James SCHEIDEMANN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 95-3241.
United States Court of Appeals, Third Circuit.
Argued Dec. 5, 1995. Decided May 16, 1996.
83 F.3d 1517
Linda Kenepaske (argued), New York City, for Petitioner.
Before: SLOVITER, Chief Judge, and STAPLETON and SAROKIN, Circuit Judges.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Petitioner James Enrique Scheidemann, a permanent resident alien, seeks review of an order of the Board of Immigration Appeals ( BIA ) dismissing his appeal from an immigration judge s deportation order. Petitioner, who faces deportation on account of a 1987 drug trafficking conviction for which he has served over five years in prison, does not contest his deportability. Rather, arguing that he is eligible to apply for discretionary waiver of deportation under
Petitioner acknowledges, as he must, that
I.
Petitioner, a 49 year-old native and citizen of Colombia, has been a lawful permanent resident in the United States since 1959. His wife, children, parents and siblings are all United States citizens. In June 1987, petitioner was convicted in the United States District Court for the District of New Jersey of (1) racketeering in violation of
In March 1992, while petitioner was still in prison, the Immigration and Naturalization Service ( INS ) instituted deportation proceedings against him, charging him with deportability pursuant to
Petitioner appealed to the BIA. The BIA affirmed, holding that the
II.
We have jurisdiction over this petition to review the BIA s dismissal of an appeal from a deportation order pursuant to
The framework for judicial review of an agency s construction of the statute it administers is well settled. The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter. Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993) (internal quotation marks and alteration omitted). But if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency s answer is based on a permissible construction of the statute. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). In sum, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program ... unless that interpretation is arbitrary, capricious, or manifestly contrary to the statute. Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993) (citations and internal quotation marks omitted), cert. denied, U.S., 114 S.Ct. 902, 127 L.Ed.2d 93 (1994).
III.
Section 212(c) grants the Attorney General discretion to waive the exclusion of otherwise excludable resident aliens seeking to reenter the United States from abroad:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order 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 [despite being otherwise excludable].... 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 5 years.
When petitioner was convicted in 1987 and a fortiori at the time of his criminal conduct, there was no aggravated felony bar in
In 1987, the Act also lacked a definition of aggravated felony. One was added to the definition section of the Act when Congress passed the Anti-Drug Abuse Act of 1988 ( ADAA ). Pub.L. No. 100-690, § 7342, 102 Stat. 4181, 4469-70 (1988). At that time, the significance of the definition was primarily in the context of statutory provisions setting forth the grounds for deportation and enhanced penalties for illegal entry of aliens convicted of such felonies. Prior to 1990, it had no significance in the context of discretionary waivers of deportation.
The 1988 definition of aggravated felony included any drug trafficking crime as defined in section 924(c)(2) of title 18. 2 § 7342, 102 Stat. at 4469. This definition, codified at
The issue before us is whether the BIA properly interpreted the
IV.
The Supreme Court in Landgraf prescribed the analysis for determining whether Congress intended a statute to apply retroactively.
When a case implicates a federal statute enacted after the events in suit, the court s first task is to determine whether Congress has exprеssly prescribed the statute s proper reach. If Congress has done so, of course, there is no need to resort to judicial 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.
Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505. As the Court in Landgraf demonstrated, a court may determine congressional intent from the statutory text, by necessary implication from the statute taken as a whole, or from the statute s legislative history. See id. at 257-63, 114 S.Ct. at 1491-96.
Here, neither the aggravated felony definition nor the
A.
We will first consider whether applying
The Court explained that application of a statute to pre-enactment conduct does not necessarily give the statute a retroactive or
The Court observed that [t]he largest category of cases in which [it has] applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance. Id. at 271, 114 S.Ct. at 1500. Although the Court quickly added that the presumption has not been limited to such cases, they represent perhaps the model context for application of the anti-retroactivity presumption. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted. Id. at 265, 114 S.Ct. at 1497.
The provisions of the Civil Rights Act of 1991 at issue in Landgraf were held to be retroactive in effect because one provision allowed recovery of punitive damages (which increased deterrent and retributive aspects of the statute, and retroactive imposition of which would raise a serious constitutional question ) and the other, allowing recovery of compensatory damages, was the type of legal change that would have an impact on private parties planning and would attach an important new legal burden to [the defendant s] conduct. Id. at 281-83, 114 S.Ct. at 1505-06. The Court thus found that retroactive application of these provisions, where prior law afforded no relief, c[ould] be seen as creating a new cause of action and would have an especially pronounced impact on parties rights. Id. at 283, 114 S.Ct. at 1506.
The Landgraf Court distinguished from statutes altering the legal consequences of prior conduct three categories of cases that have a great deal in common with the case before us. First, the Court observed, [w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision [in a case involving pre-еnactment conduct] is not retroactive. Id. at 273, 114 S.Ct. at 1501. As an example, the Court cited a provision of the Clayton Act which altered the standard for evaluating the propriety of injunctive relief against labor picketing.
The second class of cases noted by the Court as involving no true retroactivity is that involving statutes conferring or ousting jurisdiction. Id. The law existing at the time jurisdiction is invoked governs such cases, according to the Court, because jurisdictional statutes speak to the power of the court rather than to the rights or obligations of the parties. Id. at 274, 114 S.Ct. at 1502 (quoting Republic Nat. Bank of Miami v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 565, 121 L.Ed.2d 474 (1992) (Thomas, J., concurring)).
Finally, the Court in Landgraf observed that [c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. Id. at 275, 114 S.Ct. at 1502. It noted the diminished reliance interests in matters of procedure, and observed:
Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroaсtive.
In this 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. The only relevant change in the law relates to the permissible scope of the Attorney General s discretion to grant relief from one of those consequences. Like statutes altering the standards for injunctive relief, this change has only a prospective impact. It is not designed to remedy the past but only to affect petitioner s future status with respect to the legality of his presence in the United States. Like statutes constricting the jurisdiction of a judicial body, these changes speak only to the power of a public agency. Finally, like legislation altering procedural rights, the relevant amendments in this case regulate secondary rather than primary conduct and infringe on no significant reliance interest. Given the facts that petitioner s pre-1987 conduct clearly subjected him to dеportation as well as criminal sanctions, and that
We agree with the observation of the Court of Appeals for the Fourth Circuit when it was confronted with the issue that we here face. In general, the concern regarding retroactive application of statutes is the deprivation of rights without notice and fair warning; such concerns are not present in this case.... In this case, Congress did not attach additional consequences [to past criminal activity] but merely withdrew a previously available form of discretionary relief. De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993).
We hold, then, that the statutory provisions at issue here do not have a retroactive effect under the second part of the Landgraf analysis. Therefore, the presumption against retroactivity is irrelevant and the law in effect at the time of the decision must control.
B.
Bеcause we hold that the BIA s interpretation of the statute does not violate the presumption against retroactivity, it is at least a permissible interpretation to which we would ordinarily defer. Katsis, 997 F.2d at 1070; De Osorio, 10 F.3d at 1042. Such deference is not necessary in this case, however, because the text of the relevant statutory provisions clearly shows that Congress intended the
1.
First, we will consider whether Congress clearly intended the definition of aggravated felony itself to apply to convictions entered before enactment of the definition. As we have noted, this definition was added to the Act in 1988 with the passage of the ADAA when its significance was in contexts other than
The portion of the ADAA that is relevant here contains both the definition of aggra-
The other three substantive provisions of the ADAA employing the aggravated felony term, each of which concerns deportation of aggravated felons, explicitly limit their application prospectively to aliens convicted of aggravated felonies on or after the date of the enactment of the ADAA. See §§ 7343(e) ( Deportation of Aliens Committing Aggravated Felonies ), 7344(b) ( Grounds of Deportation ), and 7347(c) ( Expedited Deportation Proceedings for Aliens Convicted of Aggravated Felonies ). Such expressly prospective language would be redundant if the definition of aggravated felony were construed to apply only to convictions entered on or after the effective date of the ADAA. Moreover, these provisions demonstrate that Congress knew well how to limit expressly the reach of a provision where it desired to do so, but Congress did not do so with respect to the definition section. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987) (noting that, where Congress includes particular language in one section of a statute but omits it from another section of the same act, it is generally presumed that Congress acted intentionally and purposely in the disparate inclusion or exclusion).
The design of the ADAA thus clearly demonstrates that Congress intended the temporally-unrestricted definition of aggravated felony to apply to pre-enactment convictions. It is only certain substantive provisions that Congress has expressly limited to apply prospectively to those aggravated felony convictions entered on or after the ADAA s enactment date. The definition of aggravated felony lacks an effective date not by oversight, but by design: a crime described in the original 1988 definition is an aggravated felony regardless of the date of conviction, but its immigration consequences will vary according to the effective date of the substantive provision employing the term. We must construe the definition to include pre-enactment convictions in order to give meaningful effect to all the express provisions of the ADAA, both those that are expressly prospective and those that necessarily apply to pre-enactment convictions.
Subsequent amendments to the aggravated felony definition are consistent with the statutory scheme described above. As part of the Immigration Act of 1990—the statute that created the
Congress enacted similar amendments in 1994 to expand further the definition of aggravated felony, and these amendments again left the 1988 definition intact in its temporal scope. See Immigration and Nationality Technical Corrections Act of 1994, Pub.L. No. 103-416, § 222(b), 108 Stat. 4305, 4322 (1994) ( The amendments made by this section shall apply to convictions entered on or after the date of
Petitioner s crimes, because they come within the original 1988 definition, are thus aggravated felonies even though they antedate the enactment of the statutory provision, and any temporal restriction must come from the relevant substantive provision employing the term—in this case,
2.
The plain language of the
If we were to interpret
By its own terms, then,
We hold, therefore, that Congress intended
V.
We thus conclude that
SAROKIN, Circuit Judge, concurring.
I agree with the majority s carefully written opinion that Congress clearly intended the amendment to
My concurrence is mandated by the unrealistic conclusion in longstanding Supreme Court precedent that deportation is not a form of criminal punishment, but rather a civil remedy aimed at excluding unwanted
The legal fiction that deportation following a criminal conviction is not punishment is difficult to reconcile with reality, especially in the context of this case. Mr. Scheidemann entered this country at age twelve; he has lived here for thirty-six years; he has been married to an American citizen for twenty-four years; he has raised three children all of whom are American citizens; his elderly parents are naturalized citizens; two of his four siblings are naturalized American citizens, and all four of them reside permanently in the United States; he has no ties to Colombia, the country to which he is to be deported; and he has fully served the sentence imposed upon him. If deportation under such circumstances is not punishment, it is difficult to envision what is.
I think the deportation of aliens for the commission of crimes is clearly punishment. If Mr. Scheidemann s deportation could be characterized, as it should be, as punishment, I would conclude that the statutory bar to the discretionary waiver is a violation of the Ex Post Facto Clause of the Constitution.
I.
The Constitution provides that [n]o state shall ... pass any ... ex post facto law.
Various types of laws that serve to increase the punishment after an individual has committed an action have been found to violate the Ex Post Facto Clause. For example, the Supreme Court found that the Ex Post Facto Clause had been violated when defendants were sentenced under a statute requiring a sentence of fifteen years when the law in effect at the time of the offense gave the judge discretion to impose a lower sentence. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). Even though the defendants conceivably could have been sentenced to fifteen years under the prior statute, the court found the Ex Post Facto Clause violated because the measure of punishment prescribed by the later statute is more severe than that of the earlier. Id. Similarly, in Weaver, the Supreme Court found that a Florida statute altering the availability of gain time for good conduct was a violation of the Ex Post Facto Clause. Weaver, 450 U.S. at 36, 101 S.Ct. at 968. In arriving at its conclusion, the Court explained that a statute may violate the Ex Post Facto Clause even if it alters punitive conditions outside the sentence, ... [where the statute] substantially alters the consequences attached to a crime already completed and therefore changes the quantum of punishment. Id. at 32-33, 101 S.Ct. at 966.
In addition, several courts of appeals, including our own, have found that the Ex Post Facto Clause is violated when a defendant s eligibility for parole release is adversely affected under a statute that was not in effect at the time of the defendant s crime. See, e.g., Geraghty v. United States Parole Commission, 579 F.2d 238, 265 (3d Cir.1978) ( [W]e conclude that were a statute to deprive already incarcerated or sentenced pris-
I am convinced that if a statute repealing the eligibility of an inmate for parole would violate the Ex Post Facto Clause if applied to prisoners who committed their crimes before the enactment date of the statute, the Ex Post Facto Clause likewise should prohibit the application of the section 212(c) waiver bar to aliens who committed an aggravated felony before the bar was enacted.
A defendant who is sentenced to seven years in prison with eligibility for parole after five years is much like an alien convicted of a crime for which he may be deported who is eligible to apply for a waiver under section 212(c). Parole is not guaranteed, nor is the waiver of deportation. A Parole Board makes a decision whether to grant parole based on issues such as good behavior, prognosis for rehabilitation and family and community ties, just as аn immigration judge assessing whether to waive deportation under 212(c) weighs issues of rehabilitation and family and community ties. Both decisions are discretionary; however, as noted by the Eleventh Circuit in summarizing Supreme Court jurisprudence, the mere presence of some discretion both before and after the change in law does not in and of itself foreclose an ex post facto claim. Jones v. Georgia State Board of Pardons and Paroles, 59 F.3d 1145, 1149 (11th Cir.1995) (citing Miller v. Florida, 482 U.S. 423, 432-33, 107 S.Ct. 2446, 2452-53, 96 L.Ed.2d 351 (1987)). [A] law may [violate the Ex Post Facto Clause] not only if it alters the length of the sentence, but also if it changes the maximum sentence from discretionary to mandatory. Weaver, 450 U.S. at 32 n. 17, 101 S.Ct. at 966 n. 17. Thus, although an inmate may fail in his efforts to persuade a Parole Board to exercise its discretion to grant him parole—just as an alien may fail in his efforts to persuade an Immigration Judge to exercise her discretion to grant him a deportation waiver—the removal of that discretion would constitute a violation of the Ex Post Facto Clause.
Furthermore, given that parole eligibility is considered an integral part of any sentence, Shepard, 556 F.2d at 654; see also Warden, 417 U.S. at 658, 94 S.Ct. at 2535-36, I think that the availability and likelihood of a deportation waiver should also be so considered.1 In explaining the basis for its con-
II.
The Supreme Court, however, has long held that deportation is not a punishment, but rather a mere administrative action:
A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish.... The deportation hearing looks prospectively to the respondent s right to remain in this country in the future. Past conduct is relevant only insofar as it may shed light on the respondent s right to remain.
Lopez-Mendoza, 468 U.S. at 1038, 104 S.Ct. at 3483. Therefore, deportation laws are not subject to the Ex Post Facto Clause. See Galvan, 347 U.S. at 531, 74 S.Ct. at 743 (holding that the ex post facto Clause has no application to deportation ); Harisiades, 342 U.S. at 594, 72 S.Ct. at 521 (holding that the Ex Post Facto Clause does not apply to deportation orders because [d]eportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure ); Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924) ( It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment. ); Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913) (holding that the determination that an alien is an undesirable person is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the Government to harbor persons whom it does not want ) (citing Fong Yue Ting v. United States, 149 U.S. 698, 707, 728, 730, 13 S.Ct. 1016, 1019-20, 1027-28, 1028-29, 37 L.Ed. 905 (1893); Wong Wing v. United States, 163 U.S. 228, 231, 16 S.Ct. 977, 979-80, 41 L.Ed. 140 (1896); Zakonaite v. Wolf, 226 U.S. 272, 275, 33 S.Ct. 31, 32, 57 L.Ed. 218 (1912); Tiaco v. Forbes, 228 U.S. 549, 33 S.Ct. 585, 57 L.Ed. 960 (1913)).
If not bound by these precedents, I would reject this distinction. While there is certainly a line to be drawn between adverse consequences of a conviction and actual punishment for purposes of the Ex Post Facto Clause, I think that it is plain that deportation falls on the punishment side of the line, as made clear by this court s recent decision, Artway v. Attorney General of the State of New Jersey, 81 F.3d 1235 (3d Cir. (N.J.)). There we engaged in a lengthy analysis of Supreme Court case law concerning the definition of punishment for purposes of the Ex Post Facto Clause, the Bill of Attainder Clause, and the Double Jeopardy Clause. Id. at 1254-64. We synthesized the case law and articulated a three-part analytical framework for determining whether legislative measures should be considered punishment. Under this framework, each prong of the test must be met in order for a measure to be found not punitive.
First, we consider whether the legislature intended the legislation to be punishment, i.e., retribution was one of its actual purposes. Id. at 1262-63 (citing De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960)). If so, the legislation should be considered to create a
Second, we look to the objective purpose of the legislature. In doing so, we consider whether the law can be explained solely by a remedial purpose. Id. (citing United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989)). If not, it is punishment. If it can be fully explained by a remedial purpose, we consider whether historically, the measure has nonetheless been considered punishment and whether any deterrent purpose it might have overwhelms its salutary purpose. If either is true, the legislation is considered punishment. Id.2
Third, even if the legislation is not found to be punishment under the above two prongs, we consider the effects of the measure. Id. at 1263. If the negative repercussions—regardless of how they are justified—are great enough, the measure must be considered punishment. Id. (emphasis added). Thus, regardless of whether the legislature truly intended only to serve a remedial purpose such as alleviating this country of the burden of hosting unwanted aliens, a legislative measure should be considered punishment if it has great enough negative repercussions.
Under this scheme, there can be little doubt that the statutory bar to 212(c) waivers of deportation is a punishment. Even if it is accepted that Congress s intent in creating the bar was purely remedial and that any deterrent purpose it serves does not overwhelm its salutary effect of ensuring that aliens convicted of aggravated felonies are deported—no matter how strong their family ties are and how young they were when they first arrived in the United States—it is clear that the bar has great enough negative repercussions to warrant its classification as punishment.
In Artway, we explained that, while [t]he caselaw does not tell us where the line falls that divides permissible from impermissible effects, ... we know the matter of degree is somewhere between imprisonment and revocation of citizenship on the one hand, and loss of a profession or benefits on the other. Id. at 1266 (comparing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (increasing incarceration is punishment ) and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (revoking citizenship is punishment ) with De Veau v. Braisted, 363 U.S. 144, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960) (forbidding work as union official is not punishment ); Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (revoking medical license is not punishment ) and Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (terminating social security benefits is not punishment )).
Deportation of an alien who has resided in this country for thirty-six years to a country which he has not visited since he left it at age twelve has enormous negative repercussions, perhaps even more so than increased incarceration, which is clearly considered punishment. See id. (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)). At the times when Mr. Scheidemann committed his crime, when he was convicted, and when he was sentenced, he was eligible to apply for a waiver of deportation; the facts presented indicate there was a fair possibility of such a waiver being grant-
Even the Supreme Court has recognized the incredibly harsh punitive nature of deportation, see, e.g., Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948) (explaining that deportation is a drastic measure and at times the equivalent of banishment or exile.... It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty ), but it has felt constrained by its prior decisions as we are. As explained at great length by Justice Frankfurter:
[S]ince the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation. But the slate is not clean.... [T]here is not merely a page of history ... but a whole volume.... [W]hatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation.
Galvan, 347 U.S. at 531, 74 S.Ct. at 742-43.
The Supreme Court, of course, may revisit its own precedents. If it could not, Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), would still be good law. See also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995) (overruling Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990)). I suggest that now is the time to wipe the slate clean and admit to the long evident reality that deportation is punishment. To conclude that it is not punishment for a person to be banished from the country in which he has lived for thirty-six years, to be denied the love and presence of his wife, children and parents, and to be sent to a country to which he has no ties, is to deny reality. Given the choice, I would imagine most persons would choose prison. As Justice Brеwer once commented in dissent, If banishment of this sort be not a punishment, and among the most severest of punishments, it would be difficult to imagine a doom to which the name can be applied. Fong Yue Ting, 149 U.S. at 741, 13 S.Ct. at 1033 (Brewer, J. dissenting) (quoting Madison in 4 Elliot s Deb. 554, 555).
III.
For the foregoing reasons, I conclude that the longstanding rule that the Ex Post Facto Clause does not apply to deportation laws should be revisited to reflect the harsh reality that deportation is punishment. Because I am bound to follow precedent, however, I have no option but to concur in the opinion of my colleagues affirming the decision of the Board that deportation is not subject to the Ex Post Facto Clause and that, accordingly, Mr. Scheidemann is not eligible to apply for a