United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 21, 1998 Decided February 10, 1998
No. 96-1310
Jean Fritzner LaFontant,
Petitioner
v.
Immigration & Naturalization Service,
Respondent
On Petition for Review of an Order of the
United States Immigration and Naturalization Service
Susan M. Demske, student counsel, argued the cause for
petitioner, with whom Steven H. Goldblatt, appointed by the
Court, and Catherine E. Lhamon, were on the briefs.
Lisa M. Arnold, Attorney, United States Department of
Justice, argued the cause for respondent, with whom Frank
W. Hunger, Assistant Attorney General, and Michael P.
Lindemann, Assistant Director, were on the brief. Ethan B.
Kanter, Attorney, entered an appearance.
Before: Edwards, Chief Judge, Wald and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Wald.
Wald, Circuit Judge: Petitioner Jean Fritzner LaFontant,
a resident alien living in the United States, brought this
action to challenge a deportation order issued by the Bureau
of Immigration Affairs ("BIA") based on his multiple convic-
tions for crimes involving moral turpitude, Immigration and
Naturalization Act ("INA") s 241(a)(2)(A)(ii), 8 U.S.C.A.
s 1251(a)(2)(A)(ii) (1995), and his firearm conviction, INA
s 241(a)(2)(C), 8 U.S.C.A. s 1255(a) (1995). LaFontant
claims that the BIA abused its discretion by failing to provide
him with a waiver of inadmissibility, as provided by INA
s 212(c), 8 U.S.C.A. s 1182(c) (1995), or an adjustment of
status to lawful permanent resident, as provided by INA
s 245(a), 8 U.S.C.A. s 1255(a) (1995). LaFontant further
claims that application to LaFontant's petition for review of
section 440(a) of the Antiterrorism and Effective Death Pen-
alty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996)
(codified as amended at 8 U.S.C.A. s 1105a) ("AEDPA"),
which divests this court of jurisdiction to review certain
deportation orders, would be impermissibly retroactive be-
cause it would attach new legal consequences to events com-
pleted before the Act's enactment. The government, in turn,
argues that section 440(a) deprives this court of jurisdiction
over LaFontant's petition for review. It explains that appli-
cation of section 440(a) to LaFontant's petition is not imper-
missibly retroactive but is instead a permissible prospective
application of a jurisdictional statute. We hold that section
440(a) of the AEDPA is not impermissibly retroactive as
applied in this case.1 We therefore dismiss this case for lack
__________
1 We do not pass on whether section 440(a) may apply, retroac-
tively or otherwise, to bar review of a final order of deportation in a
case in which a constitutional infirmity in the deportation proceed-
ing itself is alleged. See, e.g., Turkhan v. INS, 123 F.3d 487, 489-
90 (7th Cir. 1997) (Petitioner claimed that he "received ineffective
assistance of counsel in his hearing before the immigration judge,"
and that "the BIA violated due process when it did not consider his
mislabeled brief.").
of jurisdiction. We also hold that the fee requirements of the
Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No.
104-134, 100 Stat. 1321 (1996), do not apply to LaFontant's
petition for review of the BIA's deportation order.
I. Factual and Procedural Background
Jean Fritzner LaFontant was born in Haiti on October 23,
1957. Transcript at 32, In re LaFontant, No. 17-018-333,
United States Department of Justice Executive Office for
Immigration Review, Immigration Court (Dec. 7, 1995)
("Imm. Ct. Tr."). He entered the United States as a lawful
permanent resident in 1966 at the age of eight and has not
returned to Haiti since. Id. at 32. He does not speak Creole,
the primary language spoken in Haiti, and his siblings and
parents all live in the United States. Id. at 34, 68, 117-18.
While residing in the United States, LaFontant has been
employed as a bicycle carrier and has filed tax returns for
years in which he earned more than $5,000. Id. at 36-37, 39-
40.
At his deportation hearing on November 20, 1995, LaFon-
tant acknowledged that he had been convicted on December
4, 1981, of the crimes of second degree burglary, grand
larceny, and the unauthorized use of a vehicle in the District
of Columbia. Id. at 42. The INS also presented evidence
that he had pled guilty on December 4, 1981, to the crimes of
receiving stolen property and carrying a dangerous weapon in
the District of Columbia and, in 1994, had pled guilty to
committing the crime of burglary in Alexandria, Virginia. Id.
at 49-54.
During his testimony, LaFontant admitted that he had
been arrested "roughly 20 or so" times. Id. at 42-43. A
copy of LaFontant's "rap sheet" was introduced into evidence.
Id. at 47, 86. The sheet indicated that from 1978 until he was
placed into custody pending deportation proceedings, LaFon-
tant had been arrested for forty-five crimes, eleven of which
resulted in criminal convictions. See Joint Appendix ("J.A.")
147-56.
On November 30, 1994, while LaFontant was on probation,
the INS detained him, took him into custody, and ordered
him to show cause why he should not be deported. See Order
to Show Cause and Notice of Hearing, No. A17-018-333, J.A.
112-18. LaFontant contested his deportability but presented
no evidence to support his claims. See Imm. Ct. Tr. at 4-10.
Instead, he relied entirely on his application for discretionary
relief under INA s 212(c) (waiver of inadmissibility) and INA
s 245(a) (adjustment of status to lawful permanent resident).
On December 7, 1995, the Immigration Judge issued a deci-
sion holding that LaFontant was deportable under section
241(a)(2)(a)(ii) of the INA for having committed two crimes
involving moral turpitude which did not arise out of a common
scheme or plan and, under section 241(a)(2)(C) of the Act, for
his firearms conviction. See In re LaFontant, No. 17-018-
333, United States Department of Justice Executive Office for
Immigration Review, Immigration Court (Dec. 7, 1995). The
Immigration Judge found that LaFontant was statutorily
eligible to be considered for a grant of discretionary relief
under sections 212(c) and 245(a). Id. After weighing the
equities, however, the Judge concluded that LaFontant's case
did not merit a favorable exercise of discretion. Id.
LaFontant filed his notice of appeal to the BIA on Decem-
ber 18, 1995. The BIA, after weighing the factors for and
against a granting of discretionary relief, also concluded that
LaFontant was not entitled to discretionary relief in the form
of either a waiver of inadmissibility or an adjustment of
status. See In re LaFontant, No. 17-018-333, United States
Department of Justice Executive Office for Immigration Re-
view, B.I.A. (Aug. 22, 1996). Consequently, on August 22,
1996, the BIA dismissed the appeal. Id.
On April 24, 1996, while LaFontant's appeal was still
pending before the BIA, the President signed into law the
Antiterrorism and Effective Death Penalty Act of 1996. Sec-
tion 440(a) of the Act provided that any final order of
deportation against an alien who is deportable by reason of
having committed a criminal offense shall not be subject to
review by any court. Four months later, on August 30, 1996,
LaFontant filed his petition for review with this court.
II. Analysis
A. Jurisdiction
Prior to the enactment of the AEDPA, section 106(a)(1)-(6)
of the INA authorized the circuit courts of appeals to review
final orders of deportation from the BIA. Section 440(a) of
the AEDPA amended section 106(a)(10) of the INA to exclude
final orders of deportation entered against certain criminal
aliens from judicial review. Section 440(a), as amended by
section 306(d) of the Illegal Immigration and Immigrant
Responsibility Act, provides:
(a) JUDICIAL REVIEW--Section 106 of the Immigra-
tion and Nationality Act (8 U.S.C. s 105a (a)(10)) is
amended to read as follows:
"(10) Any final order of deportation against an alien who
is deportable by reason of having committed a criminal
offense covered in section 241(a)(2)(A)(iii), (B), (C), (D),
or any offense covered by section 241(a)(2)(A)(ii) for
which both predicate offenses are, without regard to the
date of their commission, otherwise covered by section
241(a)(2)(A)(i), shall not be subject to review by any
court."
Pub. L. No. 104-132, s 440(a), 110 Stat. 1214, 1276 (1996), as
amended by Pub. L. No. 104-208, s 306(d), 110 Stat. 3009
(1996). The statute did not specify an effective date. It was
therefore effective on the date of enactment--April 24, 1996.
See United States v. Shaffer, 789 F.2d 682, 686 (9th Cir. 1986)
(" 'In the absence of an express provision in the statute itself,
an act takes effect on the date of its enactment.' ") (citation
omitted). LaFontant's petition for review was not filed with
this court until August 30, 1996.
LaFontant argues that section 440(a) of the AEDPA does
not apply to him because such an application would have an
impermissible retroactive effect. LaFontant explains that he
made strategic choices concerning what to argue at his depor-
tation hearing more than a year before the AEDPA was
enacted, when deportable aliens were authorized to seek
judicial review. Applying section 440 of the AEDPA to him
would therefore attach new legal consequences to events
completed before the Act's enactment, in violation of princi-
ples established by the Supreme Court in Landgraf v. USI
Film Prods., 511 U.S. 244, 270 (1994). The government, in
turn, argues that application of section 440(a) to this case is
not impermissibly retroactive, but is instead a permissible
prospective application of a jurisdictional statute. The pro-
hibitive nature of the bar holds especially true in this case,
the government argues, because LaFontant's petition for
review was not filed until four months after the AEDPA's
enactment. In addition, the government notes that, with the
exception of the Seventh Circuit, every circuit to consider this
issue has held that section 440(a) applies to cases pending at
the time of its enactment, justifying their immediate dismiss-
al. We similarly find that application of section 440(a) to
LaFontant's petition for review is not impermissibly retroac-
tive and that we do not have jurisdiction to hear this case.
The Supreme Court established the framework for evaluat-
ing retroactivity in Landgraf v. USI Film Prods., 511 U.S.
244 (1994). The Court explained that "[w]hen a case impli-
cates a federal statute enacted after the events in suit,"
absent an express provision regarding the statute's proper
reach, "the court must determine whether the new statute
would have retroactive effect." Id. at 280. If the statute
would operate retroactively, the court is to presume that the
new statute does not apply to that case, "absent clear con-
gressional intent favoring such a result." Id. The Court
further explained:
A statute does not operate "retrospectively" merely
because it is applied in a case arising from conduct
antedating the statute's enactment ... or upsets expecta-
tions based in prior law. Rather, the court must ask
whether the new provision attaches new legal conse-
quences to events completed before its enactment. The
conclusion that a particular rule operates "retroactively"
comes at the end of a process of judgment concerning the
nature and extent of the change in the law and the
degree of connection between the operation of the new
rule and a relevant past event.
Id. at 269-70 (citations omitted) (footnotes omitted). With
regard to jurisdiction in particular, the Court noted that it
had "regularly applied intervening statutes conferring or
ousting jurisdiction, whether or not jurisdiction lay when the
underlying conduct occurred or when the suit was filed." Id.
at 274. It continued: "Application of a new jurisdictional rule
usually 'takes away no substantive right but simply changes
the tribunal that is to hear the case.'.... Present law
normally governs in such situations because jurisdictional
statutes 'speak to the power of the court rather than to the
rights or obligations of the parties.' " Id. (citations omitted).
The Court further explained that "[c]hanges in procedural
rules may often be applied in suits arising before their
enactment without raising concerns about retroactivity" be-
cause "rules of procedure regulate secondary rather than
primary conduct." Id. at 275.
A great deal of debate has centered around the Landgraf
Court's statement that "[a]pplication of a new jurisdictional
rule usually 'takes away no substantive right but simply
changes the tribunal that is to hear the case.' " 511 U.S. at
274 (citing Hallowell v. Commons, 239 U.S. 506, 508-09
(1916)). Some have suggested (as does petitioner here) that
"Landgraf assumes that jurisdictional statutes only effect a
change in the tribunal that will hear the case and that the
presumption in favor of immediate application is therefore
inapposite where the statute's effect is to deprive a party of
access to any judicial review at all." See Kolster v. INS, 101
F.3d 785, 788 (1st Cir. 1996). However, the Landgraf Court's
citation to Hallowell v. Commons, 239 U.S. at 508, belies such
an inference. In Hallowell, the Supreme Court upheld the
application to pending cases of a statute that deprived the
federal district courts of jurisdiction over certain Indian
probate disputes and vested "final and conclusive" authority
in the Secretary of the Interior. The Court explained that
"the reference of the matter to the Secretary ... takes away
no substantive right, but simply changes the tribunal that is
to hear the case." Id. at 508. We conclude from this that the
Landgraf Court intended that a statute that takes away
jurisdiction from the federal courts and vests exclusive au-
thority in an executive agency to resolve certain disputes be
considered a "jurisdictional rule ... 'that simply changes the
tribunal that is to hear the case.' " 511 U.S. at 274 (citation
omitted); see Kolster v. INS, 101 F.3d 785, 788 (1st Cir. 1996)
(concluding that Landgraf 's citation to Hallowell indicates
that jurisdictional change from an Article III court to an
administrative decision maker is simply a change in the
"tribunal that is to hear the case"); Hincapie-Nieto v. INS,
92 F.3d 27, 29 (2d Cir. 1996) (same).
The Supreme Court applied and clarified the Landgraf
framework for determining retroactivity in its recent decision,
Lindh v. Murphy, 117 S. Ct. 2059 (1997). The Lindh Court
further elaborated on the distinction between procedural and
substantive changes. The Court noted that if a statute is
"merely procedural in a strict sense (say, setting deadlines for
filing and disposition ... ), the natural expectation would be
that it would apply to pending cases." Id. at 2063 (quoting
Landgraf, 511 U.S. at 275) (citations omitted). But, since the
Court found that the statutory changes at issue in the case--
the "revisions of prior law to change standards of proof and
persuasion in a way favorable to the state"--went "beyond
'mere' procedure to affect substantive entitlement to relief," it
held that the statute did not fall within the Court's "express
(albeit qualified) approval of applying such statutes to pend-
ing cases." Id. at 2063-64. Instead, the Court relied on
what it held to be a clear expression of congressional intent
that the AEDPA's amendments to chapter 153 not apply to
noncapital cases that were already pending when the AEDPA
was enacted. The Court explained, "[t]he statute reveals
Congress's intent to apply the amendments to chapter 153
only to such cases as were filed after the statute's enact-
ment." Id. at 2063.
The Court also discussed its position regarding the applica-
tion of principles of retroactivity to jurisdictional statutes in
Hughes Aircraft Co. v. United States, 117 S. Ct. 1871 (1997),
which was decided within several days of Lindh. The
Hughes case involved a 1986 amendment to the qui tam
provision of the False Claims Act. The amendment expanded
the circumstances in which private parties could bring suit on
behalf of the United States against a person submitting a
false claim to the government. The Court said that the mere
fact that a statute is jurisdictional in nature must not affect a
court's determination of the temporal reach of the statute.
The Court rejected the Ninth Circuit's holding that "absent a
clear statement of congressional intent, there is a strong
presumption in favor of retroactivity for jurisdictional stat-
utes." Id. at 1878. It explained:
The Ninth Circuit simply misread our decision in Land-
graf, for the only "presumption" mentioned in that opin-
ion is a general presumption against retroactivity. The
fact that courts often apply newly enacted jurisdiction-
allocating statutes to pending cases merely evidences
certain limited circumstances failing to meet the condi-
tions for our generally applicable presumption against
retroactivity, not an exception to the rule itself, as the
United States recognizes.... Statutes merely address-
ing which court shall have jurisdiction to entertain a
particular cause of action can fairly be said merely to
regulate the secondary conduct of litigation and not the
underlying primary conduct of the parties.... Such
statutes affect only where a suit may be brought, not
whether it may be brought at all.... [The 1986 amend-
ment] creates jurisdiction where none previously existed;
it thus speaks not just to the power of a particular court
but to the substantive rights of the parties as well. Such
a statute, even though phrased in "jurisdictional" terms,
is as much subject to our presumption against retroactiv-
ity as any other.
Id. at 1878 (citations omitted).
As these cases illustrate, the Supreme Court has clearly
established the principle that in determining retroactivity,
jurisdictional statutes are to be evaluated in the same manner
as any other statute. Thus, in order to determine whether a
statute applies to a case that was filed prior to passage of the
statute, courts must determine whether the statute is "proce-
dural" in nature, or whether it affects "substantive entitle-
ment to relief." Lindh, 117 S. Ct. at 2063. Does it merely
"regulate the secondary conduct of litigation" or does it
instead affect "the underlying primary conduct of the par-
ties"? Hughes, 117 S. Ct. at 1878. Does the statute speak
"just to the power of a particular court" or does it speak to
"the substantive rights of the parties as well"? Id.
Several circuit courts have considered cases similar to the
one at hand, and, with a single narrow exception, all have
concluded that applying section 440(a) is not impermissibly
retroactive. See Kolster v. INS, 101 F.3d 785, 786, 789 (1st
Cir. 1996) (holding that "section 440(a) does apply to peti-
tions, like Kolster's, which were pending on the date of
AEDPA's enactment" because "Kolster's substantive rights,
liabilities, and duties are not retroactively impaired by the
preclusion of judicial review"); Hincapie-Nieto v. INS, 92
F.3d 27, 28 (2d Cir. 1996) (holding that "the AEDPA has
repealed the jurisdiction a court of appeals formerly had over
petitions for review filed by aliens ... and that the Act's
removal of jurisdiction validly applies to petitions filed before
the Act's effective date"); Salazar-Haro v. INS, 95 F.3d 309,
310 (3d Cir. 1996), cert. denied, 117 S. Ct. 1842 (1997) (holding
s 440(a) applicable to pending petitions because "unlike situa-
tions where retroactivity would affect pre-existing rights,
withdrawal of jurisdiction, although realistically disrupting
settled expectations, does not preserve pending litigation");
Williams v. INS, 114 F.3d 82, 83 (5th Cir. 1997) (holding that
"[d]espite petitioner's protestations against retroactive appli-
cation, section 440(a) does apply to her petition, which was
filed several days after the effective date of April 24, 1997,
and would apply even if her petition had been pending on that
date"); Mendez-Rosas v. INS, 87 F.3d 672, 676 (5th Cir.
1996), cert. denied, 117 S. Ct. 694 (1997) (holding that
s 440(a) applies retroactively to appeals that were pending
before the circuit court when the AEDPA became law be-
cause s 440(a) "speaks to the power of the court, rather than
to the rights or obligations of the parties"); Figueroa-Rubio
v. INS, 108 F.3d 110, 112 (6th Cir. 1997) (holding that s 440
eliminates the court's jurisdiction to review petitions that
were pending at the time the AEDPA was enacted because
the statute is jurisdictional and " 'jurisdictional statutes
"speak to the power of the court rather than the rights or
obligations of the parties" ' "; also noting that "[a]pplying
s 440(a) to petitions for review of deportation orders pending
on the date of the AEDPA's passage 'is not retroactive
application affecting substantive rights, but is a prospective
application of a jurisdiction-eliminating statute' ") (citations
omitted); Qasguargis v. INS, 91 F.3d 788, 789 (6th Cir. 1996),
cert. denied, 117 S. Ct. 1080 (1997) (holding that because
s 440(a) took effect before the petition for review was filed,
the petitioner had no statutory right of review); Mendez-
Morales v. INS, 119 F.3d 738, 739 (8th Cir. 1997) (holding
that s 440 "is jurisdictional in nature and therefore must be
applied retroactively, in other words, to cases such as this
that were pending on its date of enactment"); Duldulao v.
INS, 90 F.3d 396, 399 (9th Cir. 1996) (holding that the
" 'presumption against retroactive application of new legisla-
tion to pending cases ... does not apply to rules conferring
or withdrawing jurisdiction,' " therefore "AEDPA section
440(a), which affects the power of the court rather than the
rights and obligations of the parties, ... revokes our jurisdic-
tion to review Duldulao's final order of deportation"); Fer-
nandez v. INS, 113 F.3d 1151, 1154 (10th Cir. 1997) (rejecting
the argument that "section 440(a) should not be applied to
petitions pending at the time of its enactment, because it
would eliminate judicial review and vest final authority in an
administrative agency"); Boston-Bollers v. INS, 106 F.3d
352, 354 (11th Cir. 1997) (holding that "[a]pplying section
440(a)(10) to petitions for review of deportation orders pend-
ing on the date of the passage of the AEDPA is not retroac-
tive application affecting substantive rights, but is a prospec-
tive application of a jurisdiction-eliminating statute").2
__________
2 All of these decisions took place before the Supreme Court
issued its decisions in Lindh and Hughes. Some of them state that
they rely on the presumption, which was explicitly rejected by the
Court in Hughes, that jurisdictional statutes are to be applied
retroactively. See, e.g., Kolster, 101 F.3d at 788 ("For jurisdictional
statutes, the presumption is in favor of immediate application....");
Mendez-Rosas, 87 F.3d at 674 ("[I]f the statute addresses jurisdic-
tional rules, we presume that it is to be applied retroactively.");
One circuit court has held that section 440(a) of the AED-
PA did not apply retroactively to a case in which deportability
was conceded before the AEDPA became law and the peti-
tioner would have had at least a colorable defense to deporta-
bility. In subsequent cases, however, the court made clear
that the holding was limited to the specific circumstances
presented in that case. In Reyes-Hernandez v. INS, 89 F.3d
490 (7th Cir. 1996), the Seventh Circuit held that section
440(a) did not prevent the court from hearing the appeal of a
legal resident who had conceded deportability and argued
only for discretionary relief in agency proceedings, and whose
case was only a few days away from oral argument in the
circuit court at the time the AEDPA became effective. The
court explained that since Reyes-Hernandez might have con-
tested deportability in agency proceedings had he known that
the option of judicial relief would be foreclosed, applying
section 440(a) to his pending case would be an impermissible
retroactive application of a statute. Immediately after decid-
ing Reyes-Hernandez, however, the Seventh Circuit began to
limit and clarify its holding in the case. In Arevalo-Lopez v.
INS, 104 F.3d 100 (7th Cir. 1997), the court held that it
lacked jurisdiction to review a BIA denial of discretionary
relief from deportation to a resident alien whose appeal was
pending before the court when the AEDPA was enacted
because section 440(a) of that Act divested the court of
__________
Duldulao, 90 F.3d at 399 (" '[The] presumption against retroactive
application of new legislation to pending cases ... does not apply to
rules conferring or withdrawing jurisdiction.' ") (citation omitted).
Nonetheless, it appears unlikely that the results would have been
different had the courts had the benefit of the Supreme Court's
recent decisions. Indeed, the one circuit court to explicitly consider
the impact of the Lindh and Hughes decisions on its earlier
conclusion that section 440(a) applies to pending cases found that
the Supreme Court's decisions had no effect. See Turkhan v. INS,
123 F.3d 487, 489 n.3 (7th Cir. 1997); see also Mansour v. INS, 123
F.3d 423, 424-25 (6th Cir. 1997) (restating earlier holding that
section 440(a) applies to petitions that were pending when AEDPA
took effect without specifically mentioning Supreme Court's inter-
vening decisions in Hughes and Lindh ); Okoro v. INS, 125 F.3d
920, 924 (5th Cir. 1997) (same).
jurisdiction. The court distinguished the case from Reyes-
Hernandez on the grounds that "in this case, petitioner
contested his deportability at his deportation hearing." Id. at
101. The court arrived at the same result in Chow v. INS,
113 F.3d 659, 670 (7th Cir. 1997) (holding that section 440(a)
"does not attach new rights or liabilities to existing actions"
and therefore must be applied to pending petition of alien
detainee). Thus, even if this court were to adopt the Seventh
Circuit's framework, we would not have jurisdiction to review
LaFontant's case because he contested, at least formally, his
deportability during his agency proceedings. See Imm. Ct.
Tr. at 5.
We join the majority of the circuits in concluding that
application of section 440(a) of the AEDPA to a petition for
review of a BIA deportation order is not impermissibly
retroactive. Section 440(a) of the AEDPA falls squarely onto
the procedure side of the substance/procedure dichotomy
established by the Supreme Court in Landgraf, Hughes, and
Lindh for evaluating whether a statute has impermissible
retroactive effects. Although section 440(a) does give LaFon-
tant's agency proceedings greater finality than LaFontant
expected at the time they were held, section 440(a) is not
impermissibly retroactive because it does not attach new
substantive legal consequences to those proceedings. It does
not create new legal liabilities, deprive a party of a legal
defense he would otherwise have had, or otherwise affect the
substantive rights of the parties before this court. Rather, it
simply speaks to the power of this court to hear an appeal
from an agency decision. Thus, even if we accepted petition-
er LaFontant's claim that he would have presented different
arguments and evidence during his agency proceedings
(though he has not explained exactly what different argu-
ments or evidence he would have offered), this would not be
sufficient to establish that section 440(a) has an impermissible
retroactive effect. We therefore hold that application of
section 440(a) of the AEDPA to LaFontant's petition for
review is not impermissibly retroactive, and LaFontant's
petition must be dismissed for lack of jurisdiction.
B. Fee Requirements of the Prison Litigation Reform Act
of 1996
Petitioner argues and the government concedes that the fee
requirements of the Prison Litigation Reform Act of 1996
("PLRA"), Pub. L. No. 104-134, 100 Stat. 1321 (1996), do not
apply to LaFontant's petition for review of the BIA's deporta-
tion order because an incarcerated alien facing deportation is
not a "prisoner" for purposes of the PLRA. We agree.
The PLRA defines "prisoner" as "any person incarcerated
or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of
criminal law or the terms and conditions of parole, probation,
pretrial release, or diversionary program." 28 U.S.C.A.
s 1915(h). Although LaFontant was a "prisoner" for pur-
poses of the PLRA when he served time for past convictions,
he ceased being a "prisoner" at the time he was released on
parole. When LaFontant was detained by the Attorney
General under the INA for deportation purposes, he became
an "alien detainee," not a "prisoner." See Ojo v. INS, 106
F.3d 680, 683 (5th Cir. 1997) (holding that "the PLRA does
not bring alien detainees within its sweep"). Thus, we hold
that the fee requirements of the PLRA do not apply to
LaFontant's petition for review.
III. Conclusion
For the foregoing reasons, we hold that application of
section 440(a) of the AEDPA, which divests this court of
jurisdiction to review certain deportation orders, to petitioner
LaFontant's petition for review is not impermissibly retroac-
tive because section 440(a) is entirely procedural in nature
and attaches no new substantive legal consequences to events
that occurred prior to its enactment. We therefore dismiss
this case for lack of jurisdiction. We also hold that the fee
requirements of the PLRA do not apply to LaFontant's
petition for review of the BIA's deportation order because
LaFontant is not a "prisoner" under the PLRA.
So ordered.