On February 1, 1994, in a written decision, the immigration judge denied both Petitioner's request for a stay of the proceedings, and his request to apply for asylum and withholding of deportation.
On May 12, 1994, the BIA affirmed the decision of the immigration judge. The BIA stated that Petitioner had been convicted of an aggravated felony, and that he was therefore ineligible for asylum or withholding of deportation. In addition, the BIA rejected Petitioner's application for a stay of the proceedings, reasoning that Petitioner had been convicted of a final judgement and still had not been granted a pardon.
On June 24, 1994, Petitioner filed this petition for a writ of habeas corpus, challenging both his exclusion and the INS's determination that he is per se ineligible to apply for asylum and withholding of deportation. Petitioner challenges the exclusion order on the following four grounds:
(1) that the BIA erroneously denied Petitioner's request to apply for asylum on the basis of its retroactive application of the statutory provision barring aliens from applying for asylum if they have been convicted of an "aggravated felony";
(2) that the BIA erroneously denied Petitioner's application to stay the administrative proceedings based upon its failure to consider the fact that a pardon would remove the statutory prohibitions to Petitioner applying for asylum and withholding of deportation;
(3) that the BIA erroneously denied Petitioner's request to apply for asylum and withholding of deportation based upon an incorrect application of the relevant statutes - 8 U.S.C. § 1253(h)(2) and 8 C.F.R. § 208.14 - which preclude an alien convicted of a particularly serious crime from applying for asylum or withholding of deportation. Petitioner claims that the BIA applied the statutes incorrectly because, contrary to the BIA's decision, his drug conviction is not per se a particularly serious crime. Even if his drug conviction constitutes a particularly serious crime, Petitioner argues that the BIA should have conducted a separate inquiry into whether he is, pursuant to the statutes, "a danger to the community"; and
(4) that this Court should estop the INS from deporting Petitioner due to the "unique circumstances of his detention . . . and his admission to the United States." Petitioner's Mem. at 2.
On December 14, 1994, after the parties had fully briefed this petition, the Governor of Florida granted Petitioner a pardon for his 1986 conviction.
Petitioner also asks this Court to consider his challenge to the INS's determination denying him parole
I. Standard of Review
In reviewing a BIA decision upholding a final order of exclusion, a District Court must limit its review to the administrative record. Kessler v. Strecker, 307 U.S. 22, 83 L. Ed. 1082, 59 S. Ct. 694 (1939). A District Court is not empowered to conduct a de novo review of a final exclusion order. See Correa v. Thornburgh, 901 F.2d 1166, 1171 (2d Cir. 1990). The scope of judicial review in such cases is narrow because the power to expel or exclude aliens is "a fundamental sovereign attribute exercised by the government's political department." Correa v. Thornburgh, 901 F.2d at 1173 (citing cases).
Accordingly, this Court is obliged to uphold the BIA's decision unless it is an abuse of discretion. See, e.g., Dhine v. Slattery, 3 F.3d 613, 619 (2d Cir. 1993). This Court's inquiry is thus limited to whether there was evidence to support the BIA's finding, whether the statutory procedures which govern exclusions have been observed, and whether the petitioner was accorded a fair trial. Kessler, 307 U.S. at 34; United States ex rel. Tom We Shung v. Murff, 176 F. Supp. 253, 257 (S.D.N.Y. 1959), aff'd, 274 F.2d 667 (2d Cir. 1960). If so, the BIA's determination is conclusive. See, e.g., Murff, 176 F. Supp. at 257.
To the extent that some of Petitioner's arguments involve questions of whether the BIA's interpretations of agency regulations were legally erroneous, this Court must apply the standard that governs review of an administrative agency's interpretation of its own regulations. In questions involving construction of rules and regulations by the promulgating agency, the Supreme Court has held that "'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'" United States v. Larionoff, 431 U.S. 864, 872, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 65 S. Ct. 1215, 1217, 89 L. Ed. 1700 (1945)). See also Ahmetovic v. INS, 62 F.3d 48, 1995 U.S. App. LEXIS 20245, at *7 (2d Cir. 1995) ("[A district court] must give substantial deference to administrative tribunals in their interpretations of statutory law").
Petitioner contends that the BIA erroneously deemed his 1986 drug conviction an "aggravated felony," rendering him ineligible to apply for asylum. He argues that the BIA's retroactive application of the term aggravated felony to include his conviction, which occurred before Congress first introduced the term aggravated felony into immigration law, was improper.
An alien "who has been convicted of an aggravated felony . . . may not apply for or be granted asylum" pursuant to 8 U.S.C. § 1158(d). This provision was added to the Act by § 515(a)(1) of the Immigration Act of 1990 (P.L. 101-649, Nov. 29, 1990, 104 Stat. 5303) (the "1990 Act"). The term "aggravated felony" is defined to include "illicit trafficking in a controlled substance . . . including a drug trafficking crime as defined in Section 924(c)(2) of title 18, United States Code." 8 U.S.C. § 1101(a)(43).
Congress first introduced the term "aggravated felony" into the immigration laws through the Anti-Drug Abuse Act of 1988 ("ADAA"), Pub. L. Nos. 100-690, 102 Stat. 4181 (enacted November 18, 1988). The ADAA defined the term, but did not attach immigration consequences to aliens who committed aggravated felonies. The 1990 Act introduced the statutory bar to applying for asylum and withholding of deportation for aliens convicted of an aggravated felony. 1990 Act at § 515(a)(1)(d), 104 Stat. at 5053.
In 1991, Congress amended 8 U.S.C. § 1158(d) when it passed the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991. Publ.L. No. 102-232, § 306(a)(13)(B), 105 Stat. 1733, 1752 (1991) ("1991 Amendments"). The 1991 Amendments provide that 8 U.S.C. § 1158(d) applies to convictions entered "before, on, or after the date of the enactment of [the] Act." Id.
Petitioner argues that while the 1991 Amendments allow for the aggravated felony provision to be applied to convictions committed before the date of the enactment, "the statutory intent is unclear as to whether the retroactive implications should reach back indefinitely or only to aggravated felonies committed after 1938 when the term originated [in immigration law]." Petitioner's Mem. at 17.
The first BIA decision to address the question of whether the aggravated felony provisions of the Act apply to pre-ADAA convictions was Matter of A-A Int. Dec. 3176 (BIA 1992). In that case, the BIA held that although the ADAA did not specifically include a generally effective date for aggravated felony convictions, the construction of the statute as a whole suggested that the aggravated felony definition was meant to apply retroactively to all convictions, regardless of the date. Id. The BIA relied on Matter of A-A in rendering its decision in the present case.
Subsequent to the BIA's decision in Matter of A-A, a number of circuit courts also addressed this question. Some courts have found that Congress clearly intended to make 8 U.S.C. § 1158(d) retroactive. See Feroz v. INS, 22 F.3d 225, 226-27 (9th Cir. 1994) (affirming the BIA's retroactive application of 8 U.S.C. § 1158(d) to bar petitioner's asylum application, stating that "Congress has made clear its intention in this regard"); Buitrago-Cuesta v. I.N.S., 7 F.3d 291, 295 (2d Cir. 1993) (noting that, with respect to 8 U.S.C. § 1158(d), "the concept of aggravated felony expressly applies retroactively"); Martins v. INS, 972 F.2d 657, 660 (5th Cir. 1992) (reasoning that Congress inserted the "before, on, or after" language into section 1158(d) in order to bar all aggravated felons from applying for asylum). Other courts have found the statute ambiguous, but have nonetheless deferred to the BIA's interpretation as set forth in Matter of A-A. See Barreiro v. INS, 989 F.2d 62, 64 (1st Cir. 1993) (holding that BIA's interpretation in Matter of A-A- is persuasive despite "presumption against retroactivity"); De Osorio v. INS, 10 F.3d 1034, 1039 (4th Cir. 1993) (concluding that "the Board's interpretation [as to the effective date of the term 'aggravated felony'] is a permissible construction of the statute and is more consistent with the intent of Congress").
Petitioner argues that prior case law upholding retroactive applications of the aggravated felony classification must be reevaluated in light of the Supreme Court's recent decision in Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994).
Landgraf involved a former employee who filed a Title VII suit alleging sexual harrassment. While the plaintiff's appeal of a district court dismissal of her suit was pending, the Civil Rights Act of 1991 (CRA) was passed by Congress. The Supreme Court ruled that the plaintiff was not eligible to seek relief under certain provisions of the CRA because the statute did not apply retroactively. Id. at 1496. In rejecting the plaintiff's argument, the Court noted that there has historically been a presumption against statutory retroactivity due to the "unfairness of imposing new burdens on people after the fact." 114 S. Ct. at 1500. The Court found that nothing in the text or legislative history suggested that Congress "understood or intended" the CRA to apply retroactively. Id. at 1508.
In Landgraf, the Supreme Court set forth a framework for determining whether a statutory provision has retroactive effect. First, a court must "determine whether Congress has expressly prescribed the statute's proper reach." 114 S. Ct. at 1505. If the statute in question is not explicit with regard to retroactivity, the court must consider whether retroactive application "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. Absent "clear congressional intent favoring such result[s]," the statute should not be applied retroactively. Id.
Because this Court finds that the plain language of the statute
indicates a congressional intent that 8 U.S.C. § 1158(d) apply retroactively, we reject Petitioner's argument that Matter of A-A, Buitrago-Cuesta, and other cases upholding retroactive application of the aggravated felony classification are erroneous under Landgraf,4 The Second Circuit opinion in Buitrago-Cesta therefore remains binding on this Court. Accordingly, this Court holds that the BIA did not abuse its discretion in applying 8 U.S.C. § 1158(d) retroactively to Petitioner's 1986 drug conviction.
III. Effect of the Pardon
Petitioner's second challenge to the BIA's decision involves the question of whether a pardon negates all of the statutory prohibitions that flow from his drug conviction. The immigration judge determined that a pardon, which at that time had not yet been granted, would have no effect on Petitioner's eligibility to apply for asylum or withholding of deportation. The BIA affirmed the immigration judge's ruling.
Petitioner contends that the BIA failed to properly consider the effect of a pardon on his eligibility to apply for asylum. He argues that the BIA erroneously denied his request for a stay of the administrative proceedings pending the Governor of Florida's decision regarding Petitioner's application for clemency. Petitioner concedes that a pardon would not preclude the INS from relying on his 1986 drug conviction to exclude him. He argues, however, that a pardon would allow him to apply for asylum and withholding of deportation because he would no longer be classifiable as an "aggravated felon."
Petitioner asks that this Court decide whether the grant of a pardon by the Governor of Florida enables Petitioner to apply for asylum and withholding of deportation. The scope of this Court's review, however, limits our inquiry to the question of whether the BIA's interpretation of the statute in question was clearly erroneous.
In support of his argument, Petitioner cites to the statute pertaining to deportation, which provides in relevant part:
§ 1251. Deportable aliens
(a) Classes of deportable aliens. . . . .
(2) Criminal offenses
(A) General Crimes . . . .
(iii) Aggravated felony.