UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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Case No. 98-41336
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JUANA MARIA LERMA-DE GARCIA
Petitioner - Appellee
v.
E M TROMINSKI, District Director, Immigration and
Naturalization Service; JOHN ASHCROFT, US Attorney General
Respondents - Appellants
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Case No. 98-41346
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JUAN RODRIGUEZ CERNA
Petitioner - Appellee
v.
E M TROMINSKI, District Director, Immigration and
Naturalization Service; JOHN ASHCROFT, US
Attorney General
Respondents - Appellants
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Appeals from the United States District Court
for the Southern District of Texas
(B-97-CV-183)
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April 12, 2001
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
In this appeal the government challenged the district
court’s orders granting writs of habeas corpus in thirty
consolidated deportation cases. In each case, the Board of
Immigration Appeals (“BIA”) found that § 440(d) of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) rendered
petitioners ineligible to apply for Immigration and Nationality
Act (“INA”) § 212(c) discretionary waivers of deportation. Under
§ 440(d), persons who are deportable as a result of convictions
of certain offenses are ineligible to apply for § 212(c) relief.2
After the BIA entered final orders of deportation against
them, appellees filed habeas petitions in the district court
raising various statutory and constitutional issues. In each
case, the district court granted the habeas petitions, vacated
the BIA’s deportation orders, and remanded the cases to the BIA.
The district court held that § 440(d) did not apply to
petitioners whose convictions occurred before AEDPA’s April 24,
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2
AEDPA § 440(d) amended INA § 212(c) to provide that § 212(c)
“shall not apply to an alien who is deportable by reason of having
committed any criminal offense covered in section
241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by
section 241(a)(2)(A)(ii) for which both predicate offenses are
covered by section 241(a)(2)(A)(i).” 8 U.S.C. § 1182(c) (as
amended in 1996 by AEDPA § 440(d)). Section 440(d) thus made
aliens who were deportable because of convictions for certain
offenses (including aggravated felonies, controlled substance
offenses, certain firearms offenses, espionage, and multiple crimes
of moral turpitude) ineligible for § 212(c) relief.
2
1996 enactment date. The government appealed these orders.
Petitioners argued that the orders should be affirmed on two
bases - that § 440(d) did not apply both because their
convictions predated the adoption of AEDPA and because
petitioners were placed in deportation proceedings before the
adoption of AEDPA.
During the pendency of this appeal, the Attorney General
issued notice of a proposed regulation, under which § 440(d)
would no longer apply to aliens whose deportation proceedings
were pending at the time of AEDPA’s enactment.3 We granted the
government’s motion to hold this appeal in abeyance until the
government received and considered comments on the proposed
regulation. That regulation was adopted and became final on
January 22, 2001. See Section 212(c) Relief for Certain Aliens
in Deportation proceedings Before April 24, 1996, Fed. Reg. 6436
(2000). The regulation includes the following crucial language:
In the interest of the uniform and expeditious
administration of the immigration laws, the Attorney
General acquiesces on a nationwide basis in those
appellate decisions holding that AEDPA section 440(d) is
not to be applied in the cases of aliens whose
deportation proceedings were commenced before AEDPA was
enacted.
66 Fed. Reg. 6436, 6438.
In light of this new regulation, the government filed a
motion to dismiss all its appeals except those concerning Lerma
de Garcia (Case No. 98-41336) and Rodriguez-Cerna (Case No. 98-
3
See Section 212(c) Relief for Certain Aliens in Deportation
Proceedings Before April 24, 1996, 65 Fed. Reg. 44476 (2000)
(proposed July 18, 2000).
3
41346). We grant that motion.4 We consider below the two
remaining cases.
A.
Lerma de Garcia moved to reopen her deportation proceedings
on two grounds: 1) § 440(d) did not apply to bar her § 212(c)
application; and 2) her attorney provided ineffective assistance
of counsel, which excused her failure to appear at her
deportation proceedings.
The recently adopted regulation discussed above applies only
to Lerma de Garcia’s argument relating to the applicability of §
440(d) to pending proceedings. 66 Fed. Reg. at 6439. Because
the district court did not reach Lerma de Garcia’s argument based
on ineffective assistance of counsel, both the government and
petitioner agree that we should remand Lerma de Garcia’s case.
We therefore remand this case to the district court for
consideration of this argument.
B.
Rodriguez-Cerna’s deportation proceedings were commenced
after AEDPA’s enactment date. It is therefore clear that §
440(d) applies to bar him from seeking § 212(c) relief, even
4
There are a number of other motions pending before us with
regard to these cases. Our disposition here renders these motions
moot, and they are therefore DENIED.
During the pendency of this appeal, we decided Requena-
Rodriguez v. Pasquarell, holding that § 440(d) applies to bar a
petitioner from seeking § 212(c) relief despite the fact that his
conviction predates AEDPA’s adoption. 190 F. 3d 299, 307-8 (5th
Cir. 1999). The district court’s contrary conclusion is therefore
inconsistent with this holding.
4
though his conviction pre-dated AEDPA. Requena-Rodriguez, 190
F.3d at 307-8; 66 Fed. Reg. at 6438-9. Rodriguez-Cerna also
argues that this determination based on the date on which
deportation proceedings were instituted violates his equal
protection rights under the Constitution. However, Rodriguez-
Cerna asked that his deportation proceedings be converted to
removal proceedings (“repapering”) and his deportation
proceedings were administratively closed on November 28, 2000,
when the BIA granted this request. Thus, no deportation
proceedings are pending, and both sides agree that we should
dismiss this case. The petitioner asks us to dismiss the suit
with prejudice. The government, on the other hand, points out
that the BIA left the door open for the deportation proceedings
to be reopened and that the case should therefore be dismissed
without prejudice. We therefore remand this case to the district
court to consider these arguments and decide whether to dismiss
the case with or without prejudice.
For the reasons stated above, we GRANT the government’s
motion to dismiss all appeals except those of Lerma de Garcia
(Case No. 98-41336) and Rodriguez-Cerna (Case No. 98-41346).
As to Lerma de Garcia, we REMAND this case to the district
court. If Lerma de Garcia can show that she received ineffective
assistance of counsel so that her failure to appear at her
deportation proceedings was justified, the district court should
direct the BIA to permit her to file a § 212(c) petition to
reopen her deportation proceedings.
5
As to Rodriguez-Cerna, we REMAND this case to the district
court to consider whether its order of dismissal should be with
or without prejudice.
6