United States Court of Appeals United States Court of Appeals For the First Circuit
No. 96-1194
ALFREDO A. KOLSTER,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
Lynch, Circuit Judge.
Lee Gelernt and Richard L. Iandoli, with whom Iandoli &
Associates, Lucas Guttentag, Letitia Volpp, and American Civil
Liberties Union were on brief for petitioner.
Linda S. Wendlandt, with whom Frank W. Hunger, Assistant Attorney
General, Civil Division, Michael P. Lindemann, Assistant Director,
Office of Immigration Litigation, and Lisa Arnold, Attorney, Office of
Immigration Litigation, were on brief for respondent.
December 4, 1996
LYNCH, Circuit Judge. This case requires us to LYNCH, Circuit Judge.
determine whether section 440(a) of the Antiterrorism and
Effective Death Penalty Act (AEDPA), enacted after this
petition was filed, applies here. Alfredo Kolster, an alien
under deportation order, argues that if it does apply, it is
unconstitutional. Section 440(a) of AEDPA, which was signed
into law on April 24, 1996, prohibits judicial review of
deportation orders issued against aliens who have committed
certain types of crimes. Kolster had previously pled guilty
to such a crime.
In a petition filed with this court on February 28,
1996, Kolster seeks review of a Board of Immigration Appeals
(BIA) decision that he is ineligible, under the BIA's
interpretation of the Immigration and Nationality Act (INA),
for discretionary relief from deportation. He argues that
the BIA erroneously interpreted the statute to require seven
years of lawful permanent residence by the alien to be
eligible for the relief from deportation afforded by section
212(c) of the INA.
The Immigration and Naturalization Service (INS)
has moved to dismiss this action, arguing that section 440(a)
of AEDPA operates immediately to divest this court of
jurisdiction to hear this petition for review. Kolster
responds that section 440(a) does not apply to cases pending
on the date of AEDPA's enactment, and that, if the statute
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applies, its preclusion of judicial review violates the Due
Process Clause and Article III of the Constitution.
We find that section 440(a) does apply to
petitions, like Kolster's, which were pending on the date of
AEDPA's enactment. Because at least the habeas corpus review
provided by the Constitution remains available to aliens
covered by section 440(a), we find that the prohibition of
judicial review in section 440(a) does not offend the
Constitution. Accordingly, we dismiss Kolster's petition for
review under the Immigration and Nationality Act for lack of
jurisdiction.
I.
Alfredo Kolster, a Venezuelan citizen, first
entered the United States in 1980 to attend high school in
New York. He remained in the United States through high
school and college, earning a B.S. from Boston University in
September, 1988. During this time, Kolster had a F-1, or
foreign student, visa.
On September 11, 1988, after a brief visit to
Venezuela, Kolster re-entered the United States as a member
of the immediate family of an employee of an international
organization. His mother worked for the Pan-American Health
Organization. On August 24, 1989, Kolster became a lawful
permanent resident of the United States. From 1989 to 1991,
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Kolster lived in the Boston area and worked at various sales
jobs.
In 1991, Kolster was indicted in federal court in
Massachusetts for conspiracy to possess cocaine with intent
to distribute. He later pled guilty and was sentenced to
twenty-four months' imprisonment. The sentencing judge
recommended that Kolster not be deported upon his release
from custody.
Nonetheless, while Kolster was incarcerated, the
INS ordered him to show cause why he should not be deported.
The INS charged that Kolster was deportable pursuant to
section 241(a)(2)(B)(i) of the INA, which applies to aliens
convicted of controlled substance offenses, and pursuant to
section 241(a)(2)(A)(iii), which applies to aliens convicted
of aggravated felonies. See 8 U.S.C. 1251 (a).
On April 5, 1994, Kolster had a hearing before an
Immigration Judge. At that hearing, Kolster, through
counsel, conceded deportability on the grounds charged by the
INS. However, he also requested a continuance in order to
apply for a waiver of deportation pursuant to section 212(c)
of the INA. Section 212(c) gives the Attorney General the
discretionary authority to waive the exclusion of otherwise
excludable aliens, see 8 U.S.C. 1182(c).1 A longstanding
1. Section 212(c) of the INA, 8 U.S.C. 1182(c), prior to amendment by AEDPA, read in relevant part:
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interpretation of that section extends the Attorney General's
discretion to otherwise deportable aliens. See, e.g., Joseph
v. INS, 909 F.2d 605, 606 n.1 (1st Cir. 1990).
The Immigration Judge found "based on [Kolster's]
admission, his concession of deportability through counsel,
and the documentary evidence of record that deportability has
been established by clear, convincing and unequivocal
evidence." As to Kolster's request for a continuance, the
Immigration Judge found that Kolster did not have statutory
eligibility for section 212(c) relief, and therefore
pretermitted his application for a waiver of deportation.
Accordingly, she ordered Kolster deported to Venezuela.
On January 30, 1996, the BIA affirmed the order of
deportation. The Board agreed with the decision to pretermit
Kolster's application for a section 212(c) waiver because
Kolster had "not been a lawful permanent resident of the
United States for seven years as is required."
Kolster filed a petition for review with this court
on February 28, 1996. At that time, 8 U.S.C. 1105a(a)
Aliens lawfully admitted for permanent residence . . . who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.
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provided for judicial review of final orders of deportation.2
Kolster argued that the BIA has erred in interpreting section
212(c)'s requirement of seven years of "lawful unrelinquished
domicile" to mean seven years of "lawful permanent
residence." Kolster points to a circuit split on this
statutory issue, noting that some courts of appeals have
rejected the BIA's construction of section 212(c). See, e.g,
Lok v. INS, 548 F.2d 37 (2d Cir. 1977).
On April 24, 1996, while this petition was pending,
President Clinton signed into law the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-
132, 110 Stat. 1214. Section 440(a) of AEDPA, which amends
Section 106(a)(10) of the INA, 8 U.S.C. 1105(a)(10),
provides:
Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes, including aggravated felonies and controlled substance offenses] shall not be subject to review by any court.
On June 10, 1996, the INS moved to dismiss this petition for
review, arguing that, in light of section 440(a), this court
2. 8 U.S.C. 1105a(a) provided that the procedures described therein "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States."
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lacked subject matter jurisdiction to hear this case.3
Kolster responds that AEDPA does not specify an effective
date for section 440(a), and that statutes are generally
presumed not to have retroactive effect. Additionally, he
contends that preclusion of judicial review violates the Due
Process Clause and Article III.
II.
A. Section 440(a)'s Applicability to Pending Petitions
The Supreme Court's decision in Landgraf v. USI
Film Products, 114 S. Ct. 1483 (1994), provides a framework
for determining whether a statute should be applied to cases
pending at the time of enactment. This is initially a
question of legislative intent, not a constitutional
question. First, the court must look at the statutory text
and determine whether it "manifests an intent" that the
statute should be applied to pending cases. Id. at 1492. If
the court determines that Congress did not "expressly
3. The INS originally also argued that this petition sought relief -- a waiver of deportation under section 212(c) -- which petitioner was no longer eligible to receive. Section 440(d) of AEDPA amends section 212(c) so that it no longer applies to aliens who are deportable by reason of having committed certain crimes, including controlled substance offenses and aggravated felonies. The Attorney General is currently considering whether to apply section 440(d) to section 212(c) applications filed before April 24, 1996. See
In re Soriano, Order of the Attorney General (Sept. 12,
1996), vacating Int. Dec. No. 3289 (BIA June 27, 1996,
amended July 18, 1996). Because we find that the court does not have jurisdiction to hear this petition, we do not reach the question of whether section 440(d) applies to pending applications.
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prescribe[] the statute's proper reach," the court presumes
that Congress acts consistently with a series of "judicial
default rules." Id. at 1505. In applying these rules, the
court must:
determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.
Id. For jurisdictional statutes, the presumption is in favor
of immediate application, because "[a]pplication of a new
jurisdictional rule usually 'takes away no substantive right
but simply changes the tribunal that is to hear the case'"
and because "jurisdictional statutes 'speak to the power of
the court rather than to the rights or obligations of the
parties.'" Id. at 1502 (quoting Hallowell v. Commons, 239
U.S. 506, 508 (1916) and Republic Nat'l Bank v. United
States, 113 S. Ct. 554, 565 (1992)(Thomas, J., concurring)).
The first inquiry is thus whether Congress has
expressed a clear intent as to whether section 440(a) applies
to cases pending on the date of enactment. There is no
explicit textual reference to an effective date for section
440(a). Effective dates are provided for some other sections
of the AEDPA, including section 440(e), which adds offenses
to the INA definition of "aggravated felony." See 8 U.S.C.
1101 note. However, those sections are "unrelated to
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jurisdiction, [and] are too far removed from judicial review
under 8 U.S.C. 1105a(a) to impute an effective date for
section 440(a)." Duldulao v. INS, 90 F.3d 396, 398 n.2 (9th
Cir. 1996). Accordingly, we find that Congress has not
expressly addressed the issue of section 440(a)'s
applicability to pending cases.
The next inquiry under the "judicial default rule"
approach to determining congressional intent is whether
440(a) has a retroactive effect upon petitioner's substantive
rights, duties, or obligations. Landgraf, 114 S. Ct. at
1505. If it does not, then we apply the rule that
jurisdictional statutes apply to pending cases. Id. If the
statute would have such retroactive effects, it will not be
applied, "absent clear congressional intent favoring such a
result." Id.
Kolster argues that Landgraf assumes that
jurisdictional statutes only effect a change in the tribunal
that will hear the case, and that the presumption in favor of
immediate application is therefore inapposite where the
statute's effect is to deprive a party of access to any
judicial review at all. It is true that Landgraf speaks of
jurisdictional statutes as usually "'simply chang[ing] the
tribunal that is to hear the case.'" Landgraf, 114 S. Ct. at
1502 (quoting Hallowell, 239 U.S. at 508).
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However, as the INS points out, Landgraf's explicit
reliance on Hallowell is instructive here. In Hallowell, the
Supreme Court approved the application to pending cases of a
statute that deprived the federal district courts of
jurisdiction over certain Indian probate disputes and vested
"final and conclusive" authority in the Secretary of the
Interior. 239 U.S. at 508. Section 440(a) similarly vests
final authority in an administrative tribunal, the BIA.
Landgraf's citation to Hallowell makes us doubtful, absent
more guidance from the Supreme Court, that a jurisdictional
change from an Article III court to an administrative
decisionmaker, in itself, affects the retroactivity analysis,
whatever its effect on the ultimate constitutional analysis.
See Hincapie-Nieto v. INS, 92 F.3d 27, 29 (2nd Cir. 1996).
Our inquiry must therefore focus on the facts
concerning whether Kolster's substantive rights or
obligations or duties have been changed by the deprivation of
judicial review. Kolster suggests that his guilty plea and
concession of deportability were made with the expectation
that he could apply for a section 212(c) waiver of
deportation.
The Seventh Circuit gave credence, on different
facts, to a similar argument in Reyes-Hernandez v. INS, 89
F.3d 490, 492 (7th Cir. 1996). There, the BIA had affirmed
the denial of petitioner's application for section 212(c)
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relief, and the petitioner sought judicial review. The
Seventh Circuit found that, when petitioner conceded
deportability, he knew that, if the immigration judge and the
BIA turned down his request for section 212(c) relief, he
"could have a go at" judicial review. Id. at 492. Had
petitioner known that judicial review would be foreclosed,
"he might have contested deportability." Id. The immediate
application of section 440(a) would thus "attach a new legal
consequence to the concession" of deportability. Id. at 492-
93. Accordingly, the Seventh Circuit held that section
440(a) did not apply to cases in which deportability was
conceded prior to AEDPA's enactment, "provided that the
applicant for discretionary relief would have had at least a
colorable defense to deportability." Id.
In contrast to the Seventh Circuit, it is unclear
to us that deportability, which is a largely mechanical
determination based on facts which may often be objectively
ascertained, would realistically be conceded because of the
availability of discretionary relief or of judicial review of
the denial of such relief. See Hincapie-Nieto, 92 F.3d at 30
("It is far more likely that deportability is conceded
because there is no conceivable defense available."). In any
case, here the Immigration Judge explicitly based her finding
of deportability on the documentary evidence of Kolster's
drug offense conviction, as well as on his concession.
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Tellingly, Kolster does not argue that he in fact had a
colorable defense to deportability.
As to his guilty plea, we have no reason to think
it was induced by reliance on discretionary relief under
section 212(c). By Kolster's own calculations, his "lawful
domicile" for section 212(c) purposes only dates back to
September 11, 1988. Thus, even under the interpretation of
section 212(c) that he urges, as of September 2, 1992, the
date of his guilty plea, Kolster had only accrued four years
of lawful domicile. He was, as a result, three years away
from being eligible for section 212(c) relief, rendering it
highly unlikely that his guilty plea was predicated on the
availability of such relief.
Moreover, this court and others have previously
found that aliens do not have a cognizable reliance interest
in the availability of discretionary section 212(c) relief.
See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.
1996); Campos v. INS, 16 F.3d 118 (6th Cir. 1994); Barreiro
v. INS, 989 F.2d 62 (1st Cir. 1993). At issue in those cases
was an amendment to section 212(c) which made aliens who had
served at least five years' imprisonment for an aggravated
felony ineligible for discretionary relief. See, e.g,
Barreiro, 989 F.2d at 62. In Barreiro, this court found that
the amendment's application to prisoners whose convictions
and prison terms predated its enactment did not violate the
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presumption against retroactivity. Id. at 64. "The
presumption against a retroactive interpretation is to give
fair warning so that a party may avoid consequences. This is
scarcely a situation calling for any such warning." Id.
Similar logic applies here. As the Third Circuit
said in Schiedemann, petitioner's "conduct clearly subjected
him to deportation as well as criminal sanctions, and . . .
[section] 212(c), as it then existed, offered relief from the
former only at the unfettered discretion of the Attorney
General . . . ." Schiedemann, 83 F.3d at 1523. The
availability of purely discretionary relief does not create
substantive rights in otherwise deportable criminal aliens,
nor does the availability of judicial review of denial of
that discretionary relief.
We find that Kolster's substantive rights,
liabilities, and duties are not retroactively impaired by the
preclusion of judicial review. We note that five of the six
other circuit courts to consider this question have found
that section 440(a) applies upon enactment. See Salazar-Haro
v. INS, 95 F.3d 309 (3d Cir. 1996); Hincapie-Nieto v. INS, 92
F.3d 27 (2d Cir. 1996); Qasguargis v. INS, 91 F.3d 788 (6th
Cir. 1996); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996);
Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996). We hold,
under the "judicial default rules" that are articulated in
Landgraf and which provide a guide to legislative intent,
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that section 440(a)'s deprivation of jurisdiction to this
court is effective upon enactment.
B. The Constitutional Challenge to Section 440(a)
Kolster contends that section 440(a)'s preclusion
of judicial review of final orders of deportation based on
commission of certain crimes violates both the Due Process
Clause and the principles of separation of powers embodied in
Article III. Kolster argues that deportation deprives him of
a constitutionally protected liberty interest, and that the
Due Process Clause thus guarantees him certain procedural
protections, including judicial review. Additionally,
Kolster argues that section 440(a), by giving "the Executive
Branch the power to act as legal arbiter of its own conduct,"
prevents the judiciary from fulfilling its Article III "role
as a 'check' on the actions of the two other branches."
The INS responds that section 440(a) is "clearly a
constitutional exercise of Congress' well-established power
to provide or withhold jurisdiction from statutorily-created
courts, as well as its plenary power over matters of
immigration and naturalization." Because we consider this to
be a serious question, this court requested additional
briefing on whether habeas corpus review remains available to
aliens who are covered by section 440(a)'s bar on judicial
review.
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The question of section 440(a)'s constitutionality
is not wholly resolved by reference to Congress' plenary
power over matters concerning immigration. While it is true
that "over no conceivable subject is the legislative power of
Congress more complete," Reno v. Flores, 507 U.S. 292, 305
(1996)(citation omitted), the Supreme Court has also said
that:
once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present alien is entitled to a fair hearing when threatened with deportation, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation.
Landon v. Plasencia, 459 U.S. 21, 32 (1982)(internal
citations omitted). Given this recognition that continuously
present aliens, like Kolster, do have some constitutional
status, our analysis of whether judicial review is
constitutionally required here cannot turn on the fact that
section 440(a) only affects the rights of such aliens. See
Salazar-Haro, 95 F.3d at 311.
The constitutional question at the heart of
Kolster's claim may be stated as follows: Where the
consequences of the decision are the deportation of a
continuously present alien, may Congress, by precluding
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judicial review of final deportation orders, place final
authority over a question of law -- here, the meaning of
section 212(c)'s phrase "lawful unrelinquished domicile" --
in the hands of an administrative body (i.e., the BIA), or
does the Constitution require an independent judicial
determination of questions of law, or at least of whether the
agency's determination was a reasonable construction of the
statute? See Fallon et al., Hart & Wechsler's The Federal
Courts and The Federal System 397-98 (4th ed. 1996);
Monaghan, Marbury and the Administrative State, 83 Colum. L.
Rev. 1, 28-34 (1983); cf. Chevron USA Inc. v. Natural
Resources Defense Council, 467 U.S. 837, 842-43 (1984). Were
no other avenues of judicial review available to aliens like
petitioner, we would be required to resolve that thorny
question here.
However, the INS has agreed that, although AEDPA
has repealed the previous statutory authorization for habeas
review of final deportation orders contained in section
106(a)(10) of the INA, any habeas review that is required by
the Constitution remains available.4 Kolster contends that
the repeal of the specific INA habeas provision does not
4. The INS's precise position is that such constitutionally compelled habeas review, or its equivalent, remains, and that we need not here determine "whether the jurisdictional basis for 'constitutional habeas' review of a deportation order would be 28 U.S.C. 2241, section 1651, or a 'free standing' Constitutional authorization." For present purposes, we describe the alternatives as "habeas review."
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impair the ability of the federal courts to grant writs of
habeas corpus under the general habeas provision, 28 U.S.C.
2241, and that such habeas review would encompass questions
of law like the one Kolster raises here. Cf. Felker v.
Turpin, 116 S. Ct. 2333, 2339 (1996) (declining to find
jurisdictional repeal by implication).
Because the INS acknowledges that some avenue for
judicial review remains available to address core
constitutional and jurisdictional concerns, we find that
section 440(a)'s repeal of our jurisdiction to review final
deportation orders does not raise a constitutional issue. As
the nature and scope of habeas review available to aliens
like Kolster is not properly before us at this time, we do
not reach those questions. See Hincapie-Nieto, 92 F.2d at
31.
Accordingly, the petition for review is dismissed
for lack of jurisdiction.
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