Wolde Wallace v. Reno

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2317



                       TASFA WOLDE WALLACE,



                            Appellee,



                                v.



                        JANET RENO, ET AL.



                           Appellants.


No. 99-1596



                      CARLOS ALBERTO LEMOS,



                      Petitioner, Appellant,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                      Respondent, Appellee.


APPEALS FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Nancy Gertner, U.S. District Judge]

           [Hon. Robert E. Keeton, U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

          Coffin and Campbell, Senior Circuit Judges.


Edward J. Duffy, Office of Immigration Litigation, Department

of Justice, with whom David W. Ogden, Acting Assistant Attorney

General, Civil Division, and Christopher C. Fuller, Senior

Litigation Counsel, were on brief for appellants Janet Reno, et al.     Christopher J. Meade and Frederic A. Marzilli for petitioner

Carlos Alberto Lemos.

     Randy Olen for appellee Tasfa Wolde Wallace.

     David M. McConnell, Assistant Director, Civil Division,

Department of Justice, with whom David W. Ogden, Acting Assistant

Attorney General, Laura A. Smith, Civil Division, Department of

Justice, and Frank J. Crowley, Special Assistant United States

Attorney, Immigration and Naturalization Service, were on brief for

respondent Immigration and Naturalization Service. 


October 26, 1999


BOUDIN, Circuit Judge.  This pair of cases is the next

installment in a series presenting legal questions of reviewability

and retroactivity under newly enacted immigration statutes.  The

issues are legal ones, which we review de novo, and arise out of

the following facts.

  In No. 99-1596, the appellant is Carlos Lemos, a native

of Portugal who entered the United States as an immigrant on

December 18, 1974.  In June 1995, Lemos was convicted in Rhode

Island state court of unlawfully delivering cocaine.  As a result,

the Immigration and Naturalization Service ("INS") began

deportation proceedings against Lemos on August 16, 1995.  Under

the Immigration and Nationality Act ("INA"), an alien is deportable

if convicted of an aggravated felony or any controlled substance

violation (other than possession of less than 30 grams of marijuana

for personal use). 

  Lemos conceded deportability on September 24, 1996, and

sought a waiver of deportation under section 212(c) of the INA as

it existed before April 24, 1996, as codified at 8 U.S.C.  1182(c)

(1994).  This provision, although explicitly directed at certain

excludable aliens not yet admitted, had been read to give the

Attorney General discretionary authority to waive deportation for

aliens already within the United States who were deportable for

having committed aggravated felonies or controlled substance

violations, see Francis v. INS, 532 F.2d 268 (2d. Cir. 1976); see

also Almon v. Reno, No. 98-2055, 1999 WL 721637, at *2-3 (1st Cir.

Sept. 21, 1999).  Congress thereafter precluded waiver for

aggravated felons who had served five years in jail.  See

Immigration Act of 1990 ("IMMACT"), Pub. L. No. 101-649,  511(a),

104 Stat. 4978, 5052.

  After Lemos's deportation proceeding had begun but before

it was completed, Congress enacted two new statutes amending the

INA:  these amendments, commonly reduced to the acronyms AEDPA and

IIRIRA, were enacted on April 24, 1996 and September 30, 1996,

respectively.  Pertinently, the amendments were designed to limit,

even beyond IMMACT, the Attorney General's authority to waive

deportation for certain felons; and, by complementary

jurisdictional changes, Congress sought to curtail judicial review,

especially for this same class of felons.

  Substantively, AEDPA enlarged the existing statutory ban

on discretionary waivers of deportation.  Under the newly revised

INA section 212(c), waivers could not be granted to an alien

convicted of a drug offense (minor marijuana convictions aside)

regardless of the amount of jail time served.  See AEDPA  440(d). 

As for IIRIRA, it contained further changes to the waiver rules but

we ignore those changes here because IIRIRA explicitly provided

that only its "transitional rules," and not the new waiver and

other permanent provisions, applied to proceedings, like Lemos's,

commenced before April 1, 1997.  See IIRIRA  309(c).

  The other set of changes that concern us involve judicial

review.  Under the old INA, deportation orders were reviewable

directly in the courts of appeals, see 8 U.S.C.  1105a(a) (1994),

but the statute provided that a deportee in custody could also

resort to habeas corpus, see 8 U.S.C.  1105a(a)(10) (1994).  AEDPA

repealed this explicit habeas provision, see AEDPA  401(e), and

replaced it with a specific prohibition on "review by any court" of

"any final order" deporting an alien "by reason of" the commission

of specified criminal offenses, including that of which Lemos was

convicted.  AEDPA  440(a).

  On April 29, 1997, the immigration judge found that

AEDPA's expansion of the category of persons not eligible for

waivers barred Lemos from such relief and ordered him deported.  On

this ground, the Board of Immigration Appeals ("BIA") dismissed his

appeal.  In the meantime, this court had held that the AEDPA ban on

"review by any court" of final orders of deportation against those

in Lemos's "by reason of" category became effective immediately

upon enactment of AEDPA and applied to pending deportation

proceedings, thus preventing a direct appeal to the court of

appeals in such cases.  Kolster v. INS, 101 F.3d 785, 790 (1st Cir.

1996).

  On February 12, 1999, Lemos petitioned for habeas corpus

in the district court pursuant to 28 U.S.C.  2241.  He asserted

that AEDPA's new limitation on waivers was erroneously being

applied retroactively as to him.  The district court (Judge

Keeton) dismissed the habeas petition for lack of jurisdiction,

finding that a contrary position taken by this court affirming

habeas jurisdiction in Goncalves v. Reno, 144 F.3d 110, 123 (1st

Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999), had been

undermined by Reno v. American-Arab Anti-Discrimination Comm., 119

S. Ct. 936 (1999).  Lemos now appeals to us.

  In No. 98-2317, the appellee is Tasfa Wallace, a native

of Jamaica, who entered this country as an immigrant on May 10,

1988.  In February 1996, Wallace was convicted in Rhode Island

state court after pleading guilty to possessing marijuana with

intent to deliver.  Based on that conviction, the INS served

Wallace on March 20, 1996, with an order to show cause charging him

with deportability.  The show cause order was filed with the Office

of the Immigration Judge on June 14, 1996.  

  On December 18, 1996, Wallace conceded deportability and

indicated his intention to apply for a discretionary waiver of

deportation under section 212(c) of the old INA.  The hearing was

continued until August 1997.  As with Lemos, the immigration judge

in a resumed hearing on August 18, 1997 found Wallace ineligible

for waiver because section 440(d) of AEDPA had enlarged the

category of persons for whom waivers were prohibited to include

drug offense felons like Wallace.  The BIA dismissed Wallace's

appeal on May 5, 1998, on the same basis.

  Wallace then filed a habeas petition in the district

court, claiming that it was impermissibly retroactive to apply

AEDPA's new limitation on waivers to him.  On October 7, 1998, the

district court (Judge Gertner) granted the petition, agreeing with

Wallace that the limitation could not be applied to him because

AEDPA had not yet been enacted when he pleaded guilty in his

underlying criminal case.  Wallace v. Reno, 24 F. Supp.2d 104 (D.

Mass. 1998).  Acting prior to American-Arab, the district court

premised its habeas authority on our Goncalves decision.  The

government now appeals from this decision.

  At the threshold of both appeals is the question whether

habeas is available to those who, like Lemos and Wallace, are

subject to IIRIRA's transitional rules (because proceedings to

deport them began prior to April 1, 1997).  The transitional rules

treat such persons as subject to the INA as modified by AEDPA, but-

-with a couple of qualifications--not as further modified by

IIRIRA.  Under this transitional rules regime, the provisions

already cited preclude "review" and "appeal" of a final deportation

order by persons deportable "by reason of" drug felonies.  The

government argues that American-Arab has undermined Goncalves's

ruling that district courts still have authority to consider habeas

petitions in transitional rule cases.

  In Goncalves, this court held that AEDPA's repeal of the

INA provision recognizing habeas as a remedy for aliens in custody

was not an affirmative ban on habeas jurisdiction.  Goncalves, 144

F.3d at 121.  The court declined to treat the AEDPA repeal as

qualifying the general authority of courts to grant habeas

petitions for persons held in violation of the Constitution or laws

of the United States.  28 U.S.C.  2241 (1994).  Goncalves said

that repeals of habeas by implication are not favored and that

without habeas, AEDPA and IIRIRA's statutory bans on review or

appeal would otherwise preclude any court from considering

statutory challenges brought by a person deportable "by reason of"

a covered offense.  Goncalves, 144 F.3d at 122.

  When a panel of this circuit has decided an issue,

another panel will ordinarily not revisit that issue; but, of

course, this limitation does not apply where an intervening

decision of the Supreme Court overturns or undermines our earlier

decision.  Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st

Cir.), cert. denied, 516 U.S. 807 (1995).  Thus, the government is

free to attack Goncalves based on American-Arab even though the

Supreme Court denied certiorari in Goncalves in March 1999, only a

few days after it decided American-Arab.  But American-Arab was

concerned with a different issue, and the government's effort to

use American-Arab by analogy is farfetched.

  In American-Arab, a group of aliens brought an action

against the Attorney General seeking to enjoin deportation

proceedings against them; they claimed that they were being

targeted for deportation because of their political views. 

American-Arab, 119 S. Ct. at 936.  IIRIRA was passed while their

case was on appeal, and the Attorney General argued that the

injunction sought was prohibited by an IIRIRA provision, effective

at once, see IIRIRA  306(c)(1), that limited judicial intervention

for aliens regardless of when their deportation proceedings began. 

That provision, new INA  242(g) (added by IIRIRA  306(a) and

codified at 8 U.S.C.  1252(g) (Supp. II 1996)) provides:

    Except as provided in this section [providing

  for court of appeals review of final orders]

  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 chapter.



  Although this provision might appear to channel judicial

intervention in all deportation matters to the court of appeals,

the Supreme Court concluded that section 242(g) governed only three

specific decisions by the Attorney General, namely, to commence

proceedings, adjudicate cases, and execute removal orders,

American-Arab, 119 S. Ct. at 943.  The Court found that the

injunctive action brought by the aliens in American-Arab was a

direct challenge to the Attorney General's decision to "commence

proceedings" and was thus barred by section 242(g).  Id. at 945. 

The limited scope of section 242(g), and its aim to protect against

premature review of "discretionary determinations," were

specifically stressed.  Id. at 943-44.

  American-Arab thus strengthens Goncalves in one pertinent

respect:  by narrowly construing section 242(g), it makes that

provision even less useful to the government as a basis for

restricting the use of habeas to challenge statutory

interpretations adopted in final deportation orders for which

direct review is not available.  Other circuits have agreed that

such final orders, including determinations that waivers are barred

by statute, are not decisions "to commence proceedings, adjudicate

cases, or execute removal orders."  See Jurado-Gutierrez v. Greene,

Nos. 97-1437, 98-1017, 98-1050, 98-1310, 1999 WL 637038, at *6

(10th Cir. Aug. 19, 1999); Mayers v. INS, 175 F.3d 1289, 1297 (11th

Cir. 1999).

  In a substantive attack on Goncalves allegedly supported

by American-Arab, the government says that section 2241 is not a

general grant of authority to exercise habeas corpus jurisdiction

wherever a person is held "in violation of the Constitution or laws

or treaties of the United States," 28 U.S.C.  2241(c); rather, the

government argues that this quoted language is simply a limitation

on habeas and that there is no affirmative authority to grant

habeas in immigration cases, both because Congress specifically

repealed the grant (which existed in the old INA) and because

Congress intended to curtail habeas in favor of very limited direct

review (as confirmed by new INA section 242).

  The reference in section 2241(c) to "the Constitution or

laws or treaties" is literally a limitation on habeas corpus ("the

writ of habeas corpus shall not extend to a prisoner unless . .

.").  But a prior subsection provides that writs of habeas corpus

may be granted by "the district courts . . . within their

respective jurisdictions," 28 U.S.C.  2241(a), and section 2241 as

a whole has long been taken as a general grant of authority to

issue habeas writs for persons held in violation of the

Constitution or laws, unless such jurisdiction has been limited or

withdrawn by Congress.  See, e.g., Braden v. 30th Judicial Circuit

Court, 410 U.S. 484 (1973); Norris v. Georgia, 522 F.2d 1006, 1010-

11 (4th Cir. 1975).  This is implicit in Goncalves, among other

cases, and nothing in American-Arab is to the contrary.

  Thus, the government's better argument is that section

2241 is a general grant of jurisdiction to issue habeas petitions

but that the new immigration statutes, read together, should be

treated as an implied prohibition on habeas as to deportations in

general because Congress meant to preclude any judicial

intervention where a person is deportable "by reason of" specified

offenses and, with respect to other deportees, meant to channel

judicial review into narrowly circumscribed proceedings in the

courts of appeals subject to specific time limits triggered by

entry of the final order.

  This is by no means a silly argument, although it is

neither compelled by American-Arab nor consistent with Goncalves. 

In LaGuerre v. Reno, 164 F.3d 1035, 1039-40 (7th Cir. 1998),

petition for cert. filed, 68 U.S.L.W. 3154 (U.S. Sept. 7, 1998)

(No. 99-418), Chief Judge Posner has more or less agreed with the

channeling argument.  But reluctant, like most judges, to find that

Congress has deprived a "by reason of" deportee of any opportunity

to raise a constitutional issue in court, his opinion proposes to

permit direct review for such challenges where necessary to avoid

a miscarriage of justice.  Id. at 1040.  This in turn reflects a

narrow concession by the government apparently designed to ward off

a constitutional attack on restricted review.

  Concentrating all judicial scrutiny of deportation in the

courts of appeals is certainly the general direction in which

Congress has been moving.  But LaGuerre's solution is at odds with

the explicit statutory bar on any direct review contained in AEDPA

 440(a), see also IIRIRA  309(c)(4)(G), and it leaves no forum at

all for review of statutory claims advanced by anyone deportable

"by reason of" a covered conviction.  LaGuerre is also an approach

at odds with that of at least seven other circuits which--before

and after American-Arab--have held that habeas remains available in

transitional rules cases despite the AEDPA amendments or those of

IIRIRA that apply in transition cases.

  We thus conclude that nothing in American-Arab directly

precludes deportees governed by the IIRIRA transitional rules from

challenging their final deportation orders through habeas where

they have no other way to assert in court that their deportation is

contrary to the Constitution or laws of the United States.  This

may not be an efficient mechanism, and it is likely the result of

too many congressional amendments not clearly coordinated with one

another.  However, until Congress revamps the judicial review

provisions once again, or the Supreme Court provides further

guidance, Goncalves stands, and habeas jurisdiction is available to

both Lemos and Wallace.

  There is one loose end.  The government says that even as

narrowed in American-Arab, section 242(g) does apply to Wallace,

although not to Lemos, because Wallace sought not only his release

but also a stay of deportation.  This latter request, says the

government, is a direct interference with the Attorney General's

authority to execute removal orders.  Of course, the stay issue is

arguably moot, since the district court has granted the writ.  But

the government says that a cryptic passage in American-Arab, 119 S.

Ct. at 945, makes the whole "case" subject to section 242(g)

because it included a request for a stay.

  We need not pursue these issues because, where the

district court has authority to grant habeas writs, we are

unwilling to read section 242(g) as depriving the court of

authority to issue traditional ancillary relief needed to protect

its authority to issue the writ.  Cf. Pierre v. United States, 525

F.2d 933, 936 (5th Cir. 1976); Saini v. INS, No. CIV 99-0295-PHX-

ROS, 1999 WL 689907, at *6 (D. Ariz. Aug. 24, 1999).  To maintain

habeas in the face of section 242(g), but deny the ancillary relief

needed to make it meaningful, would be to strain at the gnat after

swallowing the camel.  The Supreme Court's surprisingly narrow

reading of section 242(g), compare Goncalves, 144 F.3d at 122,

certainly does not encourage us to enlarge the reach of that

section.

  The much harder question in this case is whether the ban

on waivers, as that ban was enlarged by AEDPA  440(d), should be

applied to those who, like Wallace and Lemos, were already in

deportation proceedings prior to the enactment of AEDPA but had not

yet sought a section 212(c) waiver.  We did not face or decide this

issue in Goncalves, which itself involved a pending waiver

application, but at least three other circuits have found that the

new enlarged ban should not be applied in deportation proceedings

underway at the time that AEDPA became law.  (The Seventh Circuit

has reached the opposite conclusion.  See LaGuerre, 164 F.3d at

1040-41.

  One difficulty for us is that these three other circuits

rested in part on the premise that Congress did not want the

enlarged ban to apply in pending proceedings.  However, there is no

express language in section 440(d) either forbidding or requiring

immediate application of the enlarged ban in pending proceedings. 

These other circuits stressed the fact that Congress considered a

proposal to mandate immediate application but did not enact it; but

at least in the present context, compare Lindh v. Murphy, 521 U.S.

320, 326-30 (1997), we think this is a pretty thin basis for

inferring that it intended the opposite.

  After all, elsewhere in the new statute Congress gave

detailed directions both ways as to immediate or deferred

application of new provisions; in some cases it ordered immediate

application, see, e.g., AEDPA  413(g), 421(b), in others only

prospective application, see, e.g., AEDPA  435(b), 440(e-f),

441(b).  Yet in the enlarged ban of waivers it gave no direction

either way.  Quite possibly the members of Congress could not

agree; and in such situations, Congress has in the past sometimes

left retroactivity matters to the courts.  See, e.g., Landgraf v.

USI Film Prods., 511 U.S. 244, 261 (1994).  We think it did so

here, and regard Goncalves as consistent with this determination. 

See Goncalves, 144 F.3d at 128-31 (relying on the lack of express

Congressional direction).

  The Supreme Court has given some guidance for cases like

this one where Congress has not said whether a statute applies to

pending matters or prior transactions.  In a nutshell, courts

ordinarily are to presume against "retroactive" (as opposed to

"prospective") application of new civil statutes that make

substantive legal changes (as opposed to jurisdictional or

procedural ones).  See Landgraf, 511 U.S. at 270, 280; Hughes

Aircraft Co. v. United States ex rel Schumer, 520 U.S. 939, 946

(1997).  But these terms are hardly self-executing, and the Supreme

Court itself has recognized that its classifications might not

resolve all cases.  See Martin v. Hadix, 119 S. Ct. 1998, 2006

(1999); Lindh, 521 U.S. at 327-28; Landgraf, 511 U.S. at 270.

  The present case is unusual:  Wallace and Lemos were

deportable for their crimes long before AEDPA, whose effect was

simply to limit the Attorney General in exercising her preexisting

discretion to waive deportation.  Accord Jurado-Gutierrez, 1999 WL

637038, at *13.  To this extent, the amendment might seem not to

impair any existing substantive right belonging to Wallace and

Lemos.  On the other hand, the change could certainly have a

direct, and in some measure predictable, impact on their interest

in avoiding deportation.

  One can debate endlessly whether this kind of change

invades a substantive right of the aliens or "increase[s] a party's

liability for past conduct," or "attaches new legal consequences"

to a past act.  Landgraf, 511 U.S. at 270, 280; see also Hughes

Aircraft Co., 520 U.S. at 948.  The circuits have disagreed about

how these terms should be applied to the enlarged ban, compare

Mayers, 175 F.3d at 1303, with Requena-Rodriguez, 1999 WL 717367,

at *6 (5th Cir. Sept. 15, 1999); and we ourselves have viewed the

issue differently, albeit in two different contexts.  Compare

Goncalves, 144 F.3d at 128, with Kolster, 101 F.3d at 789.  Such

disagreements are a warning against relying too much on general

labels in deciding unusual cases.

  The concerns that drive the presumptions and labels in

retroactivity cases are multiple.  The new law may be more or less

urgent and delay in applying it may or may not undermine Congress's

broader purpose.  Concerns about fair warning, reasonable

expectations, and justified reliance vary in force depending on the

nature of the change or even the circumstances of the individual

case.  Cf. Martin, 199 S. Ct. at 2006; Lindh, 521 U.S. at 327-28. 

Even prudential matters--such as clarity and ease of

administration--may be of consequence, especially where the new

rule involves the operation of a judicial or administrative

proceeding.  And, there may be various places to draw the line.

   Against this background, we think that there are good

reasons, absent a contrary direction from Congress, to apply the

pre-AEDPA scope of waiver to deportation proceedings already in

progress at the time of AEDPA's enactment.  However they are

characterized, the waiver rules--once proceedings have begun--

become a common focus of expectation and even reliance.  The

alien's choice of strategy in that proceeding may well be affected

by the chances of waiver, so one should be cautious about changing

the rules after the game has begun.

  Congress no doubt was keenly interested in speeding drug

felons out of the country; but it itself considered whether or not

to apply the enlarged ban to "pending cases," thus recognizing a

possible cut off point that involves only a limited and easily

administrable deferral of the new and more stringent regime. 

Goncalves concerned a pending application, not a pending case, but

applications are made within pending cases and it might seem odd to

draw the line between these categories.  Finally, consistency

favors a result that is thus far uniform among the circuits, see

note 7, above, except the Seventh Circuit.

  We have assumed thus far that both Wallace and Lemos were

in deportation proceedings before April 24, 1996, the date of

AEDPA's enactment.  To the contrary, the government has argued that

Wallace was not in deportation proceedings until after AEDPA's

enactment because, although the INS issued an order to show cause

to Wallace in March 1996, before AEDPA's enactment, that order to

show cause was not filed with the Office of the Immigration Judge

until June 14, 1996, after AEDPA became law.  The government points

to INS regulations that provide that a deportation proceeding is

not "commenced" until the order to show cause is filed with the

immigration court.  See 8 C.F.R.  3.14(a) (1999).

  In this case we are not concerned with INS's internal

time tables, starting points, due dates, and the like but with the

judicial question of retroactivity.  This question turns on

considerations unrelated to the purpose of INS regulations--

primarily (in the absence of statutory guidance) with the evil

Congress sought to prevent and the realities of reasonable reliance

or settled expectations on the part of litigants.  From this

standpoint, we think that when an order to show cause is served on

the alien, the deportation process has effectively begun and

expectations properly form, even if there is no actual reliance.

  Our decision leaves open the question whether and when

AEDPA  440(d)'s new ban on waivers applies to cases in which the

alien pled guilty to the crime before AEDPA's enactment date but a

deportation proceeding had not yet begun.  In Wallace, the district

court took the view that wherever an alien pled guilty prior to

AEDPA, the alien might have relied on the availability of a waiver,

and so the broadened AEDPA waiver ban should never apply in such a

case.  Wallace, 24 F. Supp.2d at 111-12.  In another variation, the

Seventh Circuit said that it would not apply AEDPA's enlarged

waiver ban if a deportee showed both that he would not have

conceded deportability without the prospect of a waiver and that he

had some colorable basis for contesting deportability.  Turkhan v.

Perryman, No. 98-1964, 1999 WL 615531, at *11 (7th Cir. Aug. 16,

1999).

  It is unnecessary to decide such matters here since both

Lemos and Wallace were in deportation proceedings prior to AEDPA. 

By the time the "guilty plea" case or any other variation has to be

decided, we may have further insight from other circuits, new

guidance from the Supreme Court, or even (given the track record in

recent years) yet another statute from Congress.  Finally, our

decision here applies only to cases governed by IIRIRA's

transitional rules; the permanent IIRIRA regime could affect

various of the issues discussed, and we leave those cases for

another day.

  The judgment in Wallace is affirmed, although on a ground

different than that adopted by the district court; and the judgment

in Lemos is vacated and the matter remanded for further proceedings

consistent with this decision.

  It is so ordered.