The opinion of the court was delivered by: TELESCA
Kendrick Billett, the petitioner, who is subject to deportation, petitions for a writ of habeas corpus, and seeks a court ruling that he is entitled to a hearing determining whether or not he should receive a waiver from deportation because of humanitarian factors. The Government contends: (1) that this Court has no jurisdiction to consider this issue and (2) that the petitioner has no entitlement to a hardship waiver hearing because of the retroactive application of § 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). For the reasons set forth below, I find that this Court has habeas corpus jurisdiction and that the petitioner is entitled to the hearing he seeks.
Petitioner Kendrick Billett, ("Billett"), was eight years old when he emigrated with his family from Great Britain to the United States in 1977. Twelve years later, on September 6, 1989, he was convicted of attempted criminal sale of a controlled substance (cocaine) in the third degree. In 1992, petitioner was again arrested for a controlled substance violation.
Because of his second felony arrest, the INS initiated deportation proceedings against Billett on October 21, 1992. A deportation hearing was scheduled for June 23, 1993, but Billett was unable to attend because he was still under detention for his 1992 arrest. As a result, the deportation proceedings were administratively closed by the hearing judge.
On September 24, 1993, Billett was convicted of attempted criminal sale of a controlled substance. Since this was his second felony conviction, the INS initiated superseding deportation proceedings based on his status as an aggravated felon. Billett's deportation hearing took place on June 25, 1996 during which, he requested a hardship waiver of extradition to prevent his deportation. The hearing judge refused to consider Billett's request concluding that AEDPA § 440(d) eliminated the petitioner's right to request a hardship waiver. In doing so, the hearing judge applied the amendment of § 440(d) retroactively.
Petitioner was found to be deportable and on April 4, 1997, he appealed that determination to the Second Circuit Court of Appeals, which dismissed his appeal on July, 25, 1997, as untimely. On August 8, 1997, petitioner was ordered to present himself on September 11, 1997, for deportation. On September 9, 1997, petitioner filed this application for a writ of habeas corpus. The INS has stayed its order of deportation pending resolution of this case.
A. Jurisdiction over Immigration Proceedings
Traditionally, a person aggrieved by an Immigration Service deportation decision could appeal directly to the Circuit Court of Appeals. Additionally, an alien in the custody of the INS could challenge his detention in a habeas corpus brought in district court. The Government argues that these procedures have been dramatically altered in recent years by the enactment of AEDPA in 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. Law No. 104-208, Division C, 110 Stat 3009 (1996). An examination of the history and current status of federal court jurisdiction over immigration proceedings is necessary in order to determine the applicability of the congressional amendments to the facts of this case.
1. Historical Jurisdictional Provisions
a. Appellate Jurisdiction
From 1961 to 1996, an alien who was found to be deportable by the INS could appeal such a determination to the Court of Appeals for the Circuit in which the alien resided, or where the administrative proceedings took place. 8 U.S.C.A. § 1105a(a)(2) (West 1970) (repealed 1996). Courts of appeals had exclusive jurisdiction over such appeals, but could remand cases to district courts for determination of ...