Wright v. Ouellette, INS

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 97-2064



                          JOSHUA WRIGHT,



                      Petitioner, Appellant,



                                v.



           JEAN R. OUELLETTE, ACTING DISTRICT DIRECTOR,

             IMMIGRATION AND NATURALIZATION SERVICE,



                      Respondent, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Patti B. Saris, U.S. District Judge]


Before



            Boudin, Lynch, and Lipez, Circuit Judges.


Nelson Brill for the appellant.

     Frank W. Hunger, Assistant Attorney General, Civil Division,

United States Department of Justice, with whom Donald E. Keener,

Deputy Director, Michael P. Lindemann, Assistant Director, Karen A.

Hunold, Senior Litigation Counsel, and Ethan B. Kanter, Attorney,

Office of Immigration Litigation, Civil Division, United States

Department of Justice, were on briefs, for the appellee.


March 19, 1999


LYNCH, Circuit Judge.  Joshua Wright is a native of

Jamaica who has been a lawful permanent resident of the United

States for over twenty years.  He is the father of several

children, whom he supports and who are American citizens.  Wright

is also a felon: a decade ago he was convicted of possessing, with

intent to distribute, 2.8 grams of cocaine (worth $150.00).  He

served two years in prison and deportation proceedings were started

in 1992.  At the time, Wright filed an application for

discretionary relief from deportation, as the law then permitted

him to do, under Section 212(c) of the Immigration and

Naturalization Act (the "old INA"), 8 U.S.C.  1182(c) (repealed

1996).

  The Immigration Judge ("IJ") denied such discretionary

relief in 1993, considering other evidence of misdeeds as well as

the criminal conviction, and concluded there was an insufficient

showing of rehabilitation.  The Board of Immigration Appeals

("BIA"), which has the discretionary power to exercise de novo

review, see Hazzard v. INS, 951 F.2d 435, 440 n.7 (1st Cir. 1991),

affirmed the decision to deny discretionary relief on March 27,

1996, and so the deportation order became final.

  Congress altered the immigration landscape with the

enactment of the Antiterrorism and Effective Death Penalty Act,

Pub. L. No. 104-132, 110 Stat. 1214, commonly known as AEDPA,

enacted on April 24, 1996.  One day later, Wright filed a request

for a stay of deportation with the BIA, a petition for review in

this court of the final order of deportation, and a motion with the

BIA to reopen his deportation case.  The motion to reopen was said

to be based on evidence not previously available.

  Under BIA procedures, an alien who seeks to reopen must

set forth a prima facie case.  Cf. INS v. Abudu, 485 U.S. 94, 104-

05 (1988) (listing three independent, but non-exclusive, grounds on

which the BIA may deny a petitioner's motion to reopen deportation

proceedings: (1) failure to establish a prima facie case for

relief, (2) failure to introduce previously unavailable, material

evidence, and (3) the BIA's determination that the petitioner would

not be entitled to the discretionary grant of relief).  Whether to

allow a motion to reopen is subject to the discretion of the BIA

even if the alien has made out prima facie eligibility.  See 8

C.F.R.  3.2(a) (1998); Abudu, 485 U.S. at 105.

  Here, the BIA denied the motion to reopen on August 21,

1997, saying:

  [T]he respondent is statutorily ineligible for such

  relief as an "alien who is deportable by reason of having

  committed any criminal offense covered in section

  241(a)(2)(A)(iii), (B), (C), (D), or any offense covered

  by section 241(a)(2)(A)(ii) for which both predicate

  offenses are, without regard to the date of their

  commission, otherwise covered by section

  241(a)(2)(A)(i)."  See Antiterrorism and Effective Death

  Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

  ("AEDPA")  440(d); Matter of Soriano, Interim Decision

  3289 (A.G. Feb. 21, 1997).  Accordingly, the respondent

  cannot presently establish prima facie eligibility for

  the sole form of relief requested on reopening and the

  motion is denied.



Joshua Edward Wright, No. A35-898-247, slip op. (B.I.A. Aug. 21,

1997) (per curiam).  In Matter of Soriano, Interim Decision 3289,

1996 WL 426888 (Op. Att'y Gen. Feb. 21, 1997), referred to by the

BIA in its order denying Wright's motion to reopen, the Attorney

General had taken the position that the elimination of  212(c)

relief set forth in AEDPA  440(d) applied retroactively to all

pending petitions for such relief.

  In his petition in federal court, Wright initially

challenged both the merits of the decision to withhold

discretionary relief and the denial of his motion to reopen.  The

issues have been narrowed to the effect of AEDPA  440(d) on

Wright's motion to reopen.

                                I

  The procedural history of this case is complex, a common

occurrence in the aftermath of AEDPA and the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-

208, 110 Stat. 3546 ("IIRIRA"), as both litigants and courts

struggle with the questions of which claims are reviewable in which

courts, if any.  See, e.g., Reno v. American-Arab Anti-

Discrimination Comm., No. 97-1252, 1999 WL 88922 (U.S. Feb. 24,

1999).  Wright originally filed a petition for review of his final

order of deportation with this court, as was customary pre-AEDPA

under the old INA.  Interpreting AEDPA, this court in Kolster v.

INS, 101 F.3d 785 (1st Cir. 1996), earlier had held that Congress

had eliminated statutory review in the courts of appeals of the

BIA's denial of certain requests for relief from deportation but

that habeas jurisdiction remained in the district courts for review

of at least core constitutional issues.  See Kolster, 101 F.3d at

789-91.  Accordingly, Wright's petition for review was dismissed by

this court for lack of jurisdiction.  See Wright v. INS, No. 96-

1375 (1st Cir. Jan. 31, 1997).

  On May 5, 1997, Wright filed a habeas petition in the

district court challenging both his underlying deportation order

and what he viewed as the de facto denial of his motion to reopen,

as the BIA had not ruled on the motion as of that date.  The

petition asserted it was based on habeas jurisdiction under 28

U.S.C.  2241, federal question jurisdiction under 28 U.S.C. 

1331, and jurisdiction under the All Writs Act, 28 U.S.C. 

1651(a).  On August 21, 1997, the BIA denied Wright's motion to

reopen.

  On September 15, 1997, the district court dismissed the

petition for lack of jurisdiction, relying on law in other circuits

that in the aftermath of AEDPA and IIRIRA there was no habeas

review of these claims under 28 U.S.C.  2241.  See Wright v.

Ouellette, No. 97-11035, slip op. at 6-8 (D. Mass. filed September

15, 1997).  Assuming that there might be some residual

constitutional habeas jurisdiction to review constitutional claims,

the court held that the petition presented no constitutional

claims, only statutory claims.  See id. at 8-9.  As to the motion

to reopen, even assuming residual jurisdiction, the court found no

probability of success because the motion was based primarily on

Wright's having sired two more children since he was ordered to be

deported.  See id. at 9.  The district court also denied a later

motion for reconsideration.  See Wright v. Ouellette, No. 97-11035,

slip op. at 3 (D. Mass. filed Sept. 25, 1997).  Wright appealed and

this court issued a stay of deportation to consider the appeal.

  After the district court denied relief, this court

decided Goncalves v. Reno, 114 F.3d 110 (1st Cir. 1998), cert.denied, 67 U.S.L.W. 3560 (Mar. 8, 1999) (No. 98-835).  Goncalvesheld that there was habeas jurisdiction in the district courts to

consider a basic statutory interpretation claim by an alien   who

was in the process of having his  212(c) application for relief

heard by the BIA before the application was dismissed on the

grounds of Soriano   and that the Attorney General's interpretation

of the retroactivity of certain provisions of the statute was in

error.  See Goncalves, 144 F.3d at 119-22, 126-33.  Goncalves held

that Congress did not intend, contrary to the Attorney General's

interpretation in Soriano, to apply the elimination of  212(c)

relief to certain aliens such as Goncalves whose applications for

discretionary relief under the old INA  212(c) were then pending

before the BIA as of the date of enactment of AEDPA.  See id. at

131.

                     II

  In the aftermath of Goncalves, the parties agree that

jurisdiction is not a contested issue and that this case has been

narrowed to this issue:  Whether Congress intended AEDPA  440(d)

to preclude the BIA from granting petitions to reopen such as

presented by Wright.

  We pause to be clear about what is not presented.  As the

district court correctly held, Wright presents no colorable claim

that his deportation order was unconstitutional, and the

deportation order itself and the correctness of the initial

decision to deny  212(c) relief are not before us.

  The respondent Attorney General, recognizing that this

Court in Goncalves disagreed with the Attorney General's decision

in Soriano, does not base her position   that the BIA order denying

the motion to reopen is correct   on Soriano.  Rather, respondent

argues that application of AEDPA  440(d) to motions to reopen is

not a retroactive application of the statute, relying on Landgrafv. USI Film Products, 511 U.S. 244 (1994).  The Attorney General

also points to an obvious difference between this case and

Goncalves:  here the motion to reopen before the agency was filed

after the effective date of AEDPA and after the alien had had full

agency consideration of his  212(c) application.  The Attorney

General argues that all proceedings before the BIA had concluded

and the order of deportation had become final, and thus the motion

to reopen does not raise questions of retroactivity.

     Wright's primary argument is that there is a

retroactivity problem presented here because, he says, a motion to

reopen is simply an extension of the original application and thus

should be considered to relate back to the original application,

filed before AEDPA's enactment.  Under Goncalves, he then says, the

motion to reopen, as a pending motion for  212(c) relief before

the BIA, should at least have been considered on its merits.

     The matter is not resolved by our opinion in Goncalves,

which involved a clear question of retroactive application of

AEDPA's cutoff of  212(c) relief to a  212(c) application which

had not yet been heard by the BIA.  Goncalves thus involved a stage

before there was a final agency determination of an application

which was pending at the time AEDPA was adopted.  See Goncalves,

144 F.3d at 112-13.  The question still remains, post-Goncalves, as

to whether Congress, in enacting AEDPA  440(d), intended to permit

an alien to file a motion to reopen an adverse BIA decision denying

 212(c) relief after AEDPA's effective date.  It is clear that

Congress intended to preclude applications for  212(c) relief

prospectively.  See id. at 132.

     Whether the motion to reopen is subject to AEDPA's cutoff

of  212(c) relief is a question of Congressional intent.  We agree

that the case turns on the characterization of a motion to reopen

and the understanding against which Congress enacted AEDPA.  SeeLorillard v. Pons, 434 U.S. 575, 580 (1978) ("Congress is presumed

to be aware of an administrative or judicial interpretation of a

statute . . . ."); see also Goncalves, 144 F.3d at 133 (utilizing

this presumption to help determine Congressional intent regarding

the retroactive application of AEDPA  440(d)).

     Without rehearsing the whole of retroactivity law, we

think it is clear that the special rule adopted by the Supreme

Court as to finality of orders of deportation dooms Wright's

argument.  In Stone v. INS, 514 U.S. 386 (1995), the Supreme Court

held that a timely motion to the BIA for reconsideration of a BIA

decision affirming an IJ's order of deportation does not toll the

running of the period for seeking judicial review of the final

deportation order.  See id. at 405-06.  Stone disapproved of the

holdings of several circuits that the normal tolling rule based on

motions to reconsider in other forms of agency orders also applied

in the immigration context.  See id. at 389, 392.  That normal

rule, available under the Administrative Procedure Act, 5 U.S.C. 

704, and the Hobbs Administrative Orders Review Act, 28 U.S.C. 

2341-2351, was that "[t]he timely filing of a motion to reconsider

renders the underlying order nonfinal for purposes of judicial

review."  Stone, 514 U.S. at 392.  The Stone court concluded that

the 1990 amendments to the INA meant that "Congress intended to

depart from the conventional tolling rule in deportation cases." 

Id. at 398.  The rationale of the holding is important for our

purposes.  The Court's holding stated its view of Congressional

"understanding that a deportation order [after BIA affirmance of an

IJ's order of deportation] is final, and reviewable, when issued." 

Id. at 405.

     That this case involves a motion to reopen instead of a

motion to reconsider makes no difference.  The Stone Court noted

the agency's long-standing view that a motion to reconsider a BIA

affirmance of a deportation order does not serve to stay a

deportation order.  See id. at 398.  "Its finality is not affected

by the subsequent filing of a motion to reconsider."  Id. at 405. 

The same is true for motions to reopen.  See 8 C.F.R.  3.2(f)

(noting that, except for certain orders entered in absentia, "the

filing of a motion to reopen or a motion to reconsider shall not

stay the execution of any decision made in the case").  Indeed, the

INS treats the subjects of motions to reconsider and motions to

reopen under the same regulation.  See 8 C.F.R.  3.2.  Both the

petitioner and the INS in Stone treated motions for reconsideration

the same as motions to reopen.  See Stone, 514 U.S. at 389-90.  The

finality of the deportation order here is not affected by the

filing of the subsequent motion to reopen.

     Congress enacted AEDPA  440(d) against the backdrop of

the Stone case and the "longstanding view of the INS . . . that a

motion for reconsideration does not serve to stay the deportation

order."  Id. at 398.  Because the deportation order here, issued

after full BIA consideration of Wright's application, was final,

the motion to reopen is more akin to starting a new proceeding. 

Indeed, Wright's motion to reopen is based on new evidence. 

Congress was no doubt mindful in AEDPA  440(d) of the practical

consequences which would flow if motions filed after the effective

date of AEDPA to reopen final orders of deportation (stemming from

the BIA's affirmance of denial of  212(c) relief) were treated as

an exception to its elimination of  212(c) relief.  See Stone, 514

U.S. 398-400 (describing problems of delay and the related problem

of successive administrative appeals and motions).  This case,

thus, does not involve a problem of retroactivity, and Wright's

appeal from the denial of his petition for habeas corpus is

dismissed and the stay of deportation is vacated.  

     So ordered.