United States Court of Appeals
For the First Circuit
No. 97-1953
RAUL PERCIRA GONCALVES
Petitioner, Appellant,
v.
JANET RENO, Attorney General of the United States;
DORRIS MEISSNER, Commissioner of the Immigration and
Naturalization Service;
STEVE FARQUHARSON, INS District Director, Boston District;
DEPARTMENT OF JUSTICE;
and
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Frederick Q. Watt, with whom Watt & Sylvia and Lee
Gelernt, Lucas Guttentag, Cecillia Wang, Michael Wishnie and
the American Civil Liberties Union Immigrants' Rights Projectwere on brief, for appellant.
Frank W. Hunger, Assistant Attorney General, Civil
Division, with whom William J. Howard, Senior Litigation
Counsel, and Edward J. Duffy, Attorney, Civil Division, Office
of Immigration Litigation, United States Department of Justice
were on brief, for appellees.
Gerald L. Neuman and Lenni B. Benson for amici curiae
Debra Anker, Lecturer in Law, Harvard Law School; Prof. Lenni
B. Benson, New York Law School; Carolyn Patty Blum, Lecturer in
Law, University of California at Berkeley School of Law; Prof.
Richard A. Boswell, Hastings College of the Law, University of
California; Prof. Erwin Chemerinsky, University of Southern
California; Prof. David D. Cole, Georgetown University Law
Center; Prof. Michael J. Churgin, University of Texas School of
Law; Prof. Mary L. Dudziak, University of Iowa College of Law;
Prof. Joan M. Fitzpatrick, University of Washington School of
Law; Prof. Maryellen Fullerton, Brooklyn Law School; Prof.
Kevin R. Johnson, University of California at Davis School of
Law; Prof. Daniel Kanstroom, Boston College Law School; Prof.
Harold Hongju Ko, Yale Law School; Prof. Stephen H. Legomsky,
Washington University School of Law; Prof. Hiroshi Motomura,
University of Colorado School of Law; Prof. Gerald L. Neuman,
Columbia University School of Law; Prof. Carol Sanger, Columbia
University School of Law; Prof. John Scanlan, Indiana
University School of Law at Bloomington; Prof. Peter H. Schuck,
Yale Law School; Prof. Peter J. Spiro, Hofstra University
School of Law; Prof. Margaret H. Taylor, Wake Forest University
School of Law; Prof. Larry W. Yackle, Boston University School
of Law.
Linton Joaquin and Manuel D. Vargas for amici curiae
National Immigration Law Center and American Immigration
Lawyers Association.
May 15, 1998
LYNCH, Circuit Judge. Raul Goncalves has been a
permanent resident alien for twenty-five years, ever since he
arrived in the United States at the age of three, and now is
subject to deportation because he has committed crimes of moral
turpitude such as theft, possession of marijuana and the like.
He filed an application in 1994 for discretionary relief from
deportation with the immigration authorities under 212(c) of
the Immigration and Nationality Act (INA), as the law permitted
him to do.
While Goncalves' application was still pending,
Congress enacted the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996), which, at 440(d), restricted the availability of
discretionary relief. The question then arose as to whether
Congress intended these restrictions to apply retroactively.
The Board of Immigration Appeals (BIA) said that Congress did
not intend the restrictions to be fully retroactive, and that
at least those aliens whose applications were pending on the
date of AEDPA's enactment, like Goncalves, could continue to
pursue their applications for relief. The Attorney General
disagreed, reversed the BIA, and required the dismissal of all
pending applications for 212(c) relief (even appeals from
cases where immigration judges had said relief should be
granted). As a result, Goncalves' application was dismissed
without being heard by the BIA and he was taken into custody by
federal officials.
Goncalves filed a petition for habeas corpus in the
district court, rather than filing for direct review in this
court. This he was required to do by the precedent of this
court. See Kolster v. INS, 101 F.3d 785 (1st Cir. 1996). The
district court dismissed the petition, finding the Attorney
General, and not the BIA, was correct in the interpretation of
the statute.
Goncalves appealed, raising pure issues of law,
including a challenge to the Attorney General's interpretation
of the statute and constitutional claims. The Attorney General
defends on two fronts. Goncalves filed in the wrong court, she
says. He should have filed in the court of appeals, he missed
the deadline to do so, and so the case must be dismissed. In
fact, she says, Congress sub silentio stripped the district
courts of their traditional habeas jurisdiction under 28 U.S.C.
2241 to hear claims of the type Goncalves asserts. Secondly,
she says, no court may review her decision as to whether
Congress intended the restrictions in AEDPA 440(d) to apply
to pending applications. Congress exempted her decision from
any judicial review when it enacted the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.
L. No. 104-208, Div. C., 110 Stat. 3009-546 (enacted Sept. 30,
1996). In any event, she argues, her decision is entitled to
deference. We find the Attorney General's arguments
unpersuasive and agree that Goncalves may still pursue his
claim for 212(c) relief. We reverse and remand this case to
the BIA.
A summary of our reasoning may be helpful. This case
presents two sets of major issues. The first is which federal
court, if any, has jurisdiction to hear Goncalves' claims. We
conclude that Congress has divested the United States Courts of
Appeals of their former statutory jurisdiction to hear such
cases on direct review of the administrative agency's decision.
We further conclude, following Felker v. Turpin, 116 S. Ct.
2333 (1996), that Congress neither explicitly nor by
implication repealed the grant of jurisdiction in 28 U.S.C.
2241 to issue writs of habeas corpus to persons in federal
custody which the federal district courts have had since 1789
and which has always been available in immigration cases.
If there is jurisdiction, we ask whether Congress
intended nevertheless to restrict the scope of review to
preclude review of Goncalves' claims. To the extent that
Congress intended to narrow the scope of review of
discretionary decisions by the administrative agency, we note
that this case does not involve any such exercise of
discretion, but rather concerns a pure issue of law. That pure
issue of law, of whether Congress intended to make a particular
provision of a statute retroactive, is of a type traditionally
resolved by the courts. We discern no intent by Congress to
restrict the scope of judicial review of that question. Our
conclusion avoids the need to reach novel and complex
constitutional issues under the Suspension Clause, Article III,
the Due Process Clause and the Equal Protection Clause.
The second major set of issues addresses the merits:
is the Attorney General correct in her interpretation that
AEDPA 440(d), as amended by IIRIRA, eliminates eligibility
for 212(c) relief retroactively for aliens convicted of
crimes involving moral turpitude? We analyze the question
under Landgraf v. USI Film Prods., 511 U.S. 244 (1994), and
Hughes Aircraft Co. v. United States ex rel. Schumer, 117 S.
Ct. 1871 (1997), cases concerning the temporal application of
new statutes. We conclude, contrary to the Attorney General,
that Congress did not intend its new provisions restricting
such discretionary relief to apply retroactively. The
statute's text reveals numerous instances where Congress used
explicit language to make its new restrictions apply
retroactively; for example, it used such language with respect
to alien terrorists. But there is no such explicit text as to
aliens in Goncalves' position.
We check our interpretation of the text against the
legislative history to ensure we have not gone astray. That
history shows three things. First, Congress expressly
considered a provision which would have explicitly made the new
restrictions on 212(c) relief applicable retroactively and
chose not to enact that provision. Second, Congress was keenly
aware of the problem of whether restrictions on relief should
apply retroactively. Third, Congress enacted IIRIRA against
the backdrop of an administrative ruling by the BIA that the
restrictions on 212(c) relief for aliens convicted of crimes
involving moral turpitude, contained in AEDPA 440(d), was not
fully retroactive and did not apply to pending applications.
In the face of that ruling, the same Congress that had enacted
AEDPA chose, in IIRIRA, not to amend AEDPA explicitly to
provide that the AEDPA 440(d) restrictions applied
retroactively. It made that choice even though, in IIRIRA
306, it amended AEDPA 440(d), the very subsection at issue,
in other respects. We therefore conclude that the BIA is
required to consider Goncalves' application for 212(c) relief
from deportation. Whether the immigration authorities grant or
deny that application, is, of course, within their discretion.
I. Facts and Procedural History Raul Percira Goncalves is a lawful permanent resident
of the United States. He committed a series of thefts, he says
while under the influence of alcohol, and was incarcerated. He
has been convicted of charges of breaking and entering,
larceny, possessing burglary tools, receiving stolen property,
and one charge of possession of marijuana. Those non-violent
offenses, Goncalves conceded, are crimes "involving moral
turpitude" and subjected him to deportation. See Immigration
and Nationality Act (old INA) 241(a)(2)(A)(ii), House
Judiciary Comm. Print, 104th Cong., 1st Sess. (10th ed. 1995)
(reflecting laws enacted as of May 1, 1995), now renumbered as
INA 237(a)(2)(A)(ii) and codified at 8 U.S.C.A.
1227(a)(2)(A)(ii) (West Supp. 1998) ("Any alien who at any
time after entry is convicted of two or more crimes involving
moral turpitude, not arising out of a single scheme of criminal
misconduct . . . is deportable."). On his release from prison
in May of 1994, he was taken into custody for deportation,
although he was released on bail while his petition was pending
before the INS. In the interim he attended meetings of
Alcoholics Anonymous. He has since earned his high school
equivalency diploma, married, had a child, and been gainfully
employed.
At the time the deportation proceedings against him
commenced, Goncalves was eligible to apply to the Attorney
General for a discretionary waiver of deportation. That is
because he was a lawful permanent resident, had seven years of
"lawfully unrelinquished domicile" and the crimes he committed
were not "aggravated" felonies. See old INA 212(c); see alsoFrancis v. INS, 532 F.2d 268 (2d Cir. 1976) ( 212(c) relief is
available in deportation as well as exclusion proceedings);
Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976) (adopting
Francis decision nationwide). He had no right to remain in
this country, but he was entitled by 212(c) to apply for a
waiver of deportation and ask the Attorney General, in the
exercise of her discretion, to allow him to remain here.
Goncalves applied for 212(c) relief in September
1994. Under the law in effect in 1994, an alien applying for
a waiver first presented his case to an Immigration Judge (IJ),
as Administrative Law Judges are known in the INS's Executive
Office for Immigration Review. The IJ was required to balance
the positive and adverse factors in determining whether a
waiver was warranted, and to justify his or her decision,
whether in favor or against granting a waiver, to allow review
by the BIA and the courts. See Matter of Marin, 16 I. & N.
Dec. 581, 585 (BIA 1978) (listing factors). The IJ agreed that
Goncalves was statutorily eligible to apply for 212(c) relief
but Goncalves failed to convince the IJ that he was worthy of
it. On Jan. 20, 1995 the IJ denied his application and
Goncalves took a timely appeal. And there the case sat for
more than two years, undoubtedly because of the very large
number of cases that were pending before the Board. See H.R.
Rep. No. 104-469, pt. 1, at 119 (1996) (noting that over 17,000
aliens filed appeals to the BIA in 1995).
The BIA never reached the merits of Goncalves'
application. On March 24, 1997, the BIA dismissed Goncalves'
appeal on the grounds that he was no longer statutorily
eligible for 212(c) relief, as a result of enactment of AEDPA
in the interim. The BIA was compelled to do so by the decision
of the Attorney General in Matter of Soriano, Int. Dec. 3289,
1996 WL 426888 (Op. Att'y Gen. Feb. 21, 1997) (beginning at
*16). The Attorney General's decision in Soriano concluded
that Congress intended to make the new restrictions on 212(c)
relief contained in AEDPA 440(d) retroactive and that the new
restrictions should be applied even to those applications filed
before the date of AEDPA's enactment. Soriano required the
dismissal of all such pending applications, even if the alien's
application had been granted by the IJ and the case was pending
on appeal. The Attorney General's Soriano decision reversed an
earlier opinion by the BIA, sitting en banc, that found no
congressional intent to apply the new restrictions to pending
applications, and so would have permitted Goncalves' appeal to
be heard on the merits.
Because his application had been dismissed, Goncalves
was taken back into federal custody on June 25, 1997 for
deportation. On August 8, 1997, Goncalves filed a petition for
habeas corpus relief in the United States District Court for
the District of Massachusetts. Goncalves' petition asserted
that Congress did not intend AEDPA 440(d) to apply
retroactively, or at the very least that Congress did not
intend to disrupt pending applications for relief. Goncalves
also challenged, as a violation of the Equal Protection Clause,
the government's decision to apply the statutes in a manner
which made the availability of discretionary relief dependent
on whether an alien was in deportation proceedings, as
Goncalves was, or in exclusion proceedings, as Goncalves would
have been if he had taken a brief trip abroad. The district
court dismissed Goncalves' petition for a writ of habeas corpus
on August 14, 1997. On August 26, 1997, this court granted
Goncalves' motion to stay deportation and for expedited
consideration of his appeal. Goncalves has been in federal
custody since June 25, 1997. He was thus in custody when his
petition was filed and has apparently remained in custody
throughout these habeas proceedings.
II. Statutory Background
In order to understand the issues presented by this
case, we outline some of the recent changes to our immigration
laws. In the interim two years between the IJ's denial of
Goncalves' application for a discretionary waiver of
deportation and the BIA's dismissal of his application,
Congress substantially altered the immigration landscape by
enacting two significant statutes, AEDPA and IIRIRA.
On April 24, 1996, Congress enacted AEDPA, which, at
440(d), greatly expanded the category of criminal convictions
that would render an alien ineligible to apply for 212(c)
relief. Although AEDPA 440 contained an express "effective
date" provision, that provision by its terms applied only to
440(e) (expanding INA definition of "aggravated felony"), and
not to 440(d), the subsection which concerns us.
Additionally, AEDPA 440(a) eliminated statutory
review pursuant to the APA in the U.S. Courts of Appeals for
some categories of deportation cases. In cases involving
denial of an application for discretionary waiver by an alien
deportable by reason of commission of aggravated felonies, this
court held in Kolster, supra, that Congress had eliminated the
statutory grant of jurisdiction in the courts of appeals over
such claims. Kolster also held that this posed no
constitutional problems because residual jurisdiction existed
in the district courts over habeas corpus petitions. That
holding was consistent with the position taken by the INS;
indeed, the INS conceded that there would be some form of
habeas jurisdiction in the district court. Kolster expressly
reserved issues concerning the source of this habeas
jurisdiction and the scope of habeas review. See id. at 790
n.4 & 791. It was in apparent reliance on the Kolster case and
this court's subsequent decision in Santos v. INS, 124 F.3d 64
(1st Cir. 1997) (rejecting INS claim that, after passage of
IIRIRA, petition for review in court of appeals, rather than
petition for a writ of habeas corpus, was the proper forum to
raise a jurisdictional or constitutional challenge to an order
of deportation), that Goncalves filed his petition for habeas
corpus in the district court.
Within a short time Congress changed some of the
rules established by AEDPA. On September 30, 1996, Congress
enacted IIRIRA. Under IIRIRA there are two new sets of rules:
the new permanent rules and the "transitional rules."
See IIRIRA 309(c), as amended by Act of Oct. 11, 1997, 2,
Pub. L. No. 104-302, 110 Stat. 3656, 3657. As made clear by
the technical amendments, the new permanent rules under IIRIRA
are effective for cases in which the INS instituted removal
proceedings on or after April 1, 1997. See id. In contrast,
the transitional rules are to be applied to deportation
proceedings which were commenced before April 1, 1997. Because
Goncalves' deportation was initiated before April 1, 1997, his
claims are governed by the transitional rules, as both the
Attorney General and Goncalves agree.
Goncalves' petition, governed by the transitional
rules, raises pure issues of law. The first is whether, under
the transitional rules, Congress intended for jurisdiction over
this case to be vested, if indeed in any court, in the court of
appeals, as the Attorney General argues, or in the district
court on petition for habeas corpus, as Goncalves argues. We
pause to note that the position taken by the Attorney General
now is the opposite of the position she took in Kolster. If
the Attorney General is correct, then, she argues, Goncalves
loses his case because he did not file a petition with this
court within the thirty day period of time allotted.
If Goncalves is correct, there is no time limitations
problem, but there is a different problem. We must look at
whether Goncalves may raise on habeas the type of statutory
claim he now makes: that as a pure issue of law, the Attorney
General is mistaken in her conclusion that Congress intended
its restrictions of 212(c) relief to apply retroactively. If
there was jurisdiction over such a claim, then we must review
de novo the district court's determination that the Attorney
General's decision is correct.
III. Jurisdiction A. Jurisdiction in the Court of Appeals
The Attorney General argues that Goncalves should
have presented any claims that he could have made in a petition
for review to this court within thirty days of the INS's final
decision, and that he is therefore precluded from making such
claims on habeas. The short answer is that this argument is
foreclosed by Kolster, and that any argument that IIRIRA
requires us to reconsider Kolster is foreclosed by Santos.
However, as this court did not fully explain its reasoning in
Santos, and the Attorney General continues to press this
argument, we explain why Goncalves could not have filed a
petition for review in this court.
We start with the language of the transitional rules
provisions of the statute, for the general rule is that
"'[c]ourts created by statute can have no jurisdiction but such
as the statute confers.'" Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 818 (1988) (quoting Sheldon v.
Sill, 49 U.S. (8 How.) 441, 449 (1850)). IIRIRA 309(c)(1),
as amended by Act of Oct. 11, 1997, 2, Pub. L. No. 104-302,
110 Stat. 3656, 3657, provides:
Subject to the succeeding provisions 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
(B) the proceedings (including
judicial review thereof) shall
continue to be conducted without
regard to such amendments.
This provision of IIRIRA seemingly supports the Attorney
General because it makes judicial review of final orders of
deportation for aliens under the transitional rules subject to
old INA 106 (as then in effect), which IIRIRA 306(b)
repeals. Old INA 106 made the judicial review provisions of
the APA, codified at 28 U.S.C. ch. 158 (1994), applicable (with
modifications) to immigration decisions. The APA judicial
review provisions vest the courts of appeals with jurisdiction
to review final agency action. See 28 U.S.C. 2344 (1994).
The IIRIRA provision establishing "transitional
rules," IIRIRA 309(c)(1), is, however, expressly subject to
IIRIRA 309(c)(4)(G), which provides:
(4) TRANSITIONAL CHANGES IN JUDICIAL
REVIEW. -- In the cases described in
paragraph (1) in which a final order of
exclusion or deportation is entered more
than 30 days after the date of enactment
of this Act, notwithstanding any provision
of section 106 of the Immigration and
Nationality Act (as in effect as of date
of enactment of this Act) to the
contrary --
* * *
(G) there shall be no appeal
permitted in the case of an alien who
is inadmissible or deportable by
reason of having committed a criminal
offense covered . . . by section 241
(a)(2)(A)(ii) of such Act (as in
effect on such date) for which both
predicate offenses are, without
regard to their date of commission,
otherwise covered by section
241(a)(2)(A)(i) of such Act (as so in
effect).
Goncalves falls within the language of subpart (G), as the
parties recognize.
A straightforward reading of subpart (G) leads to the
conclusion that IIRIRA does not permit initial jurisdiction in
the courts of appeals to hear "appeals" by aliens, like
Goncalves, who have been convicted of two crimes of moral
turpitude. The section says "there shall be no appeal," a
reference to an appeal to the courts of appeals. From this, it
is clear that there is no grant of jurisdiction to the courts
of appeals over this category of transitional cases, i.e.,
claims by aliens deportable by reason of having committed
specified criminal offenses.
Despite the literal language of IIRIRA
309(c)(4)(G), the Attorney General argues that subpart (G)
should be read differently, in light of the separate judicial
review provisions for aliens governed by the permanent rules
found at IIRIRA 306. The Attorney General relies on IIRIRA
306(a), which adds new INA 242(g), 8 U.S.C.A. 1252(g)
(West Supp. 1998):
"(g) EXCLUSIVE JURISDICTION. -- Except as
provided in this section [i.e., new INA
242] 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 Act."
Although IIRIRA 306 is generally concerned with the permanent
rules and has an effective date of April 1, 1997 and so does
not affect Goncalves, there is a special effective date for
that part of IIRIRA 306 comprising new INA 242(g). Thus,
new INA 242(g) applies to Goncalves' claims. The Attorney
General argues that this provision was meant to consolidate all
review in the courts of appeals, so that Goncalves can make his
claims, if at all, only in the courts of appeals.
But new INA 242(g) does not read as the Attorney
General suggests. The subsection does not refer to
consolidation of all cases in the courts of appeals or state
that the courts of appeals would have "exclusive jurisdiction."
The "exclusive jurisdiction" title refers to the grants of
jurisdiction provided in new INA 242 as does the "except as
provided in this section" language. The language is not meant
to consolidate all review in the courts of appeals; indeed, new
INA 242 has explicit provisions referring to jurisdiction in
courts other than the courts of appeals. There are provisions
governing habeas corpus proceedings, and, in a defined category
of cases, providing for exclusive jurisdiction in the District
Court of the District of Columbia.
Indeed, new INA 242 contradicts the Attorney
General's argument. Of particular significance is new INA
242(e)(2), which states that the habeas corpus review of orders
denying aliens entry to the United States is restricted to
certain narrow questions. This section assumes that such
jurisdiction exists, presumably pursuant to 28 U.S.C. 2241.
As the courts of appeals ordinarily may not issue original
writs of habeas corpus but instead will refer such petitions to
the appropriate district court, see Fed. R. App. P. 22(a), and
as the Supreme Court will only consider a petition for an
original writ of habeas corpus in very limited circumstances,
see Sup. Ct. R. 20(4)(a), the statute apparently assumes that
such review will initially be in the district courts. Thus,
the language of new INA 242(g) assumes the existence of some
habeas jurisdiction in the district court.
We do not, in conclusion, read the new INA 242 as
granting jurisdiction to the courts of appeals in transitional
rules cases over this category of claims. The more difficult
question, we believe, is whether these provisions were meant to
preclude any exercise of jurisdiction, even on habeas, over
claims, constitutional or otherwise, by aliens in the position
of Goncalves.
B. Habeas Jurisdiction in the District Courts
1. Positions of Parties
We wish to be clear about the Attorney General's
position. She argues not that all review is precluded but
rather that some limited scope of review is available to hear
certain sorts of claims, and that Goncalves' claims do not fall
within the permissible scope of review. The Attorney General
argues that there must be an Article III court available to
hear substantial claims of violation of constitutional rights
amounting to a fundamental miscarriage of justice. But
Goncalves himself presents no such claim, she asserts. In
addition, the Attorney General argues, there must be inherent
authority in the judiciary to review certain non-constitutional
claims, i.e., whether the person being deported meets the
statutory prerequisites: that the person is an alien, has been
convicted of the crimes, and the convictions are of the sort
which meet the statutory definitions. But Goncalves, she
notes, does not present these types of claims either. The
Attorney General essentially argues there is an inherent
jurisdiction to hear these constitutional and statutory
prerequisite categories of claims, although IIRIRA itself makes
no provisions for either type of review as to aliens like
Goncalves.
It is far from clear from what source the Attorney
General finds the authority for such review. One theory is
that the authority may be derived not from an explicit
statutory text but, at best, from the interstices of the
various immigration statutes. Another theory is that the
source of jurisdiction is the Constitution itself. Both
theories present obvious problems.
Goncalves asserts that the question he poses -- a
question of statutory construction -- is subject to judicial
review. In contrast to the Attorney General, Goncalves grounds
judicial review directly on statutory authority: the grant of
habeas corpus jurisdiction under 28 U.S.C. 2241. This grant
has been part of the juridical fabric of this nation since its
enactment in the first Judiciary Act. See Judiciary Act of
1789, 14, 1 Stat. 73, 81-82; see generally Richard H. Fallon,
Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler's The
Federal Courts and the Federal System ch. 11, 1 (4th ed.
1996); Erwin Chemerinsky, Federal Jurisdiction 15.1, at 780
(2d ed. 1994) (noting Blackstone's reference to the writ of
habeas corpus as "the most celebrated writ in English law").
It is only if we conclude that Congress intended in IIRIRA to
eliminate that grant of habeas jurisdiction that we must face
the question of whether some form of review on habeas is
mandated by the Suspension Clause, or, as Goncalves argues, by
the Due Process Clause of the Fifth Amendment or by Article III
itself, and, if so, the nature of that review.
2. Congressional Intent to Repeal 28 U.S.C. 2241
The Attorney General argues that Congress has
repealed 28 U.S.C. 2241, as applied to immigration cases such
as this one. Under Felker, supra, the question we must decide
is whether Congress has expressly repealed or modified the
federal courts' habeas authority, here under 2241. Felkermakes clear that if Congress intends to repeal or restrict
habeas jurisdiction under 2241, it must say so explicitly.
Thus, we will not find a repeal of 2241 merely by
implication, but only by express congressional command.
In Felker, the issue was whether Title I of AEDPA,
which through 106(b)(1) and (b)(2) amended 28 U.S.C.
2244(b), also was meant to eliminate the Supreme Court's
original habeas jurisdiction under 28 U.S.C. 2241 and 2254.
In concluding that AEDPA tit. I preserved the Supreme Court's
jurisdiction to issue original habeas petitions, the Felkercourt applied the model of decision the Supreme Court had used
more than a century earlier in Ex parte Yerger, 75 U.S. (8
Wall.) 85 (1869).
Ex parte Yerger refused to read an act of Congress as
impliedly impairing habeas corpus jurisdiction in light of its
constitutionally protected status. Previously, in Ex parte
McCardle, 74 U.S. (7 Wall.) 506 (1869), the Supreme Court had
upheld an act of Congress that expressly restricted appeals of
habeas cases under the Judiciary Act of 1867, 15 Stat. 385, for
prisoners in state custody. In Ex parte Yerger, the Court
avoided impairing the historical core of habeas jurisdiction,
and addressing the attendant Suspension Clause issues, by
interpreting the repeal at issue in Ex parte McCardle as
affecting only appeals under the 1867 Act, and not appeals
under the Judiciary Act of 1789, which provided the grant of
habeas jurisdiction for prisoners in federal custody. As
Goncalves is in federal custody and seeks review of an
administrative proceeding, not collateral review of a judicial
proceeding, his case is directly governed by Ex parte Yerger.
Felker regarded Ex parte Yerger as adopting a general
rule of construction that any repeal of the federal courts'
historic habeas jurisdiction, whether for prisoners in federal
or state custody, must be explicit and make express reference
specifically to the statute granting jurisdiction. Application
of the Ex parte Yerger rule to Goncalves' case is thus even
more appropriate than in Felker itself, as Goncalves is in
federal custody and has had no judicial review of his claims
whatsoever.
There is no question that, unless it has been
expressly repealed, 2241 provides a basis for reviewing
immigration decisions. Aliens in custody of federal
immigration officials have traditionally been able to obtain
review of immigration decisions by petitioning for a writ of
habeas corpus under what is now 2241. Soon after the federal
government began to regulate immigration, the Supreme Court
considered an argument that the habeas corpus statute did not
apply to an alien under a theory that the only restraint on his
liberty was that "he was not permitted to enter the United
States." United States v. Jung Ah Lung, 124 U.S. 621, 626
(1888). The Supreme Court rejected this argument as applied to
aliens in custody of federal officials. See id. Habeas corpus
review remained the principal avenue for judicial oversight of
immigration laws until the Supreme Court's decision to allow
more expansive review of immigration decisions under the APA,
later codified in old INA 106. See Shaughnessy v. Pedreiro,
349 U.S. 48 (1955).
Although the Attorney General suggests that the
application of the APA to immigration decisions repealed habeas
review under 2241, we find no authority that supports this
proposition. The decisions that she says stand for the
proposition that APA review in the courts of appeals precluded
any jurisdiction in the district courts concern jurisdiction
under the APA, not habeas jurisdiction under 2241. See,
e.g., Agosto v. INS, 436 U.S. 748, 752-53 (1978) (old INA 106
"eliminated district court review of deportation orders under
10 of the Administrative Procedure Act, and replaced it with
direct review in the courts of appeals . . . ." (emphasis
added)). Indeed, the Supreme Court expressly stated that the
vesting of jurisdiction to review orders under the APA
exclusively in the courts of appeals "of course . . . in no way
impairs the . . . availability of habeas corpus relief." Fotiv. INS, 375 U.S. 217, 231 (1963). The Attorney General's
argument that Congress' decision to make available another
avenue for judicial review repeals by implication the previous
jurisdiction exercised pursuant to 2241 is precisely what
Felker and Ex parte Yerger do not permit.
The Attorney General contends, in addition, that
AEDPA and IIRIRA have expressly repealed jurisdiction under
2241. We find no such express language. First, the language
in IIRIRA that restricts jurisdiction over this category of
aliens states:
[N]otwithstanding any provision of section
106 of the Immigration and Nationality Act
(as in effect as of the date of enactment
of this Act) to the contrary --
* * *
(G) there shall be no appeal
permitted in the case of an alien who
is . . . deportable by reason of
having committed [particular]
criminal offense[s] . . . .
IIRIRA 309(c)(4). In Felker, the language at issue in AEDPA
provided that "the grant or denial of an authorization by a
court of appeals to file a second or successive application
shall not be appealable and shall not be the subject of a
petition . . . for a writ of certiorari." For present purposes
we see no significant distinction between the language faced by
the Felker Court that an order "shall not be appealable" and
the language we face that "there shall be no appeal permitted."
Both provisions restrict one avenue of relief -- in Felker, by
restricting the Supreme Court's jurisdiction to hear appeals
and to entertain writs of certiorari, and in this case, by
restricting an "appeal" under the APA judicial review
provisions. Felker holds that such language is not explicit
enough impliedly to impair habeas corpus jurisdiction.
The Attorney General relies also on AEDPA 401(e),
explicitly repealing old INA 106(a)(10), which had referred
to habeas jurisdiction. Section 106(a)(10) had provided:
(10) any alien held in custody pursuant to
an order of deportation may obtain
judicial review thereof by habeas corpus
proceedings.
Thus, the Attorney General argues, AEDPA eliminates not only
the prior authorization for the exercise of habeas jurisdiction
(in addition to APA review) in old INA 106(a)(10), but also
the basic grant of habeas jurisdiction contained in 28 U.S.C.
2241.
However, Congress was explicit that it was striking
the reference to habeas in old INA 106(a)(10). It did not,
in contrast, expressly amend or alter 28 U.S.C. 2241. Old
INA 106(a)(10) was a specialized immigration provision which
had made clear that aliens with access to the ordinary judicial
review processes also could seek habeas review if they were in
custody. This provision ensured that such aliens would have a
supplemental collateral remedy, and did not apply to aliens
who could not obtain review under the APA judicial review
provisions. Aliens without other recourse had traditionally
been able to obtain review by habeas corpus, even in the face
of statutory language precluding all other review. SeeHeikkila v. Barber, 345 U.S. 229, 233-35 (1953). In enacting
AEDPA, Congress was concerned about abuses of duplicative
judicial remedies, and the elimination of old INA 106(a)(10)
served that congressional purpose. It does not follow from
the repeal of this provision of the INA that 2241 habeas
jurisdiction has been repealed altogether in immigration cases.
Had Congress wished to eliminate any possible habeas
jurisdiction under 28 U.S.C. 2241, it could easily have
inserted an explicit reference, but it did not.
This conclusion is reinforced by the fact that both
IIRIRA and AEDPA make specific reference when they amend or
repeal statutes granting jurisdiction to the federal courts.
See Felker, 116 S. Ct. at 2338-39. For example, AEDPA
440(a), the provision at issue in Kolster, made specific
reference to old INA 106, the judicial review provision,
providing that "Section 106 of the Immigration and Nationality
Act (8 U.S.C. 1105a(a)(10)) is amended . . . ." Likewise,
AEDPA 401(e), eliminating supplemental habeas jurisdiction
under the INA, refers specifically to "Section 106(a) of the
Immigration and Nationality Act," not 28 U.S.C. 2241.
Similarly, IIRIRA contains numerous provisions
restricting or altering various avenues for judicial review,
but in none of these provisions does IIRIRA mention 2241.
For example, IIRIRA 306, enacting new INA 242, refers
specifically to several different grants of jurisdiction. That
new section contains provisions referring specifically to the
judicial review provisions of the APA, codified at 28 U.S.C.
ch. 158, see new INA 242(a)(1), and to the Declaratory
Judgment Act, codified at 28 U.S.C. 2201, see new INA
242(b)(5)(B), (7)(B). The new INA 242 purports to restrict
the jurisdiction of the federal courts in such proceedings.
Indeed, far from repealing 2241 habeas jurisdiction, new INA
242 presumes the existence of on-going habeas jurisdiction.
This severely undermines the Attorney General's argument for
implied repeal of 2241 in immigration cases. IIRIRA was
enacted after Felker, and Congress was well aware of the need
for specific language if it wished to impair the Great Writ.
Nonetheless, the Attorney General argues that new INA
242(g), the exclusivity provision, can be read to imply a
repeal of 2241 even without a specific reference. She argues
that new INA 242(g) provides that "notwithstanding any other
provision of law, no court shall have jurisdiction" "except as
provided in this section," i.e. new INA 242, and so there is
no need specifically to repeal 2241. The new INA 242,
argues the Attorney General, is the only source of jurisdiction
in immigration cases. Thus, it would require a specific
reference to 2241 to preserve such jurisdiction, rather than
a specific reference to abolish it. But see Scripps-Howard
Radio, Inc. v. FCC, 316 U.S. 4, 11 (1942) (noting that, absent
a specific repeal of jurisdictional authority, "[t]he search
for significance in the silence of Congress is too often the
pursuit of a mirage").
This argument leads us to apply the long standing
rule disfavoring repeal of jurisdictional provisions by
implication, a rule which is particularly appropriate here.
See Felker, 116 S. Ct. at 2338-39. Although the breadth of the
"notwithstanding" clause is sweeping, a reading which provided
for no exceptions would have enormous consequences that are
contrary to clearly expressed congressional intent. If the
"notwithstanding" clause of subsection (g) is read to preclude
any jurisdiction except that specifically authorized in new INA
242, then that conflicts with IIRIRA 309. Judicial review
would be blocked not only for the narrow class of aliens in
Goncalves' position, but for every alien subject to IIRIRA's
"transitional rules." As new INA 242 is only applicable for
aliens subject to IIRIRA's "permanent rules," see IIRIRA 309,
and as new INA 242(g) is applicable immediately, see IIRIRA
306(c), aliens subject to the transitional rules -- i.e.,
every alien now in the administrative process whose case began
prior to April 1, 1997 -- could not obtain any judicial review
because they cannot take advantage of "this section," i.e., new
INA 242. Such a reading would clearly conflict with the
congressional intent expressed in IIRIRA 309 to preserve
review in the transitional period under old INA 106.
Finally, our refusal to find express repeal of 2241
in new INA 242(g) eliminates the need to address serious,
novel and complex constitutional issues. We would be loath to
find a repeal where that repeal creates serious constitutional
problems. We note these constitutional concerns briefly to
underscore the wisdom of avoiding them.
First, a finding that there is no statutory provision
for any judicial review of the type of claim raised by
Goncalves would raise substantial and complex constitutional
questions concerning the limits of Congress' power under
Article III to control the jurisdiction of the federal courts.
The Supreme Court has often interpreted statutes to avoid
serious constitutional questions presented where statutory
provisions appeared to foreclose review of constitutional
claims by an Article III court. See, e.g., Webster v. Doe, 486
U.S. 592 (1988) (interpreting a statute, to avoid
constitutional questions, to preserve review of a former CIA
employee's claim who challenged a decision to fire him because
of his homosexuality); United States v. Mendoza-Lopez, 481 U.S.
828, 838-39 (1987) (requiring judicial review of the legality
of a deportation order if that order is used "to conclusively
establish an element of a criminal offense").
Second, a decision that Congress has repealed 2241
would require us to decide whether the Suspension Clause of the
Constitution permits Congress to do this. Goncalves seeks
review under this grant of jurisdiction in a posture which the
Supreme Court has recognized is the historical core of the
Suspension Clause -- jurisdiction to review the legality of
detention by executive branch officers. See Felker, 116 S. Ct.
at 2339-40 (noting that the writ originally only extended to
prisoners in federal custody who were not "detained in prison
by virtue of the judgment of a court" (citation and internal
quotation marks omitted)); see also Swain v. Pressley, 430 U.S.
372, 386 (1977) (Burger, C.J., concurring) ("[T]he traditional
Great Writ was largely a remedy against executive detention.").
Our interpretation also avoids the question of
whether the Constitution's Suspension Clause alone, unaided by
statute, provides jurisdiction and the equally vexing issue of
what kinds of claims are permitted under such novel
jurisdiction. That, in turn, would raise the further question
of the constitutional minimum content of judicial review for
deportation decisions.
For all of these reasons, we find no express
congressional intent in the language of either AEDPA or IIRIRA
that prevents an alien who is precluded from seeking judicial
review under the APA by IIRIRA 309(c)(4)(G) from seeking a
writ of habeas corpus under 28 U.S.C. 2241 to assert claims
of the nature being asserted here. "This is the reasonable
construction of the acts of Congress here in question, and they
need not be otherwise interpreted. . . . The words here used
do not require an interpretation that would invest executive or
administrative officers with . . . absolute, arbitrary power."
Japanese Immigrant Case, 189 U.S. at 101. Nor do they require
a construction that would force this court to resolve the
fundamental constitutional questions a repeal of 2241 would
provoke.
3. Does the Scope of Review Include Goncalves' Claims?
Jurisdiction being proper under 28 U.S.C. 2241, we
address the further question of whether Congress intended to
restrict the scope of review on habeas to preclude review of
the questions Goncalves poses.
In determining the scope of habeas review, we again
start with the language of the statute, 2241:
(a) Writs of habeas corpus may be granted
by the Supreme Court, any justice thereof,
the district courts and any circuit judge
within their respective jurisdictions.
The order of a circuit judge shall be
entered in the records of the district
court of the district wherein the
restraint complained of is had. . . .
(c) The writ of habeas corpus shall not
extend to a prisoner unless--
(1) He is in custody under or by color
of the authority of the United States
. . . or . . .
(3) He is in custody in violation of the
Constitution or laws or treaties of the
United States.
Both subsections (c)(1) and (c)(3) are applicable here. The
language of 2241 itself does not contemplate a limitation of
jurisdiction only to constitutional claims; instead, it
contemplates challenges based on the "Constitution or laws or
treaties of the United States."
Indeed, numerous immigration cases under the 2241
jurisdiction have considered claims of statutory right,
sometimes described as an integral part of ensuring due process
of law. See, e.g., Brownell v. Tom We Shung, 352 U.S. 180, 182
n.1 (1956) ("due process," enforceable on habeas, includes
"conformity to statutory grounds"); Kwong Hai Chew v. Colding,
344 U.S. 33 (1953) (rejecting, on habeas, executive branch
interpretation of procedural regulation); Wong Yang Sung v.
McGrath, 339 U.S. 908 (1950) (rejecting, on habeas, executive
branch's interpretation of APA procedural requirements); Fong
Haw Tan v. Phelan, 333 U.S. 6 (1948) (rejecting, on habeas,
executive branch's interpretation of multiple criminal
conviction deportation provision); Delgadillo v. Carmichael,
332 U.S. 388 (1947) (rejecting, on habeas, executive branch's
interpretation of statutory term "entry"); Kessler v. Strecker,
307 U.S. 22 (1939) (rejecting, on habeas, executive branch's
interpretation of provision making aliens deportable on
ideological grounds); Mahler v. Eby, 264 U.S. 32 (1924)
(rejecting, on habeas, executive branch's interpretation of
findings necessary for deportation after conviction under
espionage act); Gegiow v. Uhl, 239 U.S. 3 (1915) (rejecting, on
habeas, executive branch's interpretation of "public charge"
ground of exclusion). As Justice Holmes observed in Gegiow,
the enforcement of statutory claims is essential to ensuring
that the intent of Congress is observed when it chooses to
define the grounds for which aliens may be excluded or
deported:
The statute, by enumerating the conditions
upon which the allowance to land may be
denied, prohibits the denial in other
cases. And when the record shows that a
commissioner of immigration is exceeding
his power, the alien may demand his
release upon habeas corpus.
Gegiow, 239 U.S. at 9 (emphasis in original).
The government relies on dictum in Yang v. INS, 109
F.3d 1185 (7th Cir. 1997), stating that "an error of law does
not support a writ of habeas corpus . . . ." Id. at 1196.
That decision, however, was describing what the Seventh Circuit
considered to be the minimum content of the constitutional
writ; recently, the Seventh Circuit has moderated its statement
in Yang that new INA 242(g) had repealed 28 U.S.C. 2241 in
all cases. See Turkhan v. INS, 123 F.3d 487, 489-90 (7th Cir.
1997).
In other respects, Yang and some similar statements
in district court opinions, see, e.g., Mbiya v. INS, 930 F.
Supp. 609, 612 (N.D. Ga. 1996) (requiring a "fundamental
miscarriage of justice" before a challenge can be made on
habeas corpus), have their origin in the very different
standard that is applied to review of federal and state court
convictions under 28 U.S.C. 2254, 2255. See United Statesv. Timmreck, 441 U.S. 780, 784 (1979) (requiring "complete
miscarriage of justice" to set free a convicted prisoner who
alleges violation of a nonjurisdictional federal statute or
rule).
In neither AEDPA nor IIRIRA did Congress purport to
apply state prisoner post-conviction relief rules to the
entirely different provisions about deportation of aliens. We
are disinclined automatically to import this standard into
cases at the core of the traditional writ of habeas corpus --
initial review of the legality of executive branch detention.
This is especially so in light of the long line of precedent
allowing aliens to make statutory claims on habeas. In cases
concerning collateral review of state and federal convictions,
a prisoner has already had substantial judicial review of his
claims, including a trial and direct review of his conviction,
often with multiple levels of review, and is seeking
post-conviction relief. In Goncalves' case, by contrast, no
court, state or federal, has heard his claims. In fact, it is
the Attorney General's position that no court will ever have
jurisdiction or authority to review her decision interpreting
AEDPA 440(d). The pure statutory claims Goncalves makes here
are well within precedent interpreting the core habeas
protection provided by 2241.
We address one final argument in favor of the
Attorney General. The Attorney General contends that, because
she has discretion to grant or deny this relief from
deportation in any event, her decision concerning Goncalves'
statutory eligibility for this form of relief is itself not
reviewable on habeas. We disagree. Analytically, the decision
whether an alien is eligible to be considered for a particular
discretionary form of relief is a statutory question separate
from the discretionary component of the administrative decision
whether to grant relief. See, e.g., Ipina v. INS, 868 F.2d
511, 513 (1st Cir. 1989) (contrasting legal question of whether
an alien is a "refugee," and thus eligible for asylum, with
discretionary decision whether to grant asylum).
Supreme Court precedent also requires us to reject
this argument. The Court has determined that the refusal of
the BIA to consider an alien's request for discretionary
relief, in violation of statute or regulations, is a valid
claim on habeas corpus. See United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954). In making certain aliens
eligible for discretionary relief, Congress intended the
Attorney General or her designated subordinates to make a
judgment. A refusal to make that judgment would frustrate
Congress' intent. "[I]f the word 'discretion' means anything
in a statutory or administrative grant of power, it means that
the recipient must exercise his authority according to his own
understanding and conscience." Id. at 266-67. Thus it is no
answer to Goncalves' argument to emphasize the broad discretion
of the political branches in immigration matters. It was the
intent of Congress that such discretion be exercised.
Our holding is narrow and nothing we say should be
taken to suggest that such review as is available on habeas is
necessarily as broad as the traditional administrative review
available under old INA 106. For example, we are not being
asked to "review[] and revers[e] the manner in which discretion
was exercised" by examining "the evidence in the record
supporting or undermining the alien's claim to discretionary
relief." Id. at 268. Whether such review is now available on
habeas presents a different question than Goncalves' claim.
The Supreme Court noted, in rejecting early attempts to apply
the APA to immigration decisions, the very different scope of
review required by "deciding on 'the whole record' whether
there is substantial evidence to support administrative
findings of fact," required by the APA, and the more basic
review available on habeas that provides for "enforcement of
due process requirements." Heikkila, 345 U.S. at 235-36. That
more basic review includes claims of statutory right, but not
the broad review of administrative decisionmaking available
under the APA. New INA 242(a)(2)(B) denies jurisdiction to
review discretionary decisions, at least for most cases under
the permanent rules. We leave to future cases the task of
defining the precise limit of the jurisdiction under 28 U.S.C.
2241 in immigration cases. We hold only that 2241 allows
us to consider the pure statutory question that Goncalves
raises in this case.
4. Decisions of Other Circuits
Our approach to the jurisdiction-limiting provisions
of both AEDPA and IIRIRA is in conformity with that of our
sister circuits. Each circuit court has now held that AEDPA
440(a), the initial limitation of jurisdiction which IIRIRA
309(c)(4)(G) carries forward, deprives the courts of appeals of
jurisdiction to entertain petitions for review of aliens
convicted of specified criminal offenses. In every circuit
which has addressed constitutional challenges to this
withdrawal of jurisdiction, the court found that preclusion of
all judicial review would present serious constitutional
questions, and in every case those questions were avoided by
noting the continuing availability of habeas review. Although
the cases diverge in their approaches, they all agree on these
two basic points -- that Congress can constitutionally withdraw
jurisdiction over such petitions for review under old INA
106, but that some jurisdiction remains on habeas. SeeTurkhan, 123 F.3d at 489-90; Mansour v. INS, 123 F.3d 423, 426
(6th Cir. 1997); Auguste v. Attorney General, 118 F.3d 723, 726
n.7 (11th Cir. 1997); Ramallo v. Reno, 114 F.3d 1210, 1214 &
n.1 (D.C. Cir. 1997); Williams v. INS, 114 F.3d 82, 83-84 (5th
Cir. 1997); Fernandez v. INS, 113 F.3d 1151, 1154-55 (10th Cir.
1997); Salazar-Haro v. INS, 95 F.3d 309, 311 (3d Cir. 1996);
Hincapie-Nieto v. INS, 92 F.3d 27, 30-31 (2d Cir. 1996);
Duldulao v. INS, 90 F.3d 396, 400 n.4 (9th Cir. 1996).
Indeed, many of the courts which have considered constitutional
challenges cited Felker in support of the view that some
jurisdiction remains on habeas, and some noted its holding
disfavoring repeal of 28 U.S.C. 2241 by implication.
Thus, although no circuit court has yet directly
faced the issue of whether a court has jurisdiction on habeas
to consider a claim like Goncalves', the great weight of
circuit authority is in favor of some form of habeas review for
aliens in Goncalves' position. We conclude that Goncalves
properly brought his claim in the district court under its
2241 habeas jurisdiction.
IV. Retroactivity of AEDPA 440(d)
We turn to the statutory merits question: whether
Congress intended for AEDPA 440(d)'s restrictions on 212(c)
relief to apply retroactively to persons in Goncalves'
position. The Attorney General's Soriano opinion concludes
that the restrictions are fully retroactive and are applicable
even to pending applications. We reject the Attorney General's
reading of Landgraf, supra, a reading that the Supreme Court
has also recently rejected. See Hughes Aircraft, 117 S. Ct. at
1876-78. We conclude that Congress did not intend AEDPA
440(d) to apply retroactively to Goncalves' application.
A. Deference
Initially, we must consider what deference is owed to
the Attorney General's Soriano decision holding that AEDPA
440(d) is retroactive and applies to pending applications for
212(c) relief. The Attorney General argues that the plain
text of AEDPA 440(d) does not answer the question of whether
it is retroactive or applies to pending cases and that her
interpretation regarding its effective date is, at least, a
reasonable one under Chevron USA, Inc. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). As the Attorney General
notes, under the familiar formulation, "[i]f the statute is
silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency's answer is based
on a permissible construction of the statute." Id. at 843.
We think it is a significant question whether the
determination of the application of the effective date of a
governing statute is the sort of policy matter which Congress
intended the agency to decide and thus whether the doctrinal
underpinnings of Chevron are present here. When Congress wants
an agency to determine whether to apply new rules, it usually
delegates that discretion expressly. See, e.g., IIRIRA
309(c)(2), (3) (giving the Attorney General discretion in some
cases to determine whether to apply transitional or permanent
rules). The question of whether AEDPA 440(d) applies
retroactively may be viewed as a "pure question of statutory
construction for the courts to decide," Cardoza-Fonseca, 480
U.S. at 446, a question that is "quite different from the
question of interpretation that arises in each case in which
the agency is required to apply [statutory] standards to a
particular set of facts" which involves the agency's particular
expertise. Id. at 448. Nonetheless, we will assume arguendo
that the Attorney General's opinion is subject to Chevronanalysis.
Chevron, though, requires a two-step analysis. The
Attorney General's argument for deference bypasses the first
step, which is to determine whether Congress has provided an
answer to the specific question presented. "If, by 'employing
traditional tools of statutory construction,' we determine that
Congress' intent is clear, 'that is the end of the matter.'"
Regions Hosp. v. Shalala, No. 96-1375, 1998 WL 71823, at *6
(U.S. Feb. 24, 1998) (quoting Chevron, 467 U.S. at 842-43).
Those traditional tools of statutory construction include the
familiar presumptions we employ, including Landgraf's
presumption against retroactivity.
A contrary approach would permit the executive branch
effectively to thwart the intent of Congress, made plain
through a careful reading of the statutory provision at issue
in context, so long as the executive branch's interpretation
was a plausible reading of isolated statutory terms. Instead,
as Chevron itself made clear, "[t]he judiciary is the final
authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear
congressional intent." Chevron, 467 U.S. at 843 n.9.
The Supreme Court has consistently rejected agency
arguments for deference which would impair the courts' ability
to examine congressional intent using our "'traditional tools
of statutory construction.'" Regions Hosp., 1998 WL 71823 at
*6 (quoting Chevron, 467 U.S. at 843 n.9). Instead, to
determine whether Congress intended AEDPA 440(d) to apply to
such pending applications, we examine that provision in the
normal manner. We look to that section not in isolation, but
in the context of Title IV of AEDPA (which contains its
immigration provisions) and in light of Title IV's overall
structure.
We are guided by Landgraf principles and seek a plain
statement from Congress that expressly provides for retroactive
application. "The plainness or ambiguity of statutory language
is determined by reference to the language itself, the specific
context in which that language is used, and the broader context
of the statute as a whole," not by looking at statutory terms
in isolation. Robinson v. Shell Oil Co., 117 S. Ct. 843, 846
(1997). In United States v. Rivera, 131 F.3d 222 (1st Cir.
1997) (en banc), this court noted "'the cardinal rule that a
statute is to be read as a whole . . ., since the meaning of
statutory language, plain or not, depends on context.'" Id. at
225 (quoting Conroy v. Aniskoff, 507 U.S. 511, 515 (1993)).
We next examine AEDPA's legislative history, not as
a substitute for examination of AEDPA's text, but only as a
check to see that our initial textual interpretation does not
conflict with "a clearly expressed legislative intention
contrary to the statutory language which would require the
court to question the strong presumption that Congress
expresses its intent through the language it chooses." Rivera,
131 F.3d at 226 (citation, internal quotation marks and
alterations omitted).
Throughout, our statutory analysis is guided by the
Supreme Court's retroactivity jurisprudence. In Landgraf,
supra, the Supreme Court noted that, while "a court is to apply
the law in effect at the time it renders its decision," id. at
264 (internal quotation marks and citations omitted), there is
a strong presumption "deeply rooted in our jurisprudence . . .
and centuries older than our Republic" against retroactivity.
Id. at 265. The Attorney General's application of the new
AEDPA restrictions takes away a form of relief that, while
discretionary, is plainly substantive, and so implicates
Landgraf's presumption against retroactivity. Such
discretionary relief has been available in our system in some
form since at least 1917; the origin of 212(c) relief is in
the Seventh Proviso to 3 of the Immigration Act of 1917. SeeFrancis, 532 F.2d at 270. In a substantial number of cases,
aliens under deportation orders were granted such relief,
usually on a showing that they had reformed their ways and
become productive members of society. Indeed, from fiscal
years 1989 through 1994, it appears that over half of all
applications for 212(c) relief were granted by the agency.
See Mojica v. Reno, 970 F. Supp. 130, 178 (E.D.N.Y. 1997).
AEDPA's restrictions on 212(c) relief, as applied to
Goncalves, thus clearly raise retroactivity concerns, requiring
a close examination of AEDPA's text to determine whether
Congress has expressly chosen to make its restrictions
retroactive.
B. Text
Title IV of AEDPA contains provisions restricting
relief from deportation for two categories of aliens -- aliens
involved in terrorism and aliens convicted of ordinary crimes.
Many of these provisions, with the notable exception of the
provision of concern to us, AEDPA 440(d), contain explicit
subsections stating that they apply retroactively. We review
these other provisions in determining whether Congress likewise
intended to apply AEDPA 440(d) retroactively. Two provisions
restricting relief from deportation for aliens involved in
terrorism, AEDPA 413 and 421, are particularly helpful in
this respect.
Under AEDPA 413, alien terrorists are made
ineligible for several different forms of relief from
deportation. That section contains an explicit "effective
date" subsection, which provides:
The amendments made by this section shall
take effect on the date of the enactment
of this Act and shall apply to
applications filed before, on, or after
such date if final action has not been
taken on them before such date.
Id. 413(g). This language explicitly provides that the
restrictions on relief from deportation imposed on alien
terrorists should apply to all cases pending at the time of
AEDPA's enactment, as long as "final action" had not yet been
taken.
If Congress thought that such restrictions would as
a matter of course be applied to pending cases, as the Attorney
General's argument requires, then this provision would have
accomplished nothing. In Bennett v. Spear, 117 S. Ct. 1154
(1997), the Court noted "the cardinal principle of statutory
construction that it is our duty to give effect, if possible,
to every clause and word of a statute." Id. at 1166
(citations, internal quotation marks and alterations omitted);
accord Walters v. Metropolitan Educ. Enters., 117 S.Ct. 660,
664 (1997). This is particularly true when there is a contrast
in language between two sections of the same statute. "Where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion." Cardoza-
Fonseca, 480 U.S. at 432 (citation, internal quotation marks
and alterations omitted).
The Attorney General responds by drawing a
distinction between provisions restricting discretionary
relief, such as 440(d) (applicable here), and provisions
restricting relief that she says involve no exercise of
discretion. The Attorney General argues that discretionary
relief, such as 212(c) relief, is best analogized to
prospective injunctive relief, restrictions of which, under
Landgraf's judicial default rules, are generally held to be
applicable immediately and not to present any retroactivity
concerns. See Landgraf, 511 U.S. at 273-74. Thus, the
Attorney General concludes, Congress would have expected
restrictions on such discretionary relief to apply to pending
cases even in the absence of an explicit "effective date"
provision, and would have felt no need to include an express
provision making those restrictions retroactive.
By contrast, the Attorney General continues, AEDPA
413 restricts several forms of relief for alien terrorists, not
all of which are discretionary. In the absence of an explicit
"effective date" provision, the Attorney General concludes,
Congress would expect the courts to apply Landgraf's normal
presumption against retroactivity. This, she says, explains
the difference between 413, denying relief for alien
terrorists, and 440(d), denying relief for aliens convicted
of ordinary crimes.
The Attorney General's argument both misinterprets
Landgraf and fails on its own terms. The argument
misinterprets Landgraf because it effectively would apply a
presumption in favor of retroactive application to any
restriction of relief that could be described as
"discretionary." The argument fails to recognize that "the
only 'presumption' mentioned in that opinion is a general
presumption against retroactivity." Hughes Aircraft, 117 S.
Ct. at 1878. Following the Attorney General's position would
have significant consequences. It would require Congress to
draft an explicit "effective date" provision to ensure against
retroactive application in any case in which a statute takes
away relief to which a party was not automatically entitled.
But Landgraf requires an express congressional command only to
overcome its presumption against retroactivity, not to ensure
application of a statutory term prospectively. See Lindh v.
Murphy, 117 S. Ct. 2059, 2062 (1997).
Indeed, in Landgraf itself a similar argument was
made and rejected by the Supreme Court. Landgraf refused to
apply amendments to Title VII that enlarged the damages that
could be awarded to victims of discrimination retroactively,
despite the fact that the employer would only face liability if
he engaged in conduct that was at the time illegal. "Even when
the conduct in question is morally reprehensible or illegal, a
degree of unfairness is inherent whenever the law imposes
additional burdens based on conduct that occurred in the past."
Landgraf, 511 U.S. at 282-83 n.35. Similarly, in Hughes
Aircraft, the Court again rejected an argument that a statute
is not retroactive if the conduct for which it imposes
additional consequences was already unlawful, and thus the
defendant had no "right" to engage in such conduct. The Hughes
Aircraft Court nevertheless determined that the unfairness of
imposing "additional burdens" on such conduct retroactively
invoked the Landgraf presumption. See id. at 1876-77. Thus,
that Goncalves' crimes made him deportable prior to the passage
of AEDPA and that the new restrictions merely eliminated a
possible form of relief from those consequences, do not suffice
to rebut the presumption against retroactivity.
Similarly, the Attorney General's reliance on a
description in Landgraf of the kinds of statutes that often
provoke retroactivity concerns is misplaced. In Landgraf, the
Court noted, with approval, Justice Story's "influential
definition" of impermissibly retroactive statutes:
Every statute, which takes away or impairs
vested rights acquired under existing
laws, or creates a new obligation, imposes
a new duty, or attaches a new disability,
in respect to transactions or
considerations already past, must be
deemed retrospective.
Landgraf, 511 U.S. at 269 (citations and internal quotation
marks omitted). In Hughes Aircraft, however, the Court
expressly held that this language "does not purport to define
the outer limit of retroactivity;" that such effects on what
may be considered "vested rights" "constitute[] a sufficient,
rather than a necessary, condition for invoking the presumption
against retroactivity." 177 S. Ct. at 1876. The Attorney
General's reliance on the fact that aliens have no "vested
right" to discretionary relief thus "simply misreads [the
Court's] opinion in Landgraf," id., converting it from an
opinion urging against retroactive application to an opinion
requiring special congressional attention to avoid retroactive
application. Although crimes "involving moral turpitude" did
expose Goncalves to deportation before AEDPA, he had a
statutory right to apply for 212(c) relief unless he had
committed an aggravated felony. To preclude Goncalves from
applying for such relief now plainly "attaches a new
disability" and imposes additional burdens on past conduct.
Hughes Aircraft, 117 S. Ct. at 1876 (quoting Landgraf, 511 U.S.
at 269).
Even if Supreme Court precedent permitted this type
of analysis, which it does not, the Attorney General's argument
fails on its own terms. She says that the reason alien
terrorists are subject to a specific retroactivity provision
applying the new restrictions to pending applications (and
criminal aliens are not) is that the forms of relief that AEDPA
precludes for alien terrorists were not discretionary. In
this, the Attorney General misreads the statute.
Alien terrorists had been eligible for certain forms
of discretionary relief, and Congress nevertheless provided
expressly for application of the new restrictions on these
forms of relief to pending applications. Of the five forms of
relief from deportation precluded by 413, only one,
"withholding of deportation," is a form of relief to which an
alien is entitled if eligible. The rest were committed to the
discretion of the Attorney General. Thus, except for the
relief precluded by AEDPA 413(a), all of the relief precluded
by 413 was discretionary relief. The fact that 413
contains an "effective date" subsection that applies to the
entire section suggests that Congress thought it was necessary
to be explicit in making the new restrictions applicable to
pending applications for relief, regardless of whether the
relief was discretionary or mandatory; otherwise, the
retroactivity provision would not be needed.
Finally, in another section, Congress explicitly made
a restriction on discretionary relief retroactive through an
express "effective date" provision. See AEDPA 421. As that
section concerns only asylum applications, under the Attorney
General's reading no "effective date" provision would be needed
because asylum is a discretionary form of relief. See Cardoza-
Fonseca, 480 U.S. at 429 & n.6. Thus, 421 confirms our
reading; Congress did not draft express retroactivity
provisions only for mandatory forms of relief.
Thus, Congress expected, unless it said to the
contrary, that new restrictions would not be applied
retroactively to pending applications. This is the most
natural reading of Congress' decision to include language in
413 and 421 making the new restrictions applicable to the
pending applications of alien terrorists, but omitting such
language in 440(d), the provision denying relief to aliens
convicted of specified criminal offenses. Furthermore,
Congress did not treat discretionary restrictions on relief
differently than restrictions on other forms of relief. The
Attorney General offers no other alternative explanation for
the different language that the statute uses in dealing with
these two categories of alien offenders.
Our interpretation is eminently rational when tested
in light of Congress' principal purposes in enacting AEDPA.
Those purposes are announced in the Act's title -- preventing
terrorism and providing for an "effective" death penalty. SeeAEDPA 1. Congress could well have decided that the
unfairness of upsetting settled expectations was outweighed by
the importance of fighting terrorism, while deciding against
making retroactive the new restrictions on 212(c) relief for
aliens who are not terrorists but are convicted of ordinary
crimes.
C. Legislative History
We examine AEDPA's legislative history to determine
whether we have erred in our interpretation of the text. SeeLandgraf, 511 U.S. at 262 (permitting resort to legislative
history to confirm textual analysis); Cardoza-Fonseca, 480 U.S.
at 432-33; Rivera, 131 F.3d at 226. We do so only to determine
if there is a clearly expressed legislative intention contrary
to our textual reading, not as a substitute for a textual
analysis. See Rivera, 131 F.3d at 226. The history of AEDPA,
far from demonstrating a clearly expressed contrary intent,
further demonstrates Congress' attention to "effective date"
provisions and thus supports our reading of AEDPA's text.
One of the most striking things about the legislative
history is that the original Senate version of the bill which
became AEDPA did contain express language making the provision
which became AEDPA 440(d) retroactive; but this language was
eliminated by the conference committee and was not included in
the final bill. The origins of 440(d) were in 1995, when
Senators Dole and Hatch and several co-sponsors introduced the
restriction on 212(c) relief that became AEDPA 440(d). The
restriction was introduced as part of an amendment in the
nature of a substitute for their own antiterrorism bill, S.
735, 104th Cong. (1995) (the "Senate bill"). See 141 Cong.
Rec. S7553 (daily ed. May 25, 1995) (text of amendment). That
amended Senate bill, at 303(e)(4), contained the provision
that later became AEDPA 440(d), limiting relief for aliens
convicted of ordinary crimes. Within that section, 303(f)
then provided:
The amendments made by this section [i.e.,
303 of the Senate bill] shall take
effect on the date of the enactment of
this Act and shall apply to cases pending
before, on, or after such date of
enactment.
141 Cong. Rec. S7559 (daily ed. May 25, 1995). Thus, the
amended Senate bill contained an "effective date" provision,
expressly applicable to what later became AEDPA 440(d), which
provided for retroactive application of its restrictions on
212(c) relief. The language is strikingly similar to what
later became AEDPA 413, the provision restricting relief for
alien terrorists. The full Senate passed this version of the
Senate bill on June 7, 1995. See 141 Cong. Rec. S7857, S7863
(daily ed. June 7, 1995).
Meanwhile, the House of Representatives was
considering a different version of the antiterrorism bill, H.R.
2703, 104th Cong. (1996) (the "House bill"). Like the Senate
bill, the House bill contained provisions restricting relief
from deportation both for terrorists and for aliens convicted
of ordinary crimes. However, in the case of ordinary crimes,
the House bill only eliminated 212(c) relief for aliens
convicted of more serious crimes and was prospective. SeeH.R. 2703, 104th Cong. 662 (1996), at 142 Cong. Rec. H2295
(daily ed. Mar. 14, 1996). By contrast, the House bill, like
the final legislation, contained explicit "effective date"
subsections in its provisions limiting relief for alien
terrorists which made those restrictions retroactive. See H.R.
2703 611(b), 612(f), at 142 Cong. Rec. H2293, H2294 (daily
ed. Mar. 14, 1996) (House bill provisions corresponding to
AEDPA 421(b) and 413(g), respectively). When the Senate
bill was called up on the House floor on March 14, 1996, the
House amended the Senate bill by replacing its text with the
text of the House version. See 142 Cong. Rec. H2268, H2304
(daily ed. Mar. 14, 1996). The House asked for a conference
with the Senate, insisting on its version of the legislation.
See id. at H2304.
One month later, a bipartisan conference committee
emerged with a compromise in the form of AEDPA 440. The
legislation contained both the House bill's expanded definition
of "aggravated felony" and the Senate bill's restrictions on
212(c) relief for aliens convicted of ordinary "crimes
involving moral turpitude," but notably did not contain the
Senate bill's original language making those restrictions
retroactive. See H.R. Rep. No. 104-518, at 119 (1996),
reprinted in 1996 U.S.C.C.A.N. 944, 952 (adopting 303(e)(4)
of the Senate bill without adopting 303(f), the subsection
that made those restrictions applicable to pending cases). The
legislation also contained the House version of the provisions
eliminating relief for alien terrorists, and the House language
making those provisions retroactive. A contrast in statutory
language is "particularly telling" when it represents a
decision by a conference committee to resolve a dispute in two
versions of a bill, and the committee's choice is then approved
by both Houses of Congress. See FEC v. NRA Political Victory
Fund, 513 U.S. 88, 95 (1994).
This chronology also illustrates a second important
point: Congress' awareness of the issue of whether restrictions
on relief should be applied retroactively. In the final
legislation, Congress decided to provide for such retroactive
application in 413 and 421, but not in 440(d), a position
consistent with the House approach of treating the two
categories of aliens differently with respect to AEDPA's
temporal reach. "'Few principles of statutory construction are
more compelling than the proposition that Congress does not
intend sub silentio to enact statutory language that it has
earlier discarded in favor of other language.'" Rivera, 131
F.3d at 227 (quoting Cardoza-Fonseca, 480 U.S. at 442-43); cf.Lonchar v. Thomas, 116 S. Ct. 1293, 1300 (1996) (courts should
not read habeas statute to impose a requirement that Congress
expressly "rejected, by removing [it] from the draft Rule").
Adopting the Attorney General's interpretation would require us
to do precisely that, upsetting a compromise provision that was
intended to reconcile the House's and Senate's very different
approaches to aliens convicted of crimes.
A third point emerges from the legislative history.
We note that Congress amended AEDPA 440(d) when it enacted
IIRIRA on September 30, 1996. See IIRIRA 306(d). Three
months earlier, on June 27, the BIA had determined that
Congress did not intend AEDPA 440(d) to apply to pending
cases. Significantly, the very same Congress that had enacted
AEDPA just five months earlier, on April 24, did not take the
opportunity to overrule that BIA decision by providing
expressly that the new restrictions were fully retroactive and
applied to pending cases. This was true even though Congress
specifically amended AEDPA 440(d) in other respects and was
presumptively aware of what was then the governing agency
interpretation. Cf. Lorillard v. Pons, 434 U.S. 575, 580
(1978) ("Congress is presumed to be aware of an administrative
or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change."
(citations omitted)). Such subsequent legislative
developments, although never determinative in themselves, can
be "significant" clues to congressional intent. See Cardoza-
Fonseca, 480 U.S. at 430; Sweet Home Chapter, 515 U.S. at 700-
01. This is particularly so when the amendment to AEDPA
440(d) was enacted by the same Congress and was enacted after
an agency had interpreted the statute in a way which would have
required a more explicit statutory statement if Congress
intended the statute to be interpreted differently. Cf.Cardoza-Fonseca, 480 U.S. at 430 (relying on the actions of
subsequent congresses as clues to legislative intent); Sweet
Home Chapter, 515 U.S. at 700-01 (same); Lomas Mortgage, Inc.v. Louis, 82 F.3d 1, 6-7 (1st Cir. 1996).
"We find these ordinary canons of statutory
construction compelling, even without regard to the
longstanding principle of construing any lingering ambiguities
in deportation statutes in favor of the alien." Cardoza-
Fonseca, 480 U.S. at 449. A careful reading of the text of
AEDPA, confirmed by an examination of its legislative history,
demonstrates that Congress did not intend AEDPA 440(d) to
apply retroactively to pending applications for 212(c) relief
by persons convicted of ordinary "crimes involving moral
turpitude."
V. Conclusion
Despite the length of this opinion, our holding is
narrow. The district court had jurisdiction over Goncalves'
petition for a writ of habeas corpus under 28 U.S.C. 2241
given the precise nature of the claims asserted. The scope of
that habeas jurisdiction is not limited to constitutional
claims, but encompasses at least the pure issues of law
concerning the applicability of statutory provisions to pending
cases which Goncalves has raised. We have rejected an argument
that there is no jurisdiction to consider these pure issues of
law merely because Goncalves is not entitled to relief from
deportation. Rather the question is whether he is entitled to
be considered for such relief, and we have determined that he
is. However, we need not reach the issue of what review (if
any) may be available on habeas in cases when an alien attempts
to obtain review of an individual 212(c) or "cancellation of
removal" determination by styling it as a pure issue of law,
except to note that Congress apparently intended the scope of
such review, if any, to be narrower than the "abuse of
discretion" review that was formerly available under old INA
106, at least for aliens subject to the permanent rules.
We have also determined, through a careful reading of
AEDPA's text, confirmed by its legislative history, that
Congress did not intend AEDPA 440(d) to apply retroactively
to persons in Goncalves' position. We do not reach Goncalves'
constitutional challenges.
The judgment of the district court is reversed, and
Goncalves' petition for a writ of habeas corpus is granted to
this extent: the case is remanded to the Board of Immigration
Appeals for a discretionary determination of the merits of
Goncalves' application for relief under old INA 212(c). It
is, of course, up to the Attorney General, through the BIA,
whether to exercise her discretion to allow Goncalves to avoid
deportation.