. at 1377 n.9, has beer

thdrawn end superceded by Auguste v. Reno, No. 95-5555,

F.3d , 1998 WL 556263 (11th Cir. Sept. 2, 1998). The new

pinion is, however, inapposite to the cases before us since i

declined to treat the petitioner’s writ as having been filed under

2241 (and instead treated it as a petition under now-repealed

S.C. § 1105a(a)(10)

Za

We noted in Jean-Baptiste that the Constitution pro-

vides that “‘[t]he Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases of

Rebellion or Invasion the public Safety may require

it.” Jean-Baptiste, 144 F.3d at 218 (quoting U.S.

Const., art. I, § 9, cl. 2). And we further stated that “in

the absence of language affirmatively and clearly

eliminating habeas review, we presume Congress did

not aim to bar federal courts’ habeas jurisdictior

pursuant to § 2241.” Jd. at 219 (citing Felker, 518 U.S

at 661. and Kx parte Yerger. 15 [)_S. { » Wall. RH. LOD

L863 )).

[The decision in Jea n-Baptist retiects ne Wwe

accepted rule of statutory construction that repeais b

implication of jurisdictional statutes (and particularly o!

the habeas statutes) are disfavored. In addition, it ac

knowledges the presumption in favor of judicial reviev

see, é.g., Bowen v. Mich gan Academy of Fam

Physicians, 476 U.S. 667, 670 (1986) (“We begin wit!

the strong presumption that Congress intends jJudici.

review of administrative action.”); see also Webster

Doe, 486 U.S. 592, 603 (1988) (same); Johnson

Robison, 415 U.S. 361, 373-74 (1974) (same). Finally, 11

avoids the profound constitutional questions that would

be presented under the Suspension Clause, Article III,

the Due Process Clause, and the Equal Protection

Clause if the statute were read to preclude all judicial!

review. See generally Note, The Avoidance of Const

tutional Questions and Preservation of Judicial Ke

view: Federal Court Treatment of the New Habeas Pri

visions, 111 Harv. L. Rev. 1578, 1579, 1589-90 (1993).

+ 4

Indeed, the government itself does not argue that ths

1996 amendments completely forbid judicial review

deportation against criminal aliens. Rather, the g

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itner than by direct review in the courts of

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tions upon which the allowance to land may be deni

rohibits the denial in other cases. And when the record

nows that a commissioner of immigration 1s exceedin

s power, the alien may demand his release upo.

. 9q 7?\e Vas , TT as ¥ 1A/ Y] OrO) i.

LbC@asS COrpus., ); Brou nett 4 Tom WV, OMUNEG, 13 4 [

1QE9 1 One Bah , ad 6,3 R ” eae

@) 1d2 n.1 (1956) (holding that que process Muara!

tv ah] } | : ; ly, ‘6 Pos 4 4

enforceable on habeas include “conformity to

orounds ); Goncalves, 144 F.3d at 124 (“! N lum

] . | S »«) ] ‘

mmigration cases under the 2241 Jurisdi

onsidered claims of statutory right. sometimes

} | rt

ped aS an integral part of ensuring due proce

7 | ‘ r + , . ] ;. + . ’. ++ " s+ = . .

‘uiar ly enforced—in the face of statutes SeeKiIngo

irt decided more than seventy-five vears ago that the Cor

vallable for some statutory questions. such a

;

Tt]

etner the petivioner 1S 1n fact an allen under apt

I i

IWS and whether he or she has been con\ icted

mes that render him or her deportable within th

aning of the statute. See Brief for Respondents

ellants at 29, Mojica, Nos. 97-2599, 97-2600 (citii

ng v. INS, 109 F.3d 1185, 1189 (7th Cir. 199

\ - ele, , ia é¢ha4 ; P ] } ;

\ccordingly, we hold that the federal courts ha

j

’ +4 ] . spe + “yr ¢ sh, Fm

ictlon under § 2241 to grant writs of habeas cor

Im@ah|] o } . 2 lL, oa ff +4 , . 4

yNZadvie on habeas. Bi t tnose attecting the subs an

}

] I

1! rignts of aliens of the sort that the courts nave

]

A

in

-

ariaial swnonint. L oh eee A mad

Mt Judicial jurisdiction to the fullest extent co.

1. 1 1 : erie

lix . iva , « ‘oO » + : ‘ + ry +7

uwiV DOSSIDIé surely are. The Wo Statutory aque

‘ i ‘ ‘ A

petore us toda\ are clearly Of tnisS variety. and (

r exa ( :

. nev ad { ~ (

ne statutory questions.

JY

And well they might concede this point. for the Suprs

ition required judicial review of the executive’s decision that

on facing deportation was a non-citizen. See Ng Fung Hi

te, 259 U.S. 276, 284 (1922).

Our decision is premised on the notion that § 2241 habeas is

+ : y . 74 sixy sh . +] ms } l

itutionally required only where the immigration laws hav:

interpreted to bar other forms of judicial review

Baptiste, 144 F.3d at 218.

4

district courts had subject matter jurisdiction LO

consider them.

B. Personal Jurisdiction

Before we turn to the merits of petitioners’ claims,

however, we must address issues of personal jurisdic-

tion. Two of the petitioners (Yesil and Mojica) have

cited both the Attorney General of the United States

and John B. Caplinger, the INS District Director in

New Orleans, Louisiana as respondents. But the gov-

ernment contends that Caplinger is the only legitimate

respondent for habeas purposes and further asserts

that Caplinger is outside of the New York district

courts’ personal jurisdiction. For reasons we discuss

below, we decline at this time to decide whether the

Attorney General could appropriately be cited as

custodian in these cases, and we concentrate instead on

the government’s contentions with respect to

Caplinger.”®

A court has personal jurisdiction in a habeas case “so

long as the custodian can be reached by service of

process.” Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 495, 499 (1973) (holding that a

district court in Kentucky had personal jurisdiction

over a case filed by an inmate in Alabama). Section

The government concedes that both personal jurisdiction

and venue were proper in the Eastern District of New York in the

case of the third habeas petitioner, Saul Navas. Navas is a resident

of New York, was ordered deported by INS officials in New York,

and remains within the physical borders of the city. He named as

respondents the District Director of the INS in New York,

Attorney General Janet Reno, and INS Commissioner Doris

Meissner. The fourth petitioner, Henderson, is before us only on

direct review. His petition for habeas corpus relief is currently

being adjudicated in the district court.

SR NWI R Gr aie

ined in Louisiana, Caplinger, the INS D

ctor in New UOrieans, exercises primary

A .

government contends, Caplinger is the only a

respondent to a habeas petition broug!

se

I

IQ | DAD (16 { ry

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“At 5. OA Qd ( ¢ } ’ ohh rn

, 041 F.2d 938, 948 (2d Cir. 1976). This ru]

y ) >} a" s +; ) | ’

One Dasea On COMMON sense administ?

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‘ imaders v. bennett 148 }: 2 19 aT

M45 \nd T( Tf 3) 1gT 97 “tx t |

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INnv¢ e€ prisone} eid 1n penal Institutio1

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roauce at bod. ind yenerall oca>rer

, , ‘ ’ ne} ( mniit

Wild

ems

, + \ ]

petitioners Yesil and Moji re no

tham ‘4 " , r ar les

tnem, since they are both seeking’ to pe

ym the detainers lodged a

9a)

ist them OV tne

all

its Oakdale, Louisiana, facility. For this reason

I Dpro

‘2

lt O

y <

.

ner Yesil or Mojica. The government further asserts

istrict Director Caplinger does not have

+] V4. 4 + ’ é » 4 + —_

une state OF New York ha ire Sulcie!

CA

lina ] “Dar ‘ ; ; lsat {"

complicated. Personal JuUrISGICtION OI a fede}

urt over a non-resident defendant is governed by

iw of the state in which the court sits—subject

ourse, to certain constitutional limitations of due

ss.” Robinson ». (uerser Militar y Sales Corn

Kk 3d 902. 510 (2d Cir. 199 4): ‘ see also Fed. R. ¢

i(e)(1) (permitting service of process pursuant to tne

ipplicable rules of the state in which a federal distr

‘ourt sits). And under New York law, personal jw

iction lies over any non-resident who, in person

hrough an agent, “transacts any business withi!

ite.” N.Y. C.P.L.R. § 302(a)(1) (McKinney 1990

\ — 3 oe 7 ] H =a Pat T 8

Viore spec ifically , LO galn tne denefit of the New \

+

ng-arm statute, the petitioners must demo

trate that District Director Caplinger “‘purposeful

ivailled] himself of the privilege of conducting activitie

yvithin New York’” (thus satisfying due process cor

erns), and that the petitioners’ causes of actioz

‘“ar|olse out of’” his activities within the state

Kronisch v. United States, No. 97-6116. 1998 WI,

S506, at 15 (2d Cir. July 9, 1998) (quoting Cutt

dus., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir

1986) (internal punctuation omitted)); accord Kreutt

McFadden Oil Corp., 71 N.Y.2d 460, 466, 522 N.E.2:

‘

10, 43. 527 N.Y.S.2d 195. 198- 99 (1988): McGowan

hoagie, o2 N.Y.2d 268, 27 1-72, 4 9 N.E.2d 321, 322-23,

137 1 N.Y .2d 643, 64 1-45 (1931). suit VU i]] i deeme Q

have arisen out of a party’s activities in New Yor]

is “‘an articulable nexus,’ or a ‘substantial rela

tionship, between the claim asserted and the actions

that occurred in New York.” Kronisch, 1998 WL

3/8306, at *15 (citing Kreutter, 71 N.Y.2d at 466, 522

N.E.2d at 43, 527 N.Y.S.2d at 198-99; McGowan, 52

N.Y.2d at 271-72, 419 N.E.2d at 322-23 487 N.Y.S.2d at

an amtcr | , . 199 +hLoa+ . Amal 1390 N-

he courts below each found that personal jurisdic

iger. See Mojica, 970 F. Supp. at 165-66; Yes:

f

O58 F’. Supp. at 835-36.

ion could properly be asserted over District Director

In Yesil’s case, the district court found that Director

Caplinger “ha[d] purposefully thrust himself into the

Southern District of New York.” Yesil, 958 F. Supp. at

835. To begin with, the court noted that the INS was

well aware of Yesil’s plans to return to New York City

mee he was released on bond. And, after his return,

INS officials in Louisiana engaged in negotiations over

an increase in the bond amount with Yesil’s counsel,

who was located in New York. Subsequently, District

Director Caplinger sent two letters to New York—one

to Yesil’s counsel confirming the increased bond

amount, and one to Yesil directing him to surrender to

INS officials in Louisiana. The government also sought

Yesil’s surrender in the proceedings before the district

court and, as a condition of the court’s stay of his sur-

render, requested that Yesil be directed to report

regularly both in person and by telephone to the INS

offices in New York City. The composite of these fac-

tors led the district court to conclude that District

Director Caplinger properly fell within the ambit of the

New York long-arm statute. See id. at 835-36.

In Mojica’s case, the district court found that the

petitioner, who had lived in Queens, New York, ever

since he came to the United States in 1972, was only

transferred to the INS’ Oakdale detention facility in

Louisiana after he had been taken into custody by the

[NS in its New York City offices and placed in the INS’

New York detention facility. See Mojica, 970 F. Supp

at 141-42. The district court also noted that Mojica’s

New York attorney had taken part in a telephonic bond

hearing with officials at Oakdale to secure his client’s

release. Bond having been arranged, Mojica returned

home to New York with Caplinger’s full knowledge.

Subsequently, District Director Caplinger sought

Mojica’s surrender pending the resolution of his habeas

petition and ordered him to return to Oakdale (using

the government’s New York-based attorneys to imple-

ment and enforce a deportation order against him).

These actions were collectively deemed by the district

court to satisfy the New York long-arm statute. See id.

at 166."

The district courts may have been correct that

Director Caplinger “purposefully availed” himself of the

privilege of conducting business in New York, but we

cannot say so with sufficient confidence to affirm their

holdings in this regard. The issue of what level of con-

tacts suffices to invoke New York’s long-arm statute Is

a recurring one in immigration habeas cases brought in

federal district courts located in the State of New York.

It also raises complicated questions of first impression

Because we certify the question of whether District Director

Caplinger properly falls within the ambit of the New York

long-arm statute, we need not and hence do not consider whether

the INS’s District Director in New York, also named by Mojica as

a respondent, may be appropriately deemed a custodian of Mojica

for habeas purposes. The district court, having found personal

jurisdiction on other grounds, also did not discuss this issue.

rid

ne immigration context. Under these

| i 4 . ‘v< } | ‘ + |

we pelleve ] appropriate to do what Lne

and seek guidance on the

‘Yr trom the one court that can definitively inter

ew York law. Accordingly, we will, by separa

rtify this issue in both Yesil and Movica’s ca

\ York Court of Appeals.

of Appeals determi

or Caplinger’s actions bring him withi:

reach of the New York long-arm statute. the issue

vhether the Attorney General would be an appropri

ernative respondent in alien habeas cases will be

[he Supreme Court has shown a marked

iluctance to resolve the latter question, see Ahrens

ark

3) U.S. 188, 193 (1948) (expressly leaving the

lestion open), and the issue is one on which the lower

Urls have split, compare Nwankwo Reno, S28 ?.

supp. 171, 176 (E.D.N.Y. 1993) (holding in a habeas suit

that the Attorney General was a proper respondent)

vith Yi v. Maugans, 24 F.3d 900, 507 (3d Cir. 1994)

t the Attorney General is not a proper

It is, moreover, as a short discussion wil]

e, a highly complex issue that we ought not

+

Stating’ tha

respondent).

nalcat

decide unnecessarily.

\ VV sels l. . ° ~ o+ sf; - 7 } ; + a6

New York law does not permit certification b ne d }

A

? ' ‘ ) ) ) : my) &

See N.Y. Comp. Codes R. & Regs. tit. 22. §

tL. 22, § 500.17(a) (1998).

he district court in Mojica’s ease found that the Attorney

eneral was a proper respondent, while the district court in Yesil’s

case did not reach the issue. See Mojica, 970 F’. Supp. at 167: Yesil,

J58 F. Supp. at 835-36. Because the Attorney General transacts

isincss in New York on a regular basis, she is unquestionably

ibject to long-arm jurisdiction under New York

‘

\

law See

vankwo, S28 F. Supp. at 175 (citing Commentary, N.Y. C.P.LR

501 (McKinney 1990)).

?

?

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310n governing collateral attacks on co} CUO!

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ral prisoners. Prior to the 1948 enactm: fe

ose from

the few

encountered numerou

the fact that

District Courts in whose territo}

liction najor fe deral penal INSTITUTIONS are loc

were required to handle an inordinate numbe:

abeas corpus ites far from the scene of

acts, the home of the witnesses and the recor

the sentencing court solely because of the for

ous concentration of federal prisoners w

district

nited States v. Hayman, 342 U.S. 205, 213-214

the legislative history of § 2255). To all

(discussing

ate these

rovides

Vere or 1g

States sho

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problems, Congress enacted § 2255. wh

that federal prisoners should mount the

ttacks in the judicial districts where

nally sentenced, and (b) that the Uy

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sults. See Braden, 410 U.S. at 497 (“[A] critical part of

the congressional purpose [was] to avoid the vastly

disproportionate burden of handling habeas corpus

petitions which had fallen, prior to the amendments, on

those districts in which large numbers of prisoners

were] confined.”).

Similarly, one of the rules governing § 2254. which

applies to habeas petitions that challenge state gov-

ernment actions, provides that an applicant “not pres-

ently in custody pursuant to the state judgment against

which he seeks relief but may be subject to such

custody in the future” should name as respondents both

“the officer having present custody of the applicant and

the attorney general of the state in which the judgment

which he seeks to attack was entered.” Rule 2(b),

Rules Governing 28 U.S.C. § 2254. The notes to this

rule explain that “[t]his is appropriate because no one

will have custody of the petitioner in the state of the

judgment being attacked, and the habeas corpus action

will usually be defended by the attorney general.”

Advisory Comm. Note to Rule 2(b), Rules Governing

28 U.S.C. § 2254. In addition, the notes state that in a

$ 2254 case, “the judge may require or allow the peti-

tioner to join an additional or different party as a re-

spondent if to do so would serve the ends of justice.”

Id.

Like these statutes, the case law also reflects a

preference for a practical approach to such issues. In

Ex parte Endo, 323 U.S. 283 (1944), for instance, the

Supreme Court considered a habeas petition filed by an

American citizen of Japanese ancestry held in an

internment camp by the War Relocation Authority.

Endo was originally detained in Northern California,

and so she filed her suit in the United States District

l \ a7 + ; P ‘

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rif ,Ortnern VIStri Lal ri] 1

covernment’s iawyers opposed the petition, no re

pondent was ever served with process or appeared

urt. See id. at 305. While the suit was pending, th

vernment transferred Endo to Utah. See id. at 304

ine Supreme Court held that the Northern Distri:

ilifornia nonetheless retained jurisdiction over thi

hat court to grant the writ. Se

305-07. The High Court reasoned that either t]

Ing’ secretary of the Interior or the assistant dirs

whose office was in San Francisco could act as the

espondent, for both were within the jurisdiction of the

Northern District of California and each had the power

o order the release of the pomp despite the fact

that she was now in Utah. See id. at 304-05. Subse.

quently, relying on Endo, the ane c ircuit held, in a

‘ase very much like the ones before us today, that 1

retained jurisdiction over an alien’s habeas petition

even after the INS had transferred the alien to another

state. See United States ex rel. Circella yv. Sakli 2G

I'.2d 33, 37 (7th Cir. 1954).

in Strait v. Laird, 406 U.S. 341 (1972), the Supreme

Court took a similarly flexible approach (albeit in

another context). In that case, the Court allowed an

army reservist’s habeas suit to proceed in California.

where he lived, despite the fact that his nomina

custodian was in Indiana. The Court warned that it

would be inappropriate to “exalt fiction over reality” in

determining who Strait’s custodian was and what the

proper venue for the suit should be. Jd. at 344. The

Court noted that Strait’s “nominal custodian [in Indi

ana] . . . has enlisted the aid and directed the ac-

tivities of armed forces personnel in i in his

dealings with Strait.” Jd. And the Court concluded

‘{tine concepts of

‘custody’ and

sufficiently broad to allow us to say that the command

ng officer in Indiana, operating through officers in Cali

ornia in processing petitioner’s claim, is in California

he limited purposes of habe as corpu

. at 646 (emphasis added).

Beyond the increasing appreciation for practical con

rns, demonstrated in the above cases, additional]

ictors relating to the unique role that the Attorney

General plays in immigration matters may be taken to

suggest that she may be a proper respondent in alien

») } ;

h“TLSaGLeLion

i

nabeas cases. Congress has consistently designated the

\ttorney General as the legal custodian of the petition

ers. See, €.g.,8 U.S.C. § 1226(e)(1) (“The Attorney Gen

eral shall take into custody any alien who [is deportable

yr inadmissible because of criminal] convictions ].”)

Supp. 1998); accord Ahrens v. Clark, 335 U.S. 188. 199

(1948) (Rutledge, /., dissenting).” Similarly, the Attor

ney General is named as proper respondent in most

court actions reviewing the legality of removal orders.

See 8 U.S.C. § 1252(b)(3)(A) (Supp. 1998) (setting forth

that, in petitions for review, “(t]he respondent is the

Attorney General”).

In Ahre ns, Justice Rutledge, joined by two other Justices,

dissented from the majority opinion that declined to find proper

ritorial jurisdiction and venue with respect to a habeas petitior

+3

iLiVUl

nvolving aliens. The majority opinion expressly left open the is

; ye

ra.

sue of personal jurisdiction based on naming the Attorney Genera!

as the respondent. The dissent, instead, had to reach the question

and concluded that the Attorney General was an appropriate

respondent in the case. See Ahrens, 335 U.S. at 199 (Rutledge, J

»

ssenting) (“There can be no question of the Attorney General’

power to produce the petitioners in this case.”

territorial jurisdiction, Ahrens was subsequent!

. See Braden, 410 U.S. at 500.

On the issue of

VY overruled by

Braden

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ing tne instant nabeas petitions. he alien:

velore us are, therefore, not only in the statutory

istody of the Attorney General and subject to her

irtual day-to-day control, but they are also where they

re because of actions she herself has taken.

Nevertheless, there are also strong arguments to be

made against deeming the Attorney General to be an

ippropriate respondent in alien habeas cases. The

Attorney General is designated, pursuant to statute. as

the custodian of all federal prisoners, see 18 U.S.C

1001 (1994), yet no one seriously suggests that she is a

proper respondent in prisoner habeas cases. Moreover.

is undoubtedly District Director Caplinger who exer-

‘1ses primary custody over the petitioners and who has

odged a detainer against them in Louisiana. Further-

more, Billiteri appears to bar the designation of a

higher authority (in that case, the parole board) as a

‘ustodian when a habeas petitioner is under the day-

to-day control of another custodian (such as the prison

warden). See Billiteri, 541 F.2d at 948 (“[I]t would

tretch the meaning of the term beyond the limits thus

r established by the Supreme Court to characterize

ie Parole Board as the ‘custodian’ of a prisoner who is

inder the control of a warden and confined in a prison,

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propriate respondent in habeas petitions involving prisoners

early parole. Ses Billiteri, 541 F.2d at 948. Nevertheless.

Billiteri also noted in dicta that “when the Board itself has caused

parolee to be detained for violation of his parole,” the parole

oard may qualify as a custodian for habeas purposes. See id.

emphasis added). The situation in the cases at bar is more thay

nalogous, for the Attorney General certainly and by her own

sion “caused [the aliens] to be detained.” /d

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50a

are toiling long and hard to process the torrent of

habeas petitions flowing from the Oakdale facility as a

result of the lengthy delays in processing detainees for

deportation,” and the “atypical and unanticipated vol-

ume of habeas corpus petitions . . . is beyond the

capability of the district court to process in a timely

fashion.” Emejulu v. INS, 989 F.2d 771, 772 (5th Cir.

1993).

The government, however, counters by asserting

that, if we permitted suits against the Attorney Gen-

eral, aliens could engage in widespread forum shopping

and bring suit in any district in the country. The

government’s concerns—though undoubtedly serious

ones—may be overstated. We note that Supreme

Court precedent establishes that traditional venue

doctrines are fully applicable in habeas suits and that

these, if strictly applied, would do much to prevent such

forum shopping. Thus, in Ahrens, overruled by Braden,

410 U.S. at 500, the Court held that the presence within

the territorial jurisdiction of the district court of the

petitioner was a prerequisite to the filing of a habeas

petition. See Ahrens, 335 U.S. at 192. On that basis,

the Court concluded that aliens detained on Ellis Island

could not—as a jurisdictional matter—file suit in

Washington, D.C. Some years later, in Braden v. 30th

Judicial Circuit Court of Kentucky, while rejecting the

“inflexible jurisdictional rule” established by Ahrens

and holding that a habeas suit did not have to be

brought in the district where the prisoner was being

held, the Court nonetheless reaffirmed the result in

Ahrens as the proper product of “traditional principles

of venue.” Braden, 410 U.S. at 500 (emphasis added).

The Braden Court noted that the petitioners in

Ahrens were in New York, and that “[n]o reason is

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apparent why the District of Columbia would have been

a more convenient forum, or why the Government

should have undertaken the burden of transporting 120

detainees to a hearing in the District of Columbia.” /d.

Thus, the court held that normal venue principles “man-

dated the bringing of the action in the Eastern District

of New York, rather than the District of Columbia” and

that “Ahrens v. Clark stands for no broader proposi-

tion.” Jd. But Ahrens also stands for no less.” Accord-

ingly, there is reason to think that strict application of

“traditional principles of venue’ in alien habeas cases

4 In view of the Court’s recognition that personal jurisdiction

issues are generally resolved before questions of venue, see Leroy

v. Great Western United Corp., 443 U.S. 178, 180 (1979) (“The

question of personal jurisdiction, which goes to the court’s power

to exercise control over the parties, is typically decided in advance

of venue. .. .”), the Supreme Court’s Braden holding, explaining

Ahrens on venue grounds, is noteworthy. For the Court’s implicit

decision in Braden that there was “a sound prudential justification

for . . . revers[{ing] the normal order [and] considering

venue” first, Leroy, 443 U.S. at 180, suggests that the High Court

was hesitant to explain the result in Ahrens by holding that in

Ahrens the Attorney General was not a proper respondent. See

Braden, 410 U.S. at 500.

25 As the Supreme Court explained in Braden, factors to be

considered in determining whether venue is proper in a habeas suit

include: (1) “where all of the materia! events took place”; (2) where

“the records and witnesses pertinent to petitioner’s claim are

likely to be found”; and (3) the convenience of the forum for both

the respondent and the petitioner. Braden, 410 U.S. at 493-94; see

also 28 U.S.C. § 1391 (1994 & Supp. 1998) (setting forth the

relevant factors in considerations of venue); Leroy, 443 U.S. at

186-87 (noting that the convenience of the defendants and the

location of evidence and witnesses are relevant in determining

appropriate venue); Bates v. C & S Adjusters, Inc., 980 F.2d 865,

867 (2d Cir. 1992) (holding that “the . . . statute does not, as a

52a

might adequately control the forum shopping in which

aliens might try to engage were the Attorney General

to be designated an appropriate respondent.

An additional factor, however, may counsel against

the wisdom of so designating the Attorney General.

Permitting the Attorney General to be named as a

respondent in alien habeas cases would undoubtedly

lead to the reduction of the overcrowded docket in the

Western District of Louisiana (as well as other districts

in which large INS detention facilities exist). But,

when combined with the venue rules discussed above, it

might only accomplish this by overcrowding those

relatively few districts in which aliens disproportion-

ately reside, districts that in many cases are already

among the busiest in the nation.”

In the end, the question of whether the Attorney

General is an appropriate respondent in habeas corpus

petitions brought by aliens is one that evokes powerful

arguments on each side—both at the doctrinal and at

the practical level. Accordingly, its resolution should be

avoided unless and until it is manifestly needed to

decide a real case in controversy. Because it is possible

that District Director Caplinger may fall within the

reach of the New York long-arm statute, thereby

making it unnecessary for us to decide this difficult

question, we decline, for now, to rule on whether the

general matter, require the District Court to determine the best

venue”).

*6 See Statistics Division, Administrative Office of the United

States Courts, Judicial Business of the United States Courts

122-24, 178-80 (1997) (compiling statistics of pending cases before

United States District Courts).

DRI ca ea a AAS

OS FOAMS MI Se SEE SITY

RDS Cosas ae LAE BRA te TL ols

53a

Attorney General is a proper respondent in these

cases.~'

C. Statutory Interpretation—Retroactivity of AEDPA

§ 440(da)

Given that the government concedes that jurisdiction

and venue are proper in the case of Navas, we turn to

the merits of his claims. Navas argues that Congress

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

exclude from relief those aliens whose cases had

already begun on the date of its enactment.” The gov-

ernment responds by citing to the Attorney General’s

contrary ruling in Soriano IJ. The Attorney General

there held that § 440(d) barred relief to aliens whose

cases predated the statute. This, she reasoned, pre-

sented no problems because applying § 440(d) to pend-

ing cases would not be genuinely retroactive. See

Soriano II, 1996 WL 426888, at *19. Relying on the

Supreme Court’s decision in Landgraf v. USI Film

Products, 511 U.S. 244 (1994), the Attorney General

stated that the amendment merely “alters both juris-

diction and the availability of future relief’ and “does

not impair a right, increase a liability, or impose new

duties on criminal aliens.” Soriano IT, 1996 WL 426888,

at *19.

“7 Because we certify part of Yesil’s case, it is also premature

for us to consider whether the district court was correct in its

finding that Yesil had accumulated the seven years of LPR needed

to qualify for a § 212 waiver even before passage of the AEDPA.

*8 Since it is possible to decide this case on the ground that

$ 440(d) was not intended to apply to cases pending when the

section was enacted, we need not reach Navas’ broader argument

that the statute should not apply to primary conduct—.e., criminal!

convictions—that occurred prior to April 24, 1996.

54a

Like the First Circuit in Goncalves v. Reno, 144 F.3d

at 126, we reject the Attorney General’s position and

hold that § 440(d) does not apply to cases initiated

before the date of its enactment.

The government contends that the statute is, on its

face, ambiguous, and that the Attorney General’s inter-

pretation in Soriano II is therefore entitled to consider-

able deference under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).”

But this is by no means obvious. For, as the Supreme

Court recently explained:

Under the formulation now familiar, when we ex-

amine [an agency’s interpretation of a statute], we

ask first whether “the intent of Congress is clear”

as to “the precise question at issue.” Chevron, 467

U.S. at 842. If, by “employing traditional tools of

statutory construction,” id. at 843 n.9, we deter-

mine that Congress’ intent is clear, “that is the end

of the matter.” id. at 842. But “if the statute is

silent or ambiguous with respect to the specific

issue, the question for the court is whether the

agency’s answer is based on a permissible construc-

tion of the statute.” Jd. at 843.

Regions Hosp. v. Shalala, 118 8S. Ct. 909, 915 (1998)

(citations abbreviated).

“? We note here the First Circuit’s suggestion that “[t]he

question of whether AEDPA § 440(d) applies retroactively may be

viewed as a ‘pure question of statutory construction for the courts

to decide,’ . . . a question that is ‘quite different from the ques-

tion of interpretation that arises in each case in which the agency is

required to apply [statutory] standards to a particular set of facts’

which involves the agency’s particular expertise.” Goncalves, 144

F.3d at 127 (citation omitted) (quoting JNS v. Cardoza-Fonseca,

4sv U.S. 421, 446, 448 (1987)).

at Font aa tS OO es Tee Ee Ea ae . i yencty

5ba

Accordingly, we turn to the initial step of the Chev-

ron analysis—whether we can clearly discern Congress’

intent through “ ‘traditional tools of statutory construc-

tion.” Regions Hosp., 118 8. Ct. at 915 (quoting Chev-

ron, 467 U.S. at 842-43). For, if we can, “that is the end

of the matter.” Chevron, 467 U.S. at 842. There is, of

course, a strong presumption against retroactivity. See,

e.g., Landgraf, 511 U.S. at 265 (“The presumption

against retroactive legislation is deeply rooted in our

jurisprudence.”); see also Lindh v. Murphy, 117 S. Ct.

2059, 2068 (1997) (holding that the AEDPA amend-

ments to the provisions governing habeas corpus did

not apply to pending noncapital cases). Thus, statutes

are not ordinarily afforded retroactive effect unless

“Congress has clearly manifested its intent” to have

them so applied. Hughes Aircraft Co. v. United States

ex rel. Schumer, 1178. Ct. 1871, 1876 (1997).

Application of this presumption would require us

first to consider whether the statute before us is

genuinely retroactive. We are inclined to believe that

itis. See Lindh, 1178S. Ct. at 2068; Goncalves, 144 F.3d

at 128. But we need not decide the issue, since it is not

necessary to rely on any presumption against retro-

activity in the instant case. For, when § 440(d) is read

in conjunction with the rest of the AEDPA and with

___ the legislative history of that statute, there is abundant

direct evidence that the section was not intended to

apply retroactively.

Title IV of the AEDPA constricts the availability of

relief from deportation for two categories of aliens—

those involved in terrorism and those convicted of

ordinary crimes. “Many of these provisions, with the

notable exception of . . . § 440(d), contain explicit

subsections stating that they apply retroactively.”

56a

Goncalves, 144 F.3d at 128. For example, “[ujnder

AEDPA § 418, alien terrorists are made ineligible for

several different forms of relief from deportation.” Jd.

(footnote omitted). And Congress included in that

section an express provision stating that the section

“shall take effect on the date of the enactment of this

Act and shall apply to applications filed before, on, or

after such date if final action has not been taken on

them before such date.” AEDPA § 413(g). Congress’

use of explicitly retroactive language in that part of the

bill, and its failure to employ any analogous language in

the nearby and closely related § 440(d), by itself

strongly indicates that Congress did not intend § 440(d)

to apply retroactively. See Lindh, 117 8. Ct. at 20638

(undertaking an identical analysis in distinguishing

between the capital and noncapital AEDPA amend-

ments to the statutory provisions governing habeas

corpus).

Moreover, the AEDPA’s legislative history, far from

cvineing a clear intent to make § 440(d) apply retro-

actively, suggests precisely the opposite. The Senate

version of the antiterrorism bill contained a measure

restricting the availability of § 212(c) relief for criminal

aliens. That same section of the proposed bill stated

that “(t]he amendments made by this section shall take

effect on the date of the enactment of this Act and shall

apply to cases pending before, on, or after such date of

enactment.” 141 Cong. Rec. 87559 (daily ed. May 25,

1995) (quoting S. 735, 104th Cong. § 303(f) (1995)). The

House version, on the other hand, explicitly made the

provisions governing terrorist aliens retroactive, but

contained no similar language as to criminal aliens. See

H.R. 2703, 104th Cong. § 611(b), 612(f) (1996).

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The compromise bill that came out of the conference

committee combined aspects of both the House and

Senate bills. And it notably did not contain the Senate

bill’s language on retroactivity. Instead, it adopted the

House version on this issue. This sort of “contrast in

statutory language is ‘particularly telling’ when it

represents a decision by a conference committee to

resolve a dispute in two versions of a bill, and the com-

mittee’s choice is then approved by both Houses of

Congress.” Goncalves, 144 F.3d at 132 (quoting FEC v.

NRA Political Victory Fund, 513 U.S. 88, 95 (1994)).

Thus, traditional rules of statutory interpretation all

point in one direction: § 440(d) should not apply retro-

actively. Under Chevron, if by “employing [such] tools

of statutory construction,” we are able to discern the

plain meaning of a statute, that ends the inquiry.

Chevron, 467 U.S. at 843 n.9. And “[t]he judiciary is the

final authority on issues of statutory construction and

must reject administrative constructions which are

contrary to clear congressional intent.” /d.

To summarize, under ordinary rules of statutory con-

struction, a statute that is silent with respect to retro-

activity is not “ambiguous.” In the absence of clear

evidence that Congress intended some other result.

such a statute does not apply retroactively. Here, there

is considerable evidence of congressional intent, but it

all argues against retroactive application. Therefore,

the meaning of the statute, in this respect, is not in

doubt, and we owe no deference to the Attorney

General’s interpretation of it. Accordingly, since

Navas’ deportation proceeding was pending on the date

58a

of the statute’s enactment, we hold that § 44d) does

not apply to him.”

Ill, CONCLUSION

Following Jean-Baptiste, we hold that aliens con-

victed of specified criminal offenses—who are pre-

cluded by the AEDPA and the IIRIRA from seeking

direct review of their deportation, exclusion, or removal

orders in the courts of appeals—may file habeas peti-

tions in the district courts pursuant to 28 U.S.C. § 2241.

We also conclude that this habeas review includes the

claims brought by Navas, one of the petitioners before

us. We decline at this time to resolve the issue of

whether the Attorney General is a proper respondent

for habeas actions brought by aliens facing deportation.

Instead, we certify to the New York Court of Appeals

the question of whether the New Orleans INS District

Director in Yesil and Mojica’s cases falls within the

scope of the New York long-arm statute. Finally, we

agree with the findings of the district court in Navas’

case that the provision of the AEDPA that limits the

availability of § 212(c) waivers does not apply retro-

actively to aliens whose deportation or exclusion pro-

ceedings were pending on the date of its enactment,

and hence does not preclude his § 212(c) petition.

We further hold, due to the previous uncertainty in

this area of the law, that petitioners like Henderson,

who have filed for direct review of their deportation,

30 With respect to Mojica, we note that he was in exclusion

proceedings when the AEDPA came into effect. The fact that the

INS subsequently chose to terminate the exclusion proceeding

against him does not affect his claim, because the instant that

Mojica’s exclusion proceeding was ended, the INS started a

deportation proceeding against him. Thus, Mojica’s “case” (like

Navas’) was pending when the AEDPA came into effect.

OO, OS GREY Re ae

59a

exclusion, or removal orders, and who have received a

stay of such orders during the pendency of their ap-

peals, should have their stays continued for a reason-

able time while they seek review pursuant to § 2241.

Accordingly, we dismiss, for lack of jurisdiction,

Henderson’s and Navas’ petitions for direct review. We

affirm the decision of the district court with respect to

Navas’ habeas petition. And we retain jurisdiction over

Yesil and Mojica’s petitions. After we receive a

response from the New York Court of Appeals on the

question (certified in a separate order) of whether the

New York long-arm statute applies in their cases, we

will dispose of whatever issues remain in their appeals.

In the interim, we continue to stay Yesil and Mojica’s

deportation orders.

60a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Docket No. 97-4050

F'RANKLIN HENDERSON, PETITIONER

[IMMIGRATION AND NATURALIZATION SERVICE,

RESPONDENT

Docket No. 97-4070

SAUL NAVAS, PETITIONER

JANET RENO, AS ATTORNEY GENERAL

OF THE UNITED STATES, ET AL., RESPONDENTS

bla

Docket No. 97-2629

K;NGIN YESIL, PETITIONER-APPELLEE

JANET RENO, ATTORNEY GENERAL;

DORIS MEISSNER,

COMMISSIONER OF THE IMMIGRATION

AND NATURALIZATION SERVICE;

IMMIGRATION AND NATURALIZATION SERVICE;

JOHN B. Z. CAPLINGER, DISTRICT DIRECTOR;

NANCY HOOKS, OFFICER IN CHARGE,

RESPONDENTS-APPELLANTS

Docket No. 97-2599

(ZUILLERMO MOJICA, PETITIONER-APPELLEE

JANET RENO, AS ATTORNEY GENERAL

OF THE UNITED STATES, ET AL..,

RESPONDENTS-APPELLANTS

62a

Docket No. 97-2600

SAUL NAVAS, PETITIONER-APPELLEE

VU.

JANET RENO, AS ATTORNEY GENERAL

OF THE UNITED STATES, ET AL., 4

RESPONDENTS-APPELLANTS

Present: Hon. Joseph M. McLaughlin,

Hon. Guido Calabresi, Circuit Judge

Hon. Richard Owens ”, District Judge

Consolidated appeals from various district court deci-

sions on petitions for habeas corpus and for direct re-

view from decisions of the Board of Immigration Ap-

peals.

These causes came on to heard on the transcript of

records from the district courts and were argued by

counsel.

ON CONSIDERATION WHEREOF, It is hereby

ORDERED, ADJUDGED and DECREEED that the

judgments of said district courts Nos. 97-4050 and 97-

4070 are dismissed; No. 97-2600 is affirmed; Jurisdiction

in Nos. 97-2629 and 97-2599 are retained pending reso-

lution of question certified to the New York Court of

Appeals in accordance with the opinion of this Court.

*

The Honorable Richard Owen, United States District Court

for the Southern District of New York, sitting by designation.

63a

APPENDIX C

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

NEW YORK, NY

Case No.: A 40198963

Docket: Varick St.

IN THE MATTER OF SAUL NAVAS,

RESPONDENT

IN DEPORTATION PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on May

9, 1996

This memorandum is solely for the convenience of the

parties. If the proceedings should be appealed, the Oral

Decision will become the official decision in this matter.

[ ] The respondent was ordered deported to

[ } Respondent’s application for voluntary departure

was denied and respondent was ordered deported

to _ _or in the alternative to_

| Respondent’s application for voluntary departure

was granted until ___————i«,~ With an aiternate

order of deportation to__———séor’ _

64a

|2) . +9 ‘ Tas : -~\y yoy +> ee

Respondent $ application for asylum Was

yeranted ( )denied ( )withdrawn (_)other.

Respondent’s application for withholding of de-

portation was ( )granted ( )denied ( )withdrawn

other.

) * } > +) ‘ : ‘ +> ; . . 2" : e ] .

Respondent’s application for suspension of depot

tation was ( ) granted ( )denied ( )withdrawn

Respondent’s application for waiver under Sec-

I

ion of the Immigration and Nationality

. 4 . ma nt ] \ : ] — ] ace

\ct was ranted ( )denied ( )withdrawn

otnel

2, ve +9 o annlins ; . P ns O0 919(~p were

nespondent Ss application If0} 1A\C, was

X)granted ( )denied ( )withdrawn (_)other.

Proceedings were terminated.

The application for adjustment of status under

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

\denied ( ) withdrawn ( )other. If granted, it

was ordered that the respondent be issued all

appropriate documents necessary to give effect to

this order.

Respondent’s status was rescinded under Section

NAL

+0.

65a

Respondent was advised of the limitation on

discretionary relief for failure to appear as

ordered in the Immigration Judge’s oral decision.

s/ DONN LIVINGSTON

Immigration Judge

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APPENDIX D

S DEPARTMENT OF JUSTICE

CE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

NEW YORK, NEW YORK

No.: A 40 198 963 Mav 9, 1996

MATTER OF SAUL NAVAS-NG

ING:

‘ ‘Ter

RESPONDENT

Immigration and Nationality Act,

Section 241(a)(2)(A)(ii) . . . alien

convicted of two (2) or more

crimes involving moral] turpitude

and not arising out a single

scheme of criminal misconduct.

Waiver of Inadmissibility pursu-

ant to Section 212(c) of the Immi-

gration and Nationality Act.

BEHALF OF RESPONDENT:

egal Aid Society

66 Montague Stre

srooklyn, NY

BEHALF OF SEI

ohn Mulrooney, E

<am Wong, Esquire

el

1S

VICE:

squire

Assistant District Counsel

INS. New York District

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 21-year-old native and citizen of

Panama, who entered the United States as an immi-

grant at New York, New York, on July 10th, 1987. The

respondent was convicted on March 21st, 1995, in

Supreme Court, State of New York, County of Queens,

for criminal possession of stolen property in the third

degree. The respondent was also convicted on May

2nd, 1995, in Supreme Court, State of New York,

County of Queens, for the offense of robbery in thi

third degree. On July 21st, 1995, an Order to Show

Cause was issued charging the respondent with deport

ability pursuant to the above-captioned provisions of

the Immigration and Nationality Act. The respondent

has admitted all of the Factual Allegations in the Order

to Show Cause which included an allegation that the

two crimes did not arise out of a single scheme of

criminal misconduct. In support of the allegations of

fact, the Inimigration Service has provided a copy of

the immigrant visa, Exhibit 2, and a copy of both

conviction records (Exhibit 3 and Exhibit 4). Based on

the respondent’s concessions and based upon the evi-

dence of record, deportability has been established by

clear, convincing, and unequivocal evidence Woodby v.

INS, 385 U.S. 276 (1966); 8 C.F.R. 241.14(a) (1995).

The respondent has submitted an application for a

waiver under Section 212(c) of the Act, that being the

respondent’s only request for relief. Despite the recent

enactment of the Anti-Terrorism and Effective Death

Penalty Act of 1996, it appears that the respondent is

eligible to apply for Section 212(c) relief. Section 212(c)

of the Act provides that aliens lawfully admitted for

permanent residence who have unrelinquished lawful

68a

domicile of seven (7) consecutive years may be admitted

to the United States in the discretion of the Attorney

General without regard to most grounds of exclusion.

[t does appear that the respondent has seven (7) years

domicile as well as having been admitted to the United

States as a lawful permanent resident. Therefore, the

issue in this case appears to be whether or not the

respondent merits the favorable exercise of discretion.

[t does appear that it’s the respondent’s burden to

establish that discretion should be exercised favorably.

Matter of Marin, 16 I&N Dec. 581 (BIA 1978).

In support of his application for relief under Section

212(c), the respondent has submitted a Form I-191 (Ex-

hibit 6). Additionally, the respondent provided numer-

ous documents to corroborate the testimony concerning

equities in this case. The respondent provided evidence

of his participation in a special prison program. As well

as providing biographical information concerning his

relatives in the United States, the respondent also pro-

vided numerous statements and affidavits of friends

and family attesting to his character. The respondent

provided a copy of a employment letter and other

documents. The respondent testified in support of his

application. He also provided the testimony of other

relatives which include a cousin by marriage, his

mother, and also his girlfriend.

The respondent testified that he entered the United

States initially July 10th, 1987, at the age of 13 years.

Since that time, he’s taken one (1) trip out of the United

States back to Panama. He took that trip at the instiga-

tion of his parents who wanted him to go to Panama due

to the fact that he was having disagreements within the

family, particularly with his stepfather. The respon-

dent stayed there for about six (6) months. That situa-

69a

tion didn’t work out and he returned back to the United

States. That trip occurred when the respondent was

about 16 years old. After returning to the United

States from that trip, the respondent continued with his

high school education. He went to school up to the 12th

grade at the Hillcrest High School in Queens. He did

not graduate. The respondent has worked in the

United States. He testified as to working at a Canton-

ese Chinese Restaurant. He also worked for a time as a

stock boy. He worked as a building maintenance

worker for a time and also worked as a waiter as a es-

tablishment called Antun’s Restaurant. Some of this

employment was on the books and taxes were deducted

and some of this employment was off the books.

Regarding relatives, the respondent testified that all

of his close relatives are in the United States. The re-

spondent’s mother is a permanent resident. The re-

spondent has two stepsisters who are United States

citizens. They are older than the respondent being 40

years old and 35 years old, respectively. The respon-

dent has a sister who’s 10 years old and who is a perma-

nent resident of the United States. The respondent has

three (3) stepbrothers who are United States citizens

and one (1) full brother who is a permanent resident.

The respondent also has aunts, uncles, and cousins in

this country. The respondent claimed to have close

family ties. He indicates that he provides some finan-

cial help to his family. The respondent testified that his

father is deceased as far as he knows—he has not seen

him since 1987 in any event. The respondent testified

he has no close family ties in Panama; however, it’s

clear that he does have at least an aunt there who’s

willing to take him in and provide for his subsistence.

70a

Regarding the respondent’s criminal record, it’s clear

that he’s been arrested three (3) times. The respondent

was arrested the first time in April of 1994. At that

time, he was 19 years old. This was after he had re-

turned to the United States after having spent some

time in Panama as mentioned above. The 1994 arrest

was disposed of with the respondent pleading guilty to

criminal possession of stolen property in the fifth

degree. The respondent admitted that he had been

driving a stolen car. The respondent testified that he

had been in a stolen car on one (1) occasion prior to this

arrest. The respondent received a sentence of three (3)

years probation on account of his plea of guilty which

was toa class A misdemeanor. During the respondent’s

period of probation, he was again arrested; in fact, he

was arrested twice during that probationary period.

The respondent was arrested on December 9th, 1994.

Again this was a case involving a stolen car. While that

case was pending, the respondent was arrested and

charged with robbery. On May 2nd, 1995, the respon-

dent pled guilty in both cases. The first case he pled

guilty to criminal possession of stolen property in the

third degree which is a Class D felony in the State of

New York. On the second case, the respondent pled

guilty to robbery in the third degree, which is also a

Class D felony in the State of New York. The respon-

dent received concurrent sentence for both crimes

—the sentence being minimum of one and a half (1-1/2)

years and a maximum of tour and a half (4-1/2) years.

The respondent freely acknowledged that he was

guilty of stealing a car on December 9th, 1994. How-

ever, the respondent denied actually having committed

the robbery for which he was arrested in January of

1995. The respondent testified that in the robbery case

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he had been identified by the victim in a lineup. He

claims that the lineup was not fair. Nevertheless, it’s

clear that the respondent did plead guilty. As the At-

torney for the Government elicited in his questioning,

the respondent, in fact, lied to the sentencing judge

when he pled guilty to robbery. The Court finds it dis-

concerting that the respondent would have lied to the

sentencing judge when pleading guilty to robbery and

yet come into the Immigration Court and state under

oath that he did not actually commit the robbery. Be

that as it may, it’s clear that following his plea of guilty,

the respondent consistently advised all of his family

members that he was not, in fact, guilty of the robbery

even though he did plead guilty to that offense.

In prison, the respondent was accepted into a special

program designed for intensive rehabilitation. The re-

spondent testified that the particular program is called

“shock incarceration”. The respondent testified that

that program has a 90 percent success rate in keeping

the graduates from returning to criminal behavior. The

respondent testified that he was the platoon leader in

his group. He testified that he was the leader of all 54

members of his platoon. He stated that he was selected

for this honor after three (3) months in the program and

he was selected by his drill instructor. The respondent

did present the platoon photograph as evidence in the

case. That photograph, however, does not show the

respondent as being a platoon leader although it does

early show him as being a member of the platoon. The

respondent explained that he had been required to

return to court during the incarceration program and,

as a result, at the time the photograph was taken he

nad been replaced as the platoon leader. The respon-

dent was quite clear that the program had an important

o>

).

(aa

effect on him. He testified that because of the program

he learned respect for himself and for others. The

respondent quite clearly testified as to the remorse he

feels for his criminal activity. He clearly realizes the

pain that he has caused to himself and the pain that he

has caused to the people around him that he loves.

Regarding hardship, the respondent testified that

there will be emotional devastation to himself and to his

family if he is to be deported. The respondent testified

that he received no disciplinary violations while in

prison, which is a fact consistent with his graduation

from the shock incarceration program. He also testified

that since going to prison that his mother and step-

father have moved to Florida seeking a better environ-

ment.

The respondent produced the testimony of Hugh

Haddock. Mr. Haddock is a United States citizen. He

is related to the respondent by marriage. He’s a retired

sergeant in the United States Air Force, has known the

respondent for a long time. He lives in Rome, New

York,with his wife, two (2) children and a grandson.

And he has offered to have the respondent come to live

with him in Rome, New York. They would let him stay

at his house. They help get him into college and get him

some work. They believe it would be a new environ-

ment. It’s clear to the Court that Mr. Haddock has

taken a genuine interest in the respondent and will help

the respondent if the respondent is allowed to remain in

this country.

Xiomara Shepherd also testified. She testified that

the respondent is her cousin’s fiancé. She corroborated

the respondent’s testimony regarding the fact that the

respondent’s stepfather had hit him and had threw [sic]

him out of their house. Again she expressed support

for the respondent.

Tara Simonette; she testified in the respondent's

behalf. She indicated that she had worked together

with the respondent at Antun’s Restaurant from Sep-

tember of '94 until March of 1995. She was the respon-

dent’s girlfriend at that time. She has visited him and

kept in contact with him while he’s been incarcerated.

She testified that the restaurant will hire him back and

so his job is available to him if he wants it and if he’s

allowed to remain in this country.

The respondent also presented the testimony of his

mother, Luz Smith. She basically corroborated the re-

spondent’s testimony concerning the biographical facts

in this case. She believes that it was her husband’s hos-

tile treatment of the respondent which was a contribut-

ing factor to the respondent’s criminal activity. She

believes her son will change and she also believes that

her husband will change and will be more supportive of

the respondent in the future. She stated that the re-

spondent can come and live with her in Florida as soon

as he is “free”. She meant that he can come down there

as soon as he is allowed to do so by the authorities. It

does appear that the respondent may be required to

reamin in the State of New York for a period of time

following his release. If that occurs, and it appears that

the respondent intends to either stay in the Bronx,

New York, or in Rome, New York, for a period of time.

If allowed to leave the State of New York and move to

Florida, it is possible that he may take up his mother’s

offer and move down there with her.

The respondent also called Orintia Johnson who’s a

cousin by marriage. Her testimony was somewhat

abbreviated at the request of the Court due to the hour

14a

of the proceedings. She offered to give full testimony.

She did testify that she knows the respondent since he

arrived in the United States. She’s involved in church

activity and they will help the respondent if need be.

Also, her husband is available to provide a positive role

model to the respondent.

In determining whether or not a favorable exercise of

discretion is warranted, it’s necessary to balance the

favorable and unfavorable factors in the respondent

case. As the negative factors grow more. serious, it be-

comes necessary for the respondent to introduce addi-

tional offsetting favorable evidence which in some cases

may have to involve unusual or outstanding equities.

Such a heightened showing is required when an alien

had been convicted of a serious drug offense, particu-

larly one (1) relating to trafficking and sale of drugs. It

may also be required when there has been a conviction

of a single serious crime. A showing of unusual or out-

standing equities is also required when there has been a

succession of criminal acts, which together establish a

pattern of serious criminal misconduct. Matter of

Buscemi, 19 I&N Dec. 628 (BIA 19838).

With regards to the negative factors in this case, the

Court would note that the negative factors are con-

centrated on the respondent’s criminal activity. The

respondent has three (3) arrests. The Court would note

that the arrests occurred over a period of about 1]

months. It’s clear that the respondent was engaged

during this period of time in criminal activity and this is

a pattern of criminal behavior which is of great concern

to the Court. Whether or not these three (3) arrests

qualify as a pattern of serious criminal misconduct re-

quiring a showing of unusual or outstanding equities is

not entirely clear on this record. The respondent has

it

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been convicted of two (2) felony offenses. Felonies, of

course, are considered serious offenses. The respon-

dent received a concurrent sentence of one and a half

(1-1/2) to four and a half (4-1/2) years in prison. That’s a

lengthy period of time indicating that the crimes are

serious. Other negative factors are minor on this

record. The respondent did testify to some marijuana

use but it doesn’t appear to be serious. The respondent

has not filed his Income Tax Returns; however, it’s not

entirely clear that the respondent was required to file

Income Tax Returns due to the amount of his income.

He has been working; however, also his work is limited

due to the fact that he’s a young man and spends much

of his time also in school.

On the positive side, the Court would note that the

respondent’s length of residence is not much longer

than the minimum required for eligibility for Section

212(c) relief; i.e., he has about nine (9) years. It begins

at the age of 13 which the Court finds to be a relatively

young age. The residence of nine (9) years beginning at

the age of 13 is a substantial equity but not anything

that qualified as unusual or outstanding. However, the

Court does believe that the family ties in the United

States do qualify as unusual or outstanding equities.

The respondent has only one (1) remaining parent and

she’s a permanent resident of the United States. It’s

clear from watching the contact between the respon-

dent and his mother when she was in court that it’s

very close and emotionally intense relationship. The

respondent also has all of his siblings in the United

States. The respondent also has a girlfriend who is not

technically classified as a qualifying relative. However,

she does appear to be supportive and the Court has

taken her support into consideration. Also there are

aod a

ORL | TTL Se ES

76a

more distant relatives in the United States who have

expressed support for the respondent and the Court is

impressed that the respondent has a important close

supportive family group here in this country. The

respondent does have some family contacts back in

Panama, but clearly the weight of those contacts are in

the United States.

Regarding hardship if the respondent is deported to

Panama, it’s clear that it would involve serious emo-

tional hardship to the respondent and to his close family

members. There may be a degree of financial hardship

also. The respondent has helped out to some extent

with the family finances. However, his level of financial

support does not appear to have gone much beyond

contributing to his own expenses and so the Court feels

that most of the hardship in this matter relates to

emotional hardship to the respondent.

The history of employment is a positive factor in the

Court’s view. The respondent is a young man and has

expressed by his conduct a willingness to work and to

survive by the fruits of his own labor. Naturally, he’s

relatively young and does not have an impressive em-

ployment history. Nevertheless, the history is a solid

willingness to work lawfully and legally in this country.

There’s no indication of substantial property or busi-

ness ties, community service or service in the armed

forces of the United States. As mentioned above, there

has been impressive outpouring of support from the

respondent’s family and friends and from responsible

community representatives.

Regarding the question of rehabilitation, the Board

of Immigration Appeals has indicated this is not an

absolute requirement in all cases. However, it is “ordi-

narily” a factor of positive exercise of discretion. As

=

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the Assistant District Counsel for the Government

pointed out, the respondent has a close and supportive

family group which has been in place since before the

respondent’s criminal behavior commenced. As the

Counsel for the Government pointed out, it’s hard to

see how that group could provide more support than

they have provided to the respondent in the past.

Despite a close and supportive environment that the

respondent has found himself in, the respondent, nev-

ertheless, was engaged in criminal activity in the past.

This group is available to help him in the future and the

Court takes that into consideration. The Court is im-

pressed with the fact that the respondent participated

in the shock incarceration program. In general, the

Court has credited the respondent’s testimony about

his participation in the shock incarceration program.

Particularly, the Court credits his testimony that he

was a platoon leader; and his explanation as to why he

was not featured as a platoon leader in the photograph

is accepted by the Court as being truthful. The Court is

concerned by the fact that the respondent has not

acknowledged culpability for one (1) of the crimes for

which he was convicted. It’s not simply that the

respondent was convicted but the respondent, in fact,

pled guilty in open court under oath to a judge of the

New York State court system. So it’s clear that either

the respondent was lying to the court when he pled

guilty or the respondent is lying to the Immigration

Court when he states that he didn’t commit the

robbery. The Court naturally finds this disconcerting.

This is a factor which makes it more difficult to esta

blish rehabilitation in that the respondent has not

accepted responsibility for the crimes for which he has

been committed. Nevertheless, the Court acknow]

edges that the respondent has accepted responsibility

for other crimes that he has committed. I believe

Sa

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ourt is precluded by the fact of the respondent’s

conviction from accepting at face value his testimony

that he did not commit the robberies. At least hypo-

tically speaking, it's difficult to know what a respon

ruilty when he was not guilty would say

he Immigration Court. Nevertheless, this casts

lestions and doubts upon the rehabilitation of efforts

the Court has entertained those doubts and doe:

those misgivings. Nevertheless, despite those

ibts and misgivings, the Court believes that there is

ype that the respondent will be able to lead a lav

biding life in the future. The Court is Opt imistie that

he respon weit has learned from his time in prison. Thi

ourt is impressed that the respondent acknowledges

the pain that he has caused the people who he loves and

that he would be reluctant to engage in ‘activity which

would cause that pain in the future. Therefore, even

though the Court does not make a finding that rehabili

tation has been clearly shown on this record, the Court

does believe that there is some optimism that reha

bilitation will be completed as time goes by and that the

res} ae nt, if given the opportunity, will be able to

onstrate rehabilitation in the future.

Therefore, after balancing all the positive and nega

tive factors in this case, the Court believes that the

respondent does merit a favorable exercise of discre-

tion. The Court finds that the positive factors outweigh

the negative factors. In the opinion of the undersigned,

purpose of Section 212(c) relief is to allow a re-

spondent one (1) opportunity to reform his life and to

resume his place in society as a law-abiding person.

The Court believes that the ameliorative purposes of

212(c) relief are satisfied by granting the relief

(Ya

in this case. The respondent is a young man. He has

his whole life ahead of him. He seems to recognize that

his life is in his own hands and the Court feels that it’s

probable that he will take this opportunity and deal

with it maturely and acquit himself properly in the

future. Specifically, the Court finds that the crimes for

vhich he was committed are serious but do not re q ure

sual or outstanding equities. However, the Court

loes 3 acknowledge that’s a close issue. Even if the

‘imes were serious enough to require

iding has been made by the

unusual or out

inding equities, such a fi!

ind the balancing of equities does balance in the

our

r of the respond nt as indicated above. Theref ore

n light of the foregoing, and after having fully con

idered all of the evidence of record, ie followi1

ORDER

bE RESPONDENT'S } REQUEST FOR relief und

212(c) of the Immigration and Nationality Act

| Mi LIN \TED

R \N ‘ ) and these proceedi 17s are TER

ATED THIS May 9th. 1996.

Sa

APPENDIX E

A40 198 963 - New York Date: |[Mar. 14, 1997]

e: SAUL NAVAS-NG

EPORTATION PROCEEDING

PrRAL

, BEHALF OF RESPONDENT

Kam Wong, Esquire

egal Aid Soe lety,

[Immigration Unit

166 Montagu e Street. Sth Kloor

Brooklyn, New York 1120]

PER CURIAM. You are seeking relief from deporta

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

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

statutorily ineligible for such relief as an “alien who is

deportable by reason of having committed any eae

offense covered in section 241(a)(2)(A)(iu1), (B), or

(D), or any offense covered by section 241( OMAK

for which nee predicate offenses are covered by

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

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

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

nterim Decision 3289 (A.G., Feb. 21, 1997). Accord-

eat the appeal of the Immigration and Naturalization

Sla

Service from the Immigration Judge’s grant

relief is sustained.

If you conceded deportability prior to the enactment

of AEDPA on April 24, 1996, in reliance on the aval

ability of section 212(c) relief, you may have proceed

ings reopened for the limited purpose of contesti:

Aid

deportability. See Matter of Soriano, supra. If \

wish to have proceedings reopened for this limited pu

pose, you must submit a signed written request to that

effect directly to the Board, at the address on th

attached letter, without payment of any fee. Pleas

include a copy of this decision with any such reques'

and mark “SORIANO REOPENING” on the request an

on the outside of the envelope. You must serve a cop’

of such request on the Immigration and naturalizat

Service.

FURTHER ORDER: The respondent

leported to Panana.

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2 a ea tt EAD Ia 78

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Nos. CV 97-1085(JBW)

CV 97-1869(J BW)

(ZUILLERMO MOJICA, PLAINTIFF

V.

JANET RENO, AS ATTORNEY GENERAL OF THE UNITI

STATES; DORIS MEISSNER, AS COMMISSIONER OF THE

IMMIGRATION AND NA TURALIZATION SERVICE;

EDWARD MCELROY, AS NEW YORK DISTRICT

oo OF THE IMMIGRATION AND NATURALIZATION

SERVICE; JOHN B.Z. CAPLINGER, AS NEW ORLEANS

DI don a T DIRECTOR OF THE IMMIGRATION AND

N, = 'RALIZATION SERVICE; IMMIGRATION AND

YATURALIZATION SERVICE, RESPONDENTS

SAUL NAVAS, PLAINTIFF

is

ST RENO, AS ATTORNEY GENERAL OF THE UN D

peace De ORIS MEISSNER, AS pariah OF THI

IMMIGRATION AND NATURALIZATION SERVICE;

preg: D MCELROY, AS NEW YORK DISTRICT

— = THE IMMIGRATION AND NATURAL —

SEI ): IMMIGRATION AND NATURALIZATI(

SERVICE, RESPONDENTS

[Filed: July 11, 1997]

NSTEIN, Senior District Judge.

dd

\ Ascretionary Relief fro; Depo) (

d the Recent Amendment

< | Nav RP Hineveophneudeeecassbedeciscaccadecs

{ | Cr! Mo Ud ‘

\ : itional, Statuto) d Histor (

\. History of Immigration ......

Human Rights Obligations of the Unit.

surest ates

Habeas C SPE PUM sedsatsuassseslicsa et

) Presur mption Agains Retroact

Judici a Review o Ad ‘ ve A

TAPERED ssw estb inact envhtuleinsbaeiiuNnitsbiiieiubenmetsaanssien «—

[ sdiction COSoCooorecsocceooscecccaseebooeccccocécone

Subject Matter Jurisdiction ...........

|) Statutory Background ..........

a section 2241 of Title 28 ns

dD) INA Section 106(a), The AEDP

and the IIRTRA wccsceeseeeee.

Habeas Corpus Jurisdiction Under

section 2241 Not Repealed ...................

Scope of Section 2241 Habeas Review

Section 2241 Habeas Corpus Jurisdic

tion Available in Instant Case ...........

a) A District Court May Review a

Section 2241 Petition .................

(b) Petitioners in Cus stody For

Habeas Purposes .......ecccccessse. |

Kastern District of New York Is the Pro

per Forum: Personal Jurdisdiction and

l Court Has Personal Jurisidiction

Over Petitioners’ Custodians .... Somer np

S4a

Z Venue Is Proper With Regard to

F CCELIORIAND ..:scccorossisitinisnebmnmibacinecinn .. 166a

rotection of Legal Permanent Residents

Against Arbitrary Deportation 1.00.0... 169a

\) Statutory History of Section 212(c) and

SOCTION GONG). scscsissiasaciabianssaipstedanabaeamebaliedaiieiede . 169

Section 440(d) Does Not Retroactively Eli

minate Right of Petitioners to a Fairness

SECRTTUE ..sscssrsersennuneubiansesaibseesianienadaeniipaiaaunenie 169a

l Constitutional Barriers of Retroacti

VIEY nsinavstssciininnsiinebbiaanaaaaatamaniaies 170a

2) Manifest Congressional Design ................. 177a

Applying the Default Rule Against

SCOLTORCREVEEY snscccenmiveneninconbedagncannnaatncninns 18la

Basic Application of Landgraf .......... Sia

b) Traditional Principles of Statu-

tory Interpretation .......... ees. . 198a

No Deference to the Administra-

EVO AQOIIED csnincssinnncinrrncinicentuapsiancsaabe 200a

A Fortiori Application to Those

Whose Cases Were Being Pro-

cessed by the INS pcbdansiawkiibaeaedeeaaenadd 204a

I. Introduction

This is an important case of first impression, the

resolution of which will affect the rights of many legal

permanent residents. Petitioners, long time United

States residents, seek a court ruling that they are

entitled to a hearing determining whether they should

not be deported because of humanitarian factors—

commonly known as section 212(c) relief. At issue is the

new policy and practice of the United States Attorney

General to automatically deport certain legal per-

manent residents. Her action is predicated on her

conclusion that there must be retroactive application of

section 440(d) of the Antiterrorism and Effective Death

Pa SY: ]

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

Stat. 1214 (1996). Section 440(d) bars legal permanent

residents convicted of certain crimes from seeking a

<12(c) waiver of deportation.

The Attorney General, it is charged, without notice

and without reason. arbitrarily and capriciously re

versed the ruling of the Board of Immigration Appeals

that petitioners had a right to a 212(c) hearing. The

government contends: 1) this court has no jurisdiction

to consider this issue, and 2) even though the

petitioners were convicted of crimes before passage of

the AEDPA, they have no entitlement to a waiver

hearing—that is to Say, rehabilitation, hardship, dele

terious effects on family and other 212(c) factors are

now retroactively irrelevant.

[t is not necessary to consider petitioners’ consti

tutional arguments because the case can be decided as a

matter of statutory interpretation. Nevertheless, in

construing the statutes’ meaning, history, statutory and

other protections, and constitutional context provide

useful background. The courts have the obligation to

consider the context of legislation to determine

meaning; this duty is independent of any theory of

textualism in interpretation. See. é.g., John F. Manning,

Textualism as a Nondelegation Doctrine. 97 ( Olum. L.

Rev. 673 (1997).

y and the

executive departments from abusing their powers,

Congress has fashioned an extensive set of protections

for all individuals resident in our land, providing

appeals and other controls by the Judiciary. Moreover.

Congress can be presumed to have acted in the high

moral and ethical traditions of the United States after

To prevent the extended bureaucracy

S6a

consideration of relevant historical and political factors

and with consciousness of the United States’ role as

global defender of human rights. The courts cannot

assume, as the government now in effect suggests they

should, that Congress acteu contrary to the design and

thrust of closely related law.

For reasons set forth below, this court has habeas

corpus and declaratory judgment competence, and

personal jurisdiction over petitioners’ custodians.

Venue is proper, and petitioners are entitled to the

hearing they seek. This conclusion was set forth in the

memorandum and order of this court entered May 30,

1997. See Mojica v. Reno, 1997 WL 289700 (E.D.N.Y.

1997). That memorandum and order was issued

without an explanatory memorandum to expedite

appeals.

II. Facts

A. Discretionary Relief from Deportation and the

Recent Amendments

It is conceded that petitioners Saul Navas and

Guillermo Mojica would have been, until quite recently,

eligible for a 212(c) hearing. The government argues

that, in the wake of the AEDPA, they are no longer

eligible. Section 212(c) relief, its history, and recent

amendments to it are addressed immediately below.

Legal permanent residents convicted of a crime

making them deportable have long had a right to seek a

waiver of exclusion or deportation under section 212(c)

of the Immigration and Nationality Act (INA) as long

as they had a “lawful unrelinquished domicile of seven

consecutive years in the United States.” See INA §

212(c), 8 U.S.C. § 1182(c) (added by Immigration and

87a

Nationality Act of 1952); see also Francis v. INS, 532

I’.2d 268 (2d Cir. 1976) (holding that section 212(c) relief

is available in deportation as well as exclusion

proceedings); Matter of Silva, 16 Int. Dec. 26 (BIA

1976) (adopting and applying Francis holding nation-

wide). It is conceded that petitioners have had more

than the necessary domicile in the United States to

have triggered section 212(c) rights to a hearing. It is

important to bear in mind that to understand that the

right is to a hearing only and to the exercise of

discretion, not to immunity from deportation.

A long-time legal permanent resident accused of any

crime triggering deportability could thus be assured

that, even if he or she pled guilty or was convicted in

criminal proceedings after the trial, there would be

available a waiver of deportation in subsequent

deportation proceedings before an Immigration Judge.

See generally Matter of Lok, 18 Int. Dec. 101 (BIA

1981), aff'd on other grounds, Lok v. INS, 681 F.2d 107

(2d Cir. 1982) (if the individual could expect to have the

seven years by the time of deportation proceedings he

or she could be assured of being able to seek the

waiver). The Immigration Judge’s decision to grant the

waiver depends upon a weighing of many factors.

Among the favorable elements considered by an Im-

migration Judge under section 212(c) are family ties

within the United States, residence of long duration in

this country (particularly when the inception of resi-

dence occurred at a young age), evidence of hardship to

the individual and family if deportation were to occur,

service in this country’s armed forces. a history of

employment, existence of property or business ties,

evidence of value and service to the community, proof

of rehabilitation, and other evidence attesting to an

Soa

individual’s good character and likelihood of future

positive contributions to American society. See gener-

ally Matter of Marin, 16 Int. Dec. 581 (BIA 1978).

Until April 24, 1996, a section 212(c) waiver was

precluded only for a legal permanent resident whose

crimes fell within the INA definition of an “aggravated

felony” and who had served five years or more in prison

for the crimes. See Immigration Act of 1990 (IMMACT),

Pub. L. No. 101-649, Section 511(a), 104 Stat. 4978, 5052

(1990), as amended by the Miscellaneous and Technical

[Immigration and Naturalization Amendments of 1991,

Section 306(a)(10), Pub. L. No. 102-282, 105 Stat. 1733,

1751 (1991) (imposing limitation on § 212(c) relief).

On April 24, 1996, Congress enacted the AEDPA,

Pub. L. No. 104-132, 110 Stat. 1214 (1996), which in-

cluded a provision—section 440(d)—barring section

212(c) relief for individuals “deportable by reason of

having committed any criminal offense” coming within

several broad classes of crimes, including many rela-

tively minor offenses, regardless of the sentence im-

posed by the criminal judge, or whether any sentence of

imprisonment at all was imposed. Specifically, section

440(d) amended section 212(c) to provide that the

waiver is not applicable to an individual who is deport-

able by reason of having committed (1) an aggravated

felony, regardless of the sentence imposed or served,

(2) a controlled substance violation, (8) a firearm of

fense, (4) one of various miscellaneous crimes, or (5) two

or more crimes said to involve “moral turpitude”—a

category of offenses that includes certain crimes that

fail to live up to this hyperbolic appellation. Under this

provision, for example, a legal permanent resident

convicted of one minor drug possession charge, or two

>

8SGa

misdemeanor petty theft or public transportation fare

evasion charges—turnstile jumping in the New York

City subway system leading to a “theft of services”

misdemeanor conviction is considered a crime of “mora]

turpitude”—is now subject to automatic deportation

without any opportunity to present to an Immigration

Judge any mitigating equities.

Under the Attorney General’s view, any such person

could now be picked up off the streets for crimes of this

nature committed many years ago, torn from his or her

family, job or business. and deported without the right

to seek a waiver with an Immigration Judge on section

212(c) grounds. Immediately after the A KE DPA’s

enactment, the Immigration and Naturalization Service

(INS) began arguing that section 440(d) applied in al]

pending and Subsequently initiated deportation cases.

regardless of whether the conduct or events triggering

the section’s restrictions pre-dated the AEDPA.

This position was rejected by the Board of Imm;

gration Appeals (BIA) in a June 27, 1996 decision. The

BIA held that section 440(d) may not be applied

retroactively to an individual who Sought 212(c) relief

prior to the AEDPA’s enactment on April 24, 1996.

Matter of Soriano, Int. Dec. 3289, 1996 WL 426888

(BIA June 27, 1996),

The INS sought review of the BIA’s Soriano decision

by the Attorney General. On September 12, 1996, the

Attorney General vacated the BIA’s decision without

providing for public notice or hearing contrary

arguments. Some months later, she issued a brief

written decision, unsupported by relevant authority,

concluding that section 440(d) should be applied to all

pending 212(c) waiver Cases, even in cases where it was

O(a

triggered by events pre-dating the AEDPA’s enact-

ment. The Attorney General found that “nothing in the

language of the newly enacted statute, AEDPA §

440(d), specifies either that it is to be applied in pending

deportation proceedings, or that it is not to be.” Matter

of Soriano, Int. Dec. 3289, 1996 WL 426888, at screen

page 41 (beginning at screen page 37, AG Op. Feb. 21,

1997). The Attorney General ipse dixit decided in favor

of retroactivity even in pending cases.

Although of no direct relevance in the instant case,

Congress has enacted further statutory reforms related

to section 212(c). Specifically, section 212(c) was re-

pealed, effective April 1, 1997, by the “Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996”

(IIRIRA), Section 304(b), Pub. L. No. 104-208, Division

C, 110 Stat. 3009 (1996). The IIRIRA replaced section

212(c) relief with a new form of prospective relief for

lawful permanent residents called Cancellation of

Removal. See IIRIRA § 304(a)(3) (new INA § 240A(a)).

In general, the repeal and new cancellation relief in the

IIRIRA does not apply in proceedings initiated prior to

April 1, 1997—as were petitioners’ proceedings. See

IIRIRA § 309(c)(1) (providing that general rule is that

the IIRIRA does not apply to deportation proceedings

commenced before April 1, 1997); IIRIRA § 309(c)(2)

and (3) (providing the Attorney General with the option

to apply IIRIRA law in certain deportation cases

pending on April 1, 1997); new 8 C.F.R. § 240.40, pub-

lished at 62 Fed. Reg. 10371 (March 6, 1997) (following

general rule only); and new 8 C.F.R. § 240.16, published

at 62 Fed. Reg. 10374 (March 6, 1997) (indicating that at

some undetermined time in the future, the Attorney

General may pursue options to apply IIRIRA law in

certain cases).

Ce ee Pee, ae ey ee a ee ae

Yla

The government now argues that section 440(d)

applies to all legal permanent residents in deportation

proceedings on or after the date of enactment of the

AEDPA, regardless of when they committed or were

convicted of an offense covered by that section. Under

the government’s reading, legal permanent residents.

many with relatively minor convictions, would now be

Subject to automatic deportation even if the conduct

and conviction took place years or decades ago and even

{ section 212(¢) proceedings were pending when the

AEDPA was adopted.

B. Saul Navas

Petitioner Navas is a twenty-two year old native and

citizen of Panama who lives in St. Albans, Ney York,

within the Eastern District of New York. He was

admitted to the United States as a legal permanent

resident on July 10, 1987 when he was twelve years old.

Since the time of his admission into the United States

over nine years ago, he has continuously resided here.

Navas’s entire immediate family, which includes his

mother and step-father, one brother, two half siblings

and five step-siblings, resides in the United States. All

members of his family are either United States citizens

or legal permanent residents. In Panama, Navas has no

immediate family and no means of support.

Navas attended Junior High School and High School

up to the twelfth grade in Queens, New York. There-

alter he worked in New York City as a delivery boy, as

a Stock boy, as a building maintenance worker, and as a

waiter,

On May 2, 1995, Navas Was sentenced in the New

York Supreme Court. Queens County as a result of | wo

guilty pleas to offenses committed in Queens. In the

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he law Is and to conform their

lTnion Pacific R PR. ( ""

». 190, 202, 34 BS. (

"

1913) (“The principle of the:

truction] forbids a retrospectiv:

the statute under conside)

ise In a high degree the evli a!

legislation.”); Winfree Ve

IS. 296, 302. 33 S. Ct. 273, 274.

ite “should not be rue

introduces We

ae ng la

»f Administrative Actions

n of VS } ed by Conor

4 ’ "

at eV ( {) qdererel e due (

{ f + in

i O! 2, ne iaw ‘5 I ive .

rrylic? } Tar wh ith ») t ) r\?

| L1ie' i VV c Liccl ( aw

\

COT Struction ( Jié Or? \

‘7 7 : 0 +9 r

Klementary considerations of

) ] ime! ) 1S ; GC rh ra) :

IClOUS

Chevro ne supreme Cou pr idqeqd Da

1. ;

indarad:

yvnen a cou) reviews an aveney S construr LO!

whet her ( ongress has directly spoken to t]

questlor

1)

{)

vith two questions. First, always, is the «

he statute which it administers. it is confre

4

the precise

n at issue. If the intent of Congress is clear.

at 1s the end of the matter; for the court. as well a:

e agency, must give effect to the unambiguou

pressed intent of Congress. If. 1loWever. thi

irt determines ( ONnLTeSS has not dlrectiv a

Ssea Une precise que StION al 1SSsue, the Court adore

simply impose its ow) construction of the s

| |

as would be necessary

\ in the absence Of}

ministrative interpretation. Rather, if the stat

suent or ambiguous with respect to the spe

sue, the question for the court is whether

! ’S answer S oas 1) OO} i per? SSID }

n of the statut

Ny ta, RP, Def, iIG7 TTS s

to, 104 S. Ct. 2778, 2781. 8] ] Kid.2d 694 (1984

two-step analysis provides a method for det

ing “the issue of the appropriate role of courts w]

review agency resolutions of policy issues

neth Culp Davis, Richard J. Pierce Ir., Admit

ive Lav lreatise § 1.7 (3d ed. 1994 empn

ed Where the agency decision iS One OF pol

irl 5 instructed to ce ler to any reasonab

le" IS1O! ~ ( hi, ron, 1H / | = - i] S44 : 104 =

2/32, 81 L.Ed.2d 694 (1984 Although, “{t

e] [ ¢ [ ~ OK el Teat controve

l36a

among judges and scholars,” (1 Kenneth Culp Davis,

Richard J. Pierce, Jr., Administrative Law Treatise

1.7 (3d ed. 1994)), there is no question that agency

decisions that are irrational and unreasonable will not

be upheld. The basic proposition that the judiciary will

not give weight to the actions of administrative

agencies that “are arbitrary, capricious, or manifestly

ontrary to the statute” is uncontroverted. /JNS v.

Cardoza Fonseca, 480 U.S. 421, 444 n. 29, 107 S. Ct

1207, 1220 n. 29, 94 L.Ed.2d 4384 (1987); see generally,

Richard J. Pierce, Jr., et al., Administrative Law

ind Process 111-129 (2a ed. 1992).

In contrast to discretionary policy quest ions left open

legislation to administrative interpretation, questions

of statutory construction are for the judiciary. “It is

emphatically the province and duty of the judicial de

partment to say what the law is.” Marbury v. Madison,

U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). For the

two centuries, this maxim has provided a touch

ne in judicial review. While “[iJn the performance of

signed constitutional duties each branch of the gov

ernment must initially interpret the Constitution,”

l’nited States v. Nixon, 418 U.S. 683, 7038, 94 S. Ct.

090, 3105, 41 L.Ed.2d 1039 (1974), ultimately the final

word on the interpretation of the supreme law of the

land, the Constitution, and of congressionally enacted

| tatutes must come from the judiciary. As the Chevron

Court itself recognized, “The judiciary is the final

iuthority on issues of statutory construction i

Chevron v. Natural Resources Defense, 467 U.S. 837,

43 n. 9, 104 8. Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694

1984). Where courts must rely on common law princi

ples of statutory construction as interpreted by the

preme Court, “It here 1s ; : ; no reason for

137a

courts—the supposed experts in analyzing judicial

decisions—to defer to agency interpretations of the

Court’s opinions.” Akins v. Federal Election Coy y 7,

LO1 F.3d 731, 74] (D.C. Cir. 1996), cert. granted. UJ

» 1I7S. Ct. 2451, 188 L.Rd.2d <10 (1997).

Minally, any action taken by an administrat lve agenc

may be reviewed under the arbitrary and capriciou

test. The Supreme Court’s initial and most deferentia|

statement of the rule required that an administrativ:

action must be upheld “if any state of facts reasonably

can be conceived that would sustain” the agency’s dec;

sion. Pacific States Bor & Basket Co. Vv. White. 296

U.S. 176, 185, 56 S. t. 159, 163, 80 L.Ed. 138 (1935

“| T yhis formulation lis similar to] what has become

known as the loose rational] relation test (In constitu

tional law]. The court continues to use this exception

ally deferential] version of the arbitrary and capriciou

Lest In Some important areas of judicial review” jn ares

of law not relevant to the instant case. 2 Kenneth Cul;

Davis, Richard J. Pierce, Jr., Administrative Law Trea

lise $ 11.4 (3d ed 1994). Modern case lay support

much closer judicial scrutiny. See, e.g., Citizens to Pr

serve Overton Park vy. Volpe, 401 U.S. 402,91 S « it. 814

45 L.Ed.2d 136 (1971). The exact meaning of “arbitrary

and capricious” remains unclear, but in the context ci

[NS decisions, a court must rely on guidance provided

by the court of appeals for the Second Circuit. A:

“Inadequate basis for the decision [is an Important

factor in determining] that the {Board of Immigrat

\ppeals] acted in an arbitrary and capricious mann

Vargas v. INS, 938 F.2d 808, 362 (2d Cir. 1991).

In reviewing the actions taken by the INS, followi

the orders of the Attorney General, with respect

Mojica and Navas, a court will have to make th.

lowing determinations: First, has the INS made rea-

sonable policy determination in interpreting the am-

biguous sections, if any, of the AEDPA? Second, with

respect to any questions relating strictly to statutory

construction, what is the proper construction relying on

‘ommon law principles and judicial interpretations of

those principles? Finally, considering the actions that

he INS took with respect to Mojica and Navas, were

iny findings necessary to support those actions arbi

trary or capricious:

r\ Jurisdiction

\ Subject Matter Jurisdiction

IS case presents jurisdictional i8Ssues OI gre

nt. If a district court has habeas corpus Juris

] . 17 " . . } - a . . > ( and

on and venue 1S proper under sections 1591 and

17 P2227 >) i, et - S mie “ .

ti OL titie 2d, 1t alSO 18 competent to issue a deelar:

judgment. 28 U.S.C. §§ 2201, 2202; Charles A.

ight. Law of Federal Courts 712-20 (5th ed. 1994).

The government contends that this court lacks

bject matter jurisdiction over these petitions to

‘onsider the retroactivity of AEDPA section 440(d).

Relying on jurisdiction-modifying provisions of the

\EDPA and the IIRIRA, the government asserts that

the only remaining judicial review relating to fina!

orders of deportation for legal permanent resident

riminal aliens such as petitioners is in the court of

ippeals, and that such review is available only for

bstantial constitutional claims. As the petitioners’

laims are not of the substantial constitutional variety,

the government avers, they cannot be reviewed by any

bb a2)

Mil

139a

Petitioners, in contrast, assert that this eourt does

have jurisdiction to consider their claims. They point

out that the theory of jurisdiction that the government

urges upon the court would bar them from obtaining

judicial review on a straight question of law—the pro-

per statutory construction of AEDPA section 440(d).

Petitioners argue that the refusal of the Immigration

Judge (with respect to Mojica) and the Board of Immi-

gration Appeals (BIA) (with respect to both peti-

tioners) to consider the merits of petitioners’ section

<12(c) applications, as a matter of law, was based on a

misconstruction of the effective date of AEDPA section

140(d). Petitioners neither seek review of discretionary

determinations nor revisitation of administrative fac

tual findings; they challenge an interpretation of law.

\ccordingly, the court need not decide whether there is

Jurisdiction to review discretionary determinations 0)

findings of fact. Se United States Uv. Sha ughn: SSY, 505

U.S. 72, 77S. Ct. 618. 1 L..Ed.2d 652 (1957).

‘

—

Petitioners argue that the government’s tendered

‘onstruction of judicial review under AEDPA

implausible. If the government’s position were to be

accepted, it would present a situation in which the

deportation process for them and others like them, from

beginning to end, would be entrusted solely to the

executive branch without any opportunity for correc

tion of legal errors, except those of “substantial eo)

stitutional” proportion. They assert that Congress, in

enacting the AEDPA and the ITIRIRA, did not vest the

Attorney General with unreviewable and absolute

power to deport legal permanent residents. The gov

ernment’s interpretation would call into question the

out tripartite system of govern

ment which nas since Marbury v. Madison. o> U.S.

>

most basic tenets of

140a

Cranch) 137, 2 L.Ed. 60 (1803), assigned to the judiciary

the final responsibility for interpreting the law.

Petitioners’ argument is persuasive. The govern-

ment is incorrect as a matter of statutory construction.

Congress could not have intended the result that the

government’s position ordains.

The court retains subject matter jurisdiction under

ts general habeas corpus powers, which Congress did

not eliminate. The statutory changes wrought by the

\EDPA and the IIRIRA bar the judicial review that

: was once available pursuant section 106 of the Immi-

oration and Nationality Act, section 1105a(a)(

Title 8 of the United States Code. Se e ee § 401(e)

eliminating the old INA § 106, 8 U. § 1108 ra(a) (10)

AEDPA § 440(a) (Dr ernene 7 ‘or a new IN A § 106, 8

U.S.C. § 1105a( (10) ; IIRIRA § 306(b)-(c) (repealing

INA § 106,8 U.S C § 1105 a With respect to actions filed

yn or after Sept. 30, 1996). While the amendments

anifest Congress’s desire to streamline the deporta-

tion process, the AEDPA and the IIRIRA leave undis

irbed the OA HET authority of federal district

‘ourts to entertain habeas petitions under section 2241

‘Title 28. The reasons for this conclusion are demon-

strated below.

Because this issue is one of statutory interpretation,

petitioners’ constitutional arguments based on the Sus-

anraeg Clause, the Due Process Clause, and the Sepa-

ation of Powers principles embodied in Article III of

he Constitution need not be reached. But see, Note,

The Constitutional Requirement of Judicial Review for

1

Pyare hes Deportation Decisions, 110 Harv. L.

Rev. 1850 (1997).

10) of

(1) Statutory Background

(a) Section 2241 of Title 28

=

section 2241 of Title 28 of the United States |

establishes federal courts’ power to grant the

habeas corpus. It provides in relevant part that:

a) Writs of habeas corpus may be grante

L he #1

qd Ov rié

Supreme Court, any justice thereof. the distric

courts and any circuit judge within their

respective jurisdictions.

i

The Writ of habe as Corl

prisoner unless

25 U.S.C. § 2241(a), (c)(1). (e)\(3 . section 22

direct descendant of Section 14 of the Judici ry A

1739 and the 1867 Act which expanded the scope o

writ. See, Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. &

Act of Feb. 5, 1867, ch. 28, 14 Stat. 380; see also Fi

Turpin, — US. ’ , 1I6S. ( ,

135 L.Ed.2d 827 (1996).

Te em

142a

(b) INA Section 106(a), The AEDPA, and The

IIRIRA

Legal permanent residents have always had the right

to test the legality of their deportation orders before an

Article III court. Until the enactment of the 1952

immigration Act, the procedure for doing so was by

means of a habeas corpus action in district court. Se¢

Heikkila v. Barber, 345 U.S. 229, 235, 73 S. Ct. 603, 605-

06, 97 L.Ed. 972 (1953) (““Now, as before, [an alien] may

attack a deportation order only by habeas corpus.”).

\fter 1952, an alien could challenge a deportation order

in habeas actions as well as in an action for declaratory

relief pursuant to the Administrative Procedure Act

\PA). See Shaughnessy v. Pedre iro. 349 U.S. 18. 75S.

591, 99 L.Ed. 868 (1955).

The Immigration Act of 1961 amended the INA,

antially altering the system of judicial review and

tablishing the regime that remained in place until the

‘ent amendments. Specifically, the 1961 Act sought

eliminate the APA declaratory actions. In their stead

tion 106(a) of the INA provided that petitions for

iew before the courts of appeal “shall be the sole and

sive procedure for judicial review of all final

CAL

rders of deportation except” as provided elsewhere in

section. 8 U.S.C. § 1105a (amended Apr. 24, 1996 by

] » A ] { ‘ ang vat tirzvolyw y alad

UPA tOl(e), 440(a), and prospectively repealed

1996 hy IIRIR \ S 206(h -(¢@)). Sub-se tA?

143a

a)(10) of section 1105a authorized habeas corpus

review:

(10) Habeas ( orpus

[AJny alien held in custody pursuant to an

ne of deportation m: iy obtain judicial re.

view thereof by habeas corpus proceedings.

5 U.S.C. § 1105a(a)(10) (amended Apr. 24. 1996 by

AEDPA §§ 401(e) , 440(a), and prospectively repealed

Sept. 30, 1996 by IIRIRA § 306(b)-

On April 24, 1996, the AEDPA became law. Section

‘Ol(e) of the Act. entitled “Elimination of C ustody

Review by Habeas C orpus,” rg uck the habeas cor pus

provision of INA section L06(a AEDPA Section 440(a)

substituted new language: hae} final order of de -porta-

“on against an alien who is de portable by reason of

ving committed [certain crimes] shi r not be subject

to review by any court.” AF DPA § 440(: ‘ 110 Stat

L276-77 (1996) (ame nding and codified S U.S.C

L105a(a)(10) which paragraph was prospectivel re

ealed sept .d0, ] 1996 by [IR [IR A§: sO06(t y)-(@)).

TY}

inere was no mention of section 2241 of Title 2s

e AEDPA.

The Illegal wee ration Reform and Immigrant

esponsibility Act of 1996 ( IIRIRA”) was enacted o1

eptember 30, 1996 and f{ further amended the proc

lures governing Judicial review of de portation orders

ge nerally ITRIRA § 506(a), Pub. L. No. 104-208, 110

.

t-é

Stat. 3009 (Sept. ¢ 30, 1996). The IIRIRA contains two

sets of provisions, transitional] and permanent. The per

anent changes made } by the Act govern de portation

Yr) ' a ¥ . *1] Y

roceedings commenced afte April l, 1997 See

144a

LIRIRA § 309(c). The transitional provisions, which are

not codified in the United States Code, apply to

deportation proceedings commenced before April 1,

1997, where the deportation order became administra-

tively final after October 30, 1996. See § 309(c)(4). A

deportation order that became administratively final on

or before October 30, 1996 is governed by the Immigra

tion and Naturalization Act, as amended through Sep-

tember 30, 1996.

,

‘

Because petitioners’ deportation orders became ad-

ministratively final after October 30, 1996, their cases

are governe .d by the IIRIRA’s transitional rules, spe

ically section 309(c)(4)(G). Section 309(¢)(4)(G) pro-

vides that “there shall be no appeal permitted in the

case of an alien who is inadmissible or deportable by

reason of having committed” one of the —

‘rimes. Because each of the petitioners committed one

of the enumerated crimes, they are subject to section

309(¢)(4)(G).

Neither the I[RIRA’s transitional rules, nor its =a

manent provisions, specifically address or amend the

habeas abyss f the district courts under section

2241 of f Title 2

(2) Habeas Corpus Jurisdiction Under Section

2241 Not Repealed

[he interplay between section 2241 and the recently

‘nacted modifications of judicial review implicates the

clear statement rule—a rule governing repeals of

habeas jurisdiction. Almost one-hundred thirty years

igo, and again last year, the Supreme Court explicitly

admonished that congressional intent to repeal habeas

jurisdiction must be express and that “[rJjepeals by

l tba

mplication are not favored.” Felker Uv. Turpin,

U.S. ——, ——.. 114 S. Ct. 2333, 2338. 135 L..Ed.2d 827

(1996): see also Ex Parte Yerger, 75 US. 85, 105. 19

L.Ed. 332, 8 Wall. 85 (1868). In both Felker and Yerger

the Court refused to read jurisdic

tion-modifying stat-

utes enacted by Cong

Tess as repealing other avenues of

habeas jurisdiction that had not been specifically

abrogated, much less mentioned, by those jurisdiction-

modifying statutes, Only upon

a clear statutory

statement—

a specific, express and unambiguous direc-

tive—can a court conclude that Congress meant to

repeal an independent avenue of habeas jurisdiction.

Such a clear statement js absent from the governing

$

}

statutes In the present case.

Yerger involved the scope of a Congressional lim}

tion on the appellate jurisdiction of the Supreme

ourt. In 1867 Congress expanded power of the federa

ourts to Issue writs of habeas corpus, allowiag suc!

vrits “in all cases where any person may be restrained

ft his or her liberty in violation of the constitution, or

iny treaty or law of the United States.” See Act of Feb.

, 1867, ch. 28, 14 Stat. 385. The same legislation also

expanded the appellate jurisdiction of the Supreme

Court, authorizing appeals from any final decision of th

ircuit courts on a habeas petition. See id., 14 Stat. 3

Steak

Che following year Congress retreated and revoked

this appellate jurisdiction. repealing “ ‘so much of th

L867] act as authorized an appeal from t]

idgment of the Circuit Court to the Supreme Court of

he United States.’” See Ex Parte Y, rger, 75 U.S. 8F

7,19 L.Ed. 332, 8 Wall. 85 « 1868) (quoting Act of Mar

1868, ch. 34 § 2, 15 Stat. 44).

t

146a

The question considered by the Yerger Court was

whether the 1868 Act also revoked the Supreme

Court’s power to entertain habeas petitions under

section 14 of the Judiciary Act of 1789. The Court held

that it did not, explaining that the text of the 1868 Act

addressed only jurisdiction over appeals conferred by

the 1867 Act and that it made no reference to habeas

jurisdiction under the 1789 Act.

Last year in Felker the Court—in considering the

validity of an AEDPA jurisdiction-modifying provision

unrelated to the provision here at issue—reaffirmed the

rule against repeals by implication. Specifically, it held

that while the AEDPA “gatekeeping” provision—

section 106(b)(3)(E)—legitimately precluded review by

appeal or petition for certiorari of a denial of an appli-

cation for leave to file a second or successive habeas

petition in district court, the Act could not be read to

foreclose the section 2241 avenue of original habeas

review. Noting the parallels to Yerger, the Court

unanimously held that since the AEDPA “makes no

mention of our authority to hear habeas petitions filed

as original matters in this Court . . . we decline to find

a .. .repeal of § 2241 of Title 28 . . . by implication

.”’ Felker v. Turpin, —— USS. , 1168. Ct.

2333, 2338, 1385 L.Ed.2d 827 (1996).

The instant case involves an issue not dissimilar to

those confronted by the Yerger and Felker Courts:

whether recent jurisdiction-modifying amendments to

the INA repeal by implication an independent and

unrelated statutory source of jurisdiction—section 2241

of Title 28—thereby depriving courts of this long-

established habeas jurisdiction.

147a

As noted, the AEDPA amended the INA, with

section 401(e) deleting the habeas provision providing a

method for judicial review of deportation orders by

habeas corpus proceedings and section 440(a) inserting

new language establishing that deportation orders

against aliens convicted of certain crimes “shall not be

subject to review by any court.” See AEDPA §8§ 401(e).

440(a). Similarly, IIRIRA section 309(c)(4)(G)—the

interim amendment of INA section 106—provided that

“there shall be no appeal permitted” in the case of

certain criminal aliens and new INA section 242(¢),

codified at section 1252 of Title 8 of the United States

Code, added by IIRIRA section 306, provided that “no

court shall have jurisdiction . . . except as provided in”

this section. See IIRIRA $§ 306, 309. It is clear that.

by these provisions, Congress intended to speed the

process of deportation of criminal aliens by restricting

Judicial review of final orders of deportation.

Nevertheless, as was the case in Yerger and Felker.

there is no indication that Congress intended to take

the dramatic—and arguably unconstitutional step of

repealing the habeas statute with roots traceable to our

nation’s beginnings. See, é.g., Act of Sept. 24, 1789. ch.

<0, § 14, 1 Stat. 82 (ancestor of section 2241(a) of Title

<8); Act of Feb. 5, 1867, ch. 28, 14 Stat. 385 (ancestor of

section 2241(c)(3) of Title 28): see also Ex Parte Yerger,

75 U.S. 85, 95, 19 L.Ed. 332. 8 Wall. 85 (1868) (“The

great writ of habeas corpus has been for centuries

esteemed the best and only sufficient defense of

personal freedom”). See also, Trevor Morrison, Note,

Removed from the Constitution?: Deportable Aliens

Access to Habeas Corpus Under the New Immigration

Legislation, 35 Colum. J. Transnat’! L. (Forthcoming

Sept. 1997) (manuscript at 29, on file with the court)

irguing that AEDPA and “IIRIRA must .. either

be read as leaving eae? some access to challenge

deportation orders controlled by AEDPA and] removal

orders [controlled by IIRIRA] by habeas corpus or be

truck down as unconstitutional.”). The AEDPA does

1ot amend, or even mention, section 2241 of Title 2

Nor does the ITRIRA.

In keeping with Felker and Yerger, the court canno

ere find that Congress repealed section 224] by

mplication. See, e.g., Ojo v. INS, 106 F.3d 680, 681 (5t

‘ir. 1997) (holding that AEDPA cannot be irieeaiod

have altered requirements by implication for habeas

‘eview sought pursuant to section 2241 of Title 28); cf.

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104

S. Ct. 2862, 2880-81, 81 L.Ed.2d 815 (1984) (“where two

tatutes are ‘capable of co-existence, it is the of

he courts, absent a clearly expressed congressional!

: ~ .

} t th 2 an ci? he a: + 6 . ‘ in « + 4 »+ 4

ention to tne contrary, UL regard each as effective

ns om ea

’ }

(ongress 18 expert 1n the process OI law-making

I

nn 4 . oo} 45 , QOOA _>» lar 1+ inn?

aesired to repeal section 2241, or render it ina]

lL] , i ; ue - *4

able to cnallienges to deportation orders, 1t wo

} ry 1, » > , ery + . 4 ] T+ miiat

Ken tne necessary SstepS tO @O so. itl MUS

: ] + , —- . 7 1f,;] "+h 2 1+

resumed that Congress was minatul oI tne necessl

to that elfect. Congress 1s pre

a clear Statement

imed to “know the law.” See generally, Director |

WCP v. Perini North River Associates, 459 U.S. 297,

19, 103 S. Ct. 634, 648, 74 L.Ed.2d 465 (1983); see als

imnon v. University of Chicago, 441 U.S. 677, 696-97

9 S. Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979) (same

Felker Court acknowledged, Congress know

yw to repeal habeas jurisdiction. Where it intends to

1 . . : 7 17

states that intention

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