Manuel JURADO-GUTIERREZ v. Joseph R. GREENE, District Director, United States Immigration and Naturalization Service, Executive Office for Immigration Review and John Doe; American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild; Law Professors, Amici Curiae. Benigno Palaganas-Suarez v. Joseph R. Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado; National Immigration Project of the National Lawyers Guild; American Immigration Lawyers Association, Amici Curiae. Arnold Desmond Williams v. Joseph R. Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado; Law Professors; American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild, Amici Curiae. Urbano De Jesus Daniel v. Joseph R. Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado
Nos. 97-1437, 98-1017, 98-1050 and 98-1310
United States Court of Appeals, Tenth Circuit
Aug. 19, 1999
As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc Nov. 29, 1999
190 F.3d 1135
It is undisputed that LCF had a policy of assigning lighter duty posts to individuals with temporary physical impairments. However, the policy did not provide for permanent assignments to these lighter duty posts; in Martin‘s view, if an individual is unable to get full medical clearance within six months, the State will terminate the individual‘s employment.
We agree with the district court that the State‘s light duty policy is not tantamount to a “100% healed” policy or a refusal to accommodate permanent disabilities. See Martin, 996 F.Supp. at 1298. As we have acknowledged previously, the ADA does not require an employer to provide permanent light duty assignments for disabled employees. At best, Martin shows only that the State‘s policy required him to be able to perform the essential job functions of a corrections officer, with or without accommodation. That is not a violation of the ADA; in fact it is what the ADA requires Martin to show to prove he is a “qualified individual.”
CONCLUSION
We AFFIRM the district court‘s denial of the State‘s motion asserting Eleventh Amendment immunity; we likewise AFFIRM the district court‘s award of summary judgment to the State on the merits of each of Martin‘s ADA claims.
Manuel JURADO-GUTIERREZ, Petitioner-Appellee, v. Joseph R. GREENE, District Director, United States Immigration and Naturalization Service, Executive Office for Immigration Review and John Doe, Respondents-Appellants.
American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild; Law Professors, Amici Curiae.
Benigno Palaganas-Suarez, Petitioner-Appellant, v. Joseph R. Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent-Appellee.
National Immigration Project of the National Lawyers Guild; American Immigration Lawyers Association, Amici Curiae.
Arnold Desmond Williams, Petitioner-Appellee, v. Joseph R. Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent-Appellant.
Law Professors; American Immigration Lawyers Association; National Immigration Project of the National Lawyers Guild, Amici Curiae.
Urbano De Jesus Daniel, Petitioner-Appellee, v. Joseph R. Greene, District Director, United States Immigration and Naturalization Service, Denver, Colorado, Respondent-Appellant.
Lucas Guttentag, ACLU Immigrants’ Rights Project, San Francisco, California, and Sandra Saltrese-Miller, Boulder, Colorado (Lee Gelernt and Cecillia Wang, ACLU Immigrants’ Rights Project, San Francisco, California, with them on the briefs), appearing for Petitioner-Appellee Jurado-Gutierrez.
Lenni B. Benson, New York Law School, New York, New York, filed an amici brief for Law Professors.
Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, filed an amicus brief for the National Immigration Project of the National Lawyers Guild.
Nadine Wettstein, Tucson, Arizona, filed an amicus brief for the American Immigration Lawyers Association.
Lucas Guttentag, ACLU Immigrants’ Rights Project, San Francisco, California (Jim Salvator, Lafayette, Colorado, on the briefs), for Petitioner-Appellant Palaganas-Suarez.
Laura A. Smith, Trial Attorney (David M. McConnell, Assistant Director, with her on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondent-Appellee.
Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, filed an amici brief for the National Immigration Project of
David M. McConnell, Assistant Director, and Laura A. Smith, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondent-Appellant.
Lucas Guttentag, ACLU Immigrants’ Rights Project, San Francisco, California, and Sandra P. Saltrese-Miller, Boulder, Colorado (Jim Salvator, Lafayette, Colorado, on the brief), for Petitioner-Appellee Williams.
Lenni B. Benson, New York Law School, New York, New York, filed an amici brief for Law Professors.
Nadine Wettstein, Tucson, Arizona, filed an amicus brief for the American Immigration Lawyers Association.
Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, filed an amicus brief for the National Immigration Project of the National Lawyers Guild.
David M. McConnell, Assistant Director, and Laura A. Smith, Trial Attorney (Lorri L. Shealy, Trial Attorney, with them on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondent-Appellant.
Lucas Guttentag, ACLU Immigrants’ Rights Project, San Francisco, California, and Sandra P. Saltrese-Miller, Boulder, Colorado (Jim Salvator, Lafayette, Colorado, on the brief), for Petitioner-Appellee.
Before TACHA, LUCERO, Circuit Judges, and COOK*, District Judge.
TACHA, Circuit Judge.
We have consolidated for oral argument and decision four immigration cases presenting the same issues: (1) whether Congress abrogated, through enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) and
Petitioners are four legal permanent residents who have had final orders of deportation entered against them because of past criminal convictions. They do not directly contest their deportability, but they seek from the Attorney General a discretionary waiver of their deportation order, as previously authorized by § 212(c) of the
* The Honorable H. Dale Cook, Senior District Judge for the Northern District of Oklahoma, sitting by designation.
We take jurisdiction under
I. Background
A. Petitioner-Appellee Manuel Jurado-Gutierrez
Mr. Jurado-Gutierrez, a citizen of Mexico, has resided as a lawful permanent resident in the United States since 1988. In 1987, he married a United States citizen from whom he is now divorced. He and his ex-wife have an eleven year-old child who lives with her mother. In December 1995, Mr. Jurado-Gutierrez pled guilty to possession with intent to distribute a controlled substance. The court sentenced petitioner to four years imprisonment, followed by three years of parole. In September 1996, prior to the completion of his sentence, the Immigration and Naturalization Service (“INS“) took Mr. Jurado-Gutierrez into custody and instituted deportation proceedings based upon his conviction for a controlled substance violation, an aggravated felony. At a hearing on December 19, 1996, Mr. Jurado-Gutierrez admitted his conviction, and the immigration judge found him deportable.
After Mr. Jurado-Gutierrez pled guilty, but prior to the deportation proceedings against him, Congress enacted the AEDPA. As noted above,
Mr. Jurado-Gutierrez petitioned for a writ of habeas corpus in the district court. Initially, he argued only that
The district court found in favor of petitioner. It held that it had jurisdiction
B. Petitioner-Appellant Benigno Palaganas-Suarez
Mr. Palaganas-Suarez, a twenty-eight year-old citizen of the Philippines, became a lawful permanent resident of the United States at age fourteen. He is married to a United States citizen and has four children. On June 28, 1988, Mr. Palaganas-Suarez pled guilty to assault in the second degree. On August 15, 1996, he pled guilty to theft. As a result of these convictions involving crimes of moral turpitude, the INS placed Mr. Palaganas-Suarez in deportation proceedings in October 1996, after enactment of the AEDPA and IIRIRA. On November 7, 1997, after the IIRIRA‘s effective date, the INS further charged him with deportability under amended
Mr. Palaganas-Suarez filed a petition for a writ of habeas corpus under
C. Petitioner-Appellee Urbano De Jesus Daniel
Mr. Daniel, a citizen of Mexico, entered the United States in 1986 and became a lawful permanent resident in 1990. In February 1995, Mr. Daniel pled guilty to use of a controlled substance, and the court sentenced him to four years in prison. In February 1996, the INS initiated deportation proceedings against Mr. Daniel based on this conviction. After passage of the AEDPA and IIRIRA, Mr. Daniel appeared at a hearing before an immigration judge and contested his deportability. He had previously requested leave to apply for a waiver of deportation under former
D. Petitioner-Appellee Arnold Desmond Williams
Thirty-three year-old Arnold Desmond Williams, a citizen of Guyana, became a lawful permanent resident of the United States at age eleven. In 1983, he pled guilty to possession with intent to sell marijuana in New York City. The INS placed Mr. Williams in deportation proceedings on or about September 1, 1995 based on his 1983 conviction after he applied to renew his resident alien card. After the passage of AEDPA, on April 25, 1996, Mr. Williams appeared before an immigration judge and admitted that he had a drug conviction and conceded his deportability. Mr. Williams requested that he be considered for a waiver of deportation under
On December 3, 1996, after a hearing, the immigration judge denied Mr. Williams’ application for a
Mr. Williams filed a petition for a writ of habeas corpus on October 28, 1997, raising retroactivity and equal protection claims. The district court found that it had jurisdiction under
II. Jurisdiction
As a threshold matter, these cases present the question of whether federal courts have jurisdiction under
A. Statutory Background
Congress dramatically altered the judicial remedies available to resident aliens
The enactment of the AEDPA and IIRIRA wrought significant changes in federal court jurisdiction to hear claims brought by a resident alien convicted of an offense enumerated in the statute. To begin with, Congress revoked the specific preservation of habeas corpus jurisdiction contained in
(e) ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS.- Section 106(a) of the Immigration and Nationality Act (
8 U.S.C. 1105a(a) ) is amended-...
(3) by striking paragraph (10).
110 Stat. at 1268. Congress replaced that provision with
Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section [1251](a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section [1251](a)(2)(A)(ii) for which both predicate offenses are covered by section [1251](a)(2)(A)(i) shall not be subject to review by any court.
Id. at 1276-77 (codified at
On September 30, 1996, Congress made further changes to the immigration laws by enacting the IIRIRA. Among other things, Congress comprehensively revamped the judicial review structure which existed in
there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(i) of such Act (as so in effect).
EXCLUSIVE JURISDICTION.-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 from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this act.
B. Habeas Corpus
According to the government, the foregoing provisions eliminated federal court jurisdiction to hear habeas corpus petitions regarding petitioners’ deportation proceedings.4 We begin by noting that recent Supreme Court guidance forecloses any reliance on
In Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 119 S.Ct. 936, 943-45, 142 L.Ed.2d 940 (1999) (“AAADC“), the Supreme Court rejected the view that
There are of course many other decisions or actions that may be part of the deportation process-such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.
Here, petitioners ask us to review a final deportation order, see Foti v. INS, 375 U.S. 217, 222-23, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963),5 not interfere with the Attorney General‘s decision to commence proceedings, adjudicate cases, or execute a removal order. The immigration judges found that the AEDPA barred petitioners from seeking discretionary relief under
Hence, to determine whether the district court had jurisdiction to hear these habeas petitions, we must address the impact
We must next determine whether the language of
“It can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change,” United States v. Fausto, 484 U.S. 439, 453, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988).
In addition, Congress’ limitation on “review” and “appeal” in the 1996 statutes is insufficient to preclude habeas. As the Third Circuit pointed out, “in the immigration context, the Court has historically drawn a sharp distinction between ‘judicial review-meaning APA review-and the court‘s power to entertain petitions for writs of habeas corpus.” Sandoval, 166 F.3d at 235 (discussing Heikkila v. Barber, 345 U.S. 229, 235-36, 73 S.Ct. 603, 97 L.Ed. 972 (1953)); see also Mayers, 175 F.3d at 1299 n. 14 (same). We can certainly presume that Congress knew the difference between direct judicial review and collateral relief through filing a habeas corpus petition. See Sandoval, 166 F.3d at 235. In fact, we generally assume Congress knows the law and legislates in light of federal court precedent. See Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Here, that precedent includes a long history of recognizing habeas jurisdiction for aliens in deportation proceedings, even when no direct review existed. See, e.g., Sandoval, 166 F.3d at 233-34. With that precedent in mind, Congress could easily have inserted a provision explicitly pertaining to traditional habeas corpus review under
In sum, none of the statutes that we have before us in these cases, singularly or in combination, eliminates or otherwise alters habeas review available under
III. Retroactivity
Having determined that the district court had jurisdiction to hear petitioners’ habeas corpus claims, we turn to the argument that
A. Agency Deference
As a threshold matter, we address the government‘s contention that the Attorney General‘s decision in In re Soriano, (Feb. 21, 1997) (Soriano II), reprinted in Bender‘s Immigration Bulletin, Vol. 2, No. 6, March 15, 1997, at 204, deserves deference 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). In Soriano II, the Attorney General decided that
B. Retroactivity
In determining when to apply a change in the law to past conduct, we face two “seemingly contradictory statements” of statutory construction. See Landgraf v. U.S.I. Film Products, 511 U.S. 244, 264, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). “The first is the rule that ‘a court is to apply the law in effect at the time it renders its decision,‘” id., 511 U.S. at 264, 114 S.Ct. 1483 (quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)), and the second is that the law generally disfavors retroactive application of new statutes, absent clear statutory language to the contrary, see id., 416 U.S. 696, 94 S.Ct. 2006. In Landgraf and Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court resolved this apparent tension in the law and clarified when the different maxims of statutory construction apply.
The presumption against retroactivity “remains the appropriate default rule.” Landgraf, 511 U.S. at 272, 114 S.Ct. 1483. Reading Landgraf and Lindh in tandem, we have stated the Court “established a three-part test for determining whether a statute may apply retroactively.” Craig v. Eberly, 164 F.3d 490, 494 (10th Cir.1998); see also Federal Deposit Ins. Corp. v. UMIC, Inc., 136 F.3d 1375, 1385-86 (10th Cir.1998), cert. denied, 525 U.S. 962, 119 S.Ct. 404, 142 L.Ed.2d 328 (1998). “First, the court must determine ‘whether Congress has expressly prescribed the statute‘s proper reach.‘” Craig, 164 F.3d at 494 (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483). Second, if Congress has not expressly addressed the question, we employ the “normal rules of statutory construction to ascertain the statute‘s temporal scope.” id., 511 U.S. 244, 114 S.Ct. 1483; see also Lindh, 521 U.S. 320, 117 S.Ct. at 2063. Finally, if the court cannot ascertain congressional intent, we consider whether the statute has a retroactive effect. See Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; Craig, 164 F.3d at 494. If a retroactive effect exists, “it triggers the traditional judicial presumption against retroactivity and the new law will not be applied.” Craig, 164 F.3d at 494 (citing Landgraf, 511 U.S. at 280, 114 S.Ct. 1483).
A provision has a retroactive effect if it, for example, “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.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1483; see also Hughes Aircraft Co. v. United States ex. rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 1876, 138 L.Ed.2d 135 (1997) (stating that the above list is illustrative but not exhaustive). However, “[a] statute does
Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have “sound ... instinct[s],” see Danforth v. Groton Water Co., 178 Mass. 472, 476, 59 N.E. 1033, 1034 (1901) (Holmes, J.), and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance. Id. at 270, 114 S.Ct. 1483.
The Court in Landgraf further elaborated that the presumption against retroactivity did not apply in certain circumstances. For example, “[w]hen the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive,” id. at 273, 114 S.Ct. 1483 because “‘relief by injunction’ operates in futuro, and ... plaintiff ha[s] no ‘vested right’ in the decree entered by the trial court,” id. at 274, 114 S.Ct. 1483 (quoting American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 66 L.Ed. 189 (1921)). Courts also apply intervening statutes that affect jurisdiction and procedure on the rationale that such changes do not take away a substantive right or upset settled expectations. See id. at 274-75, 114 S.Ct. 1483.
C. Application
The parties agree that Congress did not expressly mandate retroactive or prospective application of
In addressing whether
The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications filed before, on, or after such a date if final action has not been taken on them before such date.
110 Stat. at 1269. Similarly,
This analysis, however, overlooks other immigration sections of the AEDPA that contain prospective “effective date” provisions. For example,
Moreover,
EFFECTIVE DATE.-The amendments made by subsection (e) shall apply to convictions entered on or after the date of the enactment of this Act, except that the amendment made by subsection (e)(3) shall take effect as if included in the enactment of section 222 of the Immigration and Nationality Technical Corrections Act of 1994.
110 Stat. at 1278. As the De Sousa court recognized, one can draw a reasonable negative implication from § 440(f) that the amendments in § 440, with the exception of § 440(e), apply to criminal convictions entered before enactment. See De Sousa, 30 F.Supp.2d at 853.
In short, different provisions in the Act allow one to draw a negative implication in favor of and against applying
We find that § 440(d) has no retroactive effect, but is instead akin to a change in prospective relief, to which the presumption against retroactivity does not apply. When petitioners committed their crimes, they were subject to criminal penalties and deportation. Eliminating discretionary relief from a deportation order hardly raises concerns about “fair notice, reasonable reliance, and settled expectations,” see Landgraf, 511 U.S. at 270, 114 S.Ct. 1483 that petitioners had at the time they committed their criminal acts. As the Seventh Circuit noted:
It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted convictions 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.
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.... Given the facts that petitioner‘s pre-1987 conduct clearly subjected him to deportation as well as criminal sanctions, and that § 212(c), as it then existed, offered relief from the former only at the unfettered discretion of the Attorney General, petitioner does not, and could not, contend that his conduct was undertaken in reliance on the then current version of § 212(c).
Id. at 1523; see also Campos v. INS, 16 F.3d 118, 121-22 (6th Cir.1994); De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993). We agree with the Third Circuit‘s analysis in Scheidemann. Petitioners had no settled expectations of discretionary relief when they committed their crimes. Discretionary relief would only operate “in futuro,” and Congress’ removal of the possibility of such relief does not therefore have a retroactive effect.14
Petitioners argue that the revocation by Congress of their right to apply for
The effects of
Therefore, we hold that
IV. Equal Protection
As amended by
The Fourteenth Amendment mandates that “[n]o State shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. This guarantee of equal protection applies to the federal government through the Fifth Amendment Due Process Clause, see, e.g., Schweiker v. Wilson, 450 U.S. 221, 226 & n. 6, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981), and provides that a statute shall not treat similarly situated persons differently unless the dissimilar treatment is rationally related to a legitimate legislative objective, see, e.g., Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). Our review of immigration legislation is especially limited because “‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (quoting Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 53 L.Ed. 1013 (1909)). In this case, we need not determine whether deportable and excludable aliens are similarly situated because, even assuming they are, we find a rational basis for the differentiation in
The distinction between excludable and deportable aliens found in amended
Moreover,
V. Conclusion
Based on the foregoing discussion, we hold that the district courts had jurisdiction under
LUCERO, Circuit Judge, Concurring.
Although I agree with the majority‘s result and analysis with respect to the jurisdictional and equal protection issues in this case, I write separately because of my different approach to the question of the retroactive application of
The immigration-related sections of Title IV of AEDPA contain various provisions expressly providing for their prospective or retrospective application, both as to pre-Act proceedings and pre-Act convictions. These result in a proliferation of sometimes conflicting inferences, making application of statutory construction methods considerably more difficult here than it was in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In light of several relevant AEDPA provisions, I ultimately conclude that the majority is correct in finding ambiguous Congress‘s intent with respect to the particular factual situations of the petitioners in these cases, and in proceeding to apply Landgraf v. U.S.I. Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), to determine whether its presumption against retroactivity applies. My reasons for finding ambiguity, however, are narrower than those of the majority. I find the reasoning of our sister circuits in confronting the similar, but legally distinct, issue of the application of § 440(d) to applications for
The majority opinion concludes that Mayers v. INS, 175 F.3d 1289 (11th Cir.1999), Sandoval v. Reno, 166 F.3d 225 (3d Cir.1999), Henderson v. INS, 157 F.3d 106 (2d Cir.1998), and Goncalves v. Reno, 144 F.3d 110 (1st Cir.1998), “overlook” ostensibly contradictory effective date provisions of other sections of AEDPA Title IV, specifically
Given the more direct parallels between the purposes of § 440(d) and
It is especially appropriate for courts to resort to legislative history for guidance when the language and structure of a statute are ambiguous. See United States v. Donruss Co., 393 U.S. 297, 303, 89 S.Ct. 501, 21 L.Ed.2d 495 (1969). Therefore, I would not “decline to find that Congress manifested a clear intent one way or the other,” Maj. Op. at 1150, without considering the legislative history arguments against retrospective application of § 440(d). See, e.g., Goncalves, 144 F.3d at 131-33 (analyzing legislative history of § 440(d) and concluding that Congress intended § 440(d) not apply retrospectively to pending applications); Mayers, 175 F.3d 1289, 1303-04 (same); Sandoval, 166 F.3d at 241 (same); Henderson, 157 F.3d at 130 (same). Most significantly, the original Senate language making § 440(d) retroactive as to “cases pending before, on, or after such date of enactment” was removed in conference. See 141 Cong. Rec. S7559 (daily ed. May 25, 1995); see generally Goncalves, 144 F.3d at 131-32 (detailing legislative history). As noted in Sandoval, “[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” 166 F.3d at 241 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). In the cases before us, however, this implication is considerably weaker. The ultimately excluded Senate language spoke only to the issue of application of § 440(d) to pending proceedings, and not to the distinct issue of application of § 440(d), in post-Act proceedings, to pre-Act conduct.2
Therefore, I agree with the majority that normal methods of statutory construction compel a finding of ambiguity with respect to the particular situation presented in these cases, but I find this ambiguity results solely from an implication, stemming from
Having concluded that legislative intent is ambiguous as to retrospective application for that narrow set of cases involving post-Act proceedings based on pre-Act criminal convictions, I agree with the majority that Lindh and Landgraf thus require us to resort to analysis of whether the provision has retroactive effect so as to invoke the traditional judicial “presumption against retroactivity.” See Landgraf, 511 U.S. at 272, 114 S.Ct. 1483. I further agree with the majority that this limited set of cases-where the law revokes a form of discretionary relief in post-Act proceedings, rather than imposing new consequences on the underlying convictions-does not sufficiently implicate the concerns of “fair notice, reasonable reliance, and settled expectation” to invoke the presumption against retroactivity. Landgraf, 511 U.S. at 270, 114 S.Ct. 1483.
Accordingly, I concur.