Leitao v. Reno

United States Court of Appeals
For the First Circuit

No. 00-2092

ERNEST M. LEITAO,

Petitioner, Appellant

v.

JANET RENO,* Attorney General,
DORIS MEISSNER, Commissioner of the
Immigration and Naturalization Service;
STEVEN FARQUAHARSON, District Director of the INS;
DEPARTMENT OF JUSTICE;
IMMIGRATION AND NATURALIZATION SERVICE, US

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U. S. District Judge]

Before

Torruella, Circuit Judge,

John R. Gibson,** Senior Circuit Judge,

and Howard, Circuit Judge.

*
John Ashcroft has succeeded Janet Reno as Attorney General of
the United States. Pursuant to Fed. R. Civ. P. 25(d)(1) and Fed.
R. App. P. 43(c)(2), John Ashcroft is substituted by operation of
law as a defendant in this case.
**
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 Robert D. Watt, Jr., on brief, for petitioner.
Lyle D. Jentzer, Attorney, U. S. Department of Justice, with
whom Stuart E. Schiffer, Acting Assistant Attorney General, and
Terri J. Scadron, Senior Litigation Counsel, were on brief, for
respondent.

November 26, 2002

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 JOHN R. GIBSON, Senior Circuit Judge. Ernest M. Leitao

appeals from the district court's dismissal of his habeas corpus

petition, in which he sought a hearing on his request for relief

from deportation. The law applicable to Leitao's case has been

clarified by the Supreme Court's recent decision in INS v. St. Cyr,

533 U.S. 289 (2001), which makes it clear that Leitao is entitled

to the hearing he seeks. We therefore reverse and remand.

Leitao was born in Portugal and is a citizen of that country,

but he lived in the United States as a lawful permanent resident

from April 17, 1971, when he was two years old, until October 16,

2000, when he was deported in the proceedings at issue in this

case. On May 9, 1989 Leitao pleaded nolo contendere to a charge of

possession of marijuana with intent to deliver it. He received a

one-year suspended sentence and two years' probation.

The legal effect of that plea and conviction is the question

at the heart of this case. At the time Leitao pleaded guilty, his

controlled substance conviction provided a basis for deporting him

under 8 U.S.C. § 1182(a)(2)(A)(i) (1994), but the Attorney General

had discretion to grant a waiver of deportation under section

212(c) of the Immigration and Nationality Act, codified at 8 U.S.C.

§ 1182(c) (1994).1 After Leitao pleaded guilty to the marijuana

1
Section 212(c) is on its face applicable to persons seeking
admission to this country, not to resident aliens, but the
provision was interpreted by the BIA to apply to permanent resident
aliens with a lawful unrelinquished domicile of seven consecutive
years. INS v. St. Cyr, 533 U.S. 289, 295 (2001). Leitao is such

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offense, Congress amended the INA as part of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214, commonly known as the AEDPA. Section 440 of the AEDPA,

effective April 24, 1996, took away the Attorney General's

discretion to admit persons convicted of controlled substance

violations.2 110 Stat. at 1276-77.

On July 9, 1996, shortly after the AEDPA was enacted, the INS

served Leitao with an order to show cause why he should not be

deported. Leitao conceded deportability, but requested leave to

file for discretionary relief under section 212(c) of the INA. The

Immigration Judge denied that request, as did the Board of

Immigration Appeals, on the theory that section 440(d)of the AEDPA

rendered Leitao ineligible for discretionary relief. The

Immigration Service took Leitao into custody on June 1, 1999.

Leitao then filed the instant habeas corpus petition, alleging

that section 440(d) of the AEDPA should not have been applied to his

case and that he should be granted a hearing on his request for

discretionary relief. The district court dismissed his habeas

a person.
2
Later, yet another new statute, the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, repealed section
212(c) altogether, and replaced it with a new form of discretionary
relief called "cancellation of removal," which restricts
eligibility for relief to a smaller group of candidates than did
section 212(c). Pub. L. No. 104-208, Div. C., 110 Stat. 3009-546,
3009-597, codified at 8 U.S.C. § 1229b (2000); see generally Mattis
v. Reno, 212 F.3d 31, 33 (1st Cir. 2000).

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petition, relying on the rule in Mattis v. Reno, 212 F.3d 31 (1st

Cir. 2000). In Mattis we held that aliens who were convicted of a

now-disqualifying crime while the old version of section 212(c) was

in effect and whose deportation proceedings did not begin until

after the passage of AEDPA would be eligible for section 212(c)

relief if and only if the alien actually relied on the availability

of section 212(c) relief in deciding to plead guilty or nolo

contendere. Id. at 33. Under this rule, Leitao was not eligible

for relief because he did not contend that he had relied on the

availability of section 212(c) relief in deciding not to contest the

charge.

After the district court dismissed the habeas petition, Leitao

was deported to Portugal.

Leitao appealed the district court's decision. While this

appeal was pending, the Supreme Court decided St. Cyr. In St. Cyr,

the Supreme Court held that the repeal of section 212(c) by the

Illegal Immigration Reform and Immigrant Responsibility Act,

commonly known as IIRIRA, should not be applied retroactively to the

cases of aliens who pleaded guilty to crimes before the repeal. Id.

at 326. The Court reached this result as a matter of statutory

construction, following from two conclusions: first, Congress did

not direct with the requisite clarity that the repeal was to apply

retroactively, id. at 316-17; and second, applying the repeal to

eliminate discretionary relief for people who pleaded guilty to

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crimes at a time when such relief was available would create an

"obvious and severe retroactive effect," id. at 325. The Court

held:

We find nothing in IIRIRA unmistakably indicating that
Congress considered the question whether to apply its
repeal of § 212(c) retroactively to such aliens. We
therefore hold that § 212(c) relief remains available for
aliens, like respondent, whose convictions were obtained
through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief
at the time of their plea under the law then in effect.

Id. at 325. St. Cyr thus superceded the Mattis rule with a more

liberal one that included Leitao in the class of persons eligible

for section 212(c) relief, as the government concedes.3

Nevertheless, the government contends that Leitao's case

differs from St. Cyr's in one crucial respect: Leitao has already

been deported. The government contends that the deportation dooms

Leitao's habeas petition for two reasons: first, the petition is

moot, and second, the Attorney General has announced that he will

not exercise his discretion to grant relief to a person who has

already been deported.

Leitao's case is not moot even though he is no longer in

custody. Leitao was in custody when he filed his habeas petition,

which is enough to satisfy the jurisdictional custody requirement

3
St. Cyr only considered the retroactivity question in
relation to the IIRIRA, not the AEDPA. However, the INS has stated
that "the reasoning of St. Cyr apples equally to section 440(d) of
AEDPA." 67 Fed. Reg. 52,627, 52,628 (proposed Aug. 13, 2002). We
have treated St. Cyr as applicable to section 440(d) of the AEDPA.
Attwood v. Ashcroft, 260 F.3d 1, 3 (1st Cir. 2001).

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of 28 U.S.C. § 2241 (2000). See Spencer v. Kemna, 523 U.S. 1, 7

(1998). A habeas petition will become moot once the prisoner is

released from custody unless the petitioner can show some sufficient

collateral consequence of the underlying proceeding. Id. Other

circuits have held that the ten-year bar on readmission of a removed

alien into the United States under 8 U.S.C. § 1182(a)(9)(A)(ii)

(2000) is a sufficient collateral consequence to preserve a live

controversy even after deportation of the prisoner. Chong v.

District Director, INS, 264 F.3d 378, 385-86 (3d Cir. 2001); Max-

George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000), vacated on other

grounds, 533 U.S. 945 (2001); accord Smith v. Ashcroft, 295 F.3d

425, 428 (4th Cir. 2002) (same result without specific mention of

§ 1182(a)(9)(A)(ii)). The government contended at oral argument

that Leitao's offense would qualify as an aggravated felony under

8 U.S.C. § 1101(a)(43)(2000). If so, Leitao would be permanently

barred from readmission to the United States under 8 U.S.C. §

1182(a)(9)(A), unless he were to receive consent by the Attorney

General to his readmission before he embarked for the United States,

pursuant to section 1182(a)(9)(A)(iii). Leitao would have no right

to such consent. A permanent bar on readmission, of course, is an

even more damaging consequence of his removal than a ten-year bar,

and other courts have considered it sufficient to avoid mootness

despite deportation. Tapia Garcia v. INS, 237 F.3d 1216, 1218 (10th

Cir 2001) (on review of removal order, permanent bar to readmission

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for aggravated felon is collateral consequence); Steele v. Blackman,

INS, 236 F.3d 130, 134 n.4 (3d Cir. 2001) (same on habeas review).

A grant of section 212(c) relief would erase the collateral

consequences. See Tapia Garcia, 237 F.3d at 1218; Steele, 236 F.3d

at 134 n.4. We too hold that the bar on readmission of a removed

alien is a legally cognizable collateral consequence that preserves

a live controversy even after deportation of the petitioner.

Our continuing jurisdiction being clear, we conclude that we

must remand to the district court to order the INS to afford Leitao

a hearing on his request for discretionary waiver under section

212(c). See Attwood v. Ashcroft, 260 F.3d 1, 3 (1st Cir. 2001).

The government has informed us that the INS has proposed a rule

which would deny section 212(c) relief to persons who have already

been deported. 67 Fed. Reg. 52,627, 52,632 (proposed Aug. 13,

2002). This rule has not been finally adopted, and so it would be

doubly premature for us to try to anticipate whether it will be

adopted as proposed, and if so, how the INS would apply it in

Leitao's case.

We reverse and remand with instructions that the district court

grant Leitao's petition to the extent that it seeks a hearing on his

application for section 212(c) relief.

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