IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 99-20437
__________________________
DIEGO ALFARACHE,
Petitioner-Appellant,
versus
RICHARD CRAVENER, District Director,
Houston District, Immigration and
Naturalization Service
Respondent-Appellee.
______________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
______________________________________________________
February 22, 2000
Before GARWOOD, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:
The Immigration and Naturalization Service (“INS”) brought
deportation proceedings against Petitioner-Appellant Diego
Alfarache, charging that he was subject to deportation for, inter
alia, having been convicted of an aggravated felony and a
controlled substance offense. The immigration judge (“IJ”) ordered
that Alfarache be deported and the Board of Immigration Appeals
(“BIA”) dismissed Alfarache’s appeal. Alfarache then brought the
instant habeas corpus action under 28 U.S.C. § 2241, collaterally
attacking the deportation order.
The INS argues that the district court erred when it exercised
jurisdiction over Alfarache’s habeas petition. Recently, in
Requena-Rodriguez v. Pasquarell,1 we considered the INS’s arguments
on this point. Requena-Rodriguez is factually indistinguishable
from the instant proceeding in all material respects. In that case
we concluded that Ҥ 2241 habeas jurisdiction remains in
transitional cases where [8 U.S.C.] § 1252(g) does not apply.”2
The INS concedes that this case is governed by the transitional
rules and that 8 U.S.C. § 1252(g) does not apply. It necessarily
follows from our Requena-Rodriguez decision, then, that the
district court had jurisdiction over Alfarache’s § 2241 habeas
corpus petition, and we so hold.
On the merits, Alfarache makes four arguments. First, he
contends that both the IJ and the BIA erred when they concluded
that § 440(d) of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) —— a provision that limits the Attorney General’s
discretion to grant relief from deportation pursuant to § 212(c) of
the Immigration and Nationality Act (“INA”) —— applies to
convictions (like his) that predated the enactment of AEDPA. We
considered and rejected the same argument in Requena-Rodriguez.3
There we held that “pre-AEDPA convictions can trigger AEDPA
§ 440(d),” at least when an application for INA § 212(c) relief was
1
190 F.3d 299 (5th Cir. 1999).
2
Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306 (5th Cir.
1999).
3
190 F.3d at 307-08.
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not pending on the date that AEDPA took effect.4 Alfarache filed
his application for discretionary relief under INA § 212(c) after
the effective date of AEDPA. In accordance with our decision in
Requena-Rodriguez, we hold that AEDPA § 440(d) prohibits
Alfarache’s seeking discretionary relief from deportation under INA
§ 212(c).
Second, Alfarache argues that if AEDPA § 440(d) applies to
prisoners who were convicted prior to the effective date of AEDPA
(as we have held), then the statute violates his right to equal
protection. AEDPA § 440(d) added a sentence to INA § 212(c) that
prevents the attorney general from affording discretionary relief
to aliens in deportation proceedings; the amendment does not apply,
however, to aliens in exclusion proceedings. Alfarache argues that
there is no rational basis on which to distinguish between aliens
in deportation proceedings and those in exclusion proceedings. We
considered and rejected the same argument in Requena-Rodriguez.
There we explained that:
Congress's more lenient treatment of excludable as
distinct from deportable aliens . . . creates an
incentive for deportable aliens to leave the
country——which is after all the goal of
deportation——without their having to be ordered to leave
at the government's expense. To induce their voluntary
departure, a little carrot is dangled before them,
consisting of the opportunity to seek a waiver should
they seek to return to the country and by doing so
4
Id. at 307.
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trigger exclusion proceedings.5
In Requena-Rodriguez we concluded that this was a “facially
legitimate and bona fide reason,” and that it defeats the
petitioner’s equal protection argument.6 It defeats Alfarache’s
equal protection argument for the same reason.
Third, Alfarache argues that applying AEDPA § 440(d) to
preclude his ability to apply for INA § 212(c) discretionary relief
violates his constitutional right to due process. He asserts that
this is so because, if the INS had commenced deportation
proceedings sooner or if his case had proceeded more expeditiously,
then his application for discretionary relief might have been
processed before AEDPA § 440(d) took effect.
Unlike a criminal defendant, an alien in deportation
proceedings has no constitutional right to a speedy proceeding.7
Furthermore, the relief to which Alfarache may have been entitled
under INA § 212(c) “was couched in conditional and permissive
terms. As a piece of legislative grace, it conveyed no rights, it
conferred no status.”8 That being so, we hold that there has been
no denial of Alfarache’s right to due process.
5
Requena-Rodriguez, 190 F.3d at 309 (quoting LaGuerre v. Reno,
164 F.3d 1035, 1041 (7th Cir. 1998)).
6
Id.
7
See Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991);
Prito v. Gluch, 913 F.2d 1159, 1161 (6th Cir. 1990).
8
Cadby v. Savoretti, 256 F.2d 439, 443 (5th Cir 1958).
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Fourth and finally, Alfarache argues that the BIA and the IJ
erred when they concluded that he is deportable under INA
§ 241(a)(2)(A)(iii). This section provides that aliens who have
committed “aggravated felonies” are deportable. Alfarache asserts
that this section does not apply to him because the offense of
which he was convicted, i.e., conspiracy to participate in a
racketeering enterprise in violation of 18 U.S.C. § 1962(d), was
not an “aggravated felony” as that term was defined in the version
of INA § 101(a)(43) that was in effect at the time deportation
proceedings were commenced against him.
After the INS initiated deportation proceedings against
Alfarache, but before the IJ and the BIA had ruled on his case, the
statutory definition of “aggravated felony” was expanded by AEDPA
to include “an offense described in [18 U.S.C. § 1962] for which a
sentence of one year imprisonment or more may be imposed.”9 AEDPA
also inserted the following provision regarding retroactive
application: “Notwithstanding any other provision of law (including
effective date), the term [“aggravated felony”] applies regardless
of whether the conviction was before, on, or after the date of
enactment of this paragraph.”10
Alfarache concedes that he committed such an offense; however,
he argues that, because this language evidencing congressional
9
INA § 101(a)(43), 8 U.S.C. § 1101(a)(43).
10
Id.
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intent that the provision apply retroactively appears in a
definitional provision (INA § 101(a)(43)) rather than the provision
assigning legal consequences to the definition (INA
§ 241(a)(2)(A)(iii)), Congress has not expressed its intent that
the new definition apply retroactively with sufficient clarity to
overcome the presumption against retroactivity. Like the other
Courts of Appeals that have considered the question, we hold that
the legal consequences that attach to the new definition apply
retroactively.11 The BIA and the IJ were thus correct in their
conclusions that Alfarache had been convicted of an aggravated
felony.
For the forgoing reasons the summary judgment granted by the
district court is in all respects
AFFIRMED.
11
See Ortiz v. INS, 179 F.3d 1148, 1155-56 (9th Cir. 1999);
Valderrama-Fonseca v. INS, 116 F.3d 853, 856-57 (9th Cir. 1997);
Choeum v. INS, 129 F.3d. 29, 36 (1st Cir. 1997). Accord Moosa v.
INS, 171 F.3d 994 (5th Cir. 1999). In his argument, Alfarache
relies primarily on Lettman v. Reno, 168 F.3d 463 (11th Cir. 1999)
rehearing granted and opinion vacated in part 185 F.3d 1216.
Although the original opinion in that case did support Alfarache’s
argument, after Alfarache filed his brief, the Eleventh Circuit
granted the government’s petition for rehearing and vacated the
decision relied on by Alfarache. See id.
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