
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-1194                                 ALFREDO A. KOLSTER,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          PETITION FOR REVIEW OF AN ORDER OF                          THE BOARD OF IMMIGRATION APPEALS                                  ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                                Lynch, Circuit Judge.                                       _____________                                 ____________________            Lee   Gelernt  and  Richard   L.  Iandoli,  with  whom  Iandoli  &            _____________       _____________________               __________        Associates,  Lucas   Guttentag,  Letitia  Volpp,  and  American  Civil        __________   _________________   ______________        _______________        Liberties Union were on brief for petitioner.        _______________            Linda S. Wendlandt, with whom Frank W.  Hunger, Assistant Attorney            __________________            ________________        General,  Civil Division,  Michael  P. Lindemann,  Assistant Director,                                   _____________________        Office of Immigration Litigation, and Lisa Arnold, Attorney, Office of                                              ___________        Immigration Litigation, were on brief for respondent.                                 ____________________                                   December 4, 1996                                 ____________________                      LYNCH,  Circuit Judge.   This  case requires  us to                      LYNCH,  Circuit Judge.                              _____________            determine whether  section  440(a) of  the Antiterrorism  and            Effective  Death  Penalty  Act  (AEDPA),  enacted  after this            petition was filed, applies here.  Alfredo Kolster, an  alien            under deportation order,  argues that if it does apply, it is            unconstitutional.  Section 440(a)  of AEDPA, which was signed            into  law on  April 24,  1996, prohibits  judicial  review of            deportation orders issued  against aliens who have  committed            certain types  of crimes.  Kolster had previously pled guilty            to such a crime.                      In a petition filed with this court on February 28,            1996, Kolster seeks review of  a Board of Immigration Appeals            (BIA)  decision  that  he  is  ineligible,  under  the  BIA's            interpretation of the Immigration  and Nationality Act (INA),            for discretionary  relief from  deportation.  He  argues that            the BIA erroneously interpreted  the statute to require seven            years  of  lawful  permanent  residence by  the  alien  to be            eligible for the relief  from deportation afforded by section            212(c) of the INA.                        The  Immigration  and Naturalization  Service (INS)            has moved to dismiss this action, arguing that section 440(a)            of  AEDPA  operates  immediately  to  divest  this  court  of            jurisdiction  to  hear this  petition  for  review.   Kolster            responds that section 440(a) does not apply to  cases pending            on  the date of AEDPA's  enactment, and that,  if the statute                                         -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 &  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
