

                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  &amp;                                                                              
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

                             -2-                                          2

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,

                             -3-                                          3

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:

                             -4-                                          4

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.

                             -5-                                          5

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."

                             -6-                                          6

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.   

                             -7-                                          7

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

                             -8-                                          8

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).                                     

                             -9-                                          9

          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)

                             -10-                                          10

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.

                             -11-                                          11

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

                             -12-                                          12

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,                    

                             -13-                                          13

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.

                             -14-                                          14

          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

                             -15-                                          15

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 &amp;  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."

                             -16-                                          16

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.

                             -17-                                          17
