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MOJICA v. RENO

June 24, 1997

GUILLERMO MOJICA, Plaintiff, against JANET RENO, as Attorney General of the United States; DORIS MEISSNER, as Commissioner of the Immigration and Naturalization Service; EDWARD MCELROY, as New York District Director of the Immigration and Naturalization Service; JOHN B.Z. CAPLINGER, as New Orleans District Director of the Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE. Respondents. SAUL NAVAS, Plaintiff, - against - JANET RENO, as Attorney General of the United States; DORIS MEISSNER, as Commissioner of the Immigration and Naturalization Service; EDWARD MCELROY, as New York District Director of the Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE. Respondents.


The opinion of the court was delivered by: WEINSTEIN

 WEINSTEIN, Senior District Judge:

 I. Introduction

 II. Facts

 
A. Discretionary Relief from Deportation and the Recent Amendments
 
B. Saul Navas
 
C. Guillermo Mojica

 III. Constitutional, Statutory and Historical Context

 
A. History of Immigration
 
B. Human Rights Obligations of the United States
 
C. Habeas Corpus
 
D. Presumption Against Retroactivity
 
E. Judicial Review of Administrative Actions

 IV. Jurisdiction

 
A. Subject Matter Jurisdiction
 
(1) Statutory Background
 
(a) Section 2241 of Title 28
 
(b) INA Section 106(a), The AEDPA, and The IIRIRA
 
(2) Habeas Corpus Jurisdiction Under Section 2241 Not Repealed
 
(3) Scope of Section 2241 Habeas Review
 
(4) Section 2241 Habeas Corpus Jurisdiction Available in Instant Case
 
(a) A District Court May Review a Section 2241 Petition
 
(b) Petitioners in Custody For Habeas Purposes
 
B. Eastern District of New York Is the Proper Forum: Personal Jurisdiction and Venue
 
(1) Court Has Personal Jurisdiction Over Petitioners' Custodians
 
(2) Venue Is Proper with Regard to Petitioners

 V. Protection of Legal Permanent Residents Against Arbitrary Deportation

 
A. Statutory History of Section 212(c) and Section 440(d)
 
B. Section 440(d) Does Not Retroactively Eliminate Right of Petitioners to a Fairness Hearing
 
(1) Constitutional Barriers to Retroactivity
 
(2) Manifest Congressional Design
 
(3) Applying the Default Rule Against Retroactivity
 
(a) Basic Application of Landgraf
 
(b) Traditional Principles of Statutory Interpretation
 
(c) No Deference to the Administrative Agency
 
(d) A Fortiori Application to Those Whose Cases Were Being Processed by the INS
 
VI. Conclusion

 This is an important case of first impression, the resolution of which will affect the rights of many legal permanent residents. Petitioners, long time United States residents, seek a court ruling that they are entitled to a hearing determining whether they should not be deported because of humanitarian factors -- commonly known as section 212(c) relief At issue is the new policy and practice of the United States Attorney General to automatically deport certain legal permanent residents. Her action is predicated on her conclusion that there must be retroactive application of section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (1996). Section 440(d) bars legal permanent residents convicted of certain crimes from seeking a 212(c) waiver of deportation.

 The Attorney General, it is charged, without notice and without reason, arbitrarily and capriciously reversed the ruling of the Board of Immigration Appeals that petitioners had a right to a 212(c) hearing. The government contends: 1) this court has no jurisdiction to consider this issue, and 2) even though the petitioners were convicted of crimes before passage of the AEDPA, they have no entitlement to a waiver hearing -- that is to say, rehabilitation, hardship, deleterious effects on family and other 212(c) factors are now retroactively irrelevant.

 It is not necessary to consider petitioners' constitutional arguments because the case can be decided as a matter of statutory interpretation. Nevertheless, in construing the statutes' meaning, history, statutory and other protections, and constitutional context provide useful background. The courts have the obligation to consider the context of legislation to determine meaning; this duty is independent of any theory of textualism in interpretation. See, e.g., John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum.L.Rev. 673 (1997).

 To prevent the extended bureaucracy and the executive departments from abusing their powers, Congress has fashioned an extensive set of protections for all individuals resident in our land, providing appeals and other controls by the Judiciary. Moreover, Congress can be presumed to have acted in the high moral and ethical traditions of the United States after consideration of relevant historical and political factors and with consciousness of the United States' role as global defender of human rights. The courts cannot assume, as the government now in effect suggests they should, that Congress acted contrary to the design and thrust of closely related law.

 For reasons set forth below, this court has habeas corpus and declaratory judgment competence, and personal jurisdiction over petitioners' custodians. Venue is proper, and petitioners are entitled to the hearing they seek. This conclusion was set forth in the memorandum and order of this court entered May 30, 1997. See Mojica v. Reno, 1997 WL 289700 (E.D.N.Y. 1997). That memorandum and order was issued without an explanatory memorandum to expedite appeals.

 II. Facts

 A. Discretionary Relief from Deportation and the Recent Amendments

 It is conceded that petitioners Saul Navas and Guillermo Mojica would have been, until quite recently, eligible for a 212(c) hearing. The government argues that, in the wake of the AEDPA, they are no longer eligible. Section 212(c) relief, its history, and recent amendments to it are addressed immediately below.

 Legal permanent residents convicted of a crime making them deportable have long had a right to seek a waiver of exclusion or deportation under section 212(c) of the Immigration and Nationality Act (INA) as long as they had a "lawful unrelinquished domicile of seven consecutive years in the United States." See INA § 212(c), 8 U.S.C. § 1182(c) (added by Immigration and Nationality Act of 1952); see also Francis v. INS, 532 F.2d 268 (2d Cir. 1976) (holding that section 212(c) relief is available in deportation as well as exclusion proceedings); Matter of Silva, 16 Int. Dec. 26 (BIA 1976) (adopting and applying Francis holding nationwide). It is conceded that petitioners have had more than the necessary domicile in the United States to have triggered section 212(c) rights to a hearing. It is important to bear in mind that to understand that the right is to a hearing only and to the exercise of discretion, not to immunity from deportation.

 A long-time legal permanent resident accused of any crime triggering deportability could thus be assured that, even if he or she pled guilty or was convicted in criminal proceedings after the trial, there would be available a waiver of deportation in subsequent deportation proceedings before an Immigration Judge. See generally Matter of Lok, 18 Int. Dec. 101 (BIA 1981), aff'd on other grounds, Lok v. INS, 681 F.2d 107 (2d Cir. 1982) (if the individual could expect to have the seven years by the time of deportation proceedings he or she could be assured of being able to seek the waiver). The Immigration Judge's decision to grant the waiver depends upon a weighing of many factors. Among the favorable elements considered by an Immigration Judge under section 212(c) are family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the individual and family if deportation were to occur, service in this country's armed forces, a history of employment, existence of property or business ties, evidence of value and service to the community, proof of rehabilitation, and other evidence attesting to an individual's good character and likelihood of future positive contributions to American society. See generally Matter of Marin, 16 Int. Dec. 581 (BIA 1978).

 Until April 24, 1996, a section 212(c) waiver was precluded only for a legal permanent resident whose crimes fell within the INA definition of an "aggravated felony" and who had served five years or more in prison for the crimes. See Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649, Section 511(a), 104 Stat. 4978, 5052 (1990), as amended by the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Section 306(a)(10), Pub. L. No. 102-232, 105 Stat. 1733, 1751 (1991) (imposing limitation on 212(c) relief).

 On April 24, 1996, Congress enacted the AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996), which included a provision -- section 440(d) -- barring section 212(c) relief for individuals "deportable by reason of having committed any criminal offense" coming within several broad classes of crimes, including many relatively minor offenses, regardless of the sentence imposed by the criminal judge, or whether any sentence of imprisonment at all was imposed. Specifically, section 440(d) amended section 212(c) to provide that the waiver is not applicable to an individual who is deportable by reason of having committed (1) an aggravated felony, regardless of the sentence imposed or served, (2) a controlled substance violation, (3) a firearm offense, (4) one of various miscellaneous crimes, or (5) two or more crimes said to involve "moral turpitude" -- a category of offenses that includes certain crimes that fail to live up to this hyperbolic appellation. Under this provision, for example, a legal permanent resident convicted of one minor drug possession charge, or two misdemeanor petty theft or public transportation fare evasion charges -- turnstile jumping in the New York City subway system leading to a "theft of services" misdemeanor conviction is considered a crime of "moral turpitude" -- is now subject to automatic deportation without any opportunity to present to an Immigration Judge any mitigating equities.

 Under the Attorney General's view, any such person could now be picked up off the streets for crimes of this nature committed many years ago, torn from his or her family, job or business, and deported without the right to seek a waiver with an Immigration Judge on section 212(c) grounds. Immediately after the AEDPA's enactment, the Immigration and Naturalization Service (INS) began arguing that section 440(d) applied in all pending and subsequently initiated deportation cases, regardless of whether the conduct or events triggering the section's restrictions pre-dated the AEDPA.

 This position was rejected by the Board of Immigration Appeals (BIA) in a June 27, 1996 decision. The BIA held that section 440(d) may not be applied retroactively to an individual who sought 212(c) relief prior to the AEDPA's enactment on April 24, 1996. Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (BIA June 27, 1996).

 The INS sought review of the BIA's Soriano decision by the Attorney General. On September 12, 1996, the Attorney General vacated the BIA's decision without providing for public notice or hearing contrary arguments. Some months later, she issued a brief written decision, unsupported by relevant authority, concluding that section 440(d) should be applied to all pending 212(c) waiver cases, even in cases where it was triggered by events pre-dating the AEDPA's enactment. The Attorney General found that "nothing in the language of the newly enacted statute, AEDPA § 440(d), specifies either that it is to be applied in pending deportation proceedings, or that it is not to be." Matter of Soriano, Int. Dec. 3289, 1996 WL 426888, at screen page 41 (beginning at screen page 37, AG Op. Feb. 21, 1997). The Attorney General ipse dixit decided in favor of retroactivity even in pending cases.

 Although of no direct relevance in the instant case, Congress has enacted further statutory reforms related to section 212(c). Specifically, section 212(c) was repealed, effective April 1, 1997, by the "Illegal Immigration Reform and Immigrant Responsibility Act of 1996" (IIRIRA), Section 304(b), Pub. L. No. 104-208, Division C, 110 Stat. 3009 (1996). The IIRIRA replaced section 212(c) relief with a new form of prospective relief for lawful permanent residents called Cancellation of Removal. See IIRIRA § 304(a)(3) (new INA § 240A(a)). In general, the repeal and new cancellation relief in the IIRIRA does not apply in proceedings initiated prior to April 1, 1997 -- as were petitioners' proceedings. See IIRIRA § 309(c)(1) (providing that general rule is that the IIRIRA does not apply to deportation proceedings commenced before April 1, 1997); IIRIRA § 309(c)(2) and (3) (providing the Attorney General with the option to apply IIRIRA law in certain deportation cases pending on April 1, 1997); new 8 C.F.R. § 240.40, published at 62 Fed. Reg. 10371 (March 6, 1997) (following general rule only); and new 8 C.F.R. § 240.16, published at 62 Fed. Reg. 10374 (March 6, 1997) (indicating that at some undetermined time in the future, the Attorney General may pursue options to apply IIRIRA law in certain cases).

 The government now argues that section 440(d) applies to all legal permanent residents in deportation proceedings on or after the date of enactment of the AEDPA, regardless of when they committed or were convicted of an offense covered by that section. Under the government's reading, legal permanent residents, many with relatively minor convictions, would now be subject to automatic deportation even if the conduct and conviction took place years or decades ago and even if section 212(c) proceedings were pending when the AEDPA was adopted.

 B. Saul Navas

 Petitioner Navas is a twenty-two year old native and citizen of Panama who lives in St. Albans, New York, within the Eastern District of New York. He was admitted to the United States as a legal permanent resident on July 10, 1987 when he was twelve years old. Since the time of his admission into the United States over nine years ago, he has continuously resided here. Navas's entire immediate family, which includes his mother and step-father, one brother, two half siblings and five step-siblings, resides in the United States. All members of his family are either United States citizens or legal permanent residents. In Panama, Navas has no immediate family and no means of support.

 Navas attended Junior High School and High School up to the twelfth grade in Queens, New York. Thereafter he worked in New York City as a delivery boy, as a stock boy, as a building maintenance worker, and as a waiter.

 On May 2, 1995, Navas was sentenced in the New York Supreme Court, Queens County as a result of two guilty pleas to offenses committed in Queens. In the first case which involved driving a stolen automobile, Navas was convicted of criminal possession of stolen property in the third degree. In the second case, a purse snatching incident, Navas was convicted of robbery in the third degree. He received concurrent sentences of one and a half years to four and a half years incarceration. Because he was a fit candidate for rehabilitation, Navas was accepted into the "Shock Incarceration Program" at Lakeview Correctional Facility to serve his sentence. He successfully completed the program on January 8, 1996, and, as a result, was required to serve only eight months.

 While Navas was in the Shock program, the INS commenced deportation proceedings against him. In its order to show cause, dated July 21, 1995, the INS alleged that Navas was deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act (INA), which at that time provided that an alien was deportable by reason of having committed two crimes of moral turpitude that did not arise out of a single scheme of criminal conduct.

 Navas first appeared before an Immigration Judge on October 11, 1995. At that time he was given an adjournment until November 8, 1995 to retain an attorney. On November 8, 1995, Navas, acting pro se and still incarcerated, admitted the allegations listed in the order to show cause and was found deportable by the Immigration Judge. The Immigration Judge advised Navas of the availability of a waiver of deportation pursuant to section 212(c) and encouraged him to apply for such waiver.

 On December 8, 1995, Navas filed his application for a 212(c) waiver of deportation with the Office of the Immigration Judge in Napanoch, New York. On or about January 8, 1996, due to his successful completion of the Shock Incarceration Program, Navas was released from state custody. He was, however, immediately taken into custody by the INS and detained at Wyoming County Jail, in Warsaw, New York. The INS set a $ 9,000 bond for Navas's release. Navas's request that venue be changed to New York City was granted and the INS transferred Navas to its detention facility located at 201 Varick Street, New York, New York where Navas remained in the custody of the INS until May 10, 1996.

 On April 24, 1996, the President signed the AEDPA into law. Navas's individual hearing for 212(c) relief was held on May 9, 1996. At his hearing, evidence was admitted and testimony taken from Navas and other witnesses. After all the evidence was presented, the Immigration Judge determined that Navas was eligible for a section 212(c) waiver and granted him a waiver on the merits of the case. Among the positive factors considered by the Immigration Judge were Navas's residency in the United States since a very young age, his substantial family ties to the United States, and his history of employment. The deportation proceedings against Navas were terminated. At that time, the INS reserved its right to appeal the IJ's decision.

 On May 10, 1996, the day after Navas's individual hearing, INS released him from detention at Varick Street, without his having to post a bond. By notice of appeal dated May 14, 1996, the INS appealed the Immigration Judge's decision solely on the merits of the case. The INS did not challenge Navas's statutory eligibility to apply for a 212(c) waiver. While the INS timely filed its notice of appeal, the INS did not perfect its appeal as required by the BIA's briefing schedule. The notice provided that the INS submit its brief by June 27, 1996 and that Navas submit his brief on or before August 28, 1996.

 On June 27, 1996, as already explained, the Board of Immigration Appeals held that section 440(d) may not be applied retroactively to persons such as Mr. Navas who applied for a waiver of deportation prior to April 24, 1996. The INS sought review of the BIA decision by the Attorney General.

 By motion dated August 21, 1996, more than three weeks after the INS's time to submit its brief to the BIA had expired, the INS requested an extension of time to submit its brief. Navas filed a motion to dismiss the INS's appeal on the ground that 1) the INS had not submitted a timely brief in support of its appeal and 2) in support on the merits of the Immigration Judge's decision granting Navas a waiver.

 On February 21, 1997, the Attorney General issued her decision in Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (beginning at screen page 37, AG Op. Feb. 21 1997), holding that the amendments to INA section 212(c) made by AEDPA section 440(d) apply to all deportation proceedings in which an application for relief under section 212(c) was pending when the AEDPA was signed into law. Thereafter, the BIA began systematically ordering deported all immigrants with pending applications for a waiver of deportation that were affected by section 440(d).

 Relying upon the Attorney General's retroactivity decision, the BIA, on March 14, 1997, sustained the INS's appeal in Navas's case and ordered him deported to Panama. It did not address Navas's motion to dismiss the INS's appeal nor the merits of the appeal and never ruled on the INS's motion to file a late memorandum of law in support of its appeal. As of the date of the BIA's decision and order Navas has been subject to a final order of deportation.

 On April 11, 1997, Navas filed a Petition for Review with the United States Court of Appeals for the Second Circuit to protect his appeal rights in case that court determines that it may exercise jurisdiction to entertain the issues raised in the petition. But see Hincapie-Nieto v. Immigration and Naturalization Service, 92 F.3d 27 (2d Cir. 1996) (finding no court of appeals jurisdiction). On April 15, 1997, Navas filed the instant petition for Habeas Corpus with this court.

 By notice dated May 8, 1997, the INS ordered Navas, then resident and at large in Queens, within the Eastern District of New York, to surrender on May 27, 1997 at its Deportation Branch located at 26 Federal Plaza, New York, New York. The INS released him on $ 2,000 bond. The government has stipulated that it will not deport him until the present proceeding is terminated following appeals from the judgment of this court. If deported from the United States, Navas, it may be assumed, will not be able to return here to his family.

 C. Guillermo Mojica

 Guillermo Mojica was born on April 15, 1941. He is a native and citizen of Colombia. He has been a legal permanent resident of the United States for twenty-five years, since June 8, 1972. He has lived in Queens, New York ever since he came to the United States.

 Mojica married his present wife on November 28, 1980 at a ceremony in Queens. She became a naturalized United States citizen on May 15, 1990. They have two United States citizen children: a daughter, Alexandra, born in Queens on November 13, 1973, and a son, Jean Paul, born in Manhattan on May 29, 1979. The family lives in Elmhurst, Queens, New York.

 By federal indictment filed in 1988 in this district, the government alleged that Mojica conspired with others to distribute cocaine in violation of; inter alia, section 846 of title 21. Mojica pled guilty to the charge of conspiracy to distribute cocaine. He had no prior convictions. He was sentenced to one year in prison. He began serving his sentence on March 21, 1989. He was released from prison on March 12, 1990. He was not subject to supervision after release.

 Some four years after his release in the spring of 1994, Mojica renewed his Alien Registration Card. He encountered no problems with the renewal. The INS neither inquired into his conviction nor began deportation proceedings. A year later, in April of 1995, Mojica applied for United States citizenship, paying the $ 95.00 fee and filing the appropriate form at 26 Federal Plaza in Manhattan. As required by law, he noted on the application that he had been an illicit trafficker in narcotic drugs and that he had been arrested, cited, charged, indicted, convicted, and imprisoned for violation of the law. He also attached a letter requesting "clemency for [his] unlawful activity which occurred in 1988."

 Contemporaneously, the INS sent Mojica a notice that his naturalization interview was to be conducted on March 12, 1996. The notice advised Mojica to bring his passport and Green Card. On February 12, 1996, Mojica went to the INS at 26 Federal Plaza as ordered with certified copies of his Eastern District criminal case disposition. The INS did not return Mojica's passport or Green Card. Instead, it told him that it would contact him. At this deferred inspection, Mojica was accompanied by his attorney, who filed a notice of appearance with the INS. Mojica did not go to his naturalization interview as scheduled on March 12. The INS, however, did not close his case; it noted in the file that the application would remain valid for one year. On April 10, 1996 Mojica's attorney wrote to the INS at 26 Federal Plaza asking it to return Mojica's Green Card. No reply was received.

 On April 24, 1996, as already noted in connection with Navas, the President signed into law the AEDPA. (For clarity the statutory chronology is repeated as to Mojica.) As discussed above, section 440(d) of the AEDPA added a provision that INA Section 212(c) waivers of deportation are no longer available for persons "deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii) [or] (B) . . . ."

 On May 28, 1996, Mojica's attorney sent a second letter to the INS at 26 Federal Plaza, New York, asking the INS to expedite the proceedings. The next day, Mojica, on his own initiative, went to the INS office at 26 Federal Plaza to ask for his passport. He arrived at 10:00 a.m. and asked for his papers. He was told to wait. Then, at approximately noon, the INS told him that his papers were being processed and that his documents would be returned to him that afternoon. Instead, however, of preparing to return Mojica's documents, an inspector in the Office of Deferred Inspections filled out another form, "Record of Deportable Alien." Then, at approximately 4:30 p.m. the INS admitted Mojica into the United States as a lawful permanent resident. See Matter of V Q , 9 Int. Dec. at 79-80 (BIA 1960) (citations omitted) (admission is defined as "the freeing of an alien from the legal restraints to which the immigration laws subject him. . . . 'Admission' occurs when an authorized employee of the Service communicates in a tangible manner to an applicant for admission his determination that the applicant has established that he is not inadmissible under the immigration laws. At the point such communication is made and received by the applicant, 'admission' has occurred").

 The INS immediately served Mojica with a Warrant for the Arrest of Alien. The warrant alleged that Mojica, whom the Service had just admitted into the United States, was "within the United States in violation of the immigration laws." The INS also served Mojica with an order to show cause, charging him with deportability pursuant to INA sections 241(a)(2)(A)(iii) and 241(a)(2)(B)(i). Thus, at the same time that the INS determined that Mojica was not inadmissible for his drug trafficking conviction, and therefore not subject to exclusion proceedings, it charged him with deportability for the same conviction. The order to show cause, which was to be filed with an Immigration Judge at 201 Varick Street, ordered Mojica to appear for a hearing before an Immigration Judge at that same location. Here he was served with notice that he was being detained without bond. He was then transported to the Varick Street INS lockup, where he was accepted into custody.

 Although the INS had notices of appearance from Mojica's attorney and was thus aware that he was represented by counsel, Mojica was not taken before an Immigration Judge while at Varick Street. Instead, on June 5, 1996, the INS transferred him from Varick Street to the INS detention facility at Oakdale, Louisiana.

 On June 27, 1996, as pointed out above, the Board of Immigration Appeals decided Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (BIA June 27, 1996), holding that the AEDPA's bar to 212(c) relief for aliens "deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii) [or] (B)" should not apply to aliens who had 212(c) applications pending on or before April 24, 1996.

 On July 5, 1996, more than five weeks after he was taken into custody, Mojica saw an Immigration Judge in Louisiana for the first time. At the hearing, his attorney appeared telephonically from Brooklyn, and requested a change of venue to New York. Venue was not changed. The case was adjourned until August 2, 1996, when Mojica conceded deportability and was found deportable. He applied for relief from deportation pursuant to INA section 212(c).

 The Immigration Judge found that he was ineligible for section 212(c) relief because the passage of the AEDPA on April 24, 1996 amended section 212(c) to provide that it is no longer available to aliens who are in deportation proceedings if they have been convicted of certain crimes, including drug trafficking crimes. Because Mojica was in deportation proceedings, and he had been convicted of a drug trafficking crime, the Immigration Judge reasoned that Mojica was ineligible for section 212(c) relief He ordered Mojica deported from the United States.

 Mojica mailed a notice of appeal. It was received in a timely fashion, on August 20, 1996, by the Board.

 On September 12, 1996, as already noted, the Attorney General vacated the June 27, 1996 decision of the BIA in Matter of Soriano, Int. Dec.3289, 1996 WL 426888 (beginning at screen page 1, BIA June 27, 1996) (beginning at screen page 37, AG Op. Feb. 21, 1997).

 On October 21, 1996, a bond redetermination hearing was held for Mojica. Mojica's counsel appeared telephonically from New York City. He was granted release on a bond of $ 12,000.00, which was posted the next day by his daughter, Alexandra. The INS notified the Executive Office for Immigration Review that Mojica would be returning to his home.

 On February 3, 1997, the BIA dismissed Mojica's appeal. Eleven days later, the INS issued a Notice to Deliver the Alien.

 On February 21, 1997, the Attorney General issued her opinion in Soriano supporting her September 12, 1996 vacateur of the BIA's June 27, 1996 decision. Matter of Soriano, Int. Dec.3289, 1996 WL 426888 (beginning at screen page 1, BIA June 27, 1996) (beginning at screen page 37, AG Op. Feb. 21, 1997). The ruling provided that the AEDPA section 440(d) amendment to INA section 212(c) should be applied retroactively to all deportation proceedings pending on April 24, 1996.

 On March 4, 1997, Mojica filed a petition for a writ of habeas corpus in this court. The next day, the court ordered Mojica to surrender to the INS in Oakdale, Louisiana. Mojica flew from LaGuardia Airport to Oakdale, and was accepted by the INS on May 7, 1997. As in the case of Navas, the government has agreed not to deport Mojica pending termination of the instant proceeding and appeals.

  III. Constitutional, Statutory and Historical Context

  In construing a statute courts approach their task with the assumption that Congress and the President acted with sensitivity to the fundamental thrust of our history as one of the world's foremost proponents of the rule of law and human rights, including fairness to all within our borders. It is therefore appropriate when deciding the meaning of the important new statutes dealing with legal permanent residents to put these provisions in their historical and constitutional setting. With this need in mind, as an aid to understanding the relevant provisions, the discussion that follows briefly touches upon the history of: (1) immigration in this country, (2) the international role of this county as a global leader in the defense of human rights (3) habeas corpus, (4) the ex post facto rule and its sibling, retroactivity, and (5) United States internal law designed to check arbitrary and capricious conduct by the bureaucracy.

  A. History of Immigration

  Ours is a nation of immigrants and their descendants. Except for the Native Americans whose ancestors were believed to have walked over the Bering Straits land bridge from Asia some twenty-five millennia ago (see Bradley v. Milliken, 484 F.2d 215, 274 (6th Cir. 1973) (dissenting opinion), all of us trace our genealogy to overseas forebears who arrived here within the past few hundred years. Cf. Tunku Varadarajan, Skeleton May Prove Indians were not the First Americans, Times (London), June 11, 1997, at 12. In our early history immigrants were welcomed to fill an enormous shortage of labor and to settle huge spaces almost devoid -- by European standards -- of people. Since the colonial period, those seeking religious toleration, political freedom and economic opportunity have been freely received. This trend of unrivaled openness and acceptance continues. See, generally, Thomas A. Aleinikoff and David A. Martin, Immigration: Process and Policy 39-63 (1991) (detailed history of immigration to the United States); Gabriel Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C.L.Rev. 273 (1996); see also, William Branigin, U.S. Posts 27% Rise in Legal Immigration; Almost 916,000 People Admitted Last Year, Wash. Post, Apr. 23, 1997, at A15.

  This country has grown and prospered in a climate of constant refreshment by the introduction into our midst of adventurous spirits willing to leave the security and predictability of what they knew in their lands and rulers they adjured for the hope of full equality of rights and opportunities within our borders. This American attribute is also the result of more than a collective self-conception, uncontrived and spontaneous development of custom, or nostalgic harkening back to the lore of our national beginnings. See, e.g., Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 8 (1984) ("American society has always prided itself on the inclusive, assimilative conception of nationhood that it embraces and offers to those who would join us. These qualities of openness have been a dominant feature of our self-definition and national myths."). Our treatment of aliens is rooted deeply in the fertile soil of constitutional and statutory design.

  Unlike some European nations which favor citizenship and repatriation by theories of "blood" and "race," full citizenship by birth and easy administrative methods of obtaining citizenship have almost always been favored in this country. See U.S. Const. Amend. 14 § 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside"); Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (confirming concept of jus soli -- citizenship conferred automatically to African-Americans by birth in United States), currently codified at 8. U.S.C. § 1401 (defining persons who acquire citizenship at birth); The Act of June 2, 1924, 43 Stat. 253 (conferring citizenship upon all indigenous peoples born within the United States), currently codified at 8 U.S.C. § 1401 (defining persons who acquire citizenship at birth); see also, United States v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890 (1898); Jeffery B. Morris and Richard B. Morris, Encyclopedia of American History 630-644 (7 ed. 1996) (immigration since colonial times and ethnic evaluation); Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 9 & n.26 (1984) (noting 1740 British statute allowing various groups to obtain rights of British subjects in the colonies). If we are not a "melting pot," it is generally true that we have at least constitutionally offered full integration to all citizens and residents, providing open access to our social, political, technological and economic structures (with some notable historical exceptions including the enslavement of African-Americans and the near genocide of indigenous peoples). Cf., e.g., Voting Rights Act of 1965, 42 U.S.C. §§ 1971 et seq.

  Yet, it also cannot be gainsaid that there have been major exceptions to our positive constitutional and statutory river of equal rights policy and our national ethos of openness. Enslavement of those of African origin, the destruction of many Native American nations and the internment of Japanese-Americans are among the most obvious aberrations. There exists a constant tension with a more restrictive impulse. Streams of nativism and xenophobia have percolated and bubbled-up, typically in reaction to waves of immigration responding to demands for labor, based on unfounded fears about the criminality or inferiority of new immigrants. For instance, even though free immigration ruled the day in general, anti-alien sentiment started before the Revolution with statements by some our major leaders against German and other non-British subjects. See, e.g., Marion T. Bennett, American Immigration Policies, A History 3, 7, 297 & n.3 (1963) (against unrestricted immigration at one time or another were John Adams, John Quincy Adams, Benjamin Franklin, Alexander Hamilton, Patrick Henry, John Jay, Thomas Jefferson, Rufus King, James Madison, Gouverneur Morris and George Washington); but cf. Gil Loescher and John A. Scanlan, Calculated Kindness xiii (1986) (George Washington favored free immigration).

  The Alien and Sedition Acts of 1798 -- clearly political in tone and enacted under the aegis of the High Federalists to enhance their political control -- serve as further examples of deviation from our basic policy of easy acquisition of citizenship and full rights of resident aliens. As summarized in Jean Edward Smith's biography of John Marshall, the great Chief Justice-to-be, then a member of Congress, strongly opposed barriers to citizenship:

  
The [Federalist] party also capitalized on the situation [with France] to pass the infamous alien and sedition acts of 1798 -- an ill-considered attempt to stifle domestic criticism. These laws involved four measures passed by Congress in June and July. The first, the Naturalization Act of June 18, 1798, extended the period of residence required for naturalization from five years to fourteen. The Federalists believed that most immigrants voted Republican, and they sought to keep them off the voters rolls as long as possible. The Alien Act of June 25, 1798, authorized the president to expel any nonnaturalized person of foreign birth whom he judged "dangerous to the peace and safety of the United States." The Alien Enemies Act of July 6, 1798, authorized the president, in the event of war, to designate as alien enemies any citizen or subject of a hostile nation residing in the United States and to make regulations to their apprehension, restraint, or removal.
  
. . .
  
[John] Marshall watched these developments with growing concern. . . . In fact, Marshall was the only party leader to question the legislation and the only one to recognize that the acts gave the Republicans an issue with which to win back popular support. The High Federalists, in their eagerness to put the country on a war footing had over-reached.

  Jean Edward Smith, John Marshall, Definer of a Nation, 239 (1996). Marshall continued to oppose the Acts, and they were allowed to lapse. Id. at 244; see also, e.g., Gerald L. Neuman, Strangers to the Constitution 52-71 (1996) (Alien and Sedition Act debates). This was not the last dispute about aliens.

  It is well known that prejudice against the Irish, the Chinese, the Japanese, the Italians, the Jews, the Mexicans and others emerged as these groups emigrated in substantial numbers; it persisted long after their arrival. See, e.g., John Higham, Strangers in the Land, Patterns of American Nativism passim (1955) (also noting, e.g., nativist opposition to Scandinavians and Catholics); Albert Eiseman, From Many Lands, passim (Athenium, 1970); Lucy E. Salyer, Laws Harsh as Tigers, Chinese Immigrants and the Shaping of Modern Immigration Laws (1995); J.R. Garcia, Operation Wetback: The Mass Deportation of Mexican Undocumented Workers in 1954 (1980).

  For the most part, however, these attitudes were -- and continue to be -- relatively small eddies in the broader river of tolerance, and our need for the foreign born as labor. See Higham, Strangers in the Land, Patterns of American Nativism at 115 (business and industry "defense of immigration because of the need for unskilled labor"); see also, e.g., Marion T. Bennett, American Immigration Policies, A History, 13, 53 (1963) ("Americans tended to welcome the foreigners;" the Know-Nothing Party of the mid-19th century failed to reduce the immigration tide since political needs of the two major parties, technological improvements in transportation, cheap land grants, and industrialists building a huge manufacturing capacity in steel and other products encouraged immigration); Select Commission on Immigration and Refugee Policy Staff Report, U.S. Immigration Policy and the National Interest (1981), reprinted in Thomas A. Aleinikoff and David A. Martin, Immigration: Process and Policy 45 (1991) ("After the Civil War, the country's desire for immigrants seemed insatiable"); see also, Blaine Harden and Jay Matthews, New Mix Enlivens N.Y. Melting Pot; Immigrants Are Vital Tonic After Decades of Population Drain, Wash. Post, May 26, 1997, at Al (New York "is thriving, in large measure, because hundreds of thousands of [immigrants] are re-enacting grandpa's elbow-grease story. . . immigrants are a windfall. . . New York demographers credit immigrants with heading off a potentially 'catastrophic' population drain."); cf. John Cassidy, The Melting-Pot Myth, The New Yorker, July 14, 1997, at 40-43 (economic costs and benefits of current immigration).

  Perhaps the country's most marked xenophobic paroxysm occurred in the 1920's with the closing of the immigration door and the favoring of West Europeans over Italians, Jews, Asians and others through numerical restrictions by country. See, e.g., Marion T. Bennett, American Immigration Policies, A History, 40-70 (1963). The 1924 Exclusionary Act had a particularly disastrous effect in the 1930's and early 1940's when many thousands of Hitler's victims were excluded by the 1924 law, anti-Semitism, and prejudice of State Department officials. See, e.g., Alberta Eiseman, From Many Lands 190-91 (1970) (Japanese); Gil Loescher and John A. Scanlan, Calculated Kindness, Refugees and America's Half-Open Door xiv (1986) ("In 1939 ... President Roosevelt implicitly acknowledging the strength of popular anti-Semitism, provided no support for a bill introduced by Congress which would have provided special immigration opportunities for up to 20,000 refugee children.").

  World War II marked the end of that regrettable interlude, ushering in a return to an epoch of tolerance, equality and openness. Since 1945 "the United States has revived its traditional rhetoric of welcome -- and matched its words with action." Gil Loescher and John Scanlan, Calculated Kindness, Refugees and America's Half Open Door xiv (1986). It was clear that after the revealed horrors of the effects of prejudice in Europe and elsewhere -- a major factor in leading to the deaths of tens of millions in World War II -- "restrictionism was out of place for a nation which aspired to moral and political leadership in the world." Id. at 143. "Since the end of World War II American immigration policies have become noticeably less racist and more humane." Id. at 21. This was only partly due to the politics of our anti-communist struggle. Id. at 219.

  In the 1960s the United States afforded itself the moral satisfaction of passing a nondiscriminatory immigration act, "avoiding" the "crabbed and xenophobic one of 1924." Nathan Glazer, A Clamor at the Gates, The New American Immigration 7 (1985). The issue was no longer "whom we shall welcome," but how many, and how they could be treated with dignity, due process and equality as legal residents once they arrived. Id. at 11; see also, e.g., Application of Griffiths, 413 U.S. 717, 93 S. Ct. 2851, 37 L. Ed. 2d 910 (1973) (invalidating exclusion of legal permanent residents of Connecticut from practicing law on Equal Protection grounds); Sugarman v. Dougall, 413 U.S. 634, 93 S. Ct. 2842, 37 L. Ed. 2d 853 (1973) (striking down, on Equal Protection grounds, New York law that only United States citizens could hold permanent state civil service status); but cf. Peter D. Salins, Assimilation, American Style x (1997) (recent recurrence of a cycle of nativism "after a full half century of remission").

  Signing the Immigration and Nationality Act of 1965, which eliminated the national origins system, President Lyndon B. Johnson spoke to the underlying values of the Act. At the foot of the Statue of Liberty in New York Harbor, the new law, he declared,

  
repairs a deep and painful flaw in the fabric of American justice, it corrects a cruel and enduring wrong in the conduct of the American nation. It will make us truer to ourselves as a country and as a people.

  Alberta Eiseman, From Many Lands, 201-02 (1970). This retreat from the attitude that aliens had no rights to embrace a regime grounded on notions that immigrants deserved to be treated "fairly" is well summarized by Professor Peter H. Schuck in his "Immigration Law and the Problem of Community":

  
[A] profound ideological transformation has begun to undermine the individualistic foundations of classical immigration law, especially its core notion that the government owes no legal obligation to aliens apart from those flowing from the terms and conditions upon which it consented to their entry. By conceiving of entry as only a privilege, conditioned on an alien's acceptance of the limited claims and inferior status offered by the government, traditional courts hoped to reconcile restrictive nationalism with individualistic values. This "right-privilege" distinction, so familiar to the constitutional lawyers of an earlier day, was a seductive principle through which courts thought to vindicate the dominant ideals of consent, sovereignty and national community.
  
During the 1960s and 1970s, however, the American legal system outside the immigration field experienced a tidal wave of change, one that is now beginning to wash over immigration law, traditionally a most insular specialty.

  Peter H. Schuck, Immigration Law and the Problem of Community, in Nathan Glazer, Clamor At the Gates, The New American Immigration, 297 (1985). See also, e.g. Peter H. Schuck The Transformation of Immigration Law, 84 Colum.L Rev. 1 (1984); Note, Preserving Procedural Due Process for Legal Immigrants, 65 Fordham L.Rev. 2065 (1997). In addition to internal United States constitutional doctrine strengthening the protection of resident aliens and an adherence to historic values alluded to by President Johnson at the 1965 Act's signing, powerful international forces were at work towards the same ends.

  B. Human Rights Obligations of the United States

  In his magisterial Foreign Affairs and the US Constitution, Professor Louis Henkin points out that an older view was that aliens need not be protected under the Constitution in the same way as citizens. See generally, Louis Henkin, Foreign Affairs and the US Constitution 293-97 (2d ed. 1997). Treatment of aliens was viewed as an aspect of foreign relations, intimately related to foreign policy interests. Id. at 295. Thus,

  
When it became clear that equal protection was required by the federal government, rethinking (and justifying) long-established distinctions between citizens and aliens did not come readily and (at the end of the twentieth century) may not have come or been fully recognized yet.

  Id. at 295. Where "the distinction between citizen and alien appears to have little significance for U.S. foreign relations," Professor Henkin suggests, discrimination against aliens needs reconsideration. Id. at 296-97.

  Congress and the President are presumed to know the persuasive and controlling effects on United States jurisprudence of the International Covenant in human rights and other like-manifestations of the law of nations which apply to aliens within United States borders. See Louis Henkin, Foreign Affairs and the US Constitution 297 (2d ed. 1997). The law of nations (and with it the developing law of human rights) has been treated as a part of the law of the United States since colonial times. Id. at 136, n. 17; see also Louis Henkin, "Evolving Concepts of International Human Rights and the Current Consensus" 170 EF.R.D.F 275, 275-81 (1997) (paper presented at the International Human Rights Session, Judicial Conference-Second Circuit, June 15, 1996). At the conference Professor Henkin declared: "How a nation treats its own inhabitants is now everybody's business potentially." Id. at 276.

  There is no point in rehearsing the exact nature of each of the many relevant rights now applicable internationally. Given that this is a case of statutory construction, it is not necessary to declare in which way this country is constitutionally bound. See Henkin, Evolving Concepts, 170 EF.R.D.F at 284 (1997) (international human rights law as a guide to statutory interpretation); Lareau v. Manson, 507 F. Supp. 1177, 1189 n.9 (D.Conn. 1980) (Cabranes, J.) (same), affirmed in part, 651 F.2d 96 (2d Cir. 1981); International Human Rights Instruments § 440.7 (Richard B. Lillich 2d ed. 1990) (collecting articles and United States opinions relying on Universal Declaration of Human Rights). Congress -- as the lawmaker of ...


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