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MARRIOTT v. INGHAM

January 7, 1998

MELVIN B. MARRIOTT, Petitioner,
v.
JOHN INGHAM, DISTRICT DIRECTOR, Immigration & Naturalization Service Buffalo District Office, JANET RENO, Attorney General of the United States, DORIS MEISSNER, Commissioner, Immigration & Naturalization Service, IMMIGRATION AND NATURALIZATION SERVICE, Respondents.



The opinion of the court was delivered by: LARIMER

 FACTUAL BACKGROUND

 Marriott first entered this country in 1988 as a conditional permanent resident. The Immigration and Naturalization Service ("INS") removed his conditional status in 1991.

 In 1993, Marriott was convicted upon his guilty plea of possession of a controlled substance in the second degree. On December 4, 1994, the INS served Marriott with an order to show cause why he should not be deported pursuant to 8 U.S.C. § 1251(a)(2)(B)(i), *fn1" which made deportable any alien convicted of a drug offense. Marriott requested a waiver of deportation pursuant to § 212(c), which at the time provided that certain aliens who had lived in the US for seven years, if subject to deportation for having committed crimes, could apply for a waiver of deportation at the discretion of the Attorney General.

 On August 8, 1995, an Immigration Judge ("IJ") found that Marriott was not eligible for a § 212(c) waiver because he did not yet have seven years' residency in the United States. Marriott accrued seven years of residency shortly thereafter, on November 18, 1995. Therefore, on February 27, 1996, the BIA found that Marriott was eligible for § 212(c) relief, and remanded his case to the IJ.

 On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law. Among other things, § 440(d) of AEDPA amended § 212(c) to eliminate the availability of a waiver of deportation for aliens who are deportable by reason of having committed a drug offense. Based on AEDPA, on June 24, 1996 an IJ found that Marriott was not eligible for a § 212(c) waiver, and ordered that he be deported. The BIA dismissed Marriott's appeal on July 7, 1997. The BIA relied in part on the Attorney General's decision in Matter of Soriano, Interim Dec. 3289 (A.G., Feb. 21, 1997), in which the Attorney General ruled that AEDPA § 440(d) applied to all cases pending on the date of AEDPA's enactment.

 Marriott filed a petition for review of the BIA's decision with the Second Circuit in August 1997. That petition was withdrawn by stipulation in September 22, 1997. The Government states, and Marriott has not disputed, that the reason the petition was withdrawn was that it was untimely filed.

 Marriott commenced this action on September 22, 1997. Jurisdiction is predicated on 28 U.S.C. § 2241, the "Suspension Clause" of the United States Constitution, *fn2" and 28 U.S.C. § 1331. His first claim is that he has been denied equal protection because the INS distinguished in certain respects between different classes of aliens when considering waiver of deportation. His second claim is that the INS has erroneously and unlawfully applied AEDPA retroactively to bar his application for § 212(c) relief. To the extent that AEDPA does purport to apply retroactively, Marriott maintains that it is unconstitutional on grounds of equal protection and substantive and procedural due process.

 DISCUSSION

 The threshold question in this case is whether this court has jurisdiction to hear Marriott's claims. This question arises because courts' jurisdiction to hear challenges to final orders of deportation has been severely curtailed both by AEDPA and by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").

 As stated, AEDPA significantly reduced the availability of judicial review. Section 401(e) of AEDPA amended § 1105a(a) "by striking paragraph (10)," and § 440(a) of AEDPA replaced paragraph (10) with the following provision: "Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes, including drug offenses] shall not be subject to review by any court."

 Two provisions in IIRIRA, which was enacted on September 30, 1996, also had a substantial impact on judicial review of deportation orders. Section 306(a) of IIRIRA amended § INA 242(g), 8 U.S.C. § 1252(g), as follows: "Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act." IIRIRA also amended 8 U.S.C. § 1252(a)(2)(B)(ii), which previously gave federal courts habeas corpus jurisdiction to review the Attorney General's decisions concerning detention, release on bond, or parole pending final determination of deportability, as follows: "Notwithstanding any other provision ...


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