IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 95-50876
RAYMUNDO HERNANDEZ-RODRIGUEZ,
Petitioner-Appellant,
versus
KENNETH L. PASQUARELL, District
Director of the Immigration
and Naturalization Service,
Respondent-Appellee.
________________________________________________
Appeal from the United States District Court for the
Western District of Texas
________________________________________________
July 24, 1997
Before GARWOOD, WIENER and DEMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Raymundo Hernandez-Rodriguez, an alien,
in November 1987 was ordered excluded from the United States after
attempting to import marihuana through the Del Rio port of entry.
In April 1988, the exclusion order was affirmed by the Board of
Immigration Appeals (the Board). Over a year later, Petitioner
filed with the Board a motion to reopen his exclusion proceeding
alleging that familial developments warranted the grant of
discretionary relief pursuant to section 212(c) of the Immigration
and Nationality Act. In December 1991, the Board denied
Petitioner’s motion on the basis of statutory ineligibility. Some
six months thereafter, Petitioner instituted the instant habeas
corpus proceedings in the district court below challenging the
Board’s 1991 decision. In August 1995, the district court denied
the Petitioner’s habeas application, from which action Petitioner
brings this appeal. We affirm.
Facts and Proceedings Below
Petitioner is a citizen of Mexico who entered the United
States in 1965 and became a lawful permanent resident on November
1, 1974. He fathered five children with his wife, Irma Orona
Hernandez, who is a United States citizen. Their children were
born on February 24, 1974 (Raymundo Jr.), May 20, 1975 (Francisco),
April 20, 1980 (Albert), August 6, 1983 (Veronica), and April 18,
1986 (Juan). Petitioner is a construction worker by trade,
specializing in concrete. He has worked in the Texas construction
industry for most of his adult life.
The events giving rise to the instant habeas action began
December 19, 1983, when Petitioner attempted to enter the United
States as a returning resident at the port of entry in Eagle Pass,
Texas. Concealed in Petitioner’s vehicle were twenty-eight pounds
of marihuana. On December 22, 1983, Petitioner was served with a
“Notice to Applicant for Admission Detained for Hearing before an
Immigration Judge” charging him with excludability under 8 U.S.C.
§ 1182(a)(23).1 Petitioner was also indicted for the underlying
federal drug offense. On March 15, 1984, in the United States
1
8 U.S.C. § 1182(a)(23) was the precursor to current section
1182(a)(2)(A)(i)(II) (West Supp. 1996), which permits exclusion for
violations of laws relating to controlled substances.
2
District Court for the Western District of Texas (Del Rio
Division), Petitioner was convicted of unlawfully, knowingly, and
intentionally importing and causing to be imported a quantity of
marihuana into the United States from Mexico in violation of 21
U.S.C. §§ 952(a), 960(a)(1). Petitioner was sentenced to 4 years’
imprisonment, a special parole term of 4 years, and a fine of
$1,000. The district court suspended the imprisonment, placed the
Petitioner on probation for 5 years, and ordered him to perform 300
hours of community service.
In October 1985, while still on probation, Petitioner was
again involved in a drug-related offense, culminating in his guilty
plea on October 31, 1985, to a state charge of delivery of
marihuana. The 204th Judicial District Court in Dallas County,
Texas, sentenced Petitioner to two years’ deferred adjudication.
As a result of Petitioner’s subsequent drug offense, the United
States District Court for the Western District of Texas revoked his
probation on March 20, 1986, and, on April 8, 1986, committed him
to prison for two years, with a four-year special parole term.
After Petitioner completed his federal sentence in 1987, he
was transferred to the INS Processing Center in El Paso, Texas.
Petitioner’s request for release pending completion of the
exclusion proceedings was denied by the District Director on
October 5, 1987. The Immigration Judge conducted hearings on
October 9, 1987, and on October 29, 1987. Before the Immigration
Judge, the Petitioner conceded excludability and applied for a
waiver of exclusion pursuant to section 212(c) of the Immigration
3
and Nationality Act, 8 U.S.C. § 1182(c). The Immigration Judge,
acknowledging that the Petitioner met the statutory eligibility
requirements of seven years’ unrelinquished domicile and lawful
permanent resident status, nevertheless determined that
discretionary waiver under section 212(c) was not warranted in
light of his prior drug-related activity. The Immigration Judge
noted that Petitioner’s “favorable factors,” in this case his
American wife, his five American children, and his construction
trade skills, did not weigh sufficiently in favor of granting a
waiver. Accordingly, on November 2, 1987, nearly ten years ago,
the Immigration Judge ordered Petitioner excluded and deported to
Mexico.
Petitioner filed a Notice of Appeal to the Board of
Immigration Appeals on November 12, 1987. In an opinion issued
April 29, 1988, the Board affirmed the Immigration Judge’s
decision. The Board, as had the Immigration Judge, noted the
Petitioner’s “unusual or outstanding equities,” but concluded that,
given the seriousness of Petitioner’s drug trafficking conviction,
he had failed to demonstrate rehabilitation. In this regard, the
Board found significant the Petitioner’s involvement in 1985 in
marihuana-related activity.2
2
As the district court correctly observed, the Board did not
treat the Petitioner’s 1985 guilty plea as a “conviction,” but
rather as evidence that he had failed to rehabilitate himself. The
district court, citing Martinez-Montoya v. INS, 904 F.2d 1018 (5th
Cir. 1990), cautioned that Petitioner’s 1985 guilty plea pursuant
to a deferred adjudication procedure utilized by the Texas state
court was not a “‘conviction’ for the purposes of immigration law.”
This Court has indicated that a conviction by guilty plea pursuant
to the Texas deferred adjudication procedure can carry consequences
4
In July 1989, approximately fourteen months after the Board
had denied his appeal, Petitioner filed a Motion To Reopen and/or
Motion for Reconsideration with the Board. The motion declared
that, since his return to Frisco, Texas, in November 1987,
Petitioner had become divorced from his American wife and had
subsequently been awarded custody of his three oldest American
children, Raymundo Jr., Francisco, and Albert. In July 1989, their
ages were fifteen, fourteen, and nine, respectively.3
Characterizing his family developments as “new material evidence,”
Petitioner also repeated his contentions that his extended
residence in the United States, his ownership of a trailer, and his
construction skills would render his exclusion and deportation an
extreme hardship to his family.
On December 31, 1991, five years after Petitioner had been
ordered excluded and deported, the Board issued a per curiam denial
of Petitioner’s motion to reopen. Citing Matter of Cerna, Int.
under immigration law only if the three-prong Ozkok standard is
met. See Wilson v. INS, 43 F.3d 211, 215 (5th Cir.) (discussing
application of Matter of Ozkok, Int. Dec. 3044 (B.I.A. Apr. 26,
1988), and noting that “Ozkok’s rule applying a federal
‘conviction’ standard rather than a state standard is reasonable
and is consistent with congressional intent and the relevant case
law”), cert. denied, 116 S.Ct. 59 (1995); Martinez-Montoya at
1024-26 (holding that conviction under Texas deferred adjudication
procedure was not final because further adjudication was available
and time for appeal had not expired). In any event, the Board used
Petitioner’s drug-related activity solely as evidence of a lack of
rehabilitation, and neither party seeks to raise any issue in
regard to the Board’s use of Petitioner’s 1985 guilty plea.
3
The motion alleged that his two youngest children, Veronica
and Juan, remained with Petitioner’s ex-wife, who had remarried.
At the time Petitioner filed his habeas action with the district
court, Raymundo Jr. was over eighteen. By the time Petitioner
filed this appeal in November 1995, only Albert was under eighteen.
5
Dec. 3161 (B.I.A. Oct. 7, 1991), the Board held that, as
Petitioner’s “lawful permanent resident status terminated with the
entry of the final administrative order of exclusion and
deportation, i.e., when the Board dismissed the applicant’s
appeal,” the Petitioner was statutorily ineligible for section
212(c) relief, which applies only to “[a]liens lawfully admitted
for personal residence.”
On June 30, 1992, Petitioner filed the instant petition for a
writ of habeas corpus in the United States District Court for the
Western District of Texas (El Paso Division) asserting that the
Board’s 1991 denial of his July 1989 motion to reopen was arbitrary
and capricious. 8 U.S.C. § 1105a(b); 28 U.S.C. § 2241. Defendant-
appellee District Director of the Immigration and Naturalization
Service filed a Motion To Dismiss/Motion for Summary Judgment
arguing that the Board’s decision in Cerna was controlling. On
August 18, 1995, the district court entered an order denying
Petitioner’s habeas petition. The district court, citing our
decision in Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), cert.
denied, 113 S.Ct. 1412 (1993), held that the Board’s determination
that Petitioner was no longer eligible for section 212(c) relief
after the Board’s April 1988 affirmance of the Immigration Judge’s
decision was not an abuse of discretion.
Petitioner brings this appeal, and we affirm.
Discussion
“The exclusion of aliens is a fundamental act of sovereignty.”
Gisbert v. United States Attorney General, 988 F.2d 1437, 1440 (5th
6
Cir. 1993) (citing Shaughnessy v. United States ex rel. Mazei, 73
S.Ct. 625, 628 (1953) (“Courts have long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments largely immune
from judicial control.”); United States ex rel. Knauff v.
Shaughnessy, 70 S.Ct. 309, 312 (1950)). The right to exclude
aliens is vested in the political branches which “have plenary
authority to establish and implement substantive and procedural
rules governing the admission of aliens.” Id.
The statutory scheme governing immigration affairs in the
United States is the Immigration and Nationality Act (the Act).
Under the Act, an order of deportation is reviewable directly by
this Court pursuant to a petition for review, 8 U.S.C. § 1105a(a).
The only review of an order of exclusion is pursuant to a petition
for a writ of habeas corpus, 8 U.S.C. § 1105a(b). Included within
the scope of habeas review of orders of exclusion, however, is the
Board’s compliance with prescribed procedures.
Throughout the Petitioner’s exclusion proceedings and before
the district court, he has conceded excludability. In his
application to the district court for habeas relief and on appeal
before this Court, Petitioner raised the sole issue of whether the
Board’s refusal to reopen or reconsider his exclusion case on the
grounds that he was statutorily ineligible was based on an
erroneous construction of section 212(c). There is no statutory
provision for Petitioner’s motion to reopen his exclusion
proceeding; the authority for his motion derives entirely from the
7
regulations promulgated by the Attorney General. INS v. Doherty,
112 S.Ct. 719, 724 (1992); INS v. Rios-Pineda, 105 S.Ct. 2098, 2100
(1985); Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.), cert. denied,
114 S.Ct. 345 (1993). The pertinent regulation, 8 C.F.R. § 3.2,
permits the Board to reopen exclusion proceedings provided certain
circumstances are met and subject to other stated restrictions.
The three principal, independent grounds on which the Board might
deny a motion to reopen are (1) statutory or “prima facie”
ineligibility for section 212(c) relief, (2) “failure to introduce
previously unavailable, material evidence,” and (3) “a
determination that even if these requirements were satisfied, the
movant would not be entitled to the discretionary grant of relief
which he sought.” Doherty, 112 S.Ct. at 725. We have noted the
“broad discretion” conferred to the Board over motions to reopen
and have held consistently that the Board’s denial is reviewed only
for an abuse of discretion. Pritchett, 993 F.2d at 83. When the
Board denies a motion to reopen on the basis of statutory
ineligibility, as in this case, we exercise de novo review over all
questions of law. Ghassan, 972 F.2d at 637. The Board’s
interpretation of the Act and implementing regulations, however,
are entitled to great weight. Carbajal-Gonzalez v. INS, 78 F.3d
194, 197 (5th Cir. 1996) (citing Chevron USA Inc. v. NRDC, 104
S.Ct. 2778 (1984)); Ka Fung Chan v. INS, 634 F.2d 248, 252 (5th
Cir. 1981).
I.
Petitioner’s principal argument in support of his habeas
8
application is a challenge to the legitimacy of our decision in
Ghassan. According to Petitioner, Ghassan’s approval of the
Board’s position advanced in Cerna runs counter to a perceived
congressional desire to alleviate hardship for those in
Petitioner’s position and therefore represents an erroneous
construction of section 212(c).
Ghassan and Cerna both involved application of the Attorney
General’s discretionary relief authority conferred by section
212(c) of the Act.4 In Cerna, the Board denied a deportable
alien’s motion to reopen on the grounds that, as he was subject to
an administratively final order of deportation, he was unable to
establish prima facie eligibility for such relief under section
212(c), which requires an applicant for relief to be a lawful
permanent resident. Matter of Cerna, Int. Dec. 3161 (B.I.A. Oct.
4
Section 212(c) of the Act, in pertinent part provided:
“Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an
order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may
be admitted in the discretion of the Attorney General
without regard to [the subsections setting forth classes
of excludable aliens].” 8 U.S.C. § 1182(c).
Although facially applicable only to excludable aliens, this
section has been extended by judicial and administrative decisions
to apply to a person who has never left the United States if the
ground of deportation would also be a ground of exclusion. See
Rodriguez v. INS, 9 F.3d 408, 411-412 (5th Cir. 1993) (“Courts
reviewing the decisions of the BIA have upheld the initial
expansion of section 212(c) to grounds for deportation which have
corresponding grounds for exclusion, and most courts have taken
positions similar to that of the Attorney General and refused to
extend section 212(c) relief to grounds of deportation which are
not also grounds of exclusion.”); see also Ghassan, 972 F.2d at 634
n.2 (discussing origins of the policy).
9
7, 1991); see also Garcia-Hernandez v. INS, 821 F.2d 222, 224 (5th
Cir. 1987). Such a conclusion stems from the INS’s position,
approved by this Court, that a deportability decision becomes final
at the time the Board renders its decision. See Rivera v. INS, 810
F.2d 540, 541-42 (5th Cir. 1987).
In Ghassan, this Court addressed whether a deportable alien
whose original petition for section 212(c) relief was filed before
a final decision of deportability could move to reopen the
proceeding after the Board’s decision. 972 F.2d at 637. Finding
no reason to depart from the rationale of Rivera, we held:
“In Garcia-Hernandez we concluded that the BIA was
correct in holding that the petitioner was no longer
eligible for section 212(c) relief because he was no
longer a lawful resident and so could not obtain
reopening. Under Rivera an alien’s lawful status ends
when the BIA rules him deportable. Thus, after the BIA
decides that an alien is deportable, he is no longer a
legal resident and thus is not eligible for section
212(c) relief, so his petition for reopening must be
rejected. Accordingly, the BIA did not err in denying
Ghassan’s motion to reopen.” Ghassan, 972 F.2d at 637-38
(footnote and citations omitted).
Although Petitioner correctly observes that the circuit courts are
not entirely in agreement concerning the eligibility of an
excludable alien subject to a final exclusion order to section
212(c) relief,5 we have neither the inclination nor the ability to
5
Together with this Court, the Third and Fourth Circuits have
approved the Board’s interpretation of section 212(c). Katsis v.
INS, 997 F.2d 1067 (3d Cir. 1993), cert. denied, 114 S.Ct. 902
(1994); Nwolise v. INS, 4 F.3d 306, 310-12 (4th Cir. 1993), cert.
denied, 114 S.Ct. 888 (1994). The First, Second, Seventh, Ninth
and Eleventh Circuits have rejected this interpretation. Gonclaves
v. INS, 6 F.3d 830 (1st Cir. 1993); Vargas v. INS, 938 F.2d 358 (2d
Cir. 1991); Henry v. INS, 8 F.3d 426, 433-39 (7th Cir. 1993);
Butros v. INS, 990 F.2d 1142 (9th Cir. 1993) (en banc); Acosta-
Montero v. INS, 62 F.3d 1347 (11th Cir. 1995).
10
revisit the merits of our prior decision. United States v. Zuniga-
Salinas, 952 F.2d 876, 877 (5th Cir. 1992) (en banc).
Had Petitioner’s challenge to the legitimacy of Ghassan been
his only argument, this would be an easy case indeed. The district
court correctly dismissed his habeas petition, citing Ghassan,
after correctly determining that Petitioner——whose denial of section
212(c) relief by the Immigration Judge had long ago been affirmed
by the Board——was in a position clearly no better than the appellant
in Ghassan. During the pendency of this appeal, however, the
Attorney General amended the regulations governing section 212(c)
relief in a manner favorable to Petitioner.6 Accordingly, the
6
The pre-amendment regulation provided:
“The Board may on its own motion reopen or reconsider any
case in which it has rendered a decision. Reopening or
reconsideration of any case in which a decision has been
made by the Board, whether requested by the Commissioner
or any other duly authorized officer of the Service, or
by the party affected by the decision, shall be only upon
written motion to the Board. Motions to reopen in
deportation proceedings shall not be granted unless it
appears to the Board that evidence sought to be offered
is material and was not available and could not have been
discovered or presented at the former hearing; nor shall
any motion to reopen for the purpose of affording the
alien an opportunity to apply for any form of
discretionary relief be granted if it appears that the
alien’s right to apply for such relief was fully
explained to him and an opportunity to apply therefor was
afforded him at the former hearing unless the relief is
sought on the basis of circumstances which have arisen
subsequent to the hearing. A motion to reopen or a
motion to reconsider shall not be made by or on behalf of
a person who is the subject of a deportation proceedings
subsequent to his departure from the United States. Any
departure from the United States of a person who is the
subject of deportation proceedings occurring after the
making of a motion to reopen or a motion to reconsider
shall constitute a withdrawal of such motion. For the
purpose of this section, any final decision made by the
11
parties were given an opportunity to submit briefs addressing the
applicability of the new regulations as well as the applicability
of the changes made by the passage of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-32,
110 Stat. 1214 (1996), and the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRAIRA), Pub. L. No. 104-208, Div.
C, 110 Stat. 3009 (1996).
II.
The current regulations permit the reopening of exclusion
proceedings to entertain requests for section 212(c) relief even
after the entry of a final exclusion order.7 Under the new
Commissioner prior to the effective date of the Act with
respect to any case within the classes of cases
enumerated in § 3.1(b)(1), (2), (3), (4), or (5) shall be
regarded as a decision of the Board.” 8 C.F.R. § 3.2
(1992).
On April 29, 1996, the Attorney General promulgated new
regulations, effective July 1, 1996, that amended § 3.2. Section
3.2(c)(1) currently provides, in pertinent part:
“Subject to the other requirements and restrictions of
this section, and notwithstanding the provisions in §
1.1(p) of this chapter, a motion to reopen proceedings
for consideration or further consideration of an
application for relief under section 212(c) of the Act (8
U.S.C. 1182(c)) may be granted if the alien demonstrates
that he or she was statutorily eligible for such relief
prior to the entry of the administratively final order of
deportation.” 61 Fed. Reg. 18,900, 18,905 (1996) (to be
codified at 8 C.F.R. § 3.2(c)(1)).
7
Supplementary comments by the Attorney General explain that
the regulations were amended to ensure that “lawful permanent
resident” would include an excludable alien who was eligible for
section 212(c) relief prior to the Board’s final decision:
“[I]f an alien accrues the seven years of lawful
unrelinquished domicile necessary for eligibility for a
12
regulations, an excludable alien must file a motion to reopen
within ninety days of the date of the final administrative decision
or on or before September 30, 1996, whichever is later.8
In his two supplemental briefs, Petitioner argues that the new
section 3.2(c) governs the denial of his motion to reopen because
the regulations tacitly adopt the Second Circuit’s interpretation
of section 212(c) advanced in Vargas v. INS, 938 F.2d 358 (2d Cir.
1991), which was contrary to our decision in Ghassan. Although
never addressing whether his status as a habeas petitioner——as
opposed to an applicant to the Board requesting it to reopen its
direct review of a denial of discretionary relief——affects his
ability to benefit from the change in the regulations, Petitioner
asserts that because he filed his motion to reopen seven years
before the change in the regulations, and because his appeal of the
district court’s dismissal of his habeas action was pending on the
date the regulations became effective, he was under no obligation
waiver under section 212(c) of the Act prior to the entry
of an administratively final order of exclusion or
deportation, he or she may file a motion to reopen for
consideration or further consideration of such an
application. An alien may not accrue time toward the
seven years of lawful unrelinquished domicile required
for section 212(c) purposes after the entry of a final
administrative order of exclusion or deportation.” 61
Fed. Reg. 18901.
8
This restriction does not apply to (1) certain deportation
orders entered in absentia, (2) applications for asylum based on
changed circumstances in the country of nationality that could not
have been discovered or presented at the former hearing, or (3)
motions in which all parties agree that the restrictions should not
apply. 61 Fed. Reg. 18905 (to be codified at 8 C.F.R. §
3.2(c)(3)).
13
to file a new motion to reopen.9
The District Director argues that the effective date of the
new regulations precludes their retroactive application, that
Petitioner’s failure to file a subsequent motion to reopen after
July 1, 1996, and before October 1, 1996, precludes relief under
the current regulations, and that Petitioner’s claim fails as he
never sought the District Director’s consent to file an out-of-time
motion to reopen under the new regulations.
We agree with the District Director and, for the following
reasons, hold that a habeas petitioner cannot take advantage of
procedural changes in the regulations governing section 212(c)
relief on a collateral habeas challenge to the order of exclusion
when the Board’s denial of a motion to reopen was proper under the
standards applicable at the time it denied the motion.
To begin with, there is the simple fact that Petitioner has
never sought relief under the amended regulation. The District
Director, in his first supplemental brief filed on August 6, 1996,
essentially invited Petitioner to file a new motion to reopen and
conceded that any such motion would be reviewed under the new
regulations.10 Even after the expiration of the September 30, 1996,
9
Petitioner accurately summarized his argument in his first
supplemental brief as follows: “Petitioner submits that the short
answer to the Court’s inquiry of what effect the April 29, 1996
amendment to 8 C.F.R. § 3.2(c) has on this appeal is that
Petitioner wins.”
10
The District Director’s First Supplemental Brief stated:
“The effect of this regulation appears to open the door to
consideration of a motion to reopen from the Petitioner, unhindered
by the precedent case law that formed the basis of the Board’s
original denial. In other words, if the Petitioner were to file a
14
deadline, Petitioner failed to seek the District Director’s consent
to file a motion to reopen pursuant to section 3.2(c)(3)(iii) of
the amended regulation. Petitioner, for reasons unknown, chose
instead to rely entirely on his Ghassan-as-bad-law argument and on
the notion that the promulgation of new regulations governing Board
procedure can serve to invalidate final decisions of the Board on
habeas review. It is to that contention we now turn.
The regulations at issue do not operate retroactively to
invalidate the Board’s 1991 denial of Petitioner’s motion to
reopen; the regulations do not purport to apply retroactively, the
Board’s decision was, and had long been, “final” when the new
regulations were promulgated, and the regulatory changes in
procedure wrought by the new regulations are not of sufficient
dimension to justify interference with a final decision by the
Board under the guise of habeas review.
First, the regulations do not purport to apply retroactively.
“Generally, courts will not apply regulations retroactively unless
their language so requires.” Sierra Med. Ctr. v. Sullivan, 902
F.2d 388, 392 (5th Cir. 1990). Although the traditional
justification for judicial reluctance to apply regulations
retroactively——interference with settled expectations and antecedent
rights——are diminished when the change is beneficial to the
claimant, “[n]evertheless, the general rule barring retroactivity
still applies.” Id.; see also Carpenters Dist. Council v. Dillard
motion to reopen or reconsideration of his motion to reopen, the
Board would consider the request in light of the new regulation.”
15
Dep’t Stores, 15 F.3d 1275, 1291 (5th Cir. 1994) (stating that
“administrative rules should not be construed as having retroactive
effect unless their language requires that result”), cert. denied,
115 S.Ct. 933 (1995). The new regulations do not purport to apply
retroactively; rather, they provide only that they become effective
on July 1, 1996. An effective date provision “does not even
arguably suggest that it has any application to conduct that
occurred at an earlier date.” Landgraf v. USI Film Prods., 114
S.Ct. 1483, 1493 & n.10 (1994) (citing Jensen v. Gulf Oil Ref. &
Mktg. Co., 623 F.2d 406, 410 (5th Cir. 1980)). But cf. id. at 1523
(Scalia, J., concurring) (finding that an effective date provision
“is presumed to mean ‘shall have prospective effect upon
enactment’”). As the language of the new regulation does not
require its application to conduct (or completed proceedings)
antedating its adoption, we refuse to impose its requirements to
proceedings that have achieved finality. See Landgraf, 114 S.Ct.
at 1505 (“When, however, the statute contains no such express
command, the court must determine whether the new statute would
have retroactive effect, i.e., whether it would . . . impose new
duties with respect to transactions already completed.”); see also
Hughes Aircraft Co. v. United States, 65 U.S.L.W. 4447 (U.S. June
16, 1997).
Second, the 1991 Board’s denial of Petitioner’s motion to
reopen the Board’s 1988 affirmance of the exclusion order was a
final decision. Application of a subsequent change in a statute or
regulation to a final decision implicates concerns not present when
16
the change occurs while the decision is pending before the initial
tribunal or on direct appeal. “New legal principles, even when
applied retroactively, do not apply to cases already closed.”
Reynoldsville Casket v. Hyde, 115 S.Ct. 1745, 1751 (1995).
Although unquestionably the judiciary must generally apply changes
in the law to cases pending on appeal, Robertson v. Seattle Audubon
Soc’y, 112 S.Ct. 1407, 1414 (1992), and “[w]hen a new law makes
clear that it is retroactive, an appellate court must apply that
law in reviewing judgments still on appeal that were rendered
before the law was enacted, and must alter the outcome
accordingly,” Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447, 1457
(1995) (citing Landgraf, 114 S.Ct. at 1500-08; United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801)), nevertheless
“[h]aving achieved finality[,] . . . a judicial decision becomes
the last word of the judicial department with regard to a
particular case or controversy, and Congress may not declare by
retroactive legislation that the law applicable to that very case
was something other than what the courts said it was,” id.
(emphasis in original). When a case achieves finality under a
statutory scheme that precludes direct review by an Article III
court,11 the judicial interest in finality is also substantial. See
Rivera, 810 F.2d at 541-42. Both the public and the Board have
significant, cognizable interests in the finality of immigration
proceedings. See INS v. Abudu, 108 S.Ct. 904, 913 (1988) (“There
11
Unlike the situation respecting deportation orders, direct
judicial review of exclusion orders is not available. 8 U.S.C. §
1105a(b); Delgado-Carrere v. INS, 773 F.2d 629 (5th Cir. 1985).
17
is a strong public interest in bringing litigation to a close as
promptly as is consistent with the interest in giving the
adversaries a fair opportunity to develop and present their
respective cases. The relevance of this interest to deportation
proceedings was pointedly explained in [Jong Ha Wong].”); INS v.
Jong Ha Wong, 101 S.Ct. 1027, 1031 n.5 (1981) (“‘Granting such
motions [to reopen] too freely will permit endless delay of
deportation by aliens creative and fertile enough to continuously
produce new and material facts sufficient to establish a prima
facie case. It will also waste the time of immigration judges
called upon to preside at hearings automatically required by the
prima facie allegations.’”). Indeed, “Congress’ ‘fundamental
purpose’ in enacting § 106 of the INA was ‘to abbreviate the
process of judicial review . . . in order to frustrate certain
practices . . . whereby persons subject to deportation were
forestalling departure by dilatory tactics in the courts.’” Stone
v. INS, 115 S.Ct. 1537, 1546 (1995) (quoting Foti v. INS, 84 S.Ct.
306, 311 (1963)).
These finality considerations have particular force in a case
such as this for two reasons. First, neither Petitioner’s habeas
action nor his July 1989 motion to reopen questions the legal
validity, substantively or procedurally, of the Board’s April 1988
decision affirming the Immigration Judge’s November 1987 decision
finding Petitioner excludable and denying section 212(c) relief on
the basis that the factors favoring such discretionary relief were
outweighed by those pointing in the contrary direction.
18
Petitioner’s July 1989 motion asserts that changed circumstances
arising after the April 1988 Board decision, principally his
divorce from his wife and the award to him of custody of three of
his minor children, sufficiently alter the mix of circumstances
relevant to section 212(c) as to warrant the granting to him of
discretionary relief thereunder. Petitioner’s habeas action merely
asserts that the Board’s 1991 denial of his July 1989 motion to
reopen was legally erroneous because it was based on the allegedly
incorrect theory that, by virtue of the April 1988 decision, he was
no longer eligible for section 212(c) relief under any
circumstances as he was no longer an alien “lawfully admitted for
personal residence.” There is nothing even allegedly illegal or
invalid about the April 1988 Board decision, and its finality
should not be undermined by using April 1996 regulations to mount
a habeas attack on the 1991 Board decision. In the second place,
Petitioner, prior to the April 1996 regulations, had received
Article III judicial review and determination and rejection of his
challenge to the 1991 Board decision, in the form of the district
court’s August 1995 decision herein, a decision which was
unquestionably correct when rendered. Ghassan. Failure to apply
the April 1996 regulations does not deprive Petitioner of Article
III review of the 1991 Board decision, to say nothing of the 1988
Board decision.12
12
Even were this case on direct appeal from the Board’s 1991
decision to this Court, we would consider the change in the
regulations to be the type of procedural change——discussed in both
Landgraf and Plaut——that would not require the Board to revisit its
1991 denial of the Petitioner’s 1989 motion to reopen. Procedural
19
Of course, the amended regulation at issue neither expressly
directs this Court to apply its terms retroactively to motions to
reopen denied prior to its effective date nor constitutes the type
of procedural or jurisdictional change that this Court can itself
apply at this stage of the proceedings.13 Assuming the ability to
alterations to a process legitimately completed, as were the
Board’s 1988 and 1991 decisions, do not require a tribunal to set
aside results and commence afresh under the new rules. See
Landgraf, 114 S.Ct. at 1502 n.29 (“[T]he promulgation of a new rule
of evidence would not require an appellate remand for a new trial.
Our orders approving amendments to federal procedural rules reflect
the common-sense notion that the applicability of such provisions
ordinarily depends on the posture of the particular case.”); id. at
1505 n.34 (“[T]he promulgation of a new jury trial rule would
ordinarily not warrant retrial of cases that had previously been
tried to a judge.”); Plaut, 115 S.Ct. at 1458 (“Petitioners’
principle would therefore lead to the conclusion that final
judgments rendered on the basis of a stringent (or, alternatively,
liberal) rule of pleading or proof may be set aside for retrial
under a new liberal (or, alternatively, stringent) rule of pleading
or proof. This alone provides massive scope for undoing final
judgments and would substantially subvert the doctrine of
separation of powers.”); see also Shipes v. Trinity Indus., 31 F.3d
347, 349 (5th Cir.) (“[T]he Court [in Landgraf] indicated that when
a procedural matter has been properly decided under the old rule,
and a new procedural rule is subsequently enacted while the
ultimate resolution of the case is still pending, no reversal is
required.”), cert. denied, 114 S.Ct. 548 (1993). Further, as noted
in the text, what Petitioner seeks is in substance a second
exercise of discretion on his section 212(c) application, the first
having been the Board’s 1988 decision, which is not claimed to have
been legally erroneous. But even if Petitioner had alleged that in
its 1988 decision the Board abused its discretion in determining,
upon a weighing of the relevant factors, that he did not then merit
the favorable exercise of section 212(c) discretionary relief, such
an allegation would not properly assert the denial of a substantive
right for purposes of retroactivity analysis. Mendez-Rosas v.
INS, 87 F.3d 672, 675 (5th Cir. 1996).
13
We readily accept the proposition, advanced in Landgraf, that
an intervening rule authorizing prospective relief raises no
retroactivity concerns when applied to cases pending on appeal.
See Landgraf, 114 S.Ct. at 1501. Such has been the position of the
District Director in this case; he conceded that the new regulation
would apply both to motions to reopen filed after the effective
date of the regulation and to those pending before the Board on
20
alter by regulation the judgment of a non-Article III
administrative tribunal, see Plaut, 115 S.Ct. at 1459-60, the
amended regulation at issue does not attempt to do so; it simply
alters prospectively the procedure by which excluded aliens may
file (or refile) motions to reopen.
Finally, we refuse to construe the narrow authority of the
federal courts to recognize certain procedural changes on habeas
review to extend to the circumstances here presented. We are not
faced with the question, left open in United States v. Andrade, 83
F.3d 729, 730 n.1 (5th Cir. 1996), concerning the applicability of
“decisions interpreting substantive criminal statutes” to habeas
review. Nor are we faced with the situation addressed by the
Supreme Court in Teague v. Lane, 109 S.Ct. 1060 (1989), concerning
the application of decisions announcing “new constitutional rules
of criminal procedure” to cases on habeas review. Rather, we deal
only with a newly-adopted administrative regulation that, although
evincing a different “interpretation” of statutory eligibility for
section 212(c) relief than had been advanced previously, did not
call into question the decisions under the regulations as
previously worded. As discussed above, “‘congressional enactments
and administrative rules will not be construed to have retroactive
effect unless their language requires this result.’” Landgraf, 114
S.Ct. at 1496 (quoting Bowen v. Georgetown Hosp. Ass’n, 109 S.Ct.
that date. Petitioner is in neither situation; his motion had
already been denied years before the time the regulation became
effective and he refused the District Director’s invitation to file
a new motion under the new regulation.
21
468, 471 (1988)); see also Hughes Aircraft Co. Section 3.2(c)
represents a change in the law governing the procedure the Attorney
General must follow when determining the eligibility for
discretionary relief under section 212(c). A change in the law,
whether statutory or administrative, cannot form the basis for
habeas relief. Cf. Dunn v. Maggio, 712 F.2d 998, 1001 (5th Cir.
1983), cert. denied, 104 S.Ct. 1297 (1984); Rubio v. Estelle, 689
F.2d 533, 536 (5th Cir. 1982). The amended regulation does not
illuminate the initial threshold inquiry in this habeas review of
Petitioner’s exclusion proceeding: whether the procedures
prescribed for determining the propriety of a motion to reopen were
followed by the Board.
The district court concluded that the Board properly denied
the 1989 motion to reopen on the grounds that Petitioner, because
he was subject to a final order of exclusion when (and ever after)
he filed the motion, was hence statutorily ineligible for the
section 212(c) relief his motion to reopen sought to bring about.
The Board’s decision (and that of the district court as well) was
in keeping with both published INS policy and with our Circuit’s
precedent. Although after the district court decision the INS
adopted regulations that reflect a somewhat more favorable policy
for those in a position similar to Petitioner’s,14 Petitioner does
14
The new regulation did not, however, alter the requirement
that a statutorily eligible alien must also present previously
unavailable material evidence. 61 Fed. Reg. 18,900, 18,905 (1996)
(to be codified at 8 C.F.R. § 3.2(c)(1)). The Board addressed only
the issue of the Petitioner’s statutory eligibility in its denial
of his motion to reopen. Statutory eligibility and the
availability/materiality of the evidence proffered are preliminary
22
not contend that the Board’s denial failed to adhere to then-
existing procedures for motions to reopen. Nor does Petitioner
argue that the Board failed to follow the current section 3.2(c);
Petitioner concedes that he has never filed a motion to reopen
after the effective date of the new regulation. The Petitioner has
failed to identify any procedural infirmity that might satisfy a
minimum threshold requirement for the grant of habeas relief.
III.
Although ultimately grounding our affirmance of the district
court’s denial of Petitioner’s application for habeas relief on the
inapplicability of amended section 3.2, we further note that the
passage last April of the AEDPA may have eliminated the substantive
relief sought by Petitioner. Section 440(d) of the AEDPA amended
section 212(c) of the Act to prohibit the Attorney General from
extending discretionary relief to aliens who, like Petitioner, have
been convicted of crimes involving controlled substances.15
Petitioner argues that, as section 440(d) of the AEDPA speaks only
to those aliens who are “deportable,” it is inapplicable to
prerequisites; even if these are both met, the Board would retain
discretion to deny section 212(c) relief on the merits. Abudu, 108
S.Ct. at 912.
15
8 U.S.C. § 1182(c), as amended by AEDPA § 440(d), provides:
“This subsection shall not apply to an alien who is
deportable by reason of having committed any criminal
offense covered in section 1251(a)(2)(A)(iii), (B), (C),
or (D) of this title, or any offense covered by section
1251(a)(2)(A)(ii) of this title for which both predicate
offenses are, without regard to the date of their
commission, otherwise covered by section 1251(a)(2)(A)(i)
of this title.”
23
excludable aliens; and, in a recent en banc opinion, the Board
agreed with Petitioner’s interpretation of section 440(d) in this
respect. Matter of Fuentes-Campos, Int. Dec. No. 3319 (BIA May 14,
1997). Respondent District Director contends that section 440(d)’s
restriction applies to both exclusion and deportation proceedings
because section 212(c) addresses waivers of inadmissability.
Although Petitioner does not address the issue of whether section
440(d) should apply to cases pending as of its effective date,
Respondent argues that, as section 212(c) relief operates
“prospectively,” no retroactivity concerns are implicated and the
AEDPA would eliminate the relief sought by Petitioner should the
motion to reopen be granted.
We have previously held that section 440(a) of the AEDPA
operated to divest the federal courts of jurisdiction to review, on
appeal from the Board, final orders of deportation pending on the
date of enactment.16 Mendez-Rosas v. INS, 87 F.3d 672, 675 (5th
16
The parties agree that AEDPA section 440(a) does not divest
this Court of jurisdiction as it applies exclusively to review of
“final order[s] of deportation.” AEDPA section 440(a), unlike
AEDPA section 440(d), amends section 106(a)(10) of the Act, a
section governing habeas review of deportation orders. We need
not, and do not, decide what effect, if any, section 440(a) has on
our ability to review final orders of exclusion pursuant to our
habeas jurisdiction because we have determined that Petitioner is
in any event not entitled to any relief. Regardless of how the
jurisdictional issue is resolved, the result would be the same:
the district court is affirmed. In such circumstances, we have
refrained from reaching the jurisdictional question. See Texas
Employers’ Ins. Ass’n v. Jackson, 862 F.2d 491, 496 n.8 (5th Cir.
1988) (en banc) (“While such pretermitting of a jurisdictional
issue is rare, there is respected precedent for it in analogous
circumstances.”) (citing Norton v. Matthews, 96 S.Ct. 2771, 2775
(1976); Secretary of Navy v. Avrech, 94 S.Ct. 3039, 3040 (1974);
United States v. Augenblick, 89 S.Ct. 528, 531 (1969)), cert.
denied, 109 S.Ct. 1932 (1989); see also In re DN Assocs., 3 F.3d
24
Cir. 1996), cert. denied, 117 S.Ct. 694 (1997); Williams v. INS,
114 F.3d 82, 83-84 (5th Cir. 1997); see also Fernandez v. INS, 113
F.3d 1151 (10th Cir. 1997); Boston-Bollers v. INS, 106 F.3d 352
(11th Cir. 1997); Kolster v. INS, 101 F.3d 785 (1st Cir. 1996);
Salazar-Havo v. INS, 95 F.3d 309 (3d Cir. 1996); Hincapie-Nieto v.
INS, 92 F.3d 27 (2d Cir. 1996); Qasguargis v. INS, 91 F.3d 788 (6th
Cir. 1996), cert. denied, 65 U.S.L.W. 3585 (U.S. Feb. 24, 1997)
(No. 96-806); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996), cert.
denied, 117 S.Ct. 694 (1997). But see Reyes-Hernandez v. INS, 89
F.3d 490 (7th Cir. 1996) (section 440(a) inapplicable to alien who,
prior to its enactment, conceded deportability despite having at
least colorable defense thereto, and sought section 212(c) waiver).
To date, no federal court of appeals has addressed whether section
440(d)’s elimination of section 212(c) relief for aliens convicted
of certain drug offenses applies to aliens who filed applications
for waiver prior to the enactment of the AEDPA. Recently, however,
the Attorney General issued a decision holding that it does.
Matter of Soriano, Int. Dec. 3289 (B.I.A., Att’y Gen. Feb. 21,
1997).17
512, 515 (1st Cir. 1993) (same); FDIC v. Scarsella Bros., Inc., 931
F.2d 599, 602 (9th Cir. 1991) (same).
17
In Soriano, the Attorney General considered whether AEDPA
section 440(d) applied to applications for relief under section
212(c) pending when the AEDPA was enacted. Concluding that
application would raise no retroactivity concerns, the Attorney
General stated:
“[T]he application of AEDPA § 440(d) to pending
applications for section 212(c) relief does not impair a
right, increase a liability, or impose new duties on
criminal aliens. The consequences of Respondent’s
25
The Supreme Court, in Lindh v. Murphy, 65 U.S.L.W. 4557 (U.S.
June 23, 1997) (No. 96-6298), held that the provision in AEDPA
section 107(c), which created chapter 154 of Title 28 (setting
forth special habeas corpus procedures for capital cases applicable
upon a state’s attainment of certain conditions) and called for its
application to “cases pending on or after the date of enactment of
this Act,” favored an expressio unius est exclusio alterius
construction of the AEDPA such that, by negative implication,
certain amendments to chapter 153 (which were silent in this
regard) would not apply to pending habeas cases. Id. Section
440(d), located in Title IV of the AEDPA (an entirely different
title denominated “Terrorist and Criminal Alien Removal and
Exclusion”), contains no language addressing application to cases
seeking section 212(c) relief pending on the date of the AEDPA’s
enactment or, for that matter, habeas petitions seeking review of
a Board decision not to reopen a final decision denying such relief
pending on the same date. In this regard, section 440(d) is
conduct remain the same before and after the passage of
AEDPA: criminal sanctions and deportation. AEDPA §
440(d) is best understood as Congress’s withdrawal of the
Attorney General’s authority to grant prospective relief.
Thus the statute alters both jurisdiction and the
availability of future relief, and should be applied to
pending applications for relief.” Id. at 4-5 (discussing
Landgraf, 114 S.Ct. 1483).
In response to concerns raised that aliens may have conceded
deportability in reliance on the availability of section 212(c)
discretionary relief, the Attorney General directed the Board to
reopen cases upon petition for the limited purpose of contesting
deportability. Id. at 8. This narrow class would not appear to
include Petitioner, as in his case denial of section 212(c) relief
became final long prior to the AEDPA.
26
similar to section 440(a), which we have held (prior to Lindh) to
apply to pending deportation cases. Mendez-Rosas, 87 F.3d at 675.
We have no occasion to pass on the merits of the Attorney
General’s Soriano opinion or on the effect thereon (or on
application of AEDPA sections 440(d) or 440(a)) of the Supreme
Court’s opinion in Lindh,18 as we have determined that Petitioner
is in any event entitled to no relief (see note 16, supra). For
the same reason, we do not pass on the correctness of the Board’s
recent opinion in Matter of Fuentes-Campos that AEDPA section
440(d)’s withdrawal of section 212(c) relief from those deportable
due to drug-related convictions does not apply to those who are
excludable for the same reasons.19
18
In Yesil v. Reno, 1997 WL 394945 No. 96-CIV-8409 (S.D.N.Y.
July 15, 1997), the court found Lindh’s analysis of Title I of the
AEDPA applicable to the immigration provisions of Title IV of the
AEDPA. Accordingly, the court held that AEDPA section 440(d) did
not apply to applications for section 212(c) relief pending on the
effective date of the AEDPA. A similar conclusion was reached in
Mojica v. Reno, Nos. 97-CV-1085-JBW, 1997 WL 357808 (E.D.N.Y. June
24, 1997).
19
On September 30, 1996, the IIRAIRA was signed by the
President. The IIRAIRA repeals section 106 of the Act and replaces
it with a new section, to be codified at 8 U.S.C. § 1252,
prohibiting judicial review of any final order of removal against
an alien who is removable by reason of having committed certain
drug-related offenses, whether pursuant to an exclusion or
deportation proceeding, Pub. L. No. 104-208, Div. C, Title III, §
306(a) & (b), 110 Stat. 3009 (1996). The new section 1252,
however, applies only to “motions to reopen filed on or after the
date of enactment.” Id. § 306(c). Petitioner and the District
Director agree that IIRAIRA section 306(b) does not apply to this
case. They are correct.
We note that IIRAIRA section 304(b) repeals section 212(c).
Pursuant to IIRAIRA section 309(a), that provision did not become
effective until 180 days after September 30, 1996. Further,
IIRAIRA section 309(c) provides for certain transitional rules.
Petitioner and the District Director both take the position that
the IIRAIRA has no effect on this appeal. As we hold that
27
Conclusion
We affirm the district court’s denial of Petitioner’s
application for a writ of habeas corpus.
AFFIRMED
Petitioner is otherwise in no event entitled to any relief, we do
not address whether any provision of the IIRAIRA is applicable to
preclude relief to Petitioner or render his claims essentially moot
(see note 16, supra).
28