Kolster v. INS ( 1996 )


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    United States Court of Appeals United States Court of Appeals
    For the First Circuit


    ____________________


    No. 96-1194

    ALFREDO A. KOLSTER,

    Petitioner,

    v.

    IMMIGRATION AND NATURALIZATION SERVICE,

    Respondent.


    ____________________

    PETITION FOR REVIEW OF AN ORDER OF
    THE BOARD OF IMMIGRATION APPEALS

    ____________________

    Before

    Boudin, Circuit Judge, _____________
    Bownes, Senior Circuit Judge, ____________________
    Lynch, Circuit Judge. _____________

    ____________________

    Lee Gelernt and Richard L. Iandoli, with whom Iandoli & _____________ _____________________ __________
    Associates, Lucas Guttentag, Letitia Volpp, and American Civil __________ _________________ ______________ _______________
    Liberties Union were on brief for petitioner. _______________
    Linda S. Wendlandt, with whom Frank W. Hunger, Assistant Attorney __________________ ________________
    General, Civil Division, Michael P. Lindemann, Assistant Director, _____________________
    Office of Immigration Litigation, and Lisa Arnold, Attorney, Office of ___________
    Immigration Litigation, were on brief for respondent.
    ____________________
    December 4, 1996
    ____________________


















    LYNCH, Circuit Judge. This case requires us to LYNCH, Circuit Judge. _____________

    determine whether section 440(a) of the Antiterrorism and

    Effective Death Penalty Act (AEDPA), enacted after this

    petition was filed, applies here. Alfredo Kolster, an alien

    under deportation order, argues that if it does apply, it is

    unconstitutional. Section 440(a) of AEDPA, which was signed

    into law on April 24, 1996, prohibits judicial review of

    deportation orders issued against aliens who have committed

    certain types of crimes. Kolster had previously pled guilty

    to such a crime.

    In a petition filed with this court on February 28,

    1996, Kolster seeks review of a Board of Immigration Appeals

    (BIA) decision that he is ineligible, under the BIA's

    interpretation of the Immigration and Nationality Act (INA),

    for discretionary relief from deportation. He argues that

    the BIA erroneously interpreted the statute to require seven

    years of lawful permanent residence by the alien to be

    eligible for the relief from deportation afforded by section

    212(c) of the INA.

    The Immigration and Naturalization Service (INS)

    has moved to dismiss this action, arguing that section 440(a)

    of AEDPA operates immediately to divest this court of

    jurisdiction to hear this petition for review. Kolster

    responds that section 440(a) does not apply to cases pending

    on the date of AEDPA's enactment, and that, if the statute



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    applies, its preclusion of judicial review violates the Due

    Process Clause and Article III of the Constitution.

    We find that section 440(a) does apply to

    petitions, like Kolster's, which were pending on the date of

    AEDPA's enactment. Because at least the habeas corpus review

    provided by the Constitution remains available to aliens

    covered by section 440(a), we find that the prohibition of

    judicial review in section 440(a) does not offend the

    Constitution. Accordingly, we dismiss Kolster's petition for

    review under the Immigration and Nationality Act for lack of

    jurisdiction.

    I.

    Alfredo Kolster, a Venezuelan citizen, first

    entered the United States in 1980 to attend high school in

    New York. He remained in the United States through high

    school and college, earning a B.S. from Boston University in

    September, 1988. During this time, Kolster had a F-1, or

    foreign student, visa.

    On September 11, 1988, after a brief visit to

    Venezuela, Kolster re-entered the United States as a member

    of the immediate family of an employee of an international

    organization. His mother worked for the Pan-American Health

    Organization. On August 24, 1989, Kolster became a lawful

    permanent resident of the United States. From 1989 to 1991,





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    Kolster lived in the Boston area and worked at various sales

    jobs.

    In 1991, Kolster was indicted in federal court in

    Massachusetts for conspiracy to possess cocaine with intent

    to distribute. He later pled guilty and was sentenced to

    twenty-four months' imprisonment. The sentencing judge

    recommended that Kolster not be deported upon his release

    from custody.

    Nonetheless, while Kolster was incarcerated, the

    INS ordered him to show cause why he should not be deported.

    The INS charged that Kolster was deportable pursuant to

    section 241(a)(2)(B)(i) of the INA, which applies to aliens

    convicted of controlled substance offenses, and pursuant to

    section 241(a)(2)(A)(iii), which applies to aliens convicted

    of aggravated felonies. See 8 U.S.C. 1251 (a). ___

    On April 5, 1994, Kolster had a hearing before an

    Immigration Judge. At that hearing, Kolster, through

    counsel, conceded deportability on the grounds charged by the

    INS. However, he also requested a continuance in order to

    apply for a waiver of deportation pursuant to section 212(c)

    of the INA. Section 212(c) gives the Attorney General the

    discretionary authority to waive the exclusion of otherwise

    excludable aliens, see 8 U.S.C. 1182(c).1 A longstanding ___

    ____________________

    1. Section 212(c) of the INA, 8 U.S.C. 1182(c), prior to
    amendment by AEDPA, read in relevant part:


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    interpretation of that section extends the Attorney General's

    discretion to otherwise deportable aliens. See, e.g., Joseph __________ ______

    v. INS, 909 F.2d 605, 606 n.1 (1st Cir. 1990). ___

    The Immigration Judge found "based on [Kolster's]

    admission, his concession of deportability through counsel,

    and the documentary evidence of record that deportability has

    been established by clear, convincing and unequivocal

    evidence." As to Kolster's request for a continuance, the

    Immigration Judge found that Kolster did not have statutory

    eligibility for section 212(c) relief, and therefore

    pretermitted his application for a waiver of deportation.

    Accordingly, she ordered Kolster deported to Venezuela.

    On January 30, 1996, the BIA affirmed the order of

    deportation. The Board agreed with the decision to pretermit

    Kolster's application for a section 212(c) waiver because

    Kolster had "not been a lawful permanent resident of the

    United States for seven years as is required."

    Kolster filed a petition for review with this court

    on February 28, 1996. At that time, 8 U.S.C. 1105a(a)






    ____________________

    Aliens lawfully admitted for permanent
    residence . . . who are returning to a
    lawful unrelinquished domicile of seven
    consecutive years, may be admitted in the
    discretion of the Attorney General.


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    provided for judicial review of final orders of deportation.2

    Kolster argued that the BIA has erred in interpreting section

    212(c)'s requirement of seven years of "lawful unrelinquished

    domicile" to mean seven years of "lawful permanent

    residence." Kolster points to a circuit split on this

    statutory issue, noting that some courts of appeals have

    rejected the BIA's construction of section 212(c). See, e.g, _________

    Lok v. INS, 548 F.2d 37 (2d Cir. 1977). ___ ___

    On April 24, 1996, while this petition was pending,

    President Clinton signed into law the Antiterrorism and

    Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

    132, 110 Stat. 1214. Section 440(a) of AEDPA, which amends

    Section 106(a)(10) of the INA, 8 U.S.C. 1105(a)(10),

    provides:

    Any final order of deportation against an
    alien who is deportable by reason of
    having committed [certain crimes,
    including aggravated felonies and
    controlled substance offenses] shall not
    be subject to review by any court.

    On June 10, 1996, the INS moved to dismiss this petition for

    review, arguing that, in light of section 440(a), this court






    ____________________

    2. 8 U.S.C. 1105a(a) provided that the procedures
    described therein "shall apply to, and shall be the sole and
    exclusive procedure for, the judicial review of all final
    orders of deportation heretofore or hereafter made against
    aliens within the United States."

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    lacked subject matter jurisdiction to hear this case.3

    Kolster responds that AEDPA does not specify an effective

    date for section 440(a), and that statutes are generally

    presumed not to have retroactive effect. Additionally, he

    contends that preclusion of judicial review violates the Due

    Process Clause and Article III.

    II.

    A. Section 440(a)'s Applicability to Pending Petitions ___________________________________________________

    The Supreme Court's decision in Landgraf v. USI ________ ___

    Film Products, 114 S. Ct. 1483 (1994), provides a framework _____________

    for determining whether a statute should be applied to cases

    pending at the time of enactment. This is initially a

    question of legislative intent, not a constitutional

    question. First, the court must look at the statutory text

    and determine whether it "manifests an intent" that the

    statute should be applied to pending cases. Id. at 1492. If ___

    the court determines that Congress did not "expressly

    ____________________

    3. The INS originally also argued that this petition sought
    relief -- a waiver of deportation under section 212(c) --
    which petitioner was no longer eligible to receive. Section
    440(d) of AEDPA amends section 212(c) so that it no longer
    applies to aliens who are deportable by reason of having
    committed certain crimes, including controlled substance
    offenses and aggravated felonies. The Attorney General is
    currently considering whether to apply section 440(d) to
    section 212(c) applications filed before April 24, 1996. See ___
    In re Soriano, Order of the Attorney General (Sept. 12, ______________
    1996), vacating Int. Dec. No. 3289 (BIA June 27, 1996, ________
    amended July 18, 1996). Because we find that the court does
    not have jurisdiction to hear this petition, we do not reach
    the question of whether section 440(d) applies to pending
    applications.

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    prescribe[] the statute's proper reach," the court presumes

    that Congress acts consistently with a series of "judicial

    default rules." Id. at 1505. In applying these rules, 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.

    Id. For jurisdictional statutes, the presumption is in favor ___

    of immediate application, because "[a]pplication of a new

    jurisdictional rule usually 'takes away no substantive right

    but simply changes the tribunal that is to hear the case'"

    and because "jurisdictional statutes 'speak to the power of

    the court rather than to the rights or obligations of the

    parties.'" Id. at 1502 (quoting Hallowell v. Commons, 239 ___ _________ _______

    U.S. 506, 508 (1916) and Republic Nat'l Bank v. United _____________________ ______

    States, 113 S. Ct. 554, 565 (1992)(Thomas, J., concurring)). ______

    The first inquiry is thus whether Congress has

    expressed a clear intent as to whether section 440(a) applies

    to cases pending on the date of enactment. There is no

    explicit textual reference to an effective date for section

    440(a). Effective dates are provided for some other sections

    of the AEDPA, including section 440(e), which adds offenses

    to the INA definition of "aggravated felony." See 8 U.S.C. ___

    1101 note. However, those sections are "unrelated to



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    jurisdiction, [and] are too far removed from judicial review

    under 8 U.S.C. 1105a(a) to impute an effective date for

    section 440(a)." Duldulao v. INS, 90 F.3d 396, 398 n.2 (9th ________ ___

    Cir. 1996). Accordingly, we find that Congress has not

    expressly addressed the issue of section 440(a)'s

    applicability to pending cases.

    The next inquiry under the "judicial default rule"

    approach to determining congressional intent is whether

    440(a) has a retroactive effect upon petitioner's substantive

    rights, duties, or obligations. Landgraf, 114 S. Ct. at ________

    1505. If it does not, then we apply the rule that

    jurisdictional statutes apply to pending cases. Id. If the ___

    statute would have such retroactive effects, it will not be

    applied, "absent clear congressional intent favoring such a

    result." Id. ___

    Kolster argues that Landgraf assumes that ________

    jurisdictional statutes only effect a change in the tribunal

    that will hear the case, and that the presumption in favor of

    immediate application is therefore inapposite where the

    statute's effect is to deprive a party of access to any

    judicial review at all. It is true that Landgraf speaks of ________

    jurisdictional statutes as usually "'simply chang[ing] the

    tribunal that is to hear the case.'" Landgraf, 114 S. Ct. at ________

    1502 (quoting Hallowell, 239 U.S. at 508). _________





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    However, as the INS points out, Landgraf's explicit ________

    reliance on Hallowell is instructive here. In Hallowell, the _________ _________

    Supreme Court approved the application to pending cases of a

    statute that deprived the federal district courts of

    jurisdiction over certain Indian probate disputes and vested

    "final and conclusive" authority in the Secretary of the

    Interior. 239 U.S. at 508. Section 440(a) similarly vests

    final authority in an administrative tribunal, the BIA.

    Landgraf's citation to Hallowell makes us doubtful, absent ________ _________

    more guidance from the Supreme Court, that a jurisdictional

    change from an Article III court to an administrative

    decisionmaker, in itself, affects the retroactivity analysis,

    whatever its effect on the ultimate constitutional analysis.

    See Hincapie-Nieto v. INS, 92 F.3d 27, 29 (2nd Cir. 1996). ___ ______________ ___

    Our inquiry must therefore focus on the facts

    concerning whether Kolster's substantive rights or

    obligations or duties have been changed by the deprivation of

    judicial review. Kolster suggests that his guilty plea and

    concession of deportability were made with the expectation

    that he could apply for a section 212(c) waiver of

    deportation.

    The Seventh Circuit gave credence, on different

    facts, to a similar argument in Reyes-Hernandez v. INS, 89 _______________ ___

    F.3d 490, 492 (7th Cir. 1996). There, the BIA had affirmed

    the denial of petitioner's application for section 212(c)



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    relief, and the petitioner sought judicial review. The

    Seventh Circuit found that, when petitioner conceded

    deportability, he knew that, if the immigration judge and the

    BIA turned down his request for section 212(c) relief, he

    "could have a go at" judicial review. Id. at 492. Had ___

    petitioner known that judicial review would be foreclosed,

    "he might have contested deportability." Id. The immediate ___

    application of section 440(a) would thus "attach a new legal

    consequence to the concession" of deportability. Id. at 492- ___

    93. Accordingly, the Seventh Circuit held that section

    440(a) did not apply to cases in which deportability was

    conceded prior to AEDPA's enactment, "provided that the

    applicant for discretionary relief would have had at least a

    colorable defense to deportability." Id. ___

    In contrast to the Seventh Circuit, it is unclear

    to us that deportability, which is a largely mechanical

    determination based on facts which may often be objectively

    ascertained, would realistically be conceded because of the

    availability of discretionary relief or of judicial review of

    the denial of such relief. See Hincapie-Nieto, 92 F.3d at 30 ___ ______________

    ("It is far more likely that deportability is conceded

    because there is no conceivable defense available."). In any

    case, here the Immigration Judge explicitly based her finding

    of deportability on the documentary evidence of Kolster's

    drug offense conviction, as well as on his concession.



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    Tellingly, Kolster does not argue that he in fact had a

    colorable defense to deportability.

    As to his guilty plea, we have no reason to think

    it was induced by reliance on discretionary relief under

    section 212(c). By Kolster's own calculations, his "lawful

    domicile" for section 212(c) purposes only dates back to

    September 11, 1988. Thus, even under the interpretation of

    section 212(c) that he urges, as of September 2, 1992, the

    date of his guilty plea, Kolster had only accrued four years

    of lawful domicile. He was, as a result, three years away

    from being eligible for section 212(c) relief, rendering it

    highly unlikely that his guilty plea was predicated on the

    availability of such relief.

    Moreover, this court and others have previously

    found that aliens do not have a cognizable reliance interest

    in the availability of discretionary section 212(c) relief.

    See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. ___ ____ ___________ ___

    1996); Campos v. INS, 16 F.3d 118 (6th Cir. 1994); Barreiro ______ ___ ________

    v. INS, 989 F.2d 62 (1st Cir. 1993). At issue in those cases ___

    was an amendment to section 212(c) which made aliens who had

    served at least five years' imprisonment for an aggravated

    felony ineligible for discretionary relief. See, e.g, ___ ___

    Barreiro, 989 F.2d at 62. In Barreiro, this court found that ________ ________

    the amendment's application to prisoners whose convictions

    and prison terms predated its enactment did not violate the



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    presumption against retroactivity. Id. at 64. "The ___

    presumption against a retroactive interpretation is to give

    fair warning so that a party may avoid consequences. This is

    scarcely a situation calling for any such warning." Id. ___

    Similar logic applies here. As the Third Circuit

    said in Schiedemann, petitioner's "conduct clearly subjected ___________

    him to deportation as well as criminal sanctions, and . . .

    [section] 212(c), as it then existed, offered relief from the

    former only at the unfettered discretion of the Attorney

    General . . . ." Schiedemann, 83 F.3d at 1523. The ___________

    availability of purely discretionary relief does not create

    substantive rights in otherwise deportable criminal aliens,

    nor does the availability of judicial review of denial of

    that discretionary relief.

    We find that Kolster's substantive rights,

    liabilities, and duties are not retroactively impaired by the

    preclusion of judicial review. We note that five of the six

    other circuit courts to consider this question have found

    that section 440(a) applies upon enactment. See Salazar-Haro ___ ____________

    v. INS, 95 F.3d 309 (3d Cir. 1996); Hincapie-Nieto v. INS, 92 ___ ______________ ___

    F.3d 27 (2d Cir. 1996); Qasguargis v. INS, 91 F.3d 788 (6th __________ ___

    Cir. 1996); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996); ________ ___

    Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996). We hold, ____________ ___

    under the "judicial default rules" that are articulated in

    Landgraf and which provide a guide to legislative intent, ________



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    that section 440(a)'s deprivation of jurisdiction to this

    court is effective upon enactment.

    B. The Constitutional Challenge to Section 440(a) _________________________________________________

    Kolster contends that section 440(a)'s preclusion

    of judicial review of final orders of deportation based on

    commission of certain crimes violates both the Due Process

    Clause and the principles of separation of powers embodied in

    Article III. Kolster argues that deportation deprives him of

    a constitutionally protected liberty interest, and that the

    Due Process Clause thus guarantees him certain procedural

    protections, including judicial review. Additionally,

    Kolster argues that section 440(a), by giving "the Executive

    Branch the power to act as legal arbiter of its own conduct,"

    prevents the judiciary from fulfilling its Article III "role

    as a 'check' on the actions of the two other branches."

    The INS responds that section 440(a) is "clearly a

    constitutional exercise of Congress' well-established power

    to provide or withhold jurisdiction from statutorily-created

    courts, as well as its plenary power over matters of

    immigration and naturalization." Because we consider this to

    be a serious question, this court requested additional

    briefing on whether habeas corpus review remains available to

    aliens who are covered by section 440(a)'s bar on judicial

    review.





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    The question of section 440(a)'s constitutionality

    is not wholly resolved by reference to Congress' plenary

    power over matters concerning immigration. While it is true

    that "over no conceivable subject is the legislative power of

    Congress more complete," Reno v. Flores, 507 U.S. 292, 305 ____ ______

    (1996)(citation omitted), the Supreme Court has also said

    that:

    once an alien gains admission to our
    country and begins to develop the ties
    that go with permanent residence his
    constitutional status changes
    accordingly. Our cases have frequently
    suggested that a continuously present
    alien is entitled to a fair hearing when
    threatened with deportation, and,
    although we have only rarely held that
    the procedures provided by the executive
    were inadequate, we developed the rule
    that a continuously present permanent
    resident alien has a right to due process
    in such a situation.

    Landon v. Plasencia, 459 U.S. 21, 32 (1982)(internal ______ _________

    citations omitted). Given this recognition that continuously

    present aliens, like Kolster, do have some constitutional

    status, our analysis of whether judicial review is

    constitutionally required here cannot turn on the fact that

    section 440(a) only affects the rights of such aliens. See ___

    Salazar-Haro, 95 F.3d at 311. ____________

    The constitutional question at the heart of

    Kolster's claim may be stated as follows: Where the

    consequences of the decision are the deportation of a

    continuously present alien, may Congress, by precluding


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    judicial review of final deportation orders, place final

    authority over a question of law -- here, the meaning of

    section 212(c)'s phrase "lawful unrelinquished domicile" --

    in the hands of an administrative body (i.e., the BIA), or

    does the Constitution require an independent judicial

    determination of questions of law, or at least of whether the

    agency's determination was a reasonable construction of the

    statute? See Fallon et al., Hart & Wechsler's The Federal ___ ______________________________

    Courts and The Federal System 397-98 (4th ed. 1996); __________________________________

    Monaghan, Marbury and the Administrative State, 83 Colum. L. _____________________________________

    Rev. 1, 28-34 (1983); cf. Chevron USA Inc. v. Natural __ __________________ _______

    Resources Defense Council, 467 U.S. 837, 842-43 (1984). Were _________________________

    no other avenues of judicial review available to aliens like

    petitioner, we would be required to resolve that thorny

    question here.

    However, the INS has agreed that, although AEDPA

    has repealed the previous statutory authorization for habeas

    review of final deportation orders contained in section

    106(a)(10) of the INA, any habeas review that is required by

    the Constitution remains available.4 Kolster contends that

    the repeal of the specific INA habeas provision does not

    ____________________

    4. The INS's precise position is that such constitutionally
    compelled habeas review, or its equivalent, remains, and that
    we need not here determine "whether the jurisdictional basis
    for 'constitutional habeas' review of a deportation order
    would be 28 U.S.C. 2241, section 1651, or a 'free standing'
    Constitutional authorization." For present purposes, we
    describe the alternatives as "habeas review."

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    impair the ability of the federal courts to grant writs of

    habeas corpus under the general habeas provision, 28 U.S.C.

    2241, and that such habeas review would encompass questions

    of law like the one Kolster raises here. Cf. Felker v. ___ ______

    Turpin, 116 S. Ct. 2333, 2339 (1996) (declining to find ______

    jurisdictional repeal by implication).

    Because the INS acknowledges that some avenue for

    judicial review remains available to address core

    constitutional and jurisdictional concerns, we find that

    section 440(a)'s repeal of our jurisdiction to review final

    deportation orders does not raise a constitutional issue. As

    the nature and scope of habeas review available to aliens

    like Kolster is not properly before us at this time, we do

    not reach those questions. See Hincapie-Nieto, 92 F.2d at ___ ______________

    31.

    Accordingly, the petition for review is dismissed

    for lack of jurisdiction.



















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