F. Supp. at 174 (citations and internal quotation marks omitted).
Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976), on which the government relies, can be distinguished from the instant case as it was in Nwankwo. Billiteri held that the Parole Board is not the prisoner's custodian when the prisoner has not been released on parole and is still in physical detention. Billiteri is inapplicable because the warden of a prison is not a delegate or agent of the Parole Board, whereas a District Director of the INS acts only pursuant to powers delegated by the Attorney General.
The Attorney General is here an appropriate respondent. "Because the Attorney General, in her official capacity, clearly transacts business in New York," she can be reached by service of process. Nwankwo v. Reno, 828 F. Supp. 171, 175 (E.D.N.Y. 1993). See N.Y. C.P.L.R. § 301 (service reaches non-domiciliary who regularly transacts business in New York State, even if the cause of action has no connection to the state). See also Welinsky v. Resort of the World, 839 F.2d 928 (2d Cir. 1988); cf. Strait v. Laird, 406 U.S. 341, 346, 92 S. Ct. 1693, 1696, 32 L. Ed. 2d 141 (1972) (California court has habeas jurisdiction over petition filed by an army reservist residing in California although reservist's custodian -- commanding officer -- was located in Indiana; commanding officer's contacts with California through the chain of command were enough to give the officer "presence" within California for habeas purposes).
It is important to note that were the government correct that a habeas petition may be heard only where the petitioner is detained, then the Attorney General "could seriously undermine the remedy of habeas corpus by detaining illegally a large group of persons in one facility so that the 'resulting torrent of habeas corpus petitions' would overwhelm" the local court. Nwankwo v. Reno, 828 F. Supp. 171, 175 (E.D.N.Y. 1993); see also Strait v. Laird, 406 U.S. 341, 345, 92 S. Ct. 1693, 1696, 32 L. Ed. 2d 141 (1972) (requiring habeas petitions to be filed in only one in district would "ignore reality" and result in inefficient concentration of cases). But see Wang v. Reno, 862 F. Supp. 801, 813 (E.D.N.Y. 1994) (distinguishing Nwankwo because no backlog would delay Wang petition as in Nwankwo).
The laws of the state of New York allow for service of process over all of Mojica's custodians, including Caplinger. Mojica is a longstanding resident of New York with substantial ties to this state. Among other things, both his family and attorneys reside and transact business here. Moreover, Caplinger permitted Mojica to return to New York, yet retained the right to control his liberty while Mojica was residing in New York. The personal jurisdiction requirement is satisfied. The Attorney General may not frustrate the courts and negate the Great Writ by moving prisoners around the country.
(2) Venue Is Proper with Regard to Petitioners
Venue with regard to Mojica is proper in the Eastern District, and a fortiori with respect to Navas. While the habeas corpus statute does not contain a venue provision applicable to this case -- the habeas statute's explicit venue provision, subsection 2241(d), pertains only to "a person in custody under the judgment and sentence of a State court" -- the Supreme Court has made clear that courts should apply "traditional venue considerations" in a habeas proceeding where venue is not fixed by statute. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493, 93 S. Ct. 1123, 1128-29, 35 L. Ed. 2d 443 (1973); see also Sero v. Preiser, 506 F.2d 1115, 1130 & n. 11 (2d Cir. 1974) (appropriateness of habeas venue in New York "bolstered" by analogy to section 1391(e) which looks to residence of plaintiff); Nwankwo v. Reno, 828 F. Supp. 171, 176 & n.2 (E.D.N.Y. 1993).
Such traditional venue considerations include, but are not necessarily limited to: (1) the location where the material events took place, (2) where records and witnesses pertinent to the claim are likely to be found, (3) the convenience of the forum for respondent and petitioner, and (4) the familiarity of the court with the applicable laws. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 at 493, 93 S. Ct. 1123, 1128-29, 35 L. Ed. 2d 443 (1973).
In the instant case, these considerations strongly militate in favor of adjudicating Mojica's habeas petition in the Eastern District of New York. Until his transfer from the INS's Varick Street detention center in New York, Mojica had never been in Louisiana. The crime for which he became deportable took place in the Eastern District of New York. Witnesses and evidence necessary to establish his eligibility for 212(c) relief are all located in New York.
Mojica would be severely disadvantaged by having to bring a habeas proceeding in Louisiana since his attorneys are located in New York and have expended extensive efforts on this matter in the Eastern District. See Yesil v. Reno, 958 F. Supp. 828, 836 (S.D.N.Y. 1997). The choice of forum could significantly affect Mojica's rights because the law varies from circuit to circuit, and as a resident of the Second Circuit for over twenty years, Mojica should have his case decided under Second Circuit law. Id. There is also a possibility of a backlog habeas petitions in Louisiana, which could result in Mojica's right to habeas review being significantly delayed while he remained in detention in Louisiana, without realistic access to his attorneys or family. See Nwankwo v. Reno, 828 F. Supp. 171, 174 (E.D.N.Y. 1993) ("common sense administration of justice" meant court should hear case given large volume of habeas petitions in Western District of Louisiana).
In contrast, the government and respondent Caplinger are not prejudiced if they are required to litigate in this court. As the Yesil court noted, the INS traditionally has been well represented in this district and can litigate here as well as in Louisiana. Yesil v. Reno, 958 F. Supp. 828, 836 (S.D.N.Y. 1997). That is not true for Mojica, who likely would be required to retain new counsel in Louisiana, since his counsel has no office in Louisiana and could not practicably provide adequate representation if the case were transferred.
Additionally, this court has an interest in adjudicating petitioner's case. Respondent Caplinger has caused the surrender for deportation of a resident of the State of New York who has resided for the last twenty-three years in the Eastern District of New York and has never had any previous contact with Louisiana. See Yesil v. Reno, 958 F. Supp. 828, 836 (S.D.N.Y. 1997) (adjudicating habeas petition of alien released on bond from Oakdale INS facility and living in New York at time of habeas petition).
Because there is subject matter jurisdiction pursuant to section 2241 of Title 28, personal jurisdiction over the custodians, and the Eastern District of New York is the proper venue, the court has the power to address petitioners' claims. That substantive issue is dealt with below.
V. Protection of Legal Permanent Residents Against Arbitrary Deportation
A. Statutory History of Section 212(c) and Section 440(d)
The history of relevant provisions of law allowing for hearings before deportation for reasons of compassion and justice are set out in Part II.A., supra. They need not be repeated here.
B. Section 440(d) Does Not Retroactively Eliminate Right of Petitioners to a Fairness Hearing
Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), delineated the approach that courts must take in determining the temporal effect of new legislation. First, courts review the statutory provision to determine whether there are any constitutional bars to retroactive implementation. Second, they ascertain whether the statute itself manifests express congressional design favoring retroactivity. Finally, where courts can divine no explicit constitutional prohibition or congressional design, they must determine the time that the legislation comes into effect, keeping in mind that the default rule underlying all judicial interpretation of statutes is against retroactive application. With section 440(d) of the AEDPA, Congress expressed no clear intent favoring retroactivity and there may be constitutional barriers to retroactivity. This analysis leads to a conclusion against retroactivity; the government cannot prevent petitioners from applying for section 212(c) discretionary relief and having their petitions determined on the merits.
(1) Constitutional Barriers to Retroactivity
The Constitution is infused with the common-law aversion to retroactivity:
It is . . . not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article I, § 10, cl. 1 prohibits States from passing another type of retroactive legislation, laws "impairing the Obligation of Contracts." The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a "public use" and upon payment of "just compensation." The prohibitions on "Bills of Attainder" in Art. §§ 9-10 prohibit legislation from singling out disfavored persons and meeting out summary punishment for past conduct . . . The Due Process Clause also protects the interest in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a state's prospective application under the Clause "may not suffice" to warrant its retroactive application."
Landgraf v. USI Film Products, 511 U.S. 244, 265, 114 S. Ct. 1483, 1497, 128 L. Ed. 2d 229 (1994) (citations and footnotes omitted). Of all the constitutional arguments that might be made against retroactive application of the AEDPA, the due process argument is, in the present instance, the strongest.
The heart of the due process requirement for retroactive legislation is "conditioned upon a rationality requirement beyond that applied to other legislation." Bowen v. Georgetown University Hospital, 488 U.S. 204, 223, 109 S. Ct. 468, 479, 102 L. Ed. 2d 493 (1988) (Scalia, J., concurring). Like any aspect of legislation, retroactive characteristics must meet the basic due process requirement of being "supported by a legitimate legislative purpose furthered by a rational means." Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729, 104 S. Ct. 2709, 2717-18, 81 L. Ed. 2d 601 (1984). With retroactive legislation, there must be an independent rationale for retroactivity. See id., 467 U.S. at 730, 104 S. Ct. at 2718. A purpose that supports a law's prospective characteristics is not sufficient, in itself, to support retroactively. See id.
In the present case, Congress offered no purpose for retroactivity itself. The statute, read as a whole, does not even provide for retroactivity. The Attorney General's opinion in Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (beginning at screen page 37, AG Op. Feb.. 21, 1997), offers no explanation for a retroactive rule. Instead her opinion merely defends retroactivity as permissible. Even in the most deferential areas of rational basis review, such an absence of purpose is a significant factor that can lead a court to strike down a government program as lacking a rational basis. Compare Allegheny Pittsburgh Coal Co. v. Webster County, 488 U.S. 336, 343-44, 109 S. Ct. 633, 637-38, 102 L. Ed. 2d 688 (1989) (striking down differential real-estate tax scheme where there was no clear state policy) with Nordlinger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992) (upholding differential real-estate tax scheme where it furthered California's interest in protecting home-owners from escalating real-estate values).
Cases where the Supreme Court has upheld retroactive statutes against due process challenges are characterized by circumstances not applicable here. First, they involved challenges to statutes where congressional policy on retroactive application is unambiguous. For example, Usery v. Turner Elkhorn, 428 U.S. 1, 96 S. Ct. 2882, 49 L. Ed. 2d 752 (1976), concerned an attack on a congressional program for allocating the costs of Black Lung injuries sustained by workers on the job. Congress had to balance the issue of retroactivity with the problem of developing an equitable plan that avoided unfair burdens on current producers and recognized that past employers had benefitted from the activity that was the cause of the harms Congress sought to ameliorate. See also United States v. Sperry, 493 U.S. 52, 64-65, 110 S. Ct. 387, 396-97, 107 L. Ed. 2d 290 (1989) (upholding method for allocating costs of Iran-United States Claims Tribunal as preventing windfalls and equitably distributing costs). In other cases, the Court noted that retroactivity was necessary to address the problem of actors modifying their behavior for inappropriate economic gain during the pendency of legislation. See e.g., Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730-31, 104 S. Ct. 2709, 2718-19, 81 L. Ed. 2d 601 (1984) (retroactivity of provisions on withdrawal from pension plans designed to check against employers withdrawing from plans during the lengthy legislative process). In still others, retroactivity was designed to correct inequities that resulted from unexpected judicial interpretations of prior law (see General Motors Corp. v. Romein, 503 U.S. 181, 191, 112 S. Ct. 1105, 1112, 117 L. Ed. 2d 328 (1992)) or were targeted to correct an unexpected loophole created by prior law. See United States v. Carlton, 512 U.S. 26, 114 S. Ct. 2018, 129 L. Ed. 2d 22 (1994) (permitting one year retroactivity for statute correcting a mistake in prior law).
The Supreme Court's recognition of the need to evaluate separately the rationality of retroactivity post-dates older cases upholding retroactive deportation laws. Even those older deportation cases identified a congressional purpose in the retroactivity itself For example, in Harisiades v. Shaughnessy, 342 U.S. 580, 72 S. Ct. 512, 96 L. Ed. 586 (1951) and Galvan v. Press, 347 U.S. 522, 74 S. Ct. 737, 98 L. Ed. 911 (1952), the Court identified congressional security interests in the deportation of past and current members of the Communist Party. As the Court explained in Harisiades, the Communist Party's action to "drop aliens from membership, at least in form, in order to immunize them from the consequences of their party membership" made the distinction between past and present membership meaningless and required a statute that looked to past membership. Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S. Ct. 512, 521, 96 L. Ed. 586 (1951). The statute considered in Marcello v. Bonds, 349 U.S. 302, 75 S. Ct. 757, 99 L. Ed. 1107 (1955), and Lehmann v. United States, 353 U.S. 685, 77 S. Ct. 1022, 1 L. Ed. 2d 1122 (1957), was also plainly intended to be retroactive. See Lehmann, 353 U.S. at 689-90, 77 S. Ct. at 1024-25. The Court's decisions, however, did not take up the question whether this clearly stated congressional policy satisfied due process requirements. Its decisions referred only to Ex Post Facto objections.
In the instant situation courts are left to guess at what purpose could be served by applying section 440(d) retroactively. Without any guidance from Congress, the court may be tempted to analogize to discover possible purposes supporting retroactivity. Such an exercise in hypotheticals is not generally permissible. See Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S. Ct. 2709, 2718, 81 L. Ed. 2d 601 (1984) (requiring an independent rationale for retroactive application). In any event, the prospective scheme created by the AEDPA bears little rational relationship to the way that the law would work if it were applied retroactively.
First, as applied prospectively, the AEDPA serves to provide notice of the severe and certain deportation consequences that will flow from commission of any of the crimes enumerated in section 440(d). It may therefore be seen as making clear the very high standards to which immigrants will be held. It may well have a deterrent effect. By contrast, when applied retroactively to crimes that were treated leniently in the criminal justice system, the statute works only to upset and frustrate expectations.
Retroactive application would create a situation in which people who have lived in the community, have established themselves as valuable members of society, and who are needed to support their families, are summarily deported without regard to the present and future interests of their families or the community at large. Cf. Barry R. Chiswick, The Performance of Immigrants in the United States Labor Market 95, 110 in Economic Aspects of International Migration (Herbert Giersch ed. 1994) (discussing the "high level of ability and motivation" among immigrant workers). Moreover, under the AEDPA's vast expansion of the relevant crimes leading to automatic deportation, these consequences would be visited on people who committed crimes that may have been treated leniently in the criminal justice system.
The arbitrariness of retroactive application is illustrated by the case of Mojica. Although he was deportable, the INS showed no interest in commencing deportation proceedings. To the contrary, it demonstrated a studied indifference to his presence, electing on numerous occasions not to institute proceedings. And it did so despite the fact that Mojica was incarcerated and that it had a clear opportunity to place him under detainer. Arguably the INS had made a judgment that Mojica was a likely candidate for waiver of deportation under the existing law. Meanwhile, Mojica reestablished his life with his citizen wife and citizen children, proceeded with his business, and created a record that arguably demonstrated that he is a valuable member of our society for whom there should at least be some consideration of equities prior to deportation. Congress has certainly not offered a rationale for subjecting him to summary deportation. Cruelty to the family which has reestablished a relationship with someone who has been incarcerated and now is torn once again from the bosom of the family for the crime he or she paid for many years ago does not seem to have been part of congressional design.
Retroactivity generally targets those whom the INS had once decided not to detain and place in deportation proceedings. It denies them the relief that was available to their fellow inmates who had deportation proceedings against them commenced in a timely manner. For legal permanent residents such as petitioner Mojica, deportation proceedings do not follow criminal incarceration. Instead, they are triggered by unwitting contacts with the INS following a trip abroad, an application for citizenship, or an application for a replacement permanent resident card. When deportation proceedings actually begin depends on when these events occur, and on whether the INS then institutes proceedings. By choosing not to pursue deportation for legal residents such as Mojica, the INS demonstrated a belief that such individuals need not be deported. The irony is that those whom the INS deemed strong candidates for deportation had the opportunity to seek 212(c) relief from deportation, and, as discussed further below, had a good chance at prevailing. In contrast, persons deemed excellent candidates for 212(c) relief because of strong family ties, value to their communities, and manifest rehabilitation are now told that they are to be automatically deported without any opportunity of 212(c) individual merit-based review. Not only does such an interpretation lack any legislative support for the required distinct rationale ( Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S. Ct. 2709, 2718, 81 L. Ed. 2d 601 (1984)), such an absurd proposition flies in the face of what appears to be Congress's design in enacting the AEDPA--facilitating the quick removal of criminal aliens who pose a threat to society while continuing to provide avenues of individual merit-based review for long term legal residents who have been rehabilitated and who are vital members of American families and American communities.
The irrationality of the Attorney General's construction of the statute is further evidenced by the fact that the BIA is required under this interpretation to order the deportation of aliens in proceedings where the Immigration Judges have already weighed the evidence in the case and have concluded that it is in the interests of the United States for the immigrant to remain. These are cases where a person has shown true rehabilitation; where there are dependent family members; and where a person with a prior addiction who committed a drug-related crime has overcome the addiction and led a crime-free and upstanding life.
In sum, not only has Congress failed to articulate any rational purpose, but after a year of the government's attempts at retroactive application, it still can identify no rational purpose for the retroactive application of section 440(d).
(2) Manifest Congressional Design
Without manifest congressional design expressed in clear statutory language, the default rule in statutory interpretation requires prospective implementation. See Landgraf v. USI Film Products, 511 U.S. 244, 272, 114 S. Ct. 1483, 1501, 128 L. Ed. 2d 229 (1994); See also Jeffries v. Wood, 114 F.3d 1484, 1997 WL 253326, at *9 (9th Cir. 1997) (discussing judicial statutory interpretation post-Landgraf). With respect to section 440(d) of the AEDPA, as with the legislation reviewed in Landgraf, "the absence of . . . language [on retroactivity] cannot realistically be attributed to oversight or to unawareness of the retroactivity issue." Landgraf, 511 U.S. at 256, 114 S. Ct. at 1492. "In statutory construction, [courts] presume Congress legislated with an awareness of relevant judicial decisions." Jeffries, 114 F.3d 1484, 1997 WL 253326, at *11. As with the legislation in Landgraf, "it is entirely possible--indeed, highly probable--that . . . Congress viewed the matter as an . . . issue to be resolved by the courts. Landgraf, 511 U.S. at 256, 114 S. Ct. at 1492.
Where it agrees upon and purposely enacts provisions explicitly meant to have retroactive effect, Congress has no trouble finding the words to do so. The following is a listing of the AEDPA Title IV immigration provisions which Congress elected to apply to pre-Act conduct or events:
Section 401(f)-- "The amendments made by this section shall take effect on the date of enactment of this Act and shall apply to all aliens without regard to the date of entry or attempted entry into the United States." (emphasis supplied). Here, Congress determined that the relief-restricting and rights-limiting provisions of section 401 (enacting new alien terrorist removal procedures) applied to any alien even if the alleged terrorist conduct pre-dated AEDPA.
Section 413(g)-- "The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications filed before, on, or after such date if final action has not been taken on them before such date." (emphasis supplied). Here, Congress determined that the relief-restricting provisions of section 413 (denying various forms of relief to alien terrorists) applied to an alien even if the alleged terrorist conduct pre-dated AEDPA as long as no final action had been taken on the application for relief prior to AEDPA's enactment.
Section 421(b)-- "The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and apply to asylum determinations made on or after such date." (emphasis supplied). Here, Congress determined that the relief-restricting provision of section 421(a) (denying asylum relief to alien terrorists) applied to an alien even if the alleged terrorist conduct pre-dated AEDPA as long as no asylum determination had been made prior to AEDPA's enactment.