A. Facts and Procedural History
The facts and procedural history are set forth in detail in my February 27, 1997 opinion and will not be repeated here.
In my February 27th opinion, I held that this Court had personal jurisdiction over the district director of INS in Louisiana, that the abuse of writ doctrine was not a bar to Yesil's seeking relief in these proceedings, that sections 401(e) and 440(a) of the AEDPA did not deprive the district courts of subject matter jurisdiction to entertain challenges to final deportation orders brought by petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2241, and that the IJ and BIA had erred in holding that Yesil was not eligible to be considered for section 212(c) relief because he had not been a lawful permanent resident for seven years. In the latter respect, I held that Yesil was eligible to be considered because he had been lawfully domiciled in the United States for seven continuous years and was a lawful permanent resident at the time of his application.
The issues raised by the present motion for reconsideration were not reached in my February 27th opinion because, as the Government stated at page 43, footnote 15 of its January 30, 1997 memorandum of law in opposition to the petition, the Attorney General was still then "considering whether to apply AEDPA § 440(d) to 212(c) applications filed before April 24, 1996."
The Attorney General decided that question when she issued her opinion in Soriano on February 21, 1997, six days prior to the issuance of my opinion in this case. The United States Attorney's Office for the Southern District of New York, however, did not learn of the Attorney General's decision until March 3, 1997. The Government filed the instant motion for reconsideration on March 10, 1997.
B. Section 440(d)
The AEDPA was signed into law by the President on April 24, 1996. Section 440(d) of the AEDPA amended section 212(c) of the INA, a long-standing "humane provision" of law that gave lawful permanent residents the right to seek relief if they became subject to deportation because they were convicted of a crime. Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977). In applying for a section 212(c) waiver, a lawful permanent resident could point to factors such as ties to the United States, the effect of deportation on the individual's family, proof of rehabilitation, service to the community, and other evidence of good character.
Section 440(d) sharply limited section 212(c) by barring relief for individuals who were deportable because they had committed certain categories of offenses,
including: (1) an aggravated felony; (2) a controlled substance violation; (3) a firearm offense; (4) one of various miscellaneous crimes; or (5) two or more crimes involving "moral turpitude." Hence, lawful permanent residents convicted of one of these offenses were no longer eligible for section 212(c) relief, no matter how many years they had been lawfully domiciled in this country.
Section 440(d) is silent as to whether it applied to pending cases. INS took the position, however, that section 440(d) applied to all deportation cases pending when the AEDPA took effect, as well as, of course, to deportation cases subsequently commenced. This set the stage for the resolution of the issue in Matter of Soriano.
1. The BIA's Decision
Bartolome Jhonny Soriano arrived in the United States as a lawful permanent resident in March 1985. In May 1992, he was convicted of attempted criminal sale of a controlled substance. On the basis of that conviction, INS commenced deportation proceedings against him. During the course of the proceedings, Soriano applied for section 212(c) relief. In October 1995 the IJ found that Soriano was eligible for section 212(c) relief, but denied the application in the exercise of his discretion.
Soriano appealed to the BIA. Thereafter, while the appeal was pending, the AEDPA became law. Although Soriano had been eligible for section 212(c) relief when he requested the waiver, under section 440(d) he would no longer be eligible because his conviction fell within one of the categories covered by section 440(d). INS took the position before the BIA that section 440(d) applied to pending applications and thus it argued that Soriano was barred from seeking section 212(c) relief.
The six-member majority disagreed. First it concluded, however, that Congress did not expressly provide for an effective date for section 440(d). Matter of Soriano, Interim Decision No. 3289, 1996 WL 426888 (BIA June 27, 1996) (hereafter cited as "Int. Dec."). Because Congress had expressly provided for a delayed effective date for other provisions of the AEDPA, the majority held that Congress had intended that section 440(d) be applied immediately upon enactment of the AEDPA, including as a general matter to aliens already in deportation proceedings at the time. (Int. Dec. at 4-5).
The next question addressed by the majority was whether section 440(d) applied to aliens already in deportation proceedings who had applications for section 212(c) relief pending on April 24, 1996. The majority determined that Congress had not intended for section 440(d) to apply to pending applications. The majority relied on the fact that section 413 of the AEDPA, which barred alien terrorists from seeking most forms of relief from deportation, expressly provided that it applied to "applications filed before, on, or after" the effective date of the AEDPA, so long as "final action" had not been taken. AEDPA § 413(g). The majority concluded that the presence of this language in section 413(g) together with the absence of comparable language in section 440(d) showed that Congress had not intended for section 440(d) to apply to applications filed before the AEDPA was enacted. (Int. Dec. at 6-7).
The majority also drew support from the Supreme Court's admonition in Landgraf v. USI Film Products, 511 U.S. 244, 265, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), that "settled expectations should not be lightly disrupted." The majority held that "by applying section 440(d) of the AEDPA to only those applications for section 212(c) relief filed on or after the date of enactment of the AEDPA, the unique expectations of aliens whose applications for section 212(c) relief were pending prior to the enactment of the AEDPA are not disrupted." (Int. Dec. at 7). The majority concluded that these aliens had the "expectation that although they were deportable under various provisions of the [INA], they would be able to present evidence of favorable social and humane considerations that might countervail evidence of their undesirability as lawful permanent residents." (Id.).
Finally, on the merits of the appeal, the majority concluded that the IJ had properly exercised his discretion in denying Soriano's application for section 212(c) relief. (Int. Dec. at 8-9).
One member of the BIA concurred in part and dissented in part. Board Member Lory D. Rosenberg concurred in the majority's holding that section 440(d) was not applicable to pending applications for section 212(c) relief. She dissented, however, from the majority's conclusion that section 440(d) could otherwise be applied to deportation proceedings commenced before April 24, 1996, where the alien had not yet applied for section 212(c) relief. (Int. Dec. at 10, 12, 20).
The five dissenting members disagreed with the majority's conclusion that section 440(d) applied to pending applications. The dissent was of the view that a section 212(c) application is an "ongoing application" and that an applicant for such relief had to qualify under the law in existence "at the time the application is finally considered." (Int. Dec. at 22). The dissent also concluded that "like injunctive relief, relief from deportation under section 212(c) of the [INA] is prospective in nature." (Id. at 23). Hence, the dissent was of the view that section 440(d) did not operate "retroactively." (Id. at 22-23). The dissent also held that "applying the amended section 212(c) provisions to pending applications does not offend any of the concerns underlying the retroactive operation of new statutes." (Id. at 23).
2. The Attorney General's Decision
The Commissioner of INS referred the Soriano decision to the Attorney General for review pursuant to 8 C.F.R. § 3.1(h)(iii). On September 12, 1996, the Attorney General issued an order vacating the BIA's decision in Soriano and accepting the matter for review. On February 21, 1997, the Attorney General issued her decision, reversing the BIA and holding that section 440(d) was to be applied to section 212(c) applications pending on April 24, 1996. Matter of Soriano, slip op. (Atty. Gen. Feb. 21, 1997) (hereafter cited as "Atty. Gen. Dec.").
The Attorney General decision began its analysis with a discussion of Landgraf. As to the threshold question of whether Congress had "expressly prescribed the statute's proper reach," Landgraf, 511 U.S. at 280, the Attorney General wrote:
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.
(Atty. Gen. Dec. at 3). The Attorney General's decision does not analyze any of the text of the AEDPA or its legislative history.
The Attorney General then proceeded to discuss whether "the statute would be given retroactive effect if applied in pending deportation proceedings." (Atty. Gen. Dec. at 3). The Attorney General concluded that it would not, because "the relief sought in a section 212(c) application . . . is prospective in nature." (Id. at 5). The Attorney General expressed her view that section 440(d), by eliminating her discretion to grant relief in certain cases, merely had the effect of removing jurisdiction. (Id.). Because a section 212(c) waiver was "purely discretionary relief from the immigration consequences of a prior criminal conviction," the Attorney General stated that it could not be properly characterized as a "substantive right." (Id. at 5-6). Hence, the Attorney General concluded that because section 440(d) merely altered jurisdiction and limited the availability of "future relief," it should be applied to pending applications for section 212(c) relief. (Id. at 5). Finally, to address the concern that certain aliens might have conceded deportability before the AEDPA was passed in reliance on the availability of section 212(c) relief, the Attorney General held that aliens with a colorable defense to deportability could petition to reopen cases for the limited purpose of contesting deportability. (Id. at 8).
A. Applicable Legal Standards
In Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), the Supreme Court reiterated the long-standing principle that laws generally should not be given retroactive effect, as it confirmed that "the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Id. at 265. At the same time, the Court acknowledged the "apparent tension" between the axiom that "'retroactivity is not favored'" and the rule that "'a court is to apply the law in effect at the time it renders its decision.'" Id. at 264 (quoting Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988)).
Landgraf and other Supreme Court decisions suggest a three-step analysis for determining whether a newly enacted statute is to be applied to a pending case. First, the court "is to determine whether Congress has expressly prescribed the statute's proper reach." 511 U.S. at 280. If so, the inquiry need proceed no further and the court need not "resort to judicial default rules." Id.
Second, if "the statute contains no such express command, the court must determine whether the new statute would have retroactive effect." Id. The court does so by "asking whether the new provision attaches new legal consequences to events completed before its enactment," id. at 269-70, and by examining "whether [the statute] 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. at 280. In making this inquiry, "familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Id. at 270. If the statute would operate "retroactively" under this analysis, then "our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Id.
Third, if a new statute does not have new legal consequences that have a "genuinely 'retroactive' effect," a presumption arises in favor of applying the new law to pending matters; that presumption, however, may be overcome if applying the new law "'would result in manifest injustice or there is statutory direction or legislative history to the contrary.'" Landgraf, 511 U.S. at 277 (quoting Bradley, 416 U.S. at 711).
The Court in Landgraf also emphasized that in considering whether a new law should be applied to pending matters, a court should keep in mind that "application of new statutes passed after the events in suit is unquestionably proper in many situations." 511 U.S. at 273. Indeed, when the new statute "authorizes or affects the propriety of prospective relief," its application is "not retroactive." Id. Likewise, statutes "conferring or ousting jurisdiction" that "'speak to the power of the court rather than to the rights or obligations of the parties'" generally do not raise concerns about retroactivity. Id. at 274 (quoting Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 99, 121 L. Ed. 2d 474, 113 S. Ct. 554 (1992) (Thomas, J., concurring)). Finally, "changes in procedural rules may often be applied in suits arising before their enactment" without violating the principle against retroactivity. 511 U.S. at 275. In reviewing these permissible applications of new laws to pending cases, however, the Supreme Court reaffirmed "the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment." 511 U.S. at 278.
Judge Weinstein recently applied Landgraf to the precise question of whether section 440(d) applies to applications for section 212(c) relief pending when the AEDPA became law. In Mojica v. Reno, 970 F. Supp. 130, 1997 U.S. Dist. LEXIS 8959, 1997 WL 357808 (E.D.N.Y. 1997), Judge Weinstein held that section 440(d) may not be applied to pending cases.
For the reasons set forth in Judge Weinstein's thorough and scholarly opinion, and for the reasons set forth below, I likewise hold that section 440(d) may not be applied to applications for section 212(c) relief pending when the AEDPA was signed into law.
First, the text of the AEDPA and its legislative history demonstrate that Congress did not intend for section 440(d) to apply to pending cases. Second, under the "judicial default" rules, section 440(d) would have retroactive effect, for it does attach new legal consequences to completed events and it disrupts the settled expectations of long-time lawful permanent residents. Third, even assuming section 440(d) does not have retroactive effect, it would be manifestly unjust to apply section 440(d) to Yesil, for his section 212(c) application would have been considered on the merits prior to the passage of the AEDPA had the IJ and the BIA not ignored well-settled Second Circuit law. Finally, the Government's argument that the Attorney General's decision is entitled to great deference is simply not persuasive.
B. Congressional Intent
In trying to ascertain whether Congress intended for section 440(d) to apply to pending cases, we must look first at the text of the AEDPA and then at its legislative history. In her decision, the Attorney General did not discuss the language of the statute, other than to conclude in one sentence 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." (Atty. Gen. Dec. at 3). The decision fails to discuss the legislative history of the AEDPA at all.
1. The Text
Although the Attorney General correctly observes that section 440(d) contains no language addressing its applicability to pending cases, other provisions of the AEDPA do provide guidance. Most notably is section 413, entitled "Denial of Other Relief for Alien Terrorists," which eliminates certain relief from deportation for alien terrorists. Subsection (g), entitled "Effective Date," provides:
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.
AEDPA § 413(g), 110 Stat. § 1269 (emphasis added). Hence, when Congress wanted the provisions of section 413 to apply to an alien terrorist whose application for relief from deportation had been filed "before" the effective date of the AEDPA, it said so explicitly.
Section 440(d) is similar to section 413 in that it also limits the ability of an alien convicted of certain crimes to obtain relief from deportation. Although, as section 413(g) demonstrates, Congress obviously knew how to make explicit its desire to apply provisions of the new law to pending cases, it chose not to do so with respect to section 440(d).
Congress also expressly elected to make section 401, which enacted new alien terrorist removal procedures, applicable to prior conduct and events. Section 401(f) expressly provides that section 401 "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." AEDPA § 401(f), 110 Stat. 1268. Congress also made several other provisions applicable to proceedings initiated on or after the date of enactment, thus clearly providing that the proceedings could be based on conduct or events occurring before the AEDPA took effect. See, e.g., AEDPA §§ 421(b), 435(b), 440(f), 441(b), 110 Stat. 1270, 1275, 1278, 1279. See Mojica v. Reno, 970 F. Supp. 130, 1997 U.S. Dist. LEXIS 8959, 1997 WL 357808, at *45-46 (E.D.N.Y. 1997). Yet, Congress included no comparable or similar language in section 440(d).
The Supreme Court's most recent discussion of the principles to be applied in determining the retroactive effect of new statutes is instructive, particularly since it concerned the very statute before us -- the AEDPA. In Lindh v. Murphy, 138 L. Ed. 2d 481, 1997 U.S. LEXIS 3998, 117 S. Ct. 2059, 1997 WL 338568 (U.S. 1997), the Court was confronted with the issue of whether the amendments to Chapter 153 of Title 28 of the United States Code, enacted by sections 101 to 106 of the AEDPA, applied to cases pending when the AEDPA was enacted. The Court held that they did not, largely because section 107(c) of the AEDPA, which created a new set of rules for habeas corpus proceedings in capital cases (Chapter 154 of Title 28), expressly provided that "Chapter 154 . . . shall apply to cases pending on or after the date of enactment." AEDPA § 107(c), 110 Stat. 1226. The Court held:
We read this provision of § 107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the [AEDPA].
117 S. Ct. 2059, 138 L. Ed. 2d 481, 1997 U.S. LEXIS 3998, 1997 WL 338568, at *4 (emphasis added). The Court concluded:
We hold that the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the [AEDPA] became effective.