Tasios v. Reno

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KONSTANTINOS TASIOS,
Petitioner-Appellee,

v.

JANET RENO; DORIS MEISSNER,
Commissioner of the Immigration
and Naturalization Service; PATRICK
No. 99-6061
J. WALTERS, as the Officer in
Charge for the Charlotte
Subdivision Office of the
Immigration and Naturalization
Service,
Respondents-Appellants.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CA-98-16)

Argued: September 24, 1999

Decided: February 28, 2000

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge King joined. Judge Luttig wrote a concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Darren Williams, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Lee P. Gelernt, AMERICAN
CIVIL LIBERTIES UNION, New York, New York; Cynthia Ann
Aziz, C. A. AZIZ, P.A., Charlotte, North Carolina, for Appellee. ON
BRIEF: David W. Ogden, Acting Assistant Attorney General, Chris-
topher C. Fuller, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellants. Sean P. Devereux,
LAW OFFICE OF SEAN DEVEREUX, Asheville, North Carolina,
for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Konstantinos Tasios petitioned for a writ of habeas corpus in fed-
eral district court, challenging the INS's refusal to consider his appli-
cation for a discretionary waiver of deportation. The INS argued that
the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA) and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) divested the district court of
subject matter jurisdiction. In addition, the INS argued that under
AEDPA § 440(d) Tasios's 1995 drug conspiracy conviction barred
him from making any application for discretionary relief. The district
court rejected both arguments, granted Tasios's petition, and
instructed the INS to make a determination on Tasios's application for
a waiver of deportation. The INS appeals, and we affirm.

I.

Tasios is a Greek citizen who has been a lawful permanent resident
of the United States since 1967 when, at age 10, he came to this coun-
try with his family. His six-year-old son, three brothers, and an uncle
are U.S. citizens, while his parents are lawful permanent residents. In
1995 Tasios was indicted on a single count of conspiracy to possess
with intent to distribute cocaine, in violation of 21 U.S.C. § 846. He
entered a plea agreement with the government (and pled guilty) on the
understanding that he would be sentenced to less than five years in
prison and thus be eligible to seek relief from deportation. Tasios and

2
the government stipulated to facts, including the drug amount, that led
the district court to find that his total offense level was 15. This,
together with Tasios's criminal history category of I, yielded a guide-
line imprisonment range of 18 to 24 months; he was sentenced to 18
months in prison. Tasios's drug conviction satisfied the definition of
an "aggravated felony," as defined in the Immigration and Nationality
Act (INA) § 101(a)(43), 8 U.S.C. § 1101(a)(43) (1995), and thus ren-
dered him deportable. See INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)
(2)(A)(iii) (1995), recodified at 8 U.S.C. § 1227(a)(2)(A)(iii) (1999).
Nevertheless, because his actual prison sentence was under five years,
Tasios (in 1995) could still apply to the Attorney General for discre-
tionary relief from deportation, see INA§ 212(c), 8 U.S.C. § 1182(c)
(1995), and ultimately petition for review in the court of appeals.

In the year following Tasios's plea and sentence, Congress passed
the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). That legisla-
tion, which worked sweeping changes in the immigration laws, is rel-
evant to this case in two respects. First, AEDPA§ 440(d) amended
INA § 212(c) to preclude discretionary relief for aliens, like Tasios,
who have been convicted of drug trafficking offenses, regardless of
the length of the sentence. Second, AEDPA and IIRIRA combined to
narrow the availability of appellate review over deportation proceed-
ings. See Bowrin v. INS, 194 F.3d 483, 486 (4th Cir. 1999); Hall v.
INS, 167 F.3d 852, 854-56 (4th Cir. 1999).

In November 1996 the INS initiated deportation proceedings
against Tasios. He conceded deportability and sought discretionary
relief under INA § 212(c). The immigration judge issued an order of
deportation and denied Tasios's § 212(c) application, reasoning that
AEDPA § 440(d) applied retroactively to convictions entered before
its enactment. After exhausting his administrative remedies, Tasios
petitioned for a writ of habeas corpus in federal district court, arguing
that the INS's interpretation of § 440(d) was incorrect. The district
court held that it had habeas jurisdiction over Tasios's claim pursuant
to 28 U.S.C. § 2241 and that AEDPA § 440(d) did not apply retroac-
tively. The INS appeals both determinations. We affirm the district
court for the reasons set out below.

3
II.

The INS challenges the district court's holding that AEDPA and
IIRIRA do not eliminate that court's jurisdiction to decide Tasios's
claim under 28 U.S.C. § 2241. First, the INS contends that the 1961
enactment of the INA implicitly repealed § 2241 jurisdiction over
claims arising from deportation proceedings. In the alternative, the
INS argues that AEDPA implicitly repealed § 2241 habeas jurisdic-
tion for aliens who are deportable because they committed certain
crimes. Finally, the INS argues that INA § 242(g), as amended by
IIRIRA, repealed § 2241 habeas jurisdiction over Tasios's claim that
the Attorney General has misinterpreted AEDPA § 440(d). Each of
these arguments is foreclosed by our recent holding in Bowrin that
district courts have jurisdiction under § 2241 to review the very claim
presented here, one involving a question of law relating to the admin-
istrative denial of § 212(c) relief. See Bowrin, 194 F.3d at 489-90.

III.

After the INS ordered Tasios's deportation in August 1997, he
sought discretionary relief under INA § 212(c), 8 U.S.C. § 1182(c).1
Prior to AEDPA that section permitted the Attorney General to waive
deportation so long as the person subject to deportation had not com-
mitted an aggravated felony and had not served five years or more in
prison. See 8 U.S.C. § 1182(c) (1995). Thus, when Tasios pled guilty
to conspiracy to possess with intent to distribute cocaine, his convic-
tion for that offense would not have precluded him from applying for
§ 212(c) relief if the INS tried to deport him. The following year,
however, AEDPA § 440(d) expanded the list of criminal convictions
that would render a person ineligible for § 212(c) relief. Under the
amended law any alien who "has been convicted of a violation of (or
a conspiracy or an attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a controlled sub-
stance, other than a single offense involving possession for one's own
use of 30 grams or less of marijuana is deportable" and ineligible for
_________________________________________________________________
1 Section 212(c) was repealed by IIRIRA § 304(b). Under IIRIRA's
transitional rules, however, § 212(c) continues to apply, subject to certain
restrictions.

4
discretionary waiver of deportation. 8 U.S.C. § 1227(a)(2)(B)(i);
AEDPA § 440(d).

As we noted above, after the INS sought to deport Tasios because
of his drug conviction, Tasios conceded deportability and sought
§ 212(c) relief. The immigration judge denied Tasios's application for
§ 212(c) relief, and the Board of Immigration Appeals (BIA) dis-
missed his appeal. The immigration judge and the BIA relied on the
Attorney General's decision in Matter of Soriano , Int. Dec. 3289,
1996 WL 426888, at *38 (Op. Att'y Gen. Feb. 21, 1997), which held
that AEDPA § 440(d) bars an alien convicted of an aggravated felony
from seeking relief pursuant to section 212(c) of the Act, regardless
of the date of his conviction. Tasios argues, and the district court
agreed, that the INS erred in applying AEDPA § 440(d) retroactively.

We begin by asking "whether Congress has expressly prescribed
the statute's [temporal] reach." Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994). "If there is no congressional directive on the tempo-
ral reach of a statute, we determine whether the application of the
statute to the conduct at issue would result in a retroactive effect. If
so, then in keeping with our `traditional presumption' against retroac-
tivity, we presume that the statute does not apply to that conduct."
Martin v. Hadix, 527 U.S. 343, ___, 119 S. Ct. 1998, 2003 (1999).
We conclude that Congress has not clearly indicated the temporal
reach of AEDPA § 440(d) and that application of the section to pleas
of guilt or concessions of deportability predating AEDPA's enactment
would have retroactive effect. Thus, we affirm the district court.

A.

To determine whether AEDPA § 440(d) reaches backward, we of
course begin with the language of the statute, using the normal rules
of statutory construction. See Lindh v. Murphy , 521 U.S. 320, 326
(1997). If Congress has made its intent clear, while acting within the
limits of its power, our inquiry is concluded. As we demonstrate
below, however, Congress's intent to make AEDPA§ 440(d) retro-
spective or prospective is anything but clear.

The question before the Supreme Court in Lindh was whether
AEDPA § 104, which amended 28 U.S.C. § 2254(d), applied to non-

5
capital habeas proceedings that were pending at the time of AEDPA's
enactment. As § 104 was silent on that point, the Court turned to the
general scheme of AEDPA, in particular AEDPA Title I, which con-
tains § 104. The Court noted that Title I stands "independent of the
Act's other titles" in that it provides for "the revision of federal
habeas corpus practice, and does two main things." Lindh, 521 U.S.
at 326 (footnote omitted). First, §§ 101-106 amended various provi-
sions of Title 28, Chapter 153, which governs all habeas corpus pro-
ceedings in the federal courts. None of these sections contains any
language suggesting that those amendments do or do not apply to
pending cases, and none has an effective date. Second, § 107 created
an entirely new Chapter 154 for habeas proceedings in capital cases.
Section 107(c), in contrast to §§ 101-106, expressly states that Chap-
ter 154 will "apply to cases pending on or after the date of enactment
of this Act." AEDPA § 107(c); Lindh, 521 U.S. at 327.

Thus, by explicitly stating that the new Chapter 154 applies to
pending cases, Congress implied that the amendments to Chapter 153
do not. See Lindh, 521 U.S. at 330. That interpretation finds further
support in the legislative history, which reveals that the two chapters
had been joined into a single bill shortly before§ 107(c)'s retroactiv-
ity provision was inserted. See id. & n.6. The different treatment,
then, was no accident, since "a thoughtful Member of the Congress
was most likely to have intended what the later reader sees by infer-
ence." Id. This "negative implication" expressed Congress's intent
that Chapter 153 apply prospectively only, obviating any need to
determine whether application to pending cases would have actual
retroactive effect. See id. at 326, 327-28.

Like AEDPA §§ 101-106, § 440(d) contains no provision expressly
stating whether it applies to pending cases. As the district court
observed, however, other provisions of AEDPA Title IV are explicitly
retroactive. See, e.g., AEDPA § 401(f) (applying provisions of new
INA Title V to all aliens "without regard to the date of entry or
attempted entry"); id. § 413(g) (applying section to "applications filed
before, on, or after" AEDPA's date of enactment). Most of our sister
circuits, observing this difference in treatment, have applied Lindh's
rule of negative implication and concluded that Congress intended for
§ 440(d) to apply prospectively only. See Goncalves v. Reno, 144
F.3d 110, 128-29 (1st Cir. 1998), cert. denied , 119 S. Ct. 1140 (1999);

6
Henderson v. INS, 157 F.3d 106, 129-30 (2d Cir. 1998), cert. denied,
119 S. Ct. 1141 (1999); Sandoval v. Reno, 166 F.3d 225, 241-42 (3d
Cir. 1999); Pak v. Reno, 196 F.3d 666, 675-76 (6th Cir. 1999);
Mayers v. INS, 175 F.3d 1289, 1302-03 (11th Cir. 1999). But see
Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1150 (10th Cir. 1999)
(applying Lindh and finding the intended reach of § 440(d) ambigu-
ous). Although we agree with the conclusion that§ 440(d) is prospec-
tive only, we cannot agree that Lindh's rule of negative implication
applies here.

While AEDPA Title IV contains some provisions that are explicitly
retroactive, others are explicitly prospective. See, e.g., AEDPA
§ 441(b) (amendment limiting collateral attacks on deportation orders
in criminal proceedings applies "to criminal proceedings initiated
after the date of enactment" of AEDPA); id. § 440(f) (section 440(e)'s
amendments to definition of "aggravated felony" apply to "convic-
tions entered on or after the date of the enactment" of AEDPA). But
see id. § 440(f) (containing proviso that§ 440(e)(3), relating to alien
smuggling, should apply retroactively "as if included in the enactment
of section 222 of the Immigration and Nationality Technical Correc-
tions Act of 1994"). The various time frames and triggering events
scattered about AEDPA Title IV stand in marked contrast to Title I's
(relatively) neat disjunction between the silence of§§ 101-106 and
the clear statement of § 107(c). Consequently, an examination of Title
IV provides little help in discerning what "a thoughtful member of the
Congress was most likely to have intended." Lindh, 521 U.S. at 330.

In addition, the substantive provisions of Title IV also address dis-
tinct subject matters. As the Court recently explained, the negative
implication argument in Lindh

carried special weight because both chapters addressed simi-
lar issues: Chapter 153 established new standards for review
of habeas corpus applications by state prisoners, and chapter
154 created new standards for review of habeas corpus
applications by state prisoners under capital sentences.
Because both chapters "govern[ed] standards affecting enti-
tlement to relief" in habeas cases, "[i]f . . . Congress was
reasonably concerned to ensure that chapter 154 be applied

7
 to pending cases, it should have been just as concerned
about chapter 153."

Martin, 527 U.S. at ___, 119 S. Ct. at 2005 (quoting Lindh, 521 U.S.
at 329). In contrast, we cannot be confident that Congress's clear
intent to make, say, § 413 (Denial of Other Relief for Alien Terror-
ists) retroactive or § 441 (Limitation on Collateral Attacks on Under-
lying Deportation Order) prospective says much of anything about its
intent with respect to §440(d)'s bar on § 212(c) relief. See id. (refus-
ing to apply Lindh analysis to "wholly distinct" provisions of the
Prison Litigation Reform Act). Ultimately, our examination of the
sometimes retrospective, sometimes prospective provisions that sur-
round AEDPA § 440(d) unveils the Janus-like faces of Congress, but
leaves its mind concealed.

Courts routinely confront such ambiguities in legislative drafting
and have developed judicial default rules for just such occasions.
Among the most venerable of these default rules is the presumption
against statutory retroactivity. See Landgraf , 511 U.S. at 273. Absent
"clear evidence of congressional intent that[a statute] should apply to
cases arising before its enactment," the presumption against statutory
retroactivity is not rebutted. Id. at 286. This presumption rests firmly
on principles of fairness and political accountability. Fairness dictates
that people have an opportunity to know what the law is and conform
their conduct accordingly; "settled expectations should not be lightly
disrupted." Id. at 265. And because there is a risk that the legislature
"may be tempted to use retroactive legislation as a means of retribu-
tion against unpopular groups or individuals," id. at 266, a clear evi-
dence rule assures that Congress itself has considered any potential
unfairness and allocates to Congress political responsibility for
weighing that unfairness against the benefits of the legislation. See id.
at 272-73. Here, there is no clear evidence that Congress has consid-
ered and decided § 440(d)'s temporal reach, and thus we presume that
Congress intended that § 440(d) have no retroactive effect.

B.

The INS agrees that § 440(d)'s proper reach"is not clearly
defined." Appellant's Br. at 29. See also Matter of Soriano, 1996 WL
426888 (noting that "nothing in the language of .. . § 440(d) specifies

8
either that it is to be applied in pending deportation proceedings, or
that it is not to be"). Nevertheless, that section may be applied to
Tasios, the INS argues, because such application has no actual retro-
active effect. We disagree. As we illustrate below, application of
AEDPA § 440(d) to guilty pleas or concessions of deportability that
predate AEDPA's enactment has an undeniably retroactive effect.

"A statute does not operate `retrospectively' merely because it is
applied in a case arising from conduct antedating the statute's enact-
ment." Landgraf, 511 U.S. at 269. Rather, a statute that "would impair
rights a party possessed when he acted, increase a party's liability for
past conduct, or impose new duties with respect to transactions
already completed" has true retroactive effect. Id. at 280. In determin-
ing whether a statute operates retroactively, we turn to "familiar con-
siderations of fair notice, reasonable reliance, and settled
expectations." Id. at 270. Those considerations, in turn, rest on the
principle that "individuals should have an opportunity to know what
the law is and to conform their conduct accordingly." Id. at 265.

We considered a question similar to the one presented here, though
in dictum, in De Osorio v. INS, 10 F.3d 1034, 1041-42 (4th Cir.
1993). The De Osorios were convicted of drug offenses in 1986 and
early 1988. When the INS moved to deport them, they sought
§ 212(c) relief. Meanwhile, in November 1988 Congress enacted the
Anti-Drug Abuse Act of 1988, which defined the De Osorios'
offenses as "aggravated felonies." The Immigration Act of 1990 then
amended INA § 212(c) to make discretionary relief unavailable to
aliens who had been convicted of these aggravated felonies. The De
Osorios argued that the definition of aggravated felony enacted in
1988 did not apply retroactively to their prior convictions. We dis-
agreed, concluding that the INS's interpretation of the Anti-Drug
Abuse Act's definition of aggravated felony as applying to convic-
tions before, on, and after that Act's effective date, was a permissible
construction of the statutory language under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43
(1984). See De Osorio, 10 F.3d at 1041. Here the INS does not ask
us to defer to its interpretation of § 440(d)'s temporal reach; indeed,
the INS offers no interpretation on this score, conceding that the stat-
ute's reach is not clearly defined. Although we resolved the issue in
De Osorio by deferring to the INS, we went on to say that application

9
of the amended § 212(c) to the De Osorios was not retroactive in any
event. Id. at 1041-42. We made two observations in support of this
dictum. First, we suggested that the "past aggravated felony convic-
tion is only the prerequisite for prospective denial of discretionary
relief." Id. at 1042. Second, we noted that the De Osorios could not
plausibly argue that they relied on the availability of discretionary
relief from deportation when they chose to violate the drug laws. See
id.2 Since we decided De Osorio, the Supreme Court has decided a
number of cases involving retroactivity principles. See, e.g., Martin;
Lindh; Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S.
939 (1997); Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994);
Landgraf. In light of this recent guidance from the Supreme Court, we
conclude that the observations made in De Osorio do not account for
the essential retroactive consequences of removing the availability of
§ 212(c) relief.

"The `principle that the legal effect of conduct should ordinarily be
assessed under the law that existed when the conduct took place has
timeless and universal appeal.'" Landgraf, 511 U.S. at 265 (quoting
Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855
(1990) (Scalia, J., concurring)). When the legal effect of conduct is
determined by subsequently enacted law, that law operates retroac-
tively. In considering whether § 212(c) would alter the legal effect of
conduct that predates AEDPA's enactment, we do not limit our analy-
sis to the conduct that resulted in the felony conviction. See Hughes
Aircraft, 520 U.S. at 951 (finding that amendment had retroactive
effect on prior conduct, whether relevant conduct was the submission
of a false claim or the defendant's disclosure of the false claim to the
government). While no one could reasonably rely"on the availability
of a discretionary waiver of deportation when choosing to engage in
illegal drug activity," De Osorio, 10 F.3d at 1042, there are at least
two circumstances in which a person could reasonably modify his
conduct in reliance on the prospect of § 212(c) relief. First, an alien
might waive the right to trial and plead guilty to a criminal charge,
banking on a lighter sentence that would preserve the availability of
_________________________________________________________________
2 The De Osorios did not make this second argument. See De Osorio,
10 F.3d at 1042 ("The Osorios make no argument, nor could they, that
they somehow relied on the availability of a discretionary waiver of
deportation when choosing to engage in illegal drug activity.").

10
a § 212(c) waiver. See Mojica v. Reno, 970 F. Supp. 130, 175-78
(E.D.N.Y. 1997); Matter of Soriano, 1996 WL 426888. Second, an
alien might concede deportability, despite having a colorable defense,
knowing that the facts of his case provide a good possibility of
§ 212(c) relief. See Reyes-Hernandez v. INS, 89 F.3d 490, 492 (7th
Cir. 1996) ("Considering the fell consequences of deportation, espe-
cially in cases of exceptional hardship, which are precisely the cases
in which an appeal to section 212(c) would have a chance of success,
we think it unlikely that Congress intended to mousetrap aliens into
conceding deportability by holding out to them the hope of relief
under section 212(c) only to dash that hope after they had conceded
deportability."). Because the grounds for a criminal alien to challenge
deportability are narrow and specific, there will be few cases in which
such an alien has a colorable defense. Nevertheless, the possibility of
a successful defense cannot be ruled out categorically. At least one
fact confirms that it was reasonable for an alien to rely on the pros-
pect of § 212(c) relief when pleading guilty or conceding deporta-
bility: in the years immediately preceding the enactment of AEDPA,
immigration judges and the BIA granted over half of the § 212(c)
applications they decided.3 See Mojica, 970 F. Supp. at 178. More-
over, when applications were denied, review was available in the
courts of appeals, which vacated those denials "on a nontrivial num-
ber of occasions." Reyes-Hernandez, 89 F.3d at 492.
_________________________________________________________________
3 In evaluating an application for§ 212(c) relief, the INS "balances the
social and humane considerations in the alien's favor against any adverse
factors that demonstrate his or her undesirability as a permanent resident
in the United States." De Osorio, 10 F.3d at 1038.

The [BIA] has described factors favoring relief as including:
family ties in the United States; residence of a long duration;
military service; a history of employment; good character; reha-
bilitation; and evidence of value and service to the community.
Matter of Marin, 16 I & N 581, 58485 (B.I.A. 1978). Factors
weighing against relief include: the underlying ground for exclu-
sion; violation of the immigration laws; the nature, recency, and
seriousness of a criminal record; and any other evidence of an
alien's bad character or undesirability as a permanent resident.
Id.

De Osorio, 10 F.3d at 1038 n.3.

11
Thus, prior to the passage of AEDPA the legal effect of pleading
guilty or conceding deportability was mitigated by the realistic possi-
bility of obtaining a waiver under § 212(c)."That an alien charged
with a crime involving controlled substances would factor the immi-
gration consequences of conviction in deciding whether to plead or
proceed to trial is well-documented." Magana-Pizano v. INS, No. 97-
15678, 1999 WL 1249703, at *8 (9th Cir. Dec. 27, 1999). By with-
drawing the availability of that relief, AEDPA § 440(d) worked a fun-
damental change in the legal effect of such a plea or concession. See
id., 1999 WL 1249703, at *8; Reyes-Hernandez , 89 F.3d at 492-93.
It is of no consequence here that § 212(c) relief is discretionary. As
cases decided under the Ex Post Facto Clause establish, any change
from a system of discretionary relief to one of prescribed outcomes
is retroactive. See, e.g., Lindsey v. Washington, 301 U.S. 397, 401
(1937) (maximum sentence changed from discretionary to manda-
tory); Fender v. Thompson, 883 F.2d 303, 305-07 (4th Cir. 1989)
(revocation of parole eligibility). See also Hughes Aircraft, 520 U.S.
at 948 (analogizing to Ex Post Facto Clause cases in retroactivity
analysis).

Finally, we are unpersuaded by the government's argument that
§ 440(d) has no retroactive effect because it simply deprives the
Attorney General of the power to grant relief and thus is analogous
to a new jurisdictional rule. Appellant's Br. 33-34. Here the govern-
ment cites Landgraf, which said that a new jurisdictional rule "nor-
mally governs [pending cases] . . . because jurisdictional statutes
speak to the power of the court rather than to the rights or obligations
of the parties." Landgraf, 511 U.S. at 274 (internal quotations omit-
ted). Assuming that § 440(d) is in some sense jurisdictional, we can-
not agree that its elimination of jurisdiction lacks retroactive effect.
The Landgraf language on which the government relies was subse-
quently qualified by the unanimous Court in Hughes Aircraft. In the
latter case the Court rejected the argument that a new statute creating
jurisdiction should presumptively be given retroactive effect, distin-
guishing between statutes "merely addressing which court shall have
jurisdiction to entertain a cause of action" and those that affect
"whether [a claim] may be brought at all." Hughes Aircraft, 520 U.S.
at 951. The elimination of jurisdiction to grant§ 212(c) relief, no less
than its creation, "speaks not just to the power of a particular court
but to the substantive rights of the parties as well." Id. See also Matter

12
of Soriano, 1996 WL 426888 ("[T]here is no alternative tribunal to
which the criminal alien may petition."). Section 440(d) is thus sub-
ject to the presumption against retroactivity, see id., and that pre-
sumption has not been rebutted, see part III.A., supra.

C.

For these reasons, we conclude that AEDPA § 440(d), if applied to
guilty pleas or to concessions of deportability made before AEDPA's
effective date, would upset reasonable, settled expectations and
change the legal effect of prior conduct. Because Congress has not
expressly commanded such retroactive effect, § 440(d) is inapplicable
in those cases.

IV.

In summary, we hold that the district court had habeas corpus juris-
diction under 28 U.S.C. § 2241 to review Tasios's challenge to the
Attorney General and the INS's interpretation of AEDPA § 440(d).
On the merits, we hold § 440(d)'s bar of relief under § 212(c) should
not apply to aliens who pled guilty to aggravated felonies, or who
conceded deportability, prior to AEDPA's effective date. The judg-
ment of the district court is therefore

AFFIRMED.

LUTTIG, Circuit Judge, concurring:

I concur in the judgment of the court and I join in the court's opin-
ion. I do so on the question of whether the district court (and we) have
jurisdiction, because I am bound by this court's opinion in Bowrin v.
United States Immigration & Naturalization Service , 194 F.3d 483
(4th Cir. 1999). I join the court's opinion with respect to the retroac-
tive effect of the enactment of AEDPA's section 440(d) largely,
though not exclusively, because of the Supreme Court's decision in
Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939
(1997), which was decided after both this court's opinion in De
Osorio v. United States Immigration & Naturalization Service, 10
F.3d 1034 (4th Cir. 1993), and the Attorney General's opinion in In
re Soriano, 1996 WL 426888 (Feb. 21, 1997).

13
I realize that the United States disagrees with this court's decision
in Bowrin, and with today's decision to the extent that it follows
Bowrin, and I presume that the United States will seek rehearing en
banc of today's judgment that jurisdiction lay in the district court to
adjudicate Tasios' claims. I presume that, if the United States does
seek rehearing en banc of our jurisdictional decision, it will likewise
seek rehearing en banc of our judgment on the merits that section
440(d) is impermissibly retroactive as applied to petitioner Tasios.
Should it do so, it should, insofar as I am concerned, address itself
more fully than it did in its brief before this court to those portions
of the Supreme Court's unanimous opinion in Hughes Aircraft in
which the Court explained that our attention must be directed not only
to the petitioner's primary conduct, but also to any relevant secondary
conduct, and distinguished between statutes that address merely
which forum shall have jurisdiction and statutes that withdraw juris-
diction altogether, as well as to the implications of the Court's opin-
ion in Hughes Aircraft for the Attorney General's decision in In re
Soriano. And, again only insofar as I am concerned, it should also
address itself more fully than it did in its brief before this court to the
very specific question of whether the legal consequences of Tasios'
guilty plea were altered by the enactment of section 440(d).

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