      Authority of the Attorney General to Grant Discretionary
        Relief from Deportation Under Section 212(c) of the
        Immigration and Nationality Act as Amended by the
       Antiterrorism and Effective Death Penalty Act of 1996

T he am endm ent o f section 212(c) o f the Im m igration and N ationality Act by section 4 40(d) o f the
    A ntiterro n sm and E ffective D eath Penalty Act o f 1996 deprived the A ttorney G eneral o f the
    authority to grant discretionary relief from deportation for aliens who com m itted certain crim es.
    Section 4 4 0 (d ) applies to section 212(c) applications for discretionary relief pending on the effec­
    tive date o f A E D PA *

                                                                                                February 21, 1997

                               IN DEPORTATION PROCEEDINGS

   At the request of the Commissioner of Immigration and Naturalization, the
Board of Immigration Appeals (“ BIA” ) referred its decision in this matter pursu­
ant to 8 C.F.R. §3.1(h)(iii) (1996). Respondent Soriano, a native and citizen of
the Dominican Republic, was admitted to the United States in 1985 as a lawful
permanent resident alien. In 1992, he was convicted under New York law of the
offense of an attempted sale of a controlled substance. Based on that conviction,
the Immigration and Naturalization Service (“ INS” ) instituted deportation pro­
ceedings against him in 1994.
   In 1995, Respondent sought the relief of waiver of inadmissibility under section
212(c) of the Immigration and Nationality Act ( “ INA” ), 8 U.S.C. § 1182(c)
(1994). Section 212(c) grants the Attorney General discretionary authority to admit
otherwise excludable permanent resident aliens. Although the statute expressly
authorizes only a waiver of exclusion, courts have interpreted it to authorize relief
in deportation proceedings as well. See Francis v. INS, 532 F.2d 268, 273 (2d
Cir. 1976); De Osorio v. INS, 10 F.3d 1034, 1039 (4th Cir. 1993). The Immigra­
tion Judge found that the respondent was eligible for that relief, but, in the exercise
o f discretion, denied his application. See Matter o f Soriano, File No. A39 186
067 (Executive Office for Immigration Review (“ EOIR” ), Office of the Immigra­

   * Editor's Note: tn this opinion (he Attorney General applied the two-step test for analyzing the temporal scope
of a statute set forth in the Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 244 (1994).
The Attorney General concluded that under the first step o f L a n d g r a fwhich asks whether Congress has expressly
prescribed the temporal reach o f a statute. Congress did not specify whether section 440(d) should be applied to
section 212(c) applications pending on the effective date o f AEDPA. A fter the Attorney General handed down this
opinion, the majority of the federal courts of appeals disagreed with the Attorney General’s conclusion. Acknowl­
edging this disagreement, the Attorney General acquiesced on a nationwide basis in the decisions o f the courts
of appeals that disagreed with her decision See Section 212(c) Relief for Certain Aliens in Deportation Proceedings
Before April 24, 1996, 66 Fed. Reg 6436 (Jan 22, 2001). Because nearly all of the courts of appeals decided
this issue under the first step o f Landgraf\ these courts did not reach the Attorney General’s determination under
the second step o f Landgraf\ discussed in this opinion, that statutes affecting jurisdiction and prospective relief gen­
erally do not raise retroactivity concerns because such statutes do not impair a nght, increase a liability, or impose
new duties on criminal aliens. For this reason, this opinion is still relevant to such questions


                                                           i
                             Opinions o f the Office o f Legal Counsel in Volume 21


tion Judge, Oct. 12, 1995). Respondent appealed from that decision on October
23, 1995.
  On April 24, 1996, while Respondent’s appeal was pending, the President
signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (“ AEDPA” ). Section 440(d) of AEDPA amended
INA § 212(c). The amendment provides in relevant part that section 212(c) relief
shall not be available to aliens who are deportable by reason of having committed
certain specified criminal offenses. Respondent’s offense is among those speci­
fied.1 Thus, a threshold issue on appeal was whether the amendment to section
212(c) applied to foreclose Respondent’s application for relief from deportation.2
  The BIA was unanimous in concluding that AEDPA § 440(d) was effective
immediately upon enactment on April 24, 1996. The BIA was divided, however,
as to whether AEDPA § 440(d) applied to applications for section 212(c) relief
that were pending on the effective date of AEDPA. Six members of the BIA
concluded that Congress did not intend that aliens who had applications pending
on April 24, 1996, should be barred from seeking that relief. Accordingly, they
found that Respondent continued to be eligible for waiver of inadmissibility.3 Five
members of the BIA dissented. They would have held that section 440(d) did apply
to pending applications for section 212(c) relief. One member of the BIA con­
curred in part and dissented in part. That member agreed with the majority that
AEDPA § 440(d) should not be applied to pending section 212(c) applications,
but would also have declined to apply it to other cases, such as those of permanent
resident aliens subject to an Order to Show Cause.
   For the reasons stated below, I conclude that the amendment to INA § 212(c)
made by AEDPA § 440(d) applies to proceedings such as Respondent’s, in which
an application for relief under section 212(c) was pending when AEDPA was
signed into law.4

    l The amendm ent provides in relevant part that section 212(c) relief shall not be available to an alien who “ is
deportable by reason o f having committed any crim inal offense covered in [INA] section 241(a)(2)(A)(m), (B),
(C), or (D), o r any offense covered by section 241(a)(2)(A)(n) for which both predicate offenses are, without regard
to the date o f their commission, otherwise covered by section 24l(a)(2)(A )(i) ” 110 Stat at 1277, as amended by
section 306(d) o f the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Department o f Defense
A ppropriations Act. 1997, Pub. L. No. 104-208, § 306(d), 110 Stat 3009-546. 3009-612. Respondent’s offense
is covered by section 241(a)(2)(A)(m) and (B) of the INA. See 8 U S C § 1251 (1994)
   2 It is important to note as a threshold matter that deportation proceedings are civil actions, and, thus, the constitu­
tional bars to retroactive application o f penal legislation do not apply INS v Lopez-Mendoza, 468 U S 1032, 1038
(1984); Harisiades v. Shaughnessy, 342 U S 580, 5 94-95 (1952) Moreover, it is well settled that Congress may
legislate to alter the immigration consequences o f past criminal convictions or acts Lehman v Carson, 353 U.S
685, 690 (1957); Mulcahey v. Cotalanotte, 353 U.S. 692, 694 (1957).
   ‘'T h e majority agreed with the Immigration Ju d g e’s conclusions that Respondent’s attempted criminal sale of
cocaine, together with his three other drug-related felonies, required a demonstration of outstanding equities before
he could receive a waiver o f inadmissibility, and that Respondent had not made such a demonstration
   4 By O rder dated September 12, 1996, 1 granted the request for review and vacated the opinion of the BIA in
Matter o f Bartolom e Jhonny Sonano (A39 186 067)


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        Authority o f the Attorney General to Grant Discretionary R elief from Deportation


                                         ■ Analysis

  In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court
sought to “ reconcile two seemingly contradictory statements found in [the
Court’s] decisions concerning the effect of intervening changes in the law” : that
“ ‘a court is to apply the law in effect at the time it renders its decision,’ ” and
that “ ‘[r]etroactivity is not favored in the law.’ ” Id. at 264 (citations omitted).
  The Court set forth the method for analyzing the temporal reach of a statute:

          When a case implicates a federal statute enacted after the events
       in suit, the court’s first task is to determine whether Congress has
       expressly prescribed the statute’s proper reach. If Congress has
       done so, of course, there is no need to resort to judicial default
       rules. When, however, the statute contains no such express com­
       mand, the court must determine whether the new statute would have
       retroactive effect, i.e., whether it would impair rights a party pos­
       sessed when he acted, increase a party’s liability for past conduct,
       or impose new duties with respect to transactions already com­
       pleted. If the statute would operate retroactively, our traditional
       presumption teaches that it does not govern absent clear congres­
       sional intent favoring such a result.

Id. at 280.
   In the present case, nothing in the language of the newly enacted statute,
AEDPA § 440(d), specifies either that it is to be applied in pending deportation
proceedings, or that it is not to be. Thus, the next task is to determine whether
the statute would be given retroactive effect if applied in pending deportation pro­
ceedings. In this regard, the Court observed that “ [w]hile statutory retroactivity
has long been disfavored, deciding when a statute operates ‘retroactively’ is not
always a simple or mechanical task.” Id. at 268. A statute does not operate retro­
actively “ merely because it is applied in a case arising from conduct antedating
the statute’s enactment, or upsets expectations based in prior law. Rather, the court
must ask whether the new provision attaches new legal consequences to events
completed before its enactment.” Id. at 269-70 (citation and footnote omitted).
  Of particular relevance here, the Court suggested that changes in the law
affecting prospective relief, as well as those affecting jurisdiction and procedure,
are generally not to be considered “ retroactive.” Specifically, the Court said:

          Even absent specific legislative authorization, application of new
       statutes passed after the events in suit is unquestionably proper in
       many situations. When the intervening statute authorizes or affects
       the propriety of prospective relief, application of the new provision
       is not retroactive. Thus, in American Steel Foundries v. Tri-City

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                            Opinions o f the Office o f Legal Counsel in Volume 21


          Central Trades Council, 257 U.S. 184 (1921), we held that §20
          of the Clayton Act, enacted while the case was pending on appeal,
          governed the propriety of injunctive relief against labor picketing.
          In remanding the suit for application of the intervening statute, we
          observed that “ relief by injunction operates in futuro,” and that
          the plaintiff had no “ vested right” in the decree entered by the
          trial court.

Id. at 273-74.
   Similarly, the three separately concurring Justices (Scalia, J., joined by Kennedy
and Thomas, JJ., concurring), emphasized that intervening law was typically
applied to pending applications for prospective relief:

          Courts traditionally withhold requested injunctions that are not
          authorized by then-current law, even if they were authorized at the
          time suit commenced and at the time the primary conduct sought
          to be enjoined was first engaged in. The reason, which has nothing
          to do with whether it is possible to have a vested right to prospec­
          tive relief, is that “ [o]bviously, this form of relief operated only
          in fu tu ro .” Since the purpose of prospective relief is to affect the
          future rather than to remedy the past, the relevant time for judging
          its retroactivity is the very moment at which it is ordered.

Id. at 293 (citations omitted).
   Both the majority and concurring Justices identified another set of intervening
statutes — those that confer or eliminate jurisdiction — that do not operate retro­
actively merely because they are applied to conduct arising before the statute’s
enactment. Justice Scalia explained the Court’s “ consistent practice of giving
immediate effect to statutes that alter a court’s jurisdiction . . . by the fact that
the purpose of provisions conferring or eliminating jurisdiction is to permit or
forbid the exercise of judicial power — so that the relevant event for retroactivity
purposes is the moment at which that power is sought to be exercised.” Landgraf,
511 U.S. at 292-93 (Scalia, J., concurring).5
   In summary, under Landgraf, a new statute does not have retroactive effect
if it does not impair rights a party possessed when he or she acted, increase a
party’s liability for past conduct, or impose new duties with respect to transactions

   5 The single dissenting Justice in Landgraf was o f the opinion that the presumption against retroactive legislation,
“ which serves to protect settled expectations,” and which “ is grounded in a respect for vested rights,” “ need
not be applied to remedial legislation        that does not proscribe any conduct that was previously legal ” Id. at
296-97 (Blackmun, J., dissenting) (citing Sampeyreac v United States, 32 U.S. (7 P e t) 222, 238 (1833) ( “ Almost
every law, by providing a new remedy, affects and operates upon causes o f action existing at the time the law
is passed” ) and Hastings v Earth Satellite Corp., 628 F.2d 85, 93 (D C Cir.) (“ Modification of remedy merely
adjusts the extent, or method o f enforcement, of liability in instances in which the possibility of liability previously
was know n.” ), cert, denied, 449 U S. 905 (1980)).


                                                          4
            Authority o f the Attorney General to Grant Discretionary R elief from Deportation


already completed. More specifically, an intervening statute that either alters juris­
diction or affects prospective injunctive relief generally does not raise retroactivity
concerns, and, thus, presumptively is to be applied in pending cases. As discussed
below, the application of AEDPA § 440(d) to pending applications for section
212(c) relief does not impair a right, increase a liability, or impose new duties
on criminal aliens. The consequences of Respondent’s conduct remain the same
before and after the passage of AEDPA: criminal sanctions and deportation.
AEDPA § 440(d) is best understood as Congress’s withdrawal o f the Attorney
General’s authority to grant prospective relief. Thus, the statute alters both juris­
diction and the availability of future relief, and should be applied to pending
applications for relief.6
   The relief sought in a section 212(c) application, waiver of inadmissibility, is
prospective in nature. A successful applicant for relief under section 212(c) will
not, as a matter of the sovereign’s discretion, be deported from the country, even
though his or her past criminal convictions would otherwise lead to deportation.
See INS v. Lopez-Mendoza, 468 U.S. at 1038 (“ 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.” ); De Osorio v. INS, 10 F.3d at 1042 (holding that an amendment
barring applications for waivers of deportations filed after the effective date of
the amendment to section 212(c) is not made retroactive merely because it applies
to convictions for aggravated felonies before that time: “ The past aggravated
felony conviction is only the prerequisite for the prospective denial of discre­
tionary relief. . . . Congress did not attach additional consequences, but merely
withdrew a previously available form of discretionary relief.” ).
   Moreover, Congress’s modification of section 212(c) operates to eliminate the
discretionary authority of the Attorney General to grant relief in certain cases,
and, thus, its effect is to remove jurisdiction. As the Solicitor General argued
in the brief of the United States to the Supreme Court in Elramly v. INS, 73
F.3d 220 (9th Cir. 1995), cert, granted, 516 U.S. 1170, and vacated, 518 U.S.
1051 (1996), a case raising the issue whether AEDPA divested the Attorney Gen­
eral of authority to grant section 212(c) relief in pending cases, “ [j]ust as new
‘jurisdictional statutes speak to the power of the court rather than to the rights
or obligations of the parties,’ Landgraf, 511 U.S. at 274, [s]ection 212(c) speaks
to the power of the Attorney General to waive deportation, not to any right of

   6 One formulation articulated in Landgraf for determining w hether a statute operates retroactively — “ w hether [it]
attaches new legal consequences to events completed before its enactment” — could be interpreted as compelling
the conclusion that AEDPA § 440(d) should not be applied to pending applications for section 212(c) relief 511
U S. at 270. Because the statute eliminates eligibility for a previously available form of relief from the immigration
consequences o f a prior criminal conviction, it could be argued that it attaches new legal consequence to a prior
event Elimination o f a form of relief in this context, however, is not the same as the attachment of new legal
consequences in the sense that the Court meant in Landgraf If it were, most cases in the three categories that
the Court identified as not constituting retroactive application when applied to past events— statutes that alter jurisdic­
tion, procedural rules, and statutes affecting the availability o f prospective injunctive relief— would also have to
be understood as attaching new legal consequences to prior events and, hence, constituting retroactive application


                                                           5
                             Opinions o f the Office o f Legal Counsel in Volume 21


an alien to such relief.” Supplemental Brief for the Petitioner at 18, INS v.
Elramly, 516 U.S. 1170 (1996) (No. 95-939). The majority opinion in Landgraf
explains the practice of applying new jurisdictional statutes to pending cases by
the fact that “ a new jurisdictional rule usually ‘takes away no substantive right
but simply changes the tribunal that is to hear the case.’ ” 511 U.S. at 274 (quoting
Hallowell v. Commons, 239 U.S. 506, 508 (1916)). Here, in contrast to the cases
cited by the Court, there is no alternative tribunal to which the criminal alien
may petition. Even assuming that the lack of an alternative tribunal would be
relevant to retroactivity analysis where a substantive right is at stake, eligibility
for a congressionally created form o f purely discretionary relief from the immigra­
tion consequences of a prior criminal conviction cannot properly be characterized
as a substantive right.7
   The Third Circuit’s discussion o f the application of an earlier amendment to
section 212(c) to make an applicant ineligible for relief based on a prior criminal
conviction applies equally here:

           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 injunc­
           tive 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. . . .
           Given the facts that petitioner’s pre-1987 conduct clearly subjected
           him to deportation as well as criminal sanctions, and that section
           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 reli­
           ance on the then current version of section 212(c).

Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996).
  The Seventh Circuit has expressed a contrary view in Reyes-Hernandez v. INS,
89 F.3d 490 (7th Cir. 1996), at least with respect to a narrow category of cases.
In that case the petitioner had conceded deportability before the enactment of

   7 The concurring opinion further notes that while there may sometimes be an alternative forum, there is not always
one, and even where there is, it may deny relief for some collateral reason such as a statute of limitations bar
 “ Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating
jurisdiction is to permit or forbid the exercise of judicial pow er— so that the relevant event for retroactivity purposes
is the moment at which that pow er is sought to be exercised.” Landgraf, 511 U S . at 293 (Scalia, J. concurring)


                                                           6
           Authority o f the Attorney General to Grant Discretionary R elief from Deportation


AEDPA, when he was still eligible for section 212(c) relief. The court speculated
that had the petitioner known that this relief would no longer be available to him,
he might have contested deportability.

         Considering the fell consequences of deportation, especially in
         cases of exceptional hardship, which are precisely the cases in
         which an appeal to section 212(c) would have a chance of success,
         we think it unlikely that Congress intended to mousetrap aliens into
         conceding deportability by holding out to them the hope of relief
         under section 212(c) only to dash that hope after they had conceded
         deportability. No such ignoble intention appears in the statute. Its
         absence is determinative under Landgraf because to make the
         concession of deportability a bar to relief under section 212(c)
         would be to attach a new legal consequence to the concession, an
         event that occurred before the new law came into existence.

Id. at 492-93. The court held that section 440(d) of AEDPA does not apply to
cases in which deportability was conceded before AEDPA became law, “ provided
that the applicant for discretionary relief would have had at least a colorable
defense to deportability; for if not, he lost nothing by conceding deportability.”
Id. at 493.8
   Amici curiae in the current case also emphasized the reliance aliens may have
placed on the availability of section 212(c) relief. Amici argue that aliens may
rely on the possibility of obtaining section 212(c) relief not only when deciding
whether to contest deportability, but also when deciding whether to litigate their
criminal liability or enter into a plea agreement, it is true that the majority opinion
in Landgraf notes that “ familiar considerations of fair notice, reasonable reliance,
and settled expectations” are factors offering “ sound guidance” in “ hard cases.”
Landgraf, 511 U.S. at 270. However, the Court states expressly that a statute
does not operate retroactively merely because it “ upsets expectations based in
prior law.” Id. at 269.
   In any event, it is difficult to see how the possibility of obtaining section 212(c)
relief would affect an alien’s decision whether to concede or contest deportability.
First, the criteria for determining whether someone is deportable as a criminal
alien are specific and fixed, and the grounds for challenging deportability are quite
narrow. See Rabiu v. INS, 41 F.3d 879, 881 (2d Cir. 1994) (record of conviction
sufficient to overcome alien’s challenge to deportability); Ortega de Robles v.
INS, 58 F.3d 1355, 1358 (9th Cir. 1995) (criminal convictions may not be collat­
erally challenged in deportation proceeding as ground for contesting deportability).

  8 The Seventh Circuit has confirmed that Reyes-H em andei applies only in cases where the petitioner conceded
deportability and had a colorable defense to deportability Arevab-Lopez v. INS, 104 F 3 d 100, 101 (7th C ir 1997)


                                                       7
                    Opinions o f the Office o f Legal Counsel in Volume 21


Second, an alien need not choose between contesting deportability and seeking
section 212(c) relief; an alien may pursue both.
   It seems more plausible that an alien may enter a plea bargain hoping to obtain
relief from deportation, but even so, the alien could not have reasonably relied
upon the availability of that relief. For the past forty years, the law has been
settled that Congress may legislate to alter the immigration consequences of past
criminal convictions or acts. Moreover, as the Supreme Court recently unani­
mously reaffirmed in the context of analyzing a similar provision conferring
discretionary authority upon the Attorney General, “ suspension of deportation [is]
. . . ‘an act of grace’ which is accorded pursuant to her ‘unfettered discretion’. . .
and [is similar to] ‘a judge’s power to suspend the execution of a sentence, or
the President’s to pardon a convict.’ ” INS v. Yueh-Shaio Yang, 519 U.S. 26, 30
(1996) (citations omitted). Therefore, a criminal alien could not reasonably rely
on the availability of section 212(c) relief in determining whether to plead guilty
to a criminal offense or in determining whether to concede deportability.
   Accordingly, the application of AEDPA § 440(d) to section 212(c) applications
pending before the EOIR would not be retroactive. However, to eliminate even
the remote possibility that an alien who had a colorable defense to deportability
may have conceded deportability in reliance on the availability of section 212(c)
relief, I direct the EOIR to reopen cases upon petition by an alien who conceded
deportability before the effective date of AEDPA for the limited purpose of
permitting him or her to contest deportability.

                                        Conclusion

  For the foregoing reasons, AEDPA § 440(d) should be applied to INA § 212(c)
cases pending before the EOIR on the effective date of AEDPA. EOIR shall
reopen cases upon petition by an alien who conceded deportability before April
24, 1996, the effective date of AEDPA, for the limited purpose of permitting
the alien to contest deportability.

                                                                JANET RENO
                                                               Attorney General




                                              8
       OPINIONS

          O F THE




OFFICE OF LEGAL COUNSEL




            9
