                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-1996

Salazar-Haro v. INS
Precedential or Non-Precedential:

Docket 96-3007




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Recommended Citation
"Salazar-Haro v. INS" (1996). 1996 Decisions. Paper 74.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/74


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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                             No. 96-3007
                             ___________


                   PEDRO ALEJANDRO SALAZAR-HARO,
                                        Petitioner
                                 V.

                IMMIGRATION & NATURALIZATION SERVICE,
                                         Respondent

                             ___________

       PETITION FOR REVIEW OF AN ORDER OF THE IMMIGRATION
                   AND NATURALIZATION SERVICE
                     DATED DECEMBER 19, 1995
                      (BIA No. A38-267-921)
                           ___________

         Submitted Pursuant To Third Circuit LAR 34.1(a)
                         August 6, 1996

      Before:   MANSMANN, SCIRICA, and WEIS, Circuit Judges

                    (Filed September 13, 1996)
                            ___________


Richard J. Sharkey, Esquire
515 Linden Street, 3rd Floor
Allentown, PA 18101

Attorney for Petitioner

Frank W. Hunger, Esquire
 Assistant Attorney General, Civil Division
William J. Howard, Esquire
 Senior Litigation Counsel
Ernesto H. Molina, Jr., Esquire
Office of Immigration Litigation, Civil Division
Department of Justice
P.O. Box 878
Washington, D.C. 20044

Attorneys for Respondent


                             ____________

                       OPINION OF THE COURT
                          ___________

WEIS, Circuit Judge.
         After this petition for review of a deportation order
was filed with us, Congress enacted a statute providing that such
matters would not be subject to review by any court. In the
absence of language setting an effective date for the statute, we
conclude that it became law on the day of enactment and withdrew
our jurisdiction. Accordingly, we will dismiss the petition.
         Petitioner, a native and citizen of Peru, entered the
United States in 1978 and became a permanent resident in 1983.
In June 1993, he was convicted on charges of conspiracy to
distribute cocaine and of aiding and abetting and was sentenced
to forty-two months imprisonment. His wife Amada Morales, the
mother of his three sons, was a co-defendant. She pleaded guilty
and was deported to Nicaragua in 1994.
         Petitioner was released from prison after thirty-seven
months, and thereafter, was ordered to show cause why he should
not be deported. After a hearing, the Immigration Judge found
that petitioner had been rehabilitated, was truly remorseful, had
obtained a high school equivalency diploma, was caring for his
three minor sons, who were United States citizens, and was
gainfully employed. The Immigration Judge further found that
petitioner had cooperated with the government in connection with
his drug activities.
         Weighing against these equities, however, the
Immigration Judge noted that petitioner had started selling drugs
in 1987. After a year absence from the country, beginning in the
middle of 1988, petitioner returned to the United States and
resumed drug trafficking. After the death of the individual for
whom he had sold drugs originally, petitioner made new contacts
and began a business of his own. By his own testimony, he sold
over ten kilograms of cocaine. "[W]hile this Court has heavily
weighed the consequences of this decision on three U.S. citizen
children," the Immigration Judge concluded that "the well being
of the community of the United States would not best be served by
allowing [petitioner] to remain in the United States."
         After reviewing the merits of the case, the Board of
Immigration Appeals denied Salazar-Haro's appeal.
         The petition for review was filed in this court on
January 17, 1996. At that time, 8 U.S.C. § 1105a(a) provided for
judicial review of all final orders of deportation. On April 24,
1996, the President signed into law the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110
Stat. 1214 (1996). Title IV, section 440(a) of the Act, codified
at 8 U.S.C. § 1105a(a)(10), states: "Any final order of
deportation against an alien who is deportable by reason of
having committed a criminal offense covered in section
1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any
offense covered by section 1251(a)(2)(A)(ii) of this title for
which both predicate offenses are covered by section
1251(a)(2)(A)(i) of this title, shall not be subject to review by
any court."
         In view of this statutory provision, the INS contends
that we should dismiss the appeal for lack of jurisdiction.
Petitioner points out that the Act does not specify the effective
date of the pertinent section, and that generally, statutes are
not applied retroactively. He also notes that precluding
judicial review of administrative actions can give rise to
constitutional concerns.
         There can be little doubt that Congress has the power
to deprive a Court of Appeals of jurisdiction previously granted
over certain categories of cases. Ex parte McCardle, 74 U.S. 506
(1868). The issue before us is whether such action may
retroactively affect cases commenced before the repealer,
including those at various stages in the appellate process.
         In McCardle, a statute permitting appeals in habeas
corpus matters from the Circuit Courts to the Supreme Court was
repealed after the case had been argued before the Supreme Court,
but before entry of judgment. The Court held that "no judgment
could be rendered in a suit after the repeal of the act under
which it was brought and prosecuted." Id. at 514. "Jurisdiction
is power to declare the law, and when it ceases to exist, the
only function remaining to the court is that of announcing the
fact and dismissing the cause." Id.
         In more recent times, the Supreme Court has wrestled
with the complex problem of statutory retroactivity, particularly
when, as here, the legislation is silent as to both its effective
date and congressional intention. In Landgraf v. USI Film
Products, 511 U.S. 244, 114 S.Ct. 1483 (1994), the Court
discussed the presumption against retroactive legislation,
noting: "Since the early days of this Court, we have declined to
give retroactive effect to statutes burdening private rights
unless Congress had made clear its intent." 114 S.Ct. at 1499.
On the other hand, "[w]e have regularly applied intervening
statutes conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred or when the
suit was filed." Id. at 1501. The Landgraf Court cited with
approval Bruner v. United States, 343 U.S. 112, 116-17 (1952),
which stated: "This rule -- that, when a law conferring
jurisdiction is repealed without any reservation as to pending
cases, all cases fall with the law -- has been adhered to
consistently by this Court." See also The Assessors v. Osbornes,
76 U.S. 567 (1869).
         Therefore, unlike situations where retroactivity would
affect pre-existing rights, withdrawal of jurisdiction, although
realistically disrupting settled expectations, does not preserve
pending litigation. Of course, by expressing its intention,
Congress could provide that a court continue to process cases not
yet adjudicated. Alternatively, Congress could direct the court
to exercise its discretion, as is true with respect to procedural
rules, which are applicable to pending cases "insofar as just and
practicable." No such language, however, appears in Title IV of
the Antiterrorism Act.
         We have carefully reviewed Title IV to determine
whether Congress provided expressly, or by implication, that the
effective date of the section under consideration here would be
other than the day of enactment. We have found no such
indication, and thus, agree with similar conclusions by the
Courts of Appeals for the Second, Fifth, and Ninth Circuits. SeeHincapie-
Nieto v. INS, ___ F.3d ____, 1996 WL 431750 (2d Cir.
August 2, 1996); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996);
Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996). We hold,
therefore, that the amendment to 8 U.S.C. § 1105a(a)(10) became
effective on the day of enactment, April 24, 1996.
         In addition to the three decisions by the Courts of
Appeals cited above, we have carefully read the opinion of the
United States Court of Appeals for the Seventh Circuit in Reyes-
Hernandez v. INS, 89 F.3d 490 (7th Cir. 1996). There, the Court
reasoned that it was unlikely Congress intended to withdraw
jurisdiction where an applicant for discretionary relief had at
least a colorable defense to deportability but conceded that fact
in the administrative process in order to take his chances on
appeal to the court. Although this approach is appealing, we do
not find it persuasive. We hold, therefore, that the amendment
to 8 U.S.C. § 1105a(a)(10) is applicable to this case and
withdraws our jurisdiction to review the petition on the merits.
         We think it appropriate to note that our ruling is a
narrow one and is confined to the circumstances in this case
where the petitioner seeks review of a final order of
deportation. Like the Hincapie-Nieto Court, we do not foreclose
judicial review of all claims by aliens arising in the course of
deportation proceedings.
         The Supreme Court has repeatedly acknowledged that "the
power to expel or exclude aliens [i]s a fundamental sovereign
attribute exercised by the Government's political departments
largely immune from judicial control." Fiallo v. Bell, 430 U.S.
787, 792 (1977) (citations omitted). Consequently, Congress is
free to make rules that would be unacceptable if applied to
citizens. Id. Nevertheless, "[i]t is well established that the
Fifth Amendment entitles aliens to due process of law in
deportation proceedings." Reno v. Flores, 507 U.S. 292, 306
(1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100-01
(1903)).
         To the extent, therefore, that constitutional rights
applicable to aliens may be at stake, judicial review may not be
withdrawn by statute. See Felker v. Turpin, ____ U.S. ____, 116
S.Ct. 2333 (1996) (statutory limitation on Supreme Court's
certiorari jurisdiction does not infringe on the Court's
constitutional power to grant habeas corpus.). See alsoMcCardle, 74 U.S.
at 512-14; Hincapie-Nieto, 1996 WL 431750 at
*3-4 (noting possible habeas corpus remedies available to aliens
under detention subject to final orders of deportation).
         Because we do not have jurisdiction, the petition for
review will be dismissed.
