over a decade ago. His removal would prove a hardship to his wife, given
her condition. Petitioner is a long-time resident in this country, has an
employment history, and has substantial family ties in this country.
Because of this strong presumption against retroactivity, see
Landgraf, 511 U.S. at 265, 114 S.Ct. 1483, the IIRIRA provisions in
question cannot be afforded retroactive effect unless "Congress has
clearly manifested its intent" to have them so applied, Hughes Aircraft
Co. v. United States ex rel. Schumer, 520 U.S. 939, 946, 117 S.Ct. 1871,
138 L.Ed.2d 135 (1997). A decision in this district applying the
Landgraf doctrine to AEDPA and IIRIRA proves instructive. In Maria v.
McElroy, 68 F. Supp.2d at 221, the court held that, because IIRIRA's
expansion of the definition of "aggravated felony" was explicitly
retroactive, it could be retrospectively applied so as to render
petitioner deportable on the basis of a pre-IIRIRA conviction. However,
the court also held that AEDPA's exclusion of aliens convicted of
"aggravated felonies" from eligibility for discretionary relief from
deportation could not be applied retroactively to petitioner, who was
convicted prior to the enactment of AEDPA, in the absence of clear
evidence of congressional intent that the statute was intended to have
such retroactive application. See Maria, 68 F. Supp.2d at 226-29. That
analysis applies in the present case.
The cancellation of removal relief provisions in IIRIRA, just like the
AEDPA provisions at issue in Pottinger and Maria, contains no language
mandating retroactivity. Section 304(a) itself creates cancellation of
removal relief, and § 304(b) repeals § 212(c) of the INA,*fn10
but neither subsection provides that its provisions will he retroactive.
Nor does § 304 itself contain an effective date provision. See 110
Stat. at 3009-587 to — 597. The effective date provision of the
entire subtitle, § 309(a), provides that the subtitle which includes
§ 304 shall take effect on April 1, 1997.*fn11 However, language
that a statute "shall take effect" on a certain date is in itself
insufficient to effect retroactivity. See Landgraf 511 U.S. at 280, 114
S.Ct. 1483.*fn12 Indeed, the Court has stated that the "instruction that
the provisions are to `take effect upon enactment' . . . mean[s] that
courts should evaluate each provision of the Act in light of ordinary
judicial principles concerning the application of new rules to pending
cases and preenactment conduct." Id. Accordingly, courts must examine
each provision in question to find explicit indications of
Other subsections of IIRIRA, with the notable exception of § 304,
contain explicit statements that they are to be applied retroactively.
Cf. Henderson, 157 F.3d at 129 (discussing the same deficiency in AEDPA
§ 440(d)). For example, IIRIRA § 321(b) provides that
"[n]otwithstanding any other provision of law (including any effective
date), the term [`aggravated felony'] applies regardless of whether the
conviction was entered before, on, or after the date of enactment of this
paragraph." 110 Stat. at 3009-628 (codified at
8 U.S.C. § 1101(a)(43)(G)). Section 321(c), entitled "Effective
Date," adds: "The amendments made by this [aggravated felony] section
shall apply to actions taken on or after the date of the enactment of
this Act regardless of when the conviction occurred." Id.
"Actions taken" under § 321(c) include actions and decisions of the
Attorney General in removal proceedings. See Xiong v. INS, 173 F.3d 601,
607 (7th Cir. 1999); Maria, 68 F. Supp.2d at 220. In addition, IIRIRA
§ 306(c)(1) explicitly states that portions of 306(a)(2) (codified
at 8 U.S.C. § 1252 (g)), which limits judicial review of certain
discretionary decisions and is discussed above in relation to AADC,
"shall apply without limitation to claims arising from all past,
pending, or future exclusion, deportation, or removal proceedings." IIRIRA
§ 306(c)(1), 110 Stat. at 3009-612.
Congress' use of explicitly retroactive language in those parts of the
bill and its failure to use any analogous language in the nearby and
closely-related § 304 itself strongly indicate that Congress did not
intend § 304 limitations on discretionary relief to apply
retroactively. See Henderson, 157 F.3d at 129-30. The Supreme Court has
specifically condoned the use of such negative implication analysis when
determining a statute's temporal reach. See Lindh v. Murphy, 521 U.S. 320,
326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (using same analysis with
AEDPA provisions); Pottinger, 51 F. Supp.2d at 358 (same). In any event,
I cannot find that there is a clear congressional intent favoring
retroactive effect of § 304. See Pena-Rosario, 83 F. Supp.2d 349,
Therefore, although one element of the discretionary relief provision,
the definition of aggravated felony, operates retroactively, another
element, that repealing the five-year imprisonment requirement, does
not. Cf. Maria, 68 F. Supp.2d at 209 (reaching the same result with AEDPA
§ 440(d)). As stated by another district court that has refused to
apply retroactively the IIRIRA provisions currently in question, "the
operative event for determining whether . . . the IIRIRA amendments should
apply is the actual commission of the crime for which the petitioners now
face deportation." Dunbar v. INS, 64 F. Supp.2d 47, 54 (D.Conn. 1999).
*fn13 "Whether or not the operative conduct might have been different,
the immigrant has a presumptive right to the imposition of only those
consequences which could have attached at the time he committed his act."
Maria, 68 F. Supp.2d at 229.
Accordingly, I find that these IIRIRA provisions upon which respondents
rely do not satisfy the demand that Congress explicitly state that 212(c)
discretionary relief is being retroactively eliminated.
For the reasons set forth above, petition is granted. Section 304(a)
of IIRIRA, which bars legal permanent residents who have been convicted
of certain crimes from seeking a discretionary waiver of deportation, and
§ 304(b), which repeals § 212(c) relief, may not be applied
retroactively to petitioner. Respondents are directed to resume
petitioner's deportation proceeding to adjudicate an application for a
waiver of deportation pursuant to § 212(c) of the Immigration and
Nationality Act without regard to section 440(d) of AEDPA or section 304
of IIRIRA in accordance with this opinion. The availability of a hearing
shall not be affected by the current "aggregate limitation" on
cancellation of removal relief. See 8 U.S.C. § 1229b(e); Maria, 68
F. Supp.2d at 236.
The Clerk is directed to remand the within action to the INS for
further proceedings consistent with this decision and to furnish a filed
copy of the within to all parties.