PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
05/20/99
No. 97-5537 THOMAS K. KAHN
_______________ CLERK
D. C. Docket No. 97-2443-CV-FAM
TREVOR MAYERS,
Petitioner-Appellant,
versus
UNITED STATES DEPARTMENT OF IMMIGRATION
AND NATURALIZATION SERVICE; ATTORNEY
GENERAL, Janet Reno, et al.,
Respondents-Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
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_______________
No. 98-8185
_______________
D. C. Docket No. 1:97-CV-3361-TWT
EFRAIN GUTIERREZ-MARTINEZ,
Petitioner-Appellant,
versus
JANET RENO, Attorney General of the United States;
DORIS MEISSNER, Commissioner of Immigration and
Naturalization, et al.,
Respondent-Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(May 20, 1999)
Before BIRCH and HATCHETT, Circuit Judges, and KEITH*, Senior Circuit Judge.**
BIRCH, Circuit Judge:
Efrain Gutierrez-Martinez (“Gutierrez-Martinez”) and Trevor Mayers
(“Mayers”) appeal the orders of the district courts denying their petitions for
habeas corpus, in which they sought review of their claim that section 440(d) of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) should not
apply to their pending applications for waiver of deportation.
_______________
*Honorable Damon J. Keith, Senior U.S. Circuit Judge for the Sixth Circuit, sitting
by designation.
**This decision is rendered by a quorum, due to the retirement of then-Chief Judge
Hatchett on May 14, 1999. 28 U.S.C. § 46(d).
2
I. BACKGROUND
We must consider, as an initial matter, the immigration scheme that provides
the controlling law for the habeas corpus petitions of Gutierrez-Martinez and
Mayers. In 1996, within a span of five months, Congress passed two separate
pieces of legislation affecting the judicial review process for certain aliens. The
more recent legislation further divided this group of aliens into those who would
fall under transitional rules and those who would be considered under the
permanent judicial review procedures outlined in the new legislation. For the sake
of clarity, we provide below a brief overview of the statutory schemes that are
relevant to this action.
A. Reform of Immigration Laws
1. AEDPA
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Portions of
AEDPA amended the Immigration and Naturalization Act (“INA”), Pub. L. No.
87-301, 75 Stat. 651 (1961). Prior to the enactment of AEDPA, judicial review of
deportation orders generally proceeded by a petition for review filed in the court of
appeals. See 8 U.S.C.A. § 1105a(a)(2) (West 1995). In addition, INA §
106(a)(10), codified at 8 U.S.C.A. § 1105a(a)(10) (West 1995), also provided for
3
review of an order of deportation by habeas corpus. Finally, aliens could
challenge INS detention or deportation proceedings through a petition for habeas
corpus review pursuant to 28 U.S.C. § 2241. See, e.g., Orozco v. INS, 911 F.2d
539, 541 (11th Cir. 1990). AEDPA § 401(e)1, a non-codified provision, eliminated
the earlier INA § 106(a)(10) and under AEDPA § 440(a) substituted the following
language:
[A]ny final order of deportation against an alien who is deportable by
reason of having committed a criminal offense [as set forth in the
INA] shall not be subject to review by any court.
AEDPA § 440(a), codified at 8 U.S.C.A. § 1105a(a)(10) (West Supp. 1998).
AEDPA § 440(a) also eliminated immediate review in the court of appeals for
1
AEDPA § 401(e) states
(e) ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS. – Section
106(a) of the Immigration and Nationality Act (8 U.S.C. § 1105a(a)) is amended
–
******
(3) by striking paragraph (10).
INA § 106(a)(10) had provided that “any alien held in custody pursuant to an order of
deportation may obtain judicial review thereof by habeas corpus proceedings.” 8 U.S.C.A. §
1105a(a)(10) (West 1995).
4
some categories of deportation cases. See Boston-Bollers v. INS, 106 F.3d 352,
355 (11th Cir. 1997).2
Under the law in effect prior to the enactment of AEDPA, certain aliens,
otherwise determined to be deportable, were entitled to apply for a waiver of
deportation under INA § 212(c). The granting of a waiver was a discretionary act
of the Attorney General, or her representatives, that would allow the alien to
remain in the United States. The alien presented his application to the Immigration
Judge (“IJ”), who had discretion to waive the deportation of an alien based upon
such factors as time spent and family ties in the United States and restitution for
criminal activity. Section 440(d) of AEDPA greatly expanded the category of
criminal convictions that would render an alien, including petitioners here,
ineligible to apply for relief under INA § 212(c). See AEDPA § 440(d), codified at
8 U.S.C.A. § 1182(c) (West Supp. 1997).3
2
In Boston-Bollers, we held that § 440(a) divested the courts of appeals of initial
jurisdiction to consider petitions for review brought by aliens deportable on the basis of one of
the specified criminal offenses, but we specifically did not address whether the district court
retained habeas corpus jurisdiction. 106 F.3d at 354 n.1.
3
8 U.S.C.A. § 1182(c)(West Supp. 1997) was repealed by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”) § 304(b), and replaced by new INA §
240A, codified at 8 U.S.C.A. § 1229b (West 1999). INA § 240A consolidates “suspension of
deportation” relief with provisions of the old INA § 212(c) to create a new form of relief called
“cancellation of removal.” “Cancellation of removal” relief is available for aliens whose
criminal convictions do not qualify as “aggravated felonies.” See IIRIRA § 304(a), codified at 8
U.S.C.A. § 1229b (West 1999). These permanent provisions of IIRIRA apply only to those
aliens ordered deported after April 1, 1997, the effective date for IIRIRA, and are not applicable
5
2. IIRIRA
Several months after the enactment of AEDPA, the judicial review process
for deportation orders once again was restructured when Congress enacted the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
Pub. L. No. 104-208, Div. C., 110 Stat. 3009-546, on September 30, 1996. Section
306 of IIRIRA repealed the judicial review process set out in INA § 106, as
amended by AEDPA § 440(a), and replaced it with a new structure for judicial
review in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999).4
Under the transitional rules provided for in IIRIRA, judicial review for most
aliens is to take place without regard to IIRIRA's amendments. See IIRIRA §
309(c)(1), as amended by Act of Oct. 11, 1997, § 2, Pub. L. No. 104-302, 110 Stat.
3656, 3657, set out as a note following 8 U.S.C.A. § 1101 (West 1999).5 IIRIRA's
here.
4
AEDPA § 440(a) governs deportation orders that became final before October 31, 1996.
Orders that became final after this date, but before April 1, 1997, are governed by IIRIRA's
transitional rules (set forth in § 309(c) and not codified in the United States Code). All
proceedings that commence after April 1, 1997, are governed by IIRIRA's permanent rules, set
forth in new INA § 242 and codified at 8 U.S.C.A. § 1252 (West 1999). Because the deportation
proceedings for both petitioners in the present case commenced before April 1, 1997, the
effective date of IIRIRA, and became final after October 30, 1996, IIRIRA's transitional rules
apply to both petitioners. See IIRIRA, § 309(c), set out as a note following 8 U.S.C.A. § 1101
(West 1999).
5
IIRIRA § 309(c)(1) provides:
Subject to the succeeding provision of this subsection, in the case of an
alien who is in exclusion or deportation proceedings [before April 1, 1997] --
A. the amendments made by this subtitle shall not apply, and
6
transitional rule § 309(c)(4)(G), however, provides 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 enumerated crimes. This section applies to both
Gutierrez-Martinez and Mayers.
The permanent rules for judicial review of aliens' claims are set forth in
IIRIRA § 306. IIRIRA's permanent rules repeal the judicial review provisions of 8
U.S.C.A. § 1105a and create new, more narrowly-drawn rules regarding judicial
review, located in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999).
Because petitioners in the present case fall under the transitional rules of IIRIRA,
only one provision of the permanent rules potentially impacts the instant case.
IIRIRA § 306(a) adds INA § 242(g):
EXCLUSIVE JURISDICTION. – Except as provided in this
section and notwithstanding any other provision of law, no court shall
have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders
against any alien under this Chapter.
8 U.S.C.A. § 1252(g) (West 1999).
The special effective date for the new INA § 242(g) directs that it shall apply
“without limitation to claims arising from all past, pending, or future exclusion,
B. the proceedings (including judicial review thereof) shall
continue to be conducted without regard to such
amendments.
7
deportation, or removal proceedings under [this] Act.” IIRIRA § 306(c), as
amended by Act of Oct. 11, 1997, § 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657,
set out as a note following 8 U.S.C.A. § 1252 (West 1999). The special effective
date creates a statutory inconsistency whereby § 309(c) is to apply to defined
transitional cases, but § 306(a), through the new INA § 242, is to apply to all cases,
past, pending, or future, which would seem to include transitional cases. The
question we face here is whether the provisions of AEDPA and IIRIRA preclude
any exercise of habeas corpus jurisdiction over claims, constitutional or otherwise,
of Gutierrez-Martinez and Mayers.
B. Petitioners
1. Gutierrez-Martinez
Gutierrez-Martinez is a citizen of Colombia who entered the United States as
a lawful permanent resident on January 30, 1986. On September 29, 1988,
Gutierrez-Martinez pled guilty to and was convicted of one count of conspiracy to
possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. On
October 15, 1995, the Immigration and Naturalization Service (“INS”) ordered
Gutierrez-Martinez to show cause why he should not be deported on the basis of
his conviction for possession of a controlled substance in violation of INA §
241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994), (current version codified at 8
8
U.S.C.A. § 1227(a)(2)(B)(i) (West 1999)). On March 26, 1996, the IJ found
Gutierrez-Martinez deportable because of his status as a convicted drug offender,
but granted him additional time to file an application for waiver of deportation
under the earlier INA § 212(c).
On April 26, 1996, Gutierrez-Martinez filed his application for a § 212(c)
waiver. At a hearing on May 14, 1996, the IJ held that under the new provisions of
the AEDPA, which became effective two days before Gutierrez-Martinez filed his
waiver application, Gutierrez-Martinez was statutorily ineligible for § 212(c) relief.
The Board of Immigration Appeals (“BIA”) affirmed this holding and dismissed
Gutierrez-Martinez' appeal. Gutierrez-Martinez filed a petition for review of the
BIA's order with this court. We dismissed that petition for lack of jurisdiction,
citing IIRIRA §§ 309(c)(4)(E) & (G).6 On November 6, 1997, Gutierrez-Martinez
then filed a petition for habeas corpus review under 28 U.S.C. § 2241 in the district
court.
6
Another panel of this court dismissed Gutierrez-Martinez’ petition for review in an
unpublished, two sentence order. Subsequent to that dismissal, we held in Lettman v. Reno, 168
F.3d 463 (11th Cir. 1999) (per curiam), that the court of appeals has jurisdiction to determine
whether an alien is deportable under § 309 (c)(4)(G). As explained in Lettman, this
determination involves considering two questions: whether the petitioner is (1) an alien and (2)
deportable by reason of a criminal offense listed in the statute. Id. at 465. If these questions are
answered in the affirmative, then the court loses its jurisdiction pursuant to § 309(c)(4)(G).
Lettman did not address whether this avenue of review would encompass any substantial claims.
We need not reach this issue because it is clear that the claims of Gutierrez-Martinez were not
reviewed under his petition for review.
9
The district court found that habeas corpus jurisdiction under § 2241
survived the enactment of AEDPA and IIRIRA. The court held, however, that
“habeas relief is available only if the Petitioner can identify a grave constitutional
error or a fundamental miscarriage of justice in his deportation proceedings.” R1-
5-6. The district court further determined, however, that retroactive application of
AEDPA § 440(d) to eliminate Gutierrez-Martinez' eligibility for the § 212(c)
waiver process was not a constitutional error and, therefore, could not be reviewed
on the limited scope of habeas corpus review available under the new immigration
regime. The district court also rejected Gutierrez-Martinez' claim that AEDPA §
440(d) violated the equal protection guarantee of the Due Process Clause of the
Fifth Amendment because it distinguished between deportable and excludable
aliens. As a result, the district court denied Gutierrez-Martinez' petition for habeas
corpus review. Gutierrez-Martinez now appeals that decision.
2. Mayers
Mayers is a citizen of Barbados admitted to the United States as a lawful
permanent resident on July 19, 1977. On January 20, 1993, Mayers pled guilty to
and was convicted of possession with intent to distribute more than fifty kilograms
of marijuana in violation of 21 U.S.C. § 841. On November 15, 1993, the INS
commenced deportation proceedings against Mayers based on his criminal
10
conviction, pursuant to INA § 241(a)(2)(A)(iii), 8 U.S.C.A. § 1251(a)(2)(A)(iii)
(1994), (current version codified at 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999)).
On July 7, 1994, Mayers filed for a waiver of deportation under INA § 212(c). At
the first hearing to consider the waiver application, the IJ indicated that she was
inclined to grant a § 212(c) waiver. A second hearing on the waiver was not held
until April 30, 1996, six days after President Clinton signed the AEDPA into law.
The IJ granted Mayers' § 212(c) waiver petition, and the BIA affirmed this
decision. On March 17, 1997, however, the BIA reconsidered its decision in light
of a new opinion by the Attorney General indicating that AEDPA § 440(d) applies
to pending deportation cases. As a result, the BIA found Mayers to be statutorily
ineligible for relief under § 212(c) and ordered Mayers deported. Mayers filed a
petition for habeas corpus review in the district court on July 31, 1997, seeking
review of the final deportation order and challenging on due process and equal
protection grounds the application of AEDPA § 440(d) to his § 212(c) waiver
request.
In contrast to Gutierrez-Martinez' petition, the district court reviewing
Mayers' habeas corpus petition found it lacked subject-matter jurisdiction because
“Congress has eliminated all avenues of judicial review of criminal orders of
deportation, including the writ of habeas corpus” in the new immigration regime.
11
Mayers v. Reno, 977 F. Supp. 1457, 1461 (S. D. Fla. 1997). The district court held
that this elimination of review suffered no constitutional infirmities because “[n]o
judicial review [of deportation orders] is guaranteed by the Constitution.” Id.
(quoting Carlson v. Landon, 342 U.S. 524, 537, 72 S. Ct. 525, 533, 96 L.Ed. 547
(1952)). In the alternative, the district court found that even if there were still
some form of habeas corpus review of constitutional claims, Mayers' claim that
AEDPA § 440(d) should not apply retroactively to his deportation proceedings did
not rise to the level of “grave constitutional error or fundamental miscarriage of
justice.” Id. at 1462. The district court concluded, therefore, that it lacked
jurisdiction to review Mayers' claim.
Upon a motion by Mayers, these cases were consolidated for appeal on
September 9, 1998. We therefore refer to Mayers and Gutierrez-Martinez
collectively as “petitioners” when discussing common claims. Petitioners argue
that under the new immigration schemes, the district court retains habeas corpus
jurisdiction under 28 U.S.C. § 2241. Petitioners further argue that AEDPA §
440(d), which makes certain aliens ineligible for relief under the old INA § 212(c)
waiver application process, should not apply retroactively to their deportation
proceedings. We review de novo issues of subject-matter jurisdiction. See Jairath
v. Dyer, 154 F.3d 1280, 1281-82 (11th Cir. 1998). We also review de novo the
12
purely legal question of whether a statute's provisions apply retroactively. See
United States v. Olin Corp., 107 F.3d 1506, 1509 (11th Cir. 1997).
II. JURISDICTION
A. Habeas Corpus Jurisdiction
The petitioners argue that AEDPA and IIRIRA did not repeal habeas corpus
jurisdiction in the district court under 28 U.S.C. § 2241 to review deportation
orders. In the alternative, petitioners argue that the Suspension Clause of the
Constitution entitles them to judicial review of their constitutional and statutory
claims. On the merits, petitioners contend that AEDPA § 440(d), which restricts
the old INA's § 212(c) waiver application process, should not be applied
retroactively. Finally, petitioners argue that § 440(d) violates equal protection
because deportable criminal aliens inside the country are not eligible for § 212(c)
waivers, while identically situated aliens seeking reentry are eligible to request a
waiver.
The government argues that by enacting AEDPA § 401(e), Congress
expressly repealed the grant of habeas corpus jurisdiction to district courts found in
the former INA § 106(a)(10). Furthermore, the government contends, the new
INA § 242 places “exclusive jurisdiction” over deportation matters in the courts of
appeals. The government asserts that there is review available by means of a
13
petition for review in the court of appeals for “substantial constitutional
challenges” to the final deportation orders of aliens. The government contends,
however, that petitioners' claims do not rise to this level. The government
recognizes that under our decision in Boston-Bollers, aliens with certain criminal
convictions may not obtain judicial review of their deportation orders in the court
of appeals and, therefore, its interpretation of the immigration statutes would leave
petitioners here with no judicial review outside the administrative agency process.7
1. Exclusive Jurisdiction under INA § 242(g).
The Supreme Court recently has addressed the scope of the new INA §
242(g) in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. ___,
119 S. Ct. 936, ___ L.Ed.2d. ___ (1999) (“AADC”). In AADC, the Court
7
The government makes several attempts throughout its argument to diminish the severity
of the petitioners’ position here. First, the government asserts that whatever kind of review
available to petitioners must be done in the court of appeals. The government then contends that
petitioners would be able to raise at least “substantial constitutional challenges” to their
deportation proceedings at the court of appeals. Gutierrez-Martinez did file a petition for
review. As previously mentioned, his petition was dismissed by this court for lack of
jurisdiction under IIRIRA § 309(c)(4)(G). As we discussed in note 6, under Lettman, the court
of appeals now has jurisdiction to determine whether an alien is deportable. Lettman did not
consider whether substantial claims affecting the deportability of an alien can be addressed under
§ 309(c)(4)(G). As the district court noted, “a conclusion that the Petitioner must seek
whatever relief is available in the court of appeals is somewhat of a red herring.” Mayers, 977 F.
Supp. at 1460 (footnote omitted).
In the alternative, the government next argues that should we exercise habeas corpus
jurisdiction, review must be limited to “fundamental miscarriage[s] of justice.” This standard is
extracted from cases involving successive petitions for habeas corpus, implicating abuse of the
writ. See, e.g., Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L.Ed.2d 203
(1993). We decline to apply that standard here to a first-time habeas corpus petitioner in
detention as a result of an executive, rather than judicial, process.
14
recognized an “interpretive anomaly” with respect to the tension between IIRIRA's
transitional rules and the new INA § 242(g). The Court described the “horns of
this dilemma” by noting:
If the jurisdiction-excluding provision of § 1252(g) [INA § 242(g)]
eliminates other sources of jurisdiction in all deportation-related
cases, and if the phrase in § 1252(g) “[e]xcept as provided in this
section” incorporates (as one would suppose) all the other
jurisdiction-related provisions of § 1252, then § 309(c)(1) [IIRIRA’s
transitional rules] would be rendered a virtual nullity. To say that
there is no jurisdiction in pending INS cases “except as” § 1252
provides jurisdiction is simply to say that § 1252's jurisdictional
limitations apply to pending cases as well as future cases – which
seems hardly what § 309(c)(1) is about. If, on the other hand, the
phrase “[e]xcept as provided in this section” were (somehow)
interpreted not to incorporate the other jurisdictional provisions of §
1252 – if § 1252(g) stood alone, so to speak – judicial review would
be foreclosed for all deportation claims in all pending deportation
cases, even after entry of a final order.
AADC, 525 U.S. at ___, 119 S. Ct. at 941 (emphasis in original). The Court
declared this “seeming anomaly” to be a “mirage” by narrowing the universe to
which § 1252(g) applies to “three discrete actions that the Attorney General may
take: her