                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-1999

DeSousa v. Reno
Precedential or Non-Precedential:

Docket 99-1115




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Recommended Citation
"DeSousa v. Reno" (1999). 1999 Decisions. Paper 232.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/232


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Filed August 25, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1115

FERNANDO JORGE DESOUSA

v.

JANET RENO, Attorney General;
DORIS MEISSNER, Commissioner of Immigration
and Naturalization Service;
IMMIGRATION AND NATURALIZATION SERVICE;
DEPARTMENT OF JUSTICE;
J. SCOTT BLACKMAN,
Acting District Director,

       Appellants

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 98-01470)
District Judge: Honorable Anita B. Brody

Argued July 13, 1999

BEFORE: GREENBERG, ALITO, and ROSENN,
Circuit Judges

(Filed: August 25, 1999)

       Martin A. Kascavage (argued)
       Schoener & Kascavage
       400 Market Street, Suite 420
       Philadelphia, PA 19106

        Attorneys for Appellee
       David W. Ogden
       Acting Assistant Attorney General
       Civil Division
       Christopher C. Fuller
       Senior Litigation Counsel
       Michael P. Lindemann
       Edward J. Duffy (argued)
       Attorneys
       Office of Immigration Litigation
       Civil Division
       U.S. Department of Justice
       P.O. Box 878, Ben Franklin Station
       Washington, DC 20044

        Attorneys for Appellants

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Fernando Jorge DeSousa, seeking to avoid deportation
for crimes he committed while a legal resident of the United
States, applied for a discretionary waiver of inadmissibility
under former 8 U.S.C. S 1182(c). The Board of Immigration
Appeals ("BIA") ruled that as a deportable, rather than an
excludable, alien, DeSousa was not eligible for a
discretionary waiver. DeSousa then filed a petition for
habeas corpus in the district court against the Attorney
General and the Immigration and Naturalization Service
("INS"), arguing that former S 1182(c), as applied by the
BIA, violated the equal protection guarantee of the Fifth
Amendment's Due Process Clause by irrationally
distinguishing between aliens in deportation and in
exclusion proceedings. The district court concluded that it
had habeas corpus jurisdiction to hear DeSousa's claims
and granted him a writ based on his equal protection
challenge. Although we agree with the district court that
recent changes in the immigration laws have not eliminated
district courts' habeas jurisdiction over deportation-related

                               2
claims, at least in cases such as this in which deportation
proceedings were instituted before April 1, 1997, the
effective date of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.
104-208, 110 Stat. 3009 (1996), we find that S 1182(c), as
interpreted by the BIA, does not violate the Fifth
Amendment's equal protection guarantee and therefore will
reverse.

II. JURISDICTION

DeSousa claims that the district court had subject matter
jurisdiction over his habeas petition under 28 U.S.C.
S 2241. Whether changes in the immigration laws
eliminated the district court's habeas jurisdiction over
DeSousa's deportation-related challenge is the first issue
presented by this appeal and is discussed fully below. We
have appellate jurisdiction under 28 U.S.C. S 1291 over the
district court's final order granting DeSousa relief.

III. FACTS AND PROCEEDINGS

Fernando Jorge DeSousa, a citizen of Portugal, entered
the United States as a lawful permanent resident in
December 1969. In the 1970s, 1980s and early 1990s,
DeSousa was convicted of various crimes including
aggravated assault, recklessly endangering another person,
burglary and theft. For his second aggravated assault
conviction in 1992, DeSousa served four and one-half years
in prison. He was released from prison on December 15,
1996.

As an alien convicted of two crimes of moral turpitude
and also as an aggravated felon, DeSousa became subject
to deportation under the Immigration and Nationality Act
("INA") S 241(a)(2)(A)(ii), 8 U.S.C.S 1251(a)(2)(A)(ii) (two
crimes of moral turpitude), and S 241(a)(2)(A)(iii), 8 U.S.C.
S 1251(a)(2)(A)(iii) (aggravated felony). 1 On October 28,
1996, the INS issued an order to DeSousa to show cause
_________________________________________________________________

1. These sections are now renumbered as #8E8E # 237(a)(2)(A)(ii) and
237(a)(2)(A)(iii) and codified at 8 U.S.C. SS 1227(a)(2)(A)(ii) and
1227(a)(2)(A)(iii).

                               3
why he should not be deported because of his criminal
convictions.

At his immigration hearing, DeSousa sought to prevent
his deportation by applying for a discretionary waiver of
inadmissibility under former S 212(c) of the INA, codified at
8 U.S.C. S 1182(c) (repealed 1996). At the time of DeSousa's
convictions, S 212(c) permitted the Attorney General, in her
discretion, to issue waivers to legal aliens who had traveled
abroad voluntarily and were seeking entry back into the
country but who would be excludable based on their
criminal convictions. See former 8 U.S.C.S 1182(c) (1990).2
Although the waiver provision applied on its face only to
aliens in exclusion proceedings, the BIA and federal courts
routinely had applied it to aliens in deportation proceedings
as well. See, e.g., Katsis v. INS, 997 F.2d 1067, 1070 (3d
Cir. 1993); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).3
_________________________________________________________________

2. The version of S 212(c) as amended in 1990 provided in relevant part:

       Aliens lawfully admitted for permanent residence who temporarily
       proceeded abroad voluntarily and not under an order of deportation,
       and who are returning to a lawful unrelinquished domicile of seven
       consecutive years, may be admitted in the discretion of the
Attorney
       General [despite being otherwise excludable].... The first sentence
of
       this subsection shall not apply to an alien who has been convicted
       of an aggravated felony and has served a term of imprisonment of at
       least 5 years.

8 U.S.C. S 1182(c) (1990). Then the last sentence was amended further
in 1991 to provide that: "The first sentence of this subsection shall not
apply to an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of
imprisonment of at least 5 years." 8 U.S.C. S 1182(c) (1991). We see no
material difference between the two versions, at least in the context of
this case.

3. It must be said that this application was sometimes questioned. See
Morel v. INS, 90 F.3d 833, 842 (3d Cir. 1996) (Greenberg, J., dissenting
opinion). At the time of the events at issue in this appeal, deportable
aliens were defined in 8 U.S.C. S 1251(a) as those aliens who resided
within the United States but who could be deported for certain reasons.
In contrast, excludable aliens were defined in 8 U.S.C. S 1182(a) as those
aliens who could be denied entry into the United States. IIRIRA,
however, eliminated distinctions between exclusion and deportation
proceedings. Under the current statutory structure, an immigration

                               4
Moreover, at the time of DeSousa's latest conviction in
1992, S 212(c) waivers were unavailable only to those aliens
who had been convicted of an aggravated felony, and who
had served a term of imprisonment of at least five years for
such felonies. See former 8 U.S.C. S 1182(c) (1990).
Although DeSousa's convictions qualified as aggravated
felonies, see 8 U.S.C. S 1101(a)(43) (1990), he nevertheless
would have been eligible for a waiver under the previous
version of S 212(c) because he had served a prison term of
only four and one-half years for his convictions.

The immigration judge found, however, that DeSousa was
not eligible for the waiver under the new version ofS 212(c)
enacted by S 440(d) of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110
Stat. 1214 (1996). As amended, S 212(c) precludes
"deportable" aliens who have been convicted of an
aggravated felony or two crimes of moral turpitude from
receiving waivers of inadmissibility, regardless of the prison
term served for such crimes. See AEDPA S 440(d).4

The BIA affirmed the immigration judge's decision.
Although DeSousa argued that new S 212(c) violated his
right to equal protection by withdrawing waivers only from
_________________________________________________________________

judge determines an alien's right either to be admitted to or to remain in
the United States in a removal proceeding. See 8 U.S.C. S 1229a.
Similarly, there is now a single provision, equally applicable to all
aliens,
that permits the Attorney General, in her discretion, to "cancel" the
removal of an alien. See 8 U.S.C. S 1229b.

4. AEDPA S 440(d), as itself amended byS 306(d) of the IIRIRA, amended
INA S 212(c) to read:

       The subsection shall not apply to an alien who is deportable by
       reason of having committed any criminal offense covered in [INA]
       S 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by
section
       241(a)(2)(A)(ii) for which both predicate offenses are, without
regard
       to the date of their commission, otherwise covered by section
       241(a)(2)(A)(i).

Five months after the passage of AEDPA, Congress repealed S 212(c) in
its entirety, effective April 1, 1997. See IIRIRA S 304(b). Because
DeSousa's deportation proceedings were initiated in 1996, this repeal
does not affect his case.

                               5
aliens in deportation proceedings, rather than from those in
exclusion proceedings, the BIA, stating that it could not
rule on the constitutionality of laws enacted by Congress,
did not consider this argument on the merits.

DeSousa then brought a habeas corpus proceeding in the
district court under 28 U.S.C. S 2241 challenging the BIA's
final order. See DeSousa v. Reno, 30 F. Supp.2d 844 (E.D.
Pa. 1998). First, he contended that the BIA had erred in
applying the new S 212(c) to him because his criminal
convictions predated AEDPA's amendment of the statute.
Second, DeSousa argued that even if new S 212(c) did apply
to pre-AEDPA convictions, it violated the Fifth
Amendment's equal protection guarantee by preventing only
aliens in deportation proceedings, rather than those in
exclusion proceedings, from applying for waivers. Thus,
DeSousa sought an order directing the BIA to consider and
rule on the merits of his application for a S 212(c) waiver.
The Attorney General and the INS opposed DeSousa's
application for a writ, arguing primarily that AEDPA as well
as IIRIRA had eliminated habeas corpus jurisdiction over
deportation-related claims.

After a de novo review of a magistrate judge's report and
recommendation, the district court granted a writ to
DeSousa. It concluded first that neither AEDPA nor IIRIRA
had eliminated its habeas jurisdiction over cases like
DeSousa's. See DeSousa, 30 F. Supp.2d at 849. Then, it
found that AEDPA S 440(d), which amended the INA waiver
of inadmissibility provision, applied to cases pending at the
time of its enactment and therefore also applied to DeSousa
even though his criminal convictions predated AEDPA's
effective date. See id. at 855. The court also ruled, however,
that the amended S 212(c) violated DeSousa's right to equal
protection of the law by drawing an irrational distinction
between aliens subject to exclusion and those subject to
deportation. See id. at 857. The Attorney General and the
INS appeal, arguing that the court erred in finding habeas
jurisdiction, and that even if such jurisdiction exists,
S 212(c) is constitutional.

                               6
IV. DISCUSSION

A. Standard of Review

The district court's conclusion that AEDPA and IIRIRA
did not eliminate habeas corpus jurisdiction over all
deportation-related claims and that S 440(d) applies to pre-
AEDPA convictions relies on statutory interpretation, which
we review de novo. See Idahoan Fresh v. Advantage
Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998). We also
afford de novo review to the district court's conclusions
regarding the constitutionality of S 440(d). See Anker
Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 169
(3d Cir. 1999).

B. Did the District Court Have Jurisdiction Under 28
   U.S.C. S 2241 to Review DeSousa's Habeas Petition
   Challenging His Final Deportation Order on
   Constitutional and Statutory Grounds?

Recognizing that we recently have addressed the
availability of habeas corpus jurisdiction after AEDPA and
IIRIRA, the Attorney General and INS argue that a later
Supreme Court decision requires us to reconsider our
opinion in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999).
In Sandoval, as in this case, an alien sought habeas corpus
review of a deportation order approved by the BIA. We held
that the district courts continued to have habeas corpus
jurisdiction to review deportation orders despite changes in
the law created by AEDPA and IIRIRA. See Sandoval, 166
F.3d at 238. The Attorney General and INS claim that Reno
v. American-Arab Committee, 119 S.Ct. 936 (1999),
undermines this conclusion.

       1. Sandoval v. Reno

In Sandoval, we addressed a case nearly identical to this
one. Sandoval, like DeSousa, had petitioned for a writ of
habeas corpus in a district court seeking relief from a
deportation order. See Sandoval, 166 F.3d at 228. Because
the effective date of most IIRIRA provisions was April 1,
1997, and because Sandoval was placed in deportation
proceedings before that date, Sandoval, like DeSousa, was
not subject to IIRIRA's permanent rules. See id. at 229 n.1.

                               7
He was, however, subject to its transitional rules, and
arguably to at least some of AEDPA's provisions, as that act
became effective in April 1996, while Sandoval's case still
was pending in the immigration courts. See id.

The respondents in Sandoval argued that provisions in
the new statutes precluded habeas corpus jurisdiction in a
district court over aliens' challenges to deportation orders.
See id. at 232-38. Relying on Supreme Court precedent
establishing that only a clear statement of congressional
intent could eliminate a statutory grant of jurisdiction to
the district courts, we concluded that none of the
provisions the respondents cited ended habeas corpus
jurisdiction in cases like Sandoval's. See id. at 238. On this
appeal, the Attorney General and the INS do not quarrel
with this court's interpretation of two of the provisions
discussed in Sandoval, AEDPA S 401(e) and IIRIRA
S 309(c)(4)(G), a transitional rule. They do claim, however,
that American-Arab requires this court to reconsider its
construction of the other provision at issue in Sandoval,
IIRIRA's amendment of INA S 242(g).

IIRIRA S 306(a) amended INA S 242(g) to provide:

       (g) 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 arising from the decision or action by the
       Attorney General to commence proceedings, adjudicate
       cases, or execute removal orders against any alien
       under this chapter.

8 U.S.C. S 1252(g) (1999). Unlike IIRIRA's other provisions,
S 242(g) explicitly applies "to claims arising from all past,
pending, or future exclusion, deportation, or removal
proceedings." IIRIRA S 306(c)(1). Thus, although IIRIRA's
permanent rules generally do not apply to individuals like
DeSousa and Sandoval, whose deportation proceedings
were initiated before IIRIRA's effective date, even they are
subject to new S 242(g). See Sandoval, 166 F.3d at 230. We
ruled in Sandoval, however, that amendedS242(g) did not
eliminate habeas corpus jurisdiction because it did not
contain express language ending such jurisdiction. See id.

                               8
at 236-38. The Attorney General and INS argue that the
American-Arab decision has undermined this holding. We
disagree.

       2. Reno v. American-Arab Committee

The issue before the Supreme Court in American-Arab
was whether S 242(g) had deprived the federal courts of
jurisdiction to review the respondents' claim that the
Attorney General was selectively enforcing the immigration
laws. See American-Arab, 119 S.Ct. at 940. After the
government had instituted deportation proceedings against
them, the respondents in American-Arab brought suit in a
district court, challenging the constitutionality of a relevant
statute, and seeking declaratory and injunctive relief
against the Attorney General, the INS, and various
immigration officials. See id. at 938-39. Eventually, the
respondents amended their complaint to include a claim
that the government had targeted them for deportation, in
violation of their First Amendment rights, because of their
participation in the Popular Front for the Liberation of
Palestine, a group that the government "characterizes as an
international terrorist and communist organization." Id. at
938, 939. The respondents argued that the government did
not enforce routine status requirements against immigrants
who were not members of disfavored terrorist groups. See
id. at 939.

In addressing whether S 242(g) deprived the district court
of jurisdiction over respondents' selective enforcement
claim, the Supreme Court stated that the new section
applies to cases that involve three specific decisions made
by the executive: decisions to "commence proceedings,
adjudicate cases, or execute removal orders." See id. at 943
(emphasis by Supreme Court). The Court stated that it
made sense for Congress to target these three stages
because at each stage the INS has discretion to abandon
the endeavor, and at the time S 242(g) was enacted, the INS
routinely had been defending suits challenging its exercise
of discretion in deportation cases. See id. at 943-44. These
suits stemmed from the INS's practice of "deferred action":
its willingness to choose not to deport based on
humanitarian reasons or for its own convenience. See id. at

                               9
943. Those individuals who failed to benefit from such
discretion were challenging the INS's decisions, and
therefore, the Supreme Court reasoned, Congress had
sought to preclude such suits. See id. at 944. The Court
stated: "Section [242(g)] seems clearly designed to give some
measure of protection to `no deferred action' decisions and
similar discretionary determinations, providing that if they
are reviewable at all, they at least will not be made the
bases for separate rounds of judicial intervention outside
the streamlined process that Congress has designed." Id.
Thus, the Court found that S 242(g) was a narrow provision,
"directed against a particular evil: attempts to impose
judicial constraints upon prosecutorial discretion." Id. at
n.9.

The Attorney General and INS argue in this case that
S 242(g) precludes DeSousa's habeas corpus suit even
though DeSousa brought a constitutional and statutory
challenge in his petition rather than a selective enforcement
claim. They claim that S 242(g) bars DeSousa's suit because
the suit, in essence, seeks to stop the government from
"executing" a deportation order. Clearly, then, they view
S 242(g) as an extremely broad provision that would apply
to every deportation-related challenge, because every such
challenge could be deemed a suit to stop the "execution" of
a deportation order.5

The Supreme Court, however, explicitly rejected a broad
interpretation of S 242(g) in American-Arab. As in this case,
the Attorney General argued in American-Arab that S 242(g)
_________________________________________________________________

5. It is possible that the Attorney General and INS are making a different
argument and suggesting that because DeSousa ultimately seeks a
discretionary waiver of inadmissibility, his case is covered by S 242(g).
It
is true that the government's refusal to grant DeSousa a S 212(c) waiver,
if he were eligible for such a waiver under the statute, might be the kind
of discretionary decision that S 242(g) was designed to protect.
Currently,
however, the unavailability of the waiver to DeSousa does not depend on
governmental discretion and instead is required by the language of the
statute itself. Thus, by challenging the statute's constitutionality and
its
alleged retroactivity, DeSousa is not challenging the government's
exercise of discretion. He merely seeks to have us interpret the statute
in his favor and then send his case back to the BIA for consideration of
his application for a waiver.

                               10
requires aliens "to bring all deportation-related claims in the
context of a petition for review of a final order of
deportation filed in the court of appeals." Id. at 941
(emphasis added). The heart of the Court's opinion was the
rejection of this interpretation because it would have
rendered IIRIRA's effective date provision, S 309(c)(1), a
nullity. See id. at 941-43. The Court reasoned that because
IIRIRA S 306 instructs that S 242(g) applies to previous and
pending cases, to interpret S 242(g) as applying to all
deportation-related claims would render senseless
S 309(c)(1), which states that IIRIRA generally does not
apply to previous or pending cases. See id. According to the
Court, the only interpretation that squared S 306 and S 309
was one that viewed S 242(g) as affecting a narrow class of
cases. See id. at 943. Thus, the Supreme Court in
American-Arab clearly rejected the interpretation of S 242(g)
that the Attorney General and INS advance here.

Because S 242(g) only applies to suits challenging the
government's selective enforcement of the immigration laws,
and because DeSousa's case was not brought on this
ground, S 242(g) does not bar his suit. See Richardson v.
Reno, ___ F.3d ___, 1999 WL 496241, at *2 (11th Cir. July
14, 1999) (interpreting American-Arab and ruling that
S 242(g) did not bar a habeas corpus petition that did not
challenge a decison to commence proceedings, adjudicate
cases or execute removal proceedings).6 As S 242(g) does not
apply to DeSousa, and American-Arab did not affect the
remainder of Sandoval's rulings, Sandoval remains the law
governing cases like DeSousa's. Under Sandoval, the
district court had jurisdiction to consider DeSousa's habeas
_________________________________________________________________

6. Richardson held that habeas jurisdiction was not available in that case
but predicated its opinion on post-IIRIRA law as Richardson was placed
in removal proceedings after IIRIRA's effective date. See Richardson 1999
WL 496241, at *6 n.2. Accordingly, Richardson distinguished Sandoval
because Sandoval was a pre-IIRIRA case so that only the IIRIRA
transitional provisions applied. Id. Thus, the Richardson court explained
that Sandoval did "not involve the full, and extensive, revisions to the
INA's judicial review scheme" under INA S 242 as amended by IIRIRA.
This case, like Sandoval, also involves only IIRIRA transitional rules.
Therefore, we have no reason to consider whether we agree with
Richardson.

                               11
petition, including both his constitutional and statutory
claims. See Sandoval, 166 F.3d at 238.

C. Does New S 212(c) Violate DeSousa's R ight to Equal
   Protection of the Law?

DeSousa argues, and the district court found, that new
S 212(c) is unconstitutional because it irrationally
distinguishes between aliens in exclusion and in
deportation proceedings. We disagree.

DeSousa's equal protection challenge to amendedS 212(c)
stems from the BIA's decision in a different case, Matter of
Fuentes-Campos, Interim Decision 3318 (BIA 1997). In
Fuentes-Campos, the BIA addressed whether the
amendment to S 212(c) prohibiting "deportable" aliens with
aggravated felony or multiple moral turpitude convictions
from applying for waivers also applied to aliens in exclusion
proceedings. Focusing on the term "deportable" in the
amendment, the BIA ruled that new S 212(c) only barred
aliens in deportation proceedings, and not those in
exclusion proceedings, from applying for waivers. On this
appeal, both the Attorney General and DeSousa acquiesce
in the BIA's interpretation of Congressional intent in
amending the statute. Because of the parties' agreement on
this issue, we assume, without deciding, that the BIA
correctly construed S 212(c) when it concluded that only
aliens in deportation proceedings convicted of the specified
crimes are barred from applying for discretionary waivers.7
We therefore turn to address whether Congress's decision
_________________________________________________________________

7. Our decision not to question the BIA's conclusions in Fuentes-Campos
is also influenced by the fact that S 212(c)'s amended version was in
force for a limited time. Because IIRIRA repealed this section in its
entirety and replaced it with new INA S 240(a), which permits
discretionary "cancellation of removal" and explicitly applies to all
criminal aliens, amended S 212(c) was only in effect from the date of
AEDPA's passage on April 24, 1996, until the effective date of IIRIRA,
April 1, 1997. See IIRIRA S 304(a) (repealing former S 212(c) in its
entirety effective April 1, 1997); 8 U.S.C. S 1229b(a) (codifying new INA
S 240(a)). We do note, however, that at least one court of appeals has
found the BIA's construction of S 212(c) to be clearly contrary to the
plain meaning of the statute. See United States v. Estrada-Torres, 179
F.3d 776, 779 (9th Cir. 1999).

                               12
to distinguish between deportable and excludable aliens
violates DeSousa's right to equal protection of the laws.

DeSousa's equal protection argument rests primarily on
his claim that from the time that the Court of Appeals for
the Second Circuit decided Francis, courts have recognized
without exception the irrationality of distinguishing
between deportable and excludable aliens. A careful reading
of Francis, however, reveals that it did not directly concern
distinctions between excludable and deportable aliens, but
rather addressed disparate treatment of groups of
deportable aliens. Indeed it appears that over the years, by
force of repetition, Francis has come to stand for a rule of
law that its facts do not support.

In Francis, the court of appeals considered a series of
decisions by the BIA that had extended S 212(c) relief,
which on its face applied only to aliens in exclusion
proceedings, to certain aliens in deportation proceedings.
First, in Matter of G. A., 7 I. & N. 274 Dec. (1956), the BIA
found an alien eligible for S 212(c) relief because he had left
temporarily and then returned to the United States after he
had become deportable. See Francis, 532 F.2d at 271. The
BIA reasoned that since the alien would have been eligible
for S 212(c) relief if the INS had placed him into exclusion
proceedings at the time he sought reentry, relief could be
granted at his later deportation hearing. See id. Second, in
Matter of Smith, 11 I. & N. Dec. 325 (1965), the BIA
construed S 212(c) to apply to deportation proceedings
where an alien had requested an adjustment of status
under S 245 of the INA. See id. It concluded that because
the S 245 application subjected the alien to all bases for
exclusion, the alien should also benefit from the waiver
available in exclusion proceedings. See id. At the same
time, however, the BIA continued to refuse to grantS 212(c)
relief to an individual who did not fall into one of the above
two groups of deportable aliens. See id.

The petitioner in Francis argued that through its
interpretations, the BIA had created two classes of aliens
identical in every respect except for the fact that, after
becoming deportable, members of one class had departed
and returned to this country without being stopped at the
border. See id. at 272. He claimed that the BIA's extension

                               13
of S 212 relief to certain deportable aliens and not others
violated his right to equal protection. The Francis court
agreed with the petitioner's claim, finding that there was no
rational basis for rewarding with a potential waiver only
those deportable aliens who temporarily left the country
and returned without triggering exclusion proceedings at
the border.

But distinguishing between groups of deportable aliens
is, of course, not the issue in this appeal. Instead, the issue
we must decide, whether Congress can constitutionally
differentiate between excludable and deportable aliens,
simply was not addressed in Francis. Similarly, although we
have adopted the reasoning of Francis, this adoption should
stand for no more than Francis itself represented: the
conclusion that the distinctions drawn by the BIA among
certain deportable aliens were irrational. See, e.g., Katsis v.
INS, 997 F.2d at 1070. In this appeal we therefore are
confronted with addressing, for the first time, whether a
Congressional grant of discretionary relief to excludable,
but not deportable, aliens violates the Fifth Amendment's
equal protection guarantee.

It is undisputable that our constitution provides due
process and equal protection guarantees to aliens as well as
citizens. See Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct.
1064, 1070 (1886). But as DeSousa concedes and as the
Francis court recognized, disparate treatment of different
groups of aliens triggers only rational basis review under
equal protection doctrine. See Francis, 532 F.2d at 272.
Under this minimal standard of review, a classification is
accorded "a strong presumption of validity" and the
government has no obligation to produce evidence to
sustain its rationality. Heller v. Doe, 509 U.S. 312, 319,
320, 113 S.Ct. 2637, 2642, 2643 (1993). Indeed, such a
classification can be upheld as constitutional even when it
is based on rational speculation rather than on empirical
data. See id., 509 U.S. at 320, 113 S.Ct. at 2643. Once a
facially legitimate reason for the classification is found,
whether such a reason was articulated by Congress or not,
we must rule the classification constitutional. See id., 509
U.S. at 320, 113 S.Ct. at 2642. As always, when performing
such review, our role is not to judge the wisdom or fairness

                               14
of Congress's policy choices, but rather their
constitutionality. See id., 509 U.S. at 319, 113 S.Ct. at
2642.

The legislative history of AEDPA clearly demonstrates
that Congress's goal in amending S 212(c) was to enhance
"the ability of the United States to deport criminal aliens."
H.R. Conf. Rep. No. 104-518, at 119 (1996), reprinted in
1996 U.S.C.C.A.N. 924, 952.8 In order to aid the United
States in expelling criminal aliens from the country,
Congress rationally could have decided to encourage such
aliens to voluntarily leave the country as a carrot to a
potential waiver of removal when they sought reentry.
Creating such an incentive may have appeared desirable to
Congress for several reasons. First, Congress could have
rationally speculated that not all aliens who voluntarily left
the country would return. Second, because exclusion
_________________________________________________________________

8. Indeed, the history of Congress's amendments to S 212(c) shows that,
throughout the 1990s, it had been tightening the controls over granting
such waivers. Before 1990, S 212(c) contained no bar to seeking a
discretionary waiver. Thus, as the section was applied through case law,
all aliens in deportation and exclusion proceedings, even those convicted
of aggravated felonies, were eligible to apply for a waiver. See
Scheidemann v. INS, 83 F.3d 1517, 1519 (3d Cir. 1996). In 1990,
however, Congress enacted an amendment restricting the availability of
S 212(c) relief. See Immigration Act of 1990, Pub.L. No. 101-649,
S 511(a), 104 Stat. 4978, 5052 (1990). Under the new amendment, aliens
who had been "convicted of an aggravated felony and ha[d] served a term
of imprisonment of at least 5 years" were barred from applying for
waivers. 8 U.S.C. S 1182(c) (1990). There was a further immaterial
amendment in 1991. See note 2, supra.

Moreover, in 1990 and 1994, Congress expanded the definition of
"aggravated felony" to include more classes of crimes. See Immigration
Act of 1990, Pub.L. No. 101-649, S 501(a), 104 Stat. 4978, 5048 (1990);
Immigration and Nationality Technical Corrections Act of 1994, Pub.L.
No. 103-416 S 222(a), 108 Stat. 4305, 4322 (1994). These amendments
rendered an even greater number of aliens ineligible for discretionary
relief. Finally, with the passage of AEDPA in 1996, Congress enacted the
latest version of S 212(c), which is at issue in this appeal. This version
makes waivers unavailable to all aliens who are "deportable" by reason
of having committed an aggravated felony or at least two crimes of moral
turpitude, regardless of the time served for such crimes. See 8 U.S.C.
S 1182(c) (1996).

                               15
proceedings provide fewer procedural protections than
deportation proceedings, Congress may have reasoned that
encouraging aliens to seek waivers through the exclusion
process would decrease the United States' administrative
costs in expelling criminal aliens. See Landon v. Plasencia,
459 U.S. 21, 26-27, 103 S.Ct. 321, 325-26 (1982). We
recognize that such a policy might appear callous to the
affected individuals and their families. But, because there
is a rational reason for distinguishing between deportable
and excludable criminal aliens in the context of Congress's
policy to expel such aliens from the country, the distinction
drawn in S 212(c) does not violate DeSousa's right to equal
protection of the law. See LaGuerre v. Reno, 164 F.3d 1035,
1041 (7th Cir. 1998) (rejecting, on similar grounds,
identical equal protection challenge to amendedS 212(c)).

D. Alternatively, Is New S 212(c) Impermissibly
   Retroactive When Applied to DeSousa?

DeSousa argues that even if we reverse the district
court's equal protection ruling, we can affirm on the
alternate ground that amended S 212(c) is retroactive as
applied to him. But DeSousa's mention of the retroactivity
argument in his appellate brief substantially is limited to
two short sentences that state: "[T]his Court can affirm the
decision of the district court under the reasoning set forth
in Sandoval, supra, i.e. principles of retroactivity" and "In
the alternative, this Court should affirm the decision of the
district court under the reasoning expressed in Sandoval v.
Reno, et al., 166 F.3d 225 (3d Cir. 1999)." However,
Sandoval concerned whether amended S 212(c) could be
applied to proceedings pending before AEDPA's effective
date and concluded that it could not so apply. See
Sandoval, 166 F.3d at 242. This reasoning is irrelevant to
DeSousa's case because the INS began his deportation
proceedings after AEDPA's effective date. As a result, we
cannot affirm the district court's decision based on "the
reasoning set forth in Sandoval."

It appears, however, that in the district court, DeSousa
had argued that AEDPA was retroactive as applied to him
because the underlying criminal convictions rendering him
ineligible for discretionary relief occurred prior to AEDPA's
effective date. Although DeSousa has failed to raise this

                               16
issue specifically in his brief argument regarding
retroactivity, out of an abundance of caution, we
nevertheless address this argument.

The first step in a retroactivity analysis is to determine
whether Congress has expressed its views on the temporal
reach of the statute. See Sandoval, 166 F.3d at 240 (citing
Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct.
1483, 1505 (1994)). If it has, our role is simply to enforce
congressional intent. See id.

The text of S 212(c) provides support for the view that
pre-AEDPA convictions may be considered in denying relief.
The section, as applicable here, provides that waivers will
not be available to "an alien who is deportable by reason of
having committed any criminal offense." 8 U.S.C. S 1182(c)
(1996). The past tense of the underlined verb suggests that
on AEDPA's effective date, those who, like DeSousa,"have
committed" the specified criminal offense would be
ineligible for the waivers.

IIRIRA's amendment of S 212(c) also suggests that
Congress intended for earlier convictions to be considered.
In S 306(d) of IIRIRA, Congress made a technical correction
to S 212(c), and specifically provided that the correction was
retroactive to AEDPA's effective date. This correction
changed the section's language to provide: "This subsection
shall not apply to an alien who is deportable by reason of
having committed any criminal offense . . . covered by
section 241(a)(2)(A)(ii) for which both predicate offenses are
without regard to the date of their commission, otherwise
covered by section 241(a)(2)(A)(i)." IIRIRA S 306(d)
(underlined text added by IIRIRA). INA Sections
241(a)(2)(A)(i) and (ii) concern moral turpitude convictions.
Importantly, subsection (i) states that an alien is deportable
for a single moral turpitude conviction if the conviction
occurs within a specified number of years from the date of
admission, and the crime carries a potential sentence of
one year or more. See 8 U.S.C. S 1227(a)(2)(A)(i).

Given the language of subsection (i), Congress may have
intended that the technical correction simply eliminate the
requirement that a moral turpitude conviction must have
occurred within a specified number of years from

                               17
admission. On the other hand, given Congress's failure to
limit its language, the phrase "without regard to the date of
their commission" suggests that any two moral turpitude
convictions, even those that pre-date AEDPA, would render
an alien ineligible for a waiver.

The inclusion of limiting language in another related
AEDPA section provides further evidence that Congress
intended amended S 212(c) to apply to individuals with pre-
AEDPA convictions. In S 440(f), Congress provided that
"[t]he amendments made by subsection (e) shall apply to
convictions entered on or after the date of the enactment of
this Act . . . ." AEDPA S 440(f). By implication then, we can
assume that Congress intended for S 440(d) to apply to all
convictions, regardless of their date. See Sandoval, 166
F.3d at 241 ("Where Congress includes particular language
in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.") (citations and quotation marks omitted).

Even though traditional rules of statutory construction
suggest that pre-AEDPA convictions are to be considered in
denying waivers, because the evidence is not absolutely
clear, we proceed to the next step in the retroactivity
analysis, whether the statute has a retroactive effect. See
Collins v. Montgomery County Bd. of Prison Inspectors, 176
F.3d 679, 685 (3d Cir. 1999) (en banc); Sandoval , 166 F.3d
at 240. On this issue, our precedent requires us tofind
that S 212(c) does not have "retroactive effect" even though
it removes discretionary relief for pre-AEDPA convictions.
See Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.
1996).

In Scheidemann, we considered two separate
amendments to S 212(c): the first was the addition of the
bar to waiver eligibility for aggravated felons, and the
second was an expansion of the definition of "aggravated
felony" to encompass a greater variety of crimes. See id. at
1519-20. The petitioner argued that because at the time of
his conviction there was no statutory bar to waiver
eligibility and his crime was not defined as an aggravated
felony, the amendments should not apply to his deportation
proceeding even though it was initiated after the effective

                               18
date of the amendments. See id. at 1520. Thus, the
retroactivity issue before us in Scheidemann was
substantively identical to that before us on this appeal.

We resolved this issue by holding that the amendments
did not have a retroactive effect. We stated:

       [T]he 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 regard to the
       legality of his presence in the United States.

Scheidemann, 83 F.3d at 1523. The above reasoning clearly
applies to DeSousa's claims on this appeal and therefore
requires the finding that amended S 212(c) does not have
retroactive effect.

Because S 212(c) does not have retroactive effect, courts
construing it should "apply the law in effect at the time . . .
[of] decision." Landgraf, 511 U.S. at 264, 114 S.Ct. at 1496.
At the time of both the BIA's and the district court's
decisions in DeSousa's case, amended S 212(c) was in effect
and provided that waivers were unavailable to those aliens
who were deportable "by reason of having committed" an
aggravated felony or two crimes of moral turpitude.
Because DeSousa was deportable by reason of having
committed such crimes, the courts correctly found that he
was ineligible for a waiver. We therefore reject DeSousa's
alternative ground for affirmance.

V. CONCLUSION

We will affirm the district court's ruling that it had
habeas jurisdiction to review DeSousa's challenge to his
deportation order. Furthermore, we will affirm itsfinding
that Congress intended amended S 212(c) to apply to
individuals in DeSousa's situtation, and as applied,S 212(c)

                               19
is not retroactive. However, we will reverse the district
court's grant of a writ to DeSousa because we conclude
that the distinction between excludable and deportable
aliens drawn in amended S 212(c) does not violate the equal
protection guarantee of the Fifth Amendment's Due Process
Clause. Accordingly, we will remand the case to the district
court to dismiss DeSousa's petition.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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