UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-60472
ROGELIO MENDEZ-ROSAS,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
June 26, 1996
Before REAVLEY, GARWOOD, and DeMOSS, Circuit Judges.
PER CURIAM:
In January of 1994, deportation proceedings were commenced
against Petitioner Rogelio Mendez-Rosas, charging that he is
subject to deportation because of his conviction for attempted
capital murder.1 On October 27, 1994, Petitioner appeared before
an immigration judge, conceded deportability, and applied for
discretionary relief via a waiver of deportation pursuant to §
212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c).
1
On September 19, 1990, Petitioner pled guilty in Texas state
court to attempted capital murder with a deadly weapon. He was
sentenced to a 25 year term of imprisonment and is currently
incarcerated with the Texas Department of Criminal Justice.
After a hearing on the merits, the immigration judge granted
Petitioner’s request for relief. On appeal, the Board of
Immigration Appeals (“BIA”) vacated the immigration judge’s grant
of relief and Petitioner now appeals to our Court.
Finding that § 440(a) of the newly enacted “Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA)” retroactively
eliminates judicial review of the final deportation order in this
case against Petitioner who admitted he is deportable by reason of
his commission of an aggravated felony, we dismiss Petitioner’s
appeal for lack of jurisdiction.
DISCUSSION
The AEDPA (Pub.L. 104-132, 110 Stat. 1214) was signed into law
by the President on April 24, 1996. The Act is divided into
several Titles, each addressing various issues ranging in subject
matter from habeas corpus reform (Title I) to nuclear weapons
restrictions (Title V). Here, we are concerned with Title IV,
“Terrorist and Criminal Alien Removal and Exclusion,” specifically,
sub-section 440(a).
At issue is whether § 440(a) should be applied retroactively
to appeals which were pending before our Court when the bill became
law. By its express language, § 440(a) eliminates judicial review
of any final deportation order against an alien who is deportable
by reason of having committed any one of a number of certain
enumerated offenses. The INS argues that because § 440(a) contains
no express effective date, the statute became effective when the
2
Act was signed by the President. Accordingly, the INS argues that
§ 440(a) became effective on April 24, 1996, and should be applied
retroactively to Petitioner’s case. On the other hand, the
Petitioner argues that because § 440(a) contains no effective date,
it is presumed to apply prospectively, and does not apply to
Petitioner’s pending appeal. For the following reasons, we agree
with the INS and hold that § 440(a) applies retroactively to
Petitioner’s case.
Retroactivity Test
In Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994), the
Supreme Court clarified the analysis through which courts are to
determine whether retroactive application of a law is appropriate.
First, we must determine whether Congress has clearly expressed an
intent that the statute be applied retroactively. Landgraf, 114 S.
Ct. at 1505. (“[A] requirement that Congress first make its
intention clear helps ensure that Congress itself has determined
that the benefits of retroactivity outweigh the potential for
disruption or unfairness.” Id. at 1498.) If Congress has clearly
expressed an intention that a statute be applied retroactively,
then the statute should be construed in accordance with that
intent. Id. at 1505. If there is no clear congressional
expression of retroactivity, then we must look to the nature of the
statute presented.
3
If the statute affects the substantive rights of the parties,
we presume that the statute is not to be applied retroactively.2
However, if the statute addresses jurisdictional rules, we presume
that it is to be applied retroactively.3 Landgraf, 114 S. Ct. at
1501-02. This jurisdictional exception to the presumption against
retroactivity is appropriate because “[a]pplication of a new
jurisdictional rule usually takes away no substantive rights but
simply changes the tribunal that is to hear the case.” Id. at 1502
(internal citations omitted); “[J]urisdictional statutes `speak to
the power of the court rather than to the rights or obligations of
the parties.’” Id. (citing, Republic National Bank of Miami, 113 S.
Ct. at 565, Thomas, J., concurring). Rebuttal of this presumption
2
“Since the early days of this Court, we have declined to give
retroactive effect to statutes burdening private rights unless
Congress had made clear its intent.... The presumption against
statutory retroactivity has consistently been explained by
reference to the unfairness of imposing new burdens on persons
after the fact.” Landgraf, 114 S. Ct. at 1499-1500.
Elementary considerations of fairness dictate that
individuals should have an opportunity to know what the
law is and to conform their conduct accordingly; settled
expectations should not be lightly disrupted. For that
reason, the principal 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.
Id. at 1497(internal citations omitted).
3
We also presume retroactive application when a statute
involves changes in procedural rules. Noting “diminished reliance
interests,” the Supreme Court in Landgraf states that, “[b]ecause
rules of procedure regulate a secondary rather than primary
conduct, the fact that a new procedural rule was instituted after
the conduct giving rise to the suit does not make application of
the rule at trial retroactive.” Landgraf, 114 S. Ct. at 1502.
4
requires some indication that the jurisdictional rule curtailed a
substantive right, such as an impairment of rights which a party
possessed when he acted, an increase in a party’s liability for
past conduct, or an imposition of new duties with respect to
transactions already completed. United States v. Hughes Aircraft
Co., 63 F.3d 1512, 1517 (9th Cir. 1995) (citing, Landgraf, 114 S.
Ct. at 1505).
Analysis
We first must determine whether the AEDPA evinces a clear
congressional intent that § 440(a) applies retroactively to appeals
which were pending in our Court when the AEDPA was signed into law.
As usual, we start with the language of the statute, itself.
Kellogg v. United States, (In re West Texas Marketing Corp.), 54
F.3d 1194, 1200 (5th Cir.), cert. denied, ___ U.S. ____, 116 S.
Ct. 523, 133 L.Ed.2d 430 (1995).
Prior to enactment of the AEDPA, our Court's jurisdiction to
review final orders of alien deportation arose under § 106 of the
Immigration and Nationality Act of 1952, as amended, 8 U.S.C. §
1105(a). Section 106 provided, in relevant part:
The procedure prescribed by, and all the provisions
of Chapter 158 of Title 28 shall apply to, and shall be
the sole and exclusive procedure for, the judicial review
of all final orders of deportation heretofore or
hereafter made against aliens within the United States
pursuant to administrative proceedings under section
1252(b) of this title or pursuant to section 1252a of
this title or comparable provisions of any prior Act,
except that -
****
5
(10) ...any alien held in custody pursuant to an order of
deportation may obtain judicial review thereof by habeas
corpus proceedings.
8 U.S.C. § 1105(a)(1996). Through § 106, Congress had expressly
conferred jurisdiction upon the courts to hear the appeals of
aliens seeking to challenge the final deportation orders of the
BIA.
On April 24, 1996, during the pendency of Petitioner’s appeal
to our Court, § 106 was amended by the enactment of § 440(a) of the
AEDPA. Section 440(a) revoked the judiciary’s jurisdiction to
review final orders of deportation against aliens who had been
convicted of certain, enumerated, criminal offenses. In its
entirety, § 440(a) reads as follows:
Sec. 440. CRIMINAL ALIEN REMOVAL.
(a) JUDICIAL REVIEW. -- Section 106 of
the Immigration and Nationality Act (8 U.S.C.
1105a(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 covered by section
241(a)(2)(A)(I), shall not be subject to
review by any court.”.
AEDPA, Pub. Law No. 104-132, § 440(a), 110 Stat. 1214 (1996)(to be
codified at 8 U.S.C. § 1105a(a)(10)). Thus, § 440(a) effectively
eliminates all judicial review of certain criminal alien appeals,
and, correspondingly, our sole source of appellate jurisdiction to
6
hear such cases. This much is not in dispute. What the parties do
dispute is the effective date of the § 440(a) amendment.
The AEDPA, which contains more than 100 pages, is organized by
Title, Section, and Sub-Section. While there is no one effective
date which governs all of the provisions within the AEDPA, Title
IV, within which § 440(a) is found, contains specific effective
dates for several of its Sections and Sub-Sections. The question
before us is whether Congress has expressly prescribed an effective
date for § 440(a). After carefully reviewing the AEDPA, and Title
IV, in particular, we conclude that Congress has not expressly
provided an effective date for § 440(a).4
4
Within Title IV, and pertaining to Section 106 of the
Immigration and Nationality Act of 1996, 8 U.S.C. § 1105a(a), the
only clear expressions of effective dates are found within §§
401(f) and 440(f):
§ 401(f) states: “The amendments made by this
section [§ 401] shall take effect on the date of
enactment of this Act and shall apply to all aliens
without regard to the date of entry or attempted
entry into the United States.”
§ 440(f) states: “The amendments made by subsection
(e) shall apply to convictions entered on or after
the date of the enactment of this Act, except that
the amendment made by subsection (e)(3) shall take
effect as if included in the enactment of section
222 of the Immigration Technical Corrections Act of
1994.” (Emphasis added.)
Section 401(f) applies to the change made in § 401(e) which
results, inter alia, in the striking of paragraph 10 from §
1105(a). Congress expressly stated that the amendment to remove
paragraph 10 is to be effective immediately and shall apply to all
aliens regardless of date of entry. We can assume that Congress
intended that the deletion of paragraph 10 from § 1105(a) was to
occur simultaneously with its amendment, as accomplished by §
440(a). However, Congress has not spoken as to whether such
amendments apply retroactively to pending cases. The effective date
in § 440(f) applies only to the changes made in § 440(e), none of
7
Given the absence of guiding instructions from Congress, we
next ask whether § 440(a) is the type of provision which should
govern cases arising before its enactment. Landgraf, 114 S. Ct. at
1505. Because § 440(a) explicitly affects jurisdiction, it speaks
to the power of the court, rather than to the rights or obligations
of the parties. As such, it is easily classified as jurisdictional
in nature. We, therefore, must presume that § 440(a)’s bar of
judicial review retroactively applies in this action.5
Rebuttal of this presumption requires some showing that the
jurisdictional nature of this action curtailed one or more of
Petitioner’s substantive rights. Petitioner does not challenge the
fact that he is an alien properly found deportable by reason of his
conviction of an aggravated felony; his sole ground of appeal is
the allegation that the BIA abused its discretion in determining
that, although eligible for § 212(c) relief, he did not merit a
favorable exercise of discretionary relief thereunder. Petitioner
has failed to show that any of his substantive rights has been
curtailed. We hold that Petitioner has not rebutted the
presumption of § 440’s retroactive application. Accordingly, §
440(a) bars judicial review of the BIA decision in this case.
CONCLUSION
which affect § 1105(a).
5
By so holding, we offer no opinion as to whether the various
remaining Titles, Sections, and Sub-sections, of the AEDPA require
retroactive application.
8
Having found that § 440(a) of the AEDPA applies retroactively
to the pending appeal of Petitioner, we DISMISS Petitioner’s case
for lack of subject matter jurisdiction.
9