Enrico ST. CYR, Petitioner-Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellant.
Docket No. 99-2614.
United States Court of Appeals, Second Circuit.
Argued: March 30, 2000 Decided: Sept. 1, 2000
229 F.3d 406
III. CONCLUSION
We vacate the district court‘s denial of the motion by MSC to stay all third-party claims or legal actions, and we remand to the district court for further proceedings consistent with this opinion. If on remand the district court concludes that the parties agreed to arbitrate within the meaning of the
jurisdiction.” In those days, nearly any public policy could undo such a clause..... By 1972, the Supreme Court had rejected the “ouster of jurisdiction” notion as parochial. Now, there is a heavy presumption in favor of such clauses... Id. at 303 n. 9 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)); see M/S Bremen, 407 U.S. at 9, 15, 92 S.Ct. 1907 (rejecting the ouster of jurisdiction argument and holding that forum selection clauses should control absent a strong showing of unreasonableness, fraud, or overreaching); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 537-39, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995) (viewing foreign arbitration clauses as a subset of forum selection clauses, and relying on The Bremen in support of its holding enforcing foreign arbitration clause); see also Dean Witter Reynolds, 470 U.S. at 219-20, 105 S.Ct. 1238 (Congressional purpose in enacting FAA was to “overrule the judiciary‘s long-standing refusal to enforce agreements to arbitrate” on ground of ouster of jurisdiction). As we have indicated, this Court favors agreements to arbitrate; any broad suggestion that Quarrington Court may have provided to the contrary should not be relied upon.
David McConnell, Immigration and Naturalization Service, Washington, DC (David W. Ogden, Acting Assistant Attorney General, Civil Division, Stephen C. Robinson, United States Attorney, James K. Filan, Jr., Assistant United States Attorney, New Haven, CT; and Quynh Vu, Office of Immigration Litigation, Immigration and Naturalization Service, Washington, DC, of counsel), for Respondent-Appellant.
Judge John M. Walker, Jr., filed an opinion in dissent.
OAKES, Senior Circuit Judge:
The case before us presents legal questions of reviewability and retroactivity under the 1996 amendments to the Immigration and Nationality Act (“INA“). Congress amended the
BACKGROUND
Enrico St. Cyr, a native of Haiti, was admitted to the United States as a lawful permanent resident on June 17, 1986. St. Cyr‘s family lives in the United States. His parents and sister are citizens of this country and his brother is a lawful permanent resident.
On March 8, 1996, prior to the enactment date of the AEDPA and IIRIRA, St. Cyr pled guilty to the sale of a controlled hallucinogenic narcotic in violation of
On April 10, 1997, the Immigration and Naturalization Service (“INS“) issued St. Cyr a Notice to Appear, charging him as removable under
* The Honorable Damon J. Keith of the United States Court of Appeals for the Sixth Circuit, sitting by designation.
At his hearing, St. Cyr sought to prevent his removal by applying for a discretionary waiver of deportation under former
On April 27, 1999, St. Cyr filed a habeas corpus petition in the United States District Court for the District of Connecticut. In his petition, he argued that
On August 23, 1999, the district court rejected the INS‘s arguments and held that it had jurisdiction to hear the habeas petition because the 1996 amendments to the INA did not explicitly divest a district court of its habeas jurisdiction over final removal orders under
In addressing the merits of St. Cyr‘s habeas petition, the district court held that
DISCUSSION
I. Jurisdiction.
Because the question whether the district court had subject matter jurisdiction in this case is a question of law, we review it de novo. See ConnTech Dev. Co. v. University of Connecticut Educ. Properties, Inc., 102 F.3d 677, 681 (2d Cir.1996).
The INS‘s arguments that the district court lacked jurisdiction under
Although a federal court‘s habeas jurisdiction does not include all challenges that an alien may launch against his or her removal order, St. Cyr‘s habeas petition raises pure questions of law. He is not challenging the BIA‘s refusal to exercise its discretion in his favor. Rather, he is challenging the BIA‘s determination that it cannot legally consider St. Cyr‘s request to exercise its discretion. Therefore, his habeas challenge to his final order of removal is the type of claim that is cognizable in the district court under
Because there is no other avenue for judicial review available and St. Cyr‘s petition raises a purely legal challenge to his final order of removal, the district court had subject matter jurisdiction to review his habeas petition.
II. Availability of § 212(c) relief.
Having determined that the district court had jurisdiction to decide St. Cyr‘s claim, we turn to the issue raised by St. Cyr in his habeas petition: whether
A. History of Discretionary Relief.
Under the law in effect prior to the enactment of the AEDPA, certain aliens otherwise determined to be deportаble were entitled to apply to the Attorney General or her delegates2 for a waiver of deportation under
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an or-
der of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [provisions setting forth various grounds for exclusion].... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least five years.
Although the literal terms of § 212(c) appeared to apply only to resident aliens who had temporarily proceeded abroad and were returning to the United States, since 1976 the section has been interpreted by this Court to permit the Attorney General to waive the grounds for deportation under certain conditions in the case of a lawfully admitted permanent resident in deportation proceedings. See Buitrago-Cuesta v. INS, 7 F.3d 291, 292 (2d Cir.1993); Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976).
Discretionary relief from deportation, which has been available in our system in some form since at least 1917, see Francis, 532 F.2d at 270, provides the Attorney General with a mechanism to consider the impact of immigration on an alien‘s family. Prior to 1996,
On April 24, 1996, Congress enacted the AEDPA, of which
This section shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i).
Just a few months later, on September 30, 1996, Congress enacted IIRIRA, which wrought further changes to the availability of deportation waivers. IIRIRA included temporary transitional rules and permanent rules. Under the statutory interplay of IIRIRA‘s transitional rules and the AEDPA, the Attorney General was able, in her discretion, to grant relief from deportation under
The permanent provisions of IIRIRA, however, repeal
The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien—
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years,
(2) has resided in the United States continuously for 7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
This complex statutory history applies to St. Cyr as follows: when St. Cyr pled guilty to drug trafficking in March of 1996, he was deportable under the immigration laws аs an alien convicted of a drug-related offense which constituted an aggravated felony as defined under the INA. See
B. Retroactivity.
Our analysis of whether
The Supreme Court in Landgraf provided the following framework for determining whether a law should apply to cases where the underlying conduct occurred prior to enactment:
When a case implicates a federal statute enacted after the events in suit, the
court‘s first task is to determine whether Congress has expressly prescribed the statute‘s proper reach. If Congress has done so, of course, there is no need to resort to judiciаl default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it 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. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.
Id. 511 U.S. at 280. Landgraf therefore contemplates a two-step inquiry: (1) whether Congress prescribed the statute‘s temporal reach and, if not, (2) a determination whether retrospective application would have a “retroactive effect.” If application of the statute to the conduct at issue would have a retroactive effect, “then, in keeping with our ‘traditional presumption’ against retroactivity, we presume that the statute does not apply to that conduct.” Martin v. Hadix, 527 U.S. 343, 352, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (quoting Landgraf, 511 U.S. at 280).
1. Congressional Intent.
Our first step under Landgraf is to determine, using ordinary tools for statutory interpretation, whether Congress expressly prescribed that
The specific issue raised in this case, however, is not whether the bar to relief applies to pending removal proceedings but whether it bars an alien who pled guilty to the deportable crime before the AEDPA or IIRIRA‘s effective date from applying for a waiver. The question whether Congress intended
We turn now to
We disagree that IIRIRA‘s general effective date provision set forth in
An examination of other IIRIRA provisions demonstrates that despite the general effective date provision, Congress made sure to use specific language, capable of only one interpretation, when it clearly intended a provision to apply to past conduct relevant to the particular provision. See, e.g.,
The INS notes that the removal ground underlying St. Cyr‘s proceedings, made applicable by IIRIRA, renders aliens subject to removal proceedings if they were “convicted of an aggravated felony at any time after admission.”
We are not persuaded that the use of the past tense in
Under the reasoning of Martin, the use of a past-tense verb in
This is not to say that the INS‘s argument is not sophisticated. In Salahuddin,
In sum, we conclude that there is no clear evidence that Congress considered and decided whether
Having concluded that no clear congressional intent exists as to whether
We are the first U.S. Court of Appeals to consider whether applying
In three very recent cases, the First, Fourth, and Ninth Circuits had occasion to consider specifically whether
114 S.Ct. 1483; Pottinger, 51 F.Supp.2d at 361 (the presumption against retroactivity “reflects our enduring commitment to the protection of the unpopular and the voiceless from the retributive and vindictive use of retroactive legislation.“). Because, in our view, a profound constitutional question would arise under the Fifth Amendment‘s Due Process Clause were we tо interpret IIRIRA as precluding the availability of § 212(c) relief in cases where an alien pled guilty or nolo contendere in reliance on the availability of § 212(c) relief, our ruling today that
Finally, the Seventh Circuit has developed an approach that is in accord with the decisions of the First and Ninth Circuits. It has announced a general rule that
We conclude that
As an initial matter, we note that it is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct—as opposed to a plea going to the guilt of a deportable crime—constitutes an impermissible retroactive application of a statute. Indeed, we agree that,
It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation.
Jurado-Gutierrez, 190 F.3d at 1150-51 (quoting LaGuerre, 164 F.3d at 1041). Thus, we conclude that the bar to discretionary relief applies regardless of whether a legal permanent alien‘s underlying criminal conduct pre-dated the AEDPA or IIRIRA.
However, in Hughes Aircraft, the Supreme Court conducted a retroactivity analysis that was not focused solely on the petitioner‘s primary conduct, but also on the relevant secondary conduct. See 520 U.S. at 947-48. Furthermore, “it is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief.” Mattis, 212 F.3d at 37. Thus, in considering whether the changes to the availability of discretionary relief would alter the legal effect of conduct that predates the AEDPA and IIRIRA‘s enactment, our analysis focuses on the decision to enter a guilty plea to a crime—not on the criminal conduct—that qualifies the alien for removal under the immigration laws.
A “legal change that would have an impact on private parties’ planning” triggers the presumption against retroactivity. See Landgraf, 511 U.S. at 282-83. A number of courts have documented that “an alien charged with a crime [making him eligible for deportation] would factor the immigration consequences of conviction in deciding whether to plead or proceed to trial....” Tasios, 204 F.3d at 552 (quoting Magana-Pizano, 200 F.3d at 612); see also Pottinger v. Reno, 51 F.Supp.2d. 349, 362-63 (E.D.N.Y.1999); Wallace v. Reno, 24 F.Supp.2d 104, 110 (D.Mass.1998), aff‘d 194 F.3d 279 (1st Cir. 1999); Mojica v. Reno, 970 F.Supp. 130, 177 (E.D.N.Y.1997), aff‘d in part, dis-
As the Amici in this case demonstrate, a legal resident who is charged with a crime that renders him removable from the United States carefully considers the immigration consequences of his or her conviction and, specifically, the availability of disсretionary relief from removal. It is not unreasonable to attribute knowledge of the availability of relief to a legal resident because it is a common requirement that defense counsel and the court advise a criminal defendant of the immigration consequences of a guilty plea. Additionally, an attorney‘s professional duty to his or her client includes advising that client of the immigration consequences of a plea or conviction. See Magana-Pizano, 200 F.3d at 612; see also ABA Standards for Criminal Justice, Pleas of Guilty, Standard 14-3.2, commentary at 75 (2d ed.1982) (providing that where it is apparent that a defendant faces deportation as a result of conviction, counsel “should fully advise the defendant of these consequences.“); National Legal Aid and Defender Association Performance Guidelines for Criminal Defense Representation, Guideline 6.2(a)(3) and commentary (1994) (recognizing that it is defense counsel‘s duty to “be fully aware of, and make sure that the client is fully aware of ... consequences of conviction such as deportation.“). A criminal defense law treatise provides that:
Preserving the client‘s right to remain in the United States may be more important to the client than any potential jail sentence. Thus, the immigration consequences of a prosecution may totally alter the strategies chosen ... a[ny] attorney who suspects that this client is an alien has a duty to inquire and to protect his client‘s immigration status. Pleas and admissions must be approached with caution and with knowledge of the consequences....
3 Bender‘s Criminal Defense Techniques (1999) § 60A.01 and § 60A.2[2]. Furthermore, lawful permanent residents are typically part of a resident alien community and are likely aware of what happens to other members of the community who engage in criminal conduct. See Pottinger, 51 F.Supp.2d at 363.
There is also little doubt that before the AEDPA and IIRIRA were enacted, an alien‘s reliance on the possibility of receiving a waiver of deportation was reasonable because there was a strong possibility that he or she would receive relief. See Tasios, 204 F.3d at 551 (“in the years immediately preceding the enactment of AEDPA, immigration judges and the BIA granted over half of the § 212(c) applications they decided“). When a request was denied, an alien could petition a court of appeals for review and, “on a nontrivial number of occasions,” these denials were overturned. See id. at 551-52 (quoting Reyes-Hernandez, 89 F.3d at 492).
When, in March of 1996, St. Cyr pled guilty to his drug-trafficking offense, he and legal residents in his position were removable from the United States. He and others like him, however, could depend on the availability of a hearing to determine his eligibility for relief from removal. Given the dramatic impact removal would have on a legal resident‘s life, it is likely that a legal resident would, because of the possibility of receiving a lighter sentence, only decide to concede guilt to a crime that renders him or her removable in order to be eligible to apply for relief from removal. Under the law today, this settled expectation is upset dramatically. For certain classes of aliens, there is currently no reason to forgo fighting the conviction of a qualifying crime and enter a plea because, pursuant to the AEDPA and
“[I]ndividuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf, 511 U.S. at 265. Because there is sufficient evidence that a legal resident accused of a crime that renders him or her removable from this country would have conformed his or her conduct according to the availability of relief when he or she pled guilty, AEDPA § 440(d) and IIRIRA § 304 would severely upset settled expectations were it applied retroactively to pre-enactment guilty pleas. A repeal of the eligibility to apply for relief from removal would attach new legal consequences to a legal resident‘s guilty plea to a removal crime. Therefore, AEDPA § 440(d) and IIRIRA § 304 have an impermissible retroactive effect as applied to pre-enactment guilty pleas.
We are not persuaded that, as the INS argues, because the bar to relief can be described as a new jurisdictional rule—in that it gives the Attorney General jurisdiction to grant a waiver in her discretion—it automatically has no retroactive effect. It is true that a change in law that “speak[s] to the power of the court rather than to the rights or obligations of the parties” may be applied in a case without raising concerns that it is impermissibly retroactive. Landgraf, 511 U.S. at 274 (quoting Republic Nat‘l Bank of Miami v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992) (Thomas, J., concurring)). In Hughes Aircraft, however, the Supreme Court explained that a jurisdictional statute that does not “merely address[] which court shall have jurisdiction to entertain a particular cause of action” but, rather, affects “whether [a claim] may be brought at all” should not presumptively be given retroactive effect. 520 U.S. at 951. AEDPA § 440(d) and IIRIRA § 304 do not merely change the degree of deference to be afforded a § 212(c) request or change the judicial or administrative forum in which relief may be granted. Rather, they alter the substantive rights of aliens subject to removal proceedings because it eradicates a form of relief previously available. By their terms, AEDPA § 440(d) and IIRIRA § 304 attach new substantive legal consequences to a guilty or nolo contendere plea to a deportable crime and would have an impermissible retroactive effect if applied to pre-enactment pleas.
Our conclusion here is consistent with the law of this Circuit. In Buitrago-Cuesta, we considered a 1990 amendment to
The INS‘s warning against “an absurd superprospective result” is also unfounded. We do not rule today that application of
CONCLUSION
In sum, we hold that the district court had habeas corpus jurisdiction under
JOHN M. WALKER, JR., Circuit Judge, Dissenting:
Becаuse I find Congress‘s intent plain on the face of the statute not to permit withholding of deportation or, in the parlance of the new law, cancellation of removal to aliens in appellee‘s position, I respectfully dissent.
There is no doubt that it is within Congress‘s power to redefine what will subject an alien to removal, see Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), and that Congress may effect such changes to require removal of an alien who would not have been subject to removal of an alien who would not have been subject to removal before the changes became effective,1 see United States v. Koziel, 954 F.2d 831, 834 (2d Cir.1992) (upholding retroactive repeal of Judicial Recommendations Against Deportation for certain criminal aliens); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 99 L.Ed. 1107 (1955) (permitting deportation based on conviction that would not have been a basis for deportation when the crime was committed). Indeed, there is a long tradition of Congress retroactively changing the qualifications for aliens’ continued residence in the United States. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 593, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 68 L.Ed. 549 (1924); Bugajewitz v. Adams, 228 U.S. 585, 592, 33 S.Ct. 607, 57 L.Ed. 978 (1913). While there is little doubt that Congress may alter the requirements for continued residence in this country, identifying when Congress has chosen to exercise its power retroactively has proven a more difficult problem and it
The majority‘s opinion has correctly identified the nature of the inquiry that we must undertake. See supra at 412 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). The threshold question in the Landgraf framework is whether Congress has expressly provided for a statute‘s retroactive application. If so, our inquiry is at an end. See id.; Martin v. Hadix, 527 U.S. 343, 352, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999). The majority has found ambiguity in the temporal reach of Congress‘s repeal of § 212 (c) relief for criminal aliens. I disagree.
I believe that Congress‘s intent is clear on the face of the statute and that IIRIRA,
Congress could not have been more express about its intent to have IIRIRA apply to all aliens against whоm deportation or removal proceedings were not yet pending as of April 1, 1997. See generally § 309. If, as petitioner necessarily concedes, it is IIRIRA and not the old INA that subjects him to removal, then it is IIRIRA‘s provisions that provide for the limits of judicial review and for cancellation of removal proceedings. I need look no farther to find that Congress made express its intention to disallow the relevant aliens against whom removal proceedings were filed after April 1, 1997 from seeking the protection of § 212(c) relief. Because petitioner falls generally within IIRIRA‘s provisions, he is subject to IIRIRA‘s “Cancellation of Removal” proceedings—from which, because of his criminal past, he is expressly excluded—and does not have access to § 212(c) relief.
The majority discounts this argument, suggesting that it is based on nothing more than the statute‘s effective date and
The awkward statutory patchwork sewn together by the majority from scraps of IIRIRA and the former INA reveals that Congress could not have intended the majority‘s conclusion. The majority‘s opinion faces insurmountable hurdles even on a linguistic level. The petitioner here is subject to removal under the nеw IIRIRA. With this opinion, the majority has permitted petitioner access to a waiver of deportation hearing under § 212(c) that was part and parcel of a statutory scheme that no longer exists. Under IIRIRA, there is no such thing as deportation that can be waived. In order to reach the result they want, the majority has effectively taken a provision that they like from a statute that has been substantially replaced, and grafted it onto the replacement.
Insofar as the Landgraf presumption against retroactivity is a canon of construction that permits us to divine the intent of Congress, I cannot concur in a conclusion that flies so indisputably in the face of Congress‘s express denial of cancellation of removal hearings for this alien. Combined with what I think are compelling expressions of Congress‘s actual intent to repeal § 212(c) retroactively as to the broader class of criminal aliens described in
Because Congress‘s intent is plain on the face of the statute, I see no reason to reach the second step of the Landgraf analysis which requirеs us to determine whether IIRIRA‘s provisions governing cancellation of removal have genuine retroactive effect. Nevertheless, if I were to reach Landgraf‘s second step, I would conclude that provisions denying cancellation of removal do not operate retroactively. I believe that analysis of this question should be governed by cases arising in the context of the substantially analogous 1990 amendment to the INA.
The 1990 amendment limited the relief afforded by § 212(c)‘s waiver of deportation by excluding aggravated felons who were sentenced to terms of imprisonment of at least five years. In holding that the 1990 amendment did not have a retroactive effect, the Ninth Circuit persuasively held that “[c]ongressional repeal of a discretionary power to relieve an alien from deportation does not attach any new legal consequences to the pre-enactment events.” Samaniego-Meraz v. INS, 53 F.3d 254, 256 (9th Cir.1995). As in the present case, “the consequences of petitioner‘s criminal conduct were clear at the time of that conduct and they remain unchanged today. He was subject to possible criminal sanctions and deportation.” Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.1996). “In
As of IIRIRA‘s April 1, 1997 effective date, Congress plainly changed the category of aliens who thereafter may seek cancellation of removal, and I disagree that the new scheme has a genuinely retroactive effect. Accordingly, I would conclude that the Landgraf presumption against retroactivity has no effect on our analysis. In the absence of any such presumption against retroactivity, our more traditional tools of construсtion apply, including the usual deference afforded to agency interpretations under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Thus, even were I to agree that the temporal reach of
JOHN M. WALKER, JR.
CIRCUIT JUDGE