AMICI CURIAE BRIEF TO THE ATTORNEY GENERAL

ON THE EFFECTS TO INA 212(c)

OF SECTION 440(d) OF THE ANTITERRORISM AND

EFFECTIVE DEATH PENALTY ACT OF 1996

AMICI CURIAE BRIEF TO THE ATTORNEY GENERAL

ON HER REVIEW OF MATTER OF SORIANO

Amici curiae AMERICAN IMMIGRATION LAWYERS ASSOCIATION (AILA) and the NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD (NIP), amici curiae, file this brief in response to the request of the Attorney General made September 25, 1996, to assist her in her review of Matter of Soriano, Int. Dec. 3289 (BIA 1996) (vacated by the Attorney General September 12, 1996).

This brief asks the Attorney General to issue a decision based on the Supreme Court's decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and hold that Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not reach individuals who are charged with being deportable by virtue of criminal convictions which were entered on or before AEDPA's effective date of April 24, 1996. The brief also notes that the Landgraf principles apply with special force to individuals whose Section 212(c) applications have been, or may be, remanded due to procedural, legal or factual errors.

Section 212(c) of the INA provides that individuals who have been lawfully domiciled in the United States for at least seven years prior to application may apply for a waiver of deportation. The AEDPA, signed into law on April 24, 1996, amended the statutory section by adding a sentence barring from relief any alien

AEDPA, Section 440(d).

At the time of AEDPA's passage, the Board had pending before it a number of INS appeals of grants of Section 212(c) relief, as well as appeals by the alien of denials of the waiver. Because the application of the of Section 440(d) on pending cases was unclear, the Board asked for, and received, amicus curiae briefs from AILA and the NIP, as well as from the Federation for American Immigration Reform. On June 27, 1996, the Board issued Matter of Soriano, Int. Dec. 3289 (BIA 1996) ("Soriano"). In Soriano, the Board held that the restrictions of Section 440(d) did not apply to individuals who had filed an application for Section 212(c) relief on or before April 24, 1996. The INS sought review of this decision pursuant to 8 C.F.R. Section 3.1(h), and on September 12, 1996, the Attorney General accepted review.

For the reasons stated below, amici ask the Attorney General to hold that the amendment to INA Section 212(c) contained in Section 440(d) of the AEDPA does not bar from Section 212(c) relief those individuals whose convictions were entered on or before April 25, 1996.

In three leading cases, the Supreme Court delineated how to interpret the temporal reach of a statute in the absence of clear congressional intent. In the first of these cases, Bradley v. Richmond School Board, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974), the Court held that a statute authorizing the award of attorneys' fees to successful civil rights plaintiffs applied in a case that was pending on appeal at the time the statute was enacted. Bradley stands for the rule that "a court must apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." 416 U.S. at 711.

Without purporting to overrule Bradley or limit its reach, the Court later held in Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988), that the Department of Health and Human Services lacked statutory authority to promulgate a rule requiring private hospitals to refund Medicare payments for services rendered before promulgation of the rule. Bowen therefore expresses the axiom that statutory retroactivity is not favored, and that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." 488 U.S. at 208.

The "apparent tension" between these two rules was reconciled by the Court in Landgraf v. USI Film Products, ___ U.S. ___, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), which held that Section 102 of the Civil Rights Act of 1991 could not be applied retroactively to permit the petitioner's recovery of money damages for intentional discrimination. Landgraf noted that the Court's statement in Bowen that retroactivity is not favored by the law was in step with a "long line of cases" that applied the presumption against statutory retroactivity. 114 S. Ct. at 1500. The Court further stated:

Id. at 1503-04.

Landgraf outlined a three-part procedure for determining the temporal reach of a statute. The starting point of the inquiry is whether Congress "has expressly prescribed the statute's proper reach." Id. at 1505. If there is no express direction from Congress, then the court must determine whether the statute would in fact have genuine retroactive effect. Id. at 1498-99, 1505. If the statute would operate retroactively, the court applies the traditional presumption against the retroactive application of a statute, absent clear congressional intent favoring such a result. Id. at 1505.

Under the first part of the Landgraf inquiry, the court examines the statute for Congress' express intent: "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." 114 S. Ct. at 1505. See Matter of A-A-, 20 I&N Dec. 492, 495 (BIA 1992) (recognizing that, in all cases involving statutory construction, Supreme Court precedent requires courts (or the Board) to first discern whether the relevant statutory text manifests an intent that the statute be applied retroactively; citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987) and INS v. Phinpathya, 464 U.S. 183, 189, 104 S. Ct. 584, 78 L. Ed. 2d 401 (1984)).

The Landgraf Court noted that the Supreme Court has long declined to give retroactive effect to substantive statutes unless Congress has expressed its intent through "clear, strong, and imperative" language. Id. at 1499 (citing United States v. Heth, 3 Cranch 399, 2 L. Ed. 479 (1806)). Such intent may be expressed by means of an "unambiguous directive" or an "express command" from Congress that it intended retroactive application. Landgraf, 114 S. Ct. at 1496, 1505. Therefore, it is clear from Landgraf that where Congress has made a statement on the face of a statute that it should be applied retrospectively or prospectively, there is no need to apply judicial default rules and the court merely applies the law in accordance with that statement. Id. at 1505.

When, however, the statute contains no such express command, the court must then proceed to the second part of the Landgraf test -- whether the statute would have retroactive effect. If the statute would operate retroactively, the court applies the long-standing presumption against retroactive application, unless there is evidence of clear congressional intent that it should not be so applied. It is in this final stage of the Landgraf test -- application of the presumption against retroactive effect -- that the court considers whether there is evidence in the statute as a whole or in the statute's legislative history that Congress intended that the statute have retroactive effect.

The Board of Immigration Appeals has held that the test enunciated by the Supreme Court in Landgraf must be applied in analyzing whether statutes can be applied retroactively:

Matter of Gomez-Giraldo, 20 I&N Dec. 957, 960 (BIA 1995); see also Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996).

Applying the above analysis to the AEDPA, there is no question that Congress did not expressly prescribe Section 440(d)'s proper reach. As enacted, Section 440 of the AEDPA contains subsection (f), that provides effective date language for subsections (e) and (e)(3) of Section 440. However, there is no effective date provision corresponding to Section 440(d). By contrast, other sections of the AEDPA expressly address the effect of the certain provisions on circumstances existing prior to the AEDPA's enactment. See, e.g., Section 413(g) (barring alien terrorists from most forms of relief from deportation; bars to relief "shall take effect on the date of enactment of [the AEDPA] and shall apply to applications filed before, on, or after such date if final action has not been taken on them before such date").

The Ninth Circuit Court of Appeals has held that Congress' specification of prospectivity in one section and silence in another cannot be interpreted to evidence Congress' intent to apply the silent provision retroactively. Duldulao v. INS, ___F.3d___, (9th Cir. July 24, 1996). In Duldulao, the court found that AEDPA Section 440(f)'s express provision that Section 440(e) applies only "to convictions entered on or after the date of the enactment of [the AEDPA]" does not imply that Congress' intended that Section 440(a), which contained no similar effective date language, apply retrospectively. Dismissing INS' argument that Congress' specification of prospectivity in one section and silence in another indicates its intent to apply the silent provision retroactively, the court stated:

Id. (citing Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991).

The same reasoning applies to Congress' silence as to the effective date of Section 440(d). The silence of the statute with regard to its impact upon conduct and other events that already have taken place is significant. Nothing in the text of the AEDPA even remotely suggests that Section 440(d) should be applied retroactively to pending cases or pre-amendment circumstances, or that this silence was due to an "accident of draftsmanship." See INS v. Phinpathya, 464 U.S. 183, 183, 104 S. Ct. 584, 78 L. Ed. 2d 401 (1984).

Thus, there can be no contention that Congress included specific effective date language for Section 440(d). There is no unambiguous directive -- nor any directive at all -- in Section 440(d) that Congress intended that Section 440(d) should be applied to bar Section 212(c) relief for aliens deportable for having committed one of the named offenses before the enactment date. "[C]ongressional enactments ... will not be construed to have retroactive effect unless their language requires this result." Landgraf, id. at 1496 (citing Bowen, 488 U.S. at 208). Thus, under the first inquiry mandated by Landgraf, there is no clear congressional directive that Section 440(d) apply retroactively.

2.Part Two: Eliminating Respondent's Eligibility for Section 212(c) Relief Does Have Genuine Retroactive Effect

Under Landgraf's second level of inquiry, if a court finds that Section 440(d) is silent as to its temporal reach, the court must determine whether the new statute would in fact have genuine retroactive effect. 114 S. Ct. at 1498-99, 1505. A statute will be deemed retroactive if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past...." Id. at 1499. The Landgraf Court noted that "statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment" will typically be found to have a retroactive effect. Id. at 1503.

The Landgraf Court noted that statutes that impose new burdens on past actions have retroactive effect and gave the example of a statute reducing the commissions of customs collectors. The Court discussed an early decision of the Court, which held that applying the statute to collections commenced before the statute's enactment would have retroactive effect and that could not be done absent "`clear, strong, and imperative' language requiring retroactive application." Id. at 1499-1500 (citing United States v. Heth, 3 Cranch 399, 413, 2 L.Ed. 479 (1884)). As the Landgraf Court stated, "(t)he presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact." Id. at 1500.

The Court in Landgraf specifically stated that statutes affecting contractual or property rights typically will be deemed to have a retroactive effect, since these are "matters in which predictability and stability are of prime importance." Id. However, the Court made clear that the "[t]he presumption [against retroactivity] has not, however, been limited to such cases." Id. For example, the Court relied on an immigration case, Chew Heong v. United States, 112 U.S. 536, 5 S. Ct. 255, 28 L. Ed. 770 (1884), as an example of the presumption against retroactivity in practice. Chew Heong analyzed a provision of a 1882 statute barring Chinese laborers from reentering the United States without a certificate obtained prior to departure. The Court there held that the statute could not bar the reentry of a laborer who had left the United States before the enactment of the statute, since to give the statute retroactive application would injuriously affect previously vested rights. The Court further noted that "statutes affecting substantive rights, liabilities, or duties" will typically be found to have a retroactive effect and will not be applied to conduct arising before their enactment. Id. at 1504.

In contrast, the Landgraf Court noted that statutes that do not have retroactive effect include those that confer or oust jurisdiction, as a change in jurisdiction "takes away no substantive right but simply changes the tribunal that is to hear the case." 114 S. Ct. at 1501 (quoting Halloway v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409 (1916)). The Court also explained that changes in procedural rules often may be applied without raising concerns about retroactivity because of "the diminished reliance interests in matters of procedure." 114 S. Ct. at 1502.

The change to Section 212(c) made through Section 440(d) is neither procedural nor jurisdictional. The bar to Section 212(c) relief takes away substantive relief, see Hincapie-Nieto v. INS, 92 F.3d 27, at n. 2 (2d Cir. 1996); thus, application of the statute falls into the category of cases that the Landgraf Court identifies as those having retroactive effect and, thus, invoking the presumption against retroactivity. .

The presumption against retroactive effect prevents the impairment of rights a party possessed when he acted. "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Landgraf, 114 S.Ct. at 1497.

In the Section 212(c) context, such concerns with regard to warning and fair notice of the legal consequences of one's conduct apply to a wide range of individuals. The Board in Soriano correctly held that aliens who had applied for Section 212(c) relief prior to the enactment of the AEDPA should not be barred from eligibility for such relief, since they had "demonstrated ... their expectation that although they were deportable under various provisions of the Act, they would be able to present evidence of favorable social and humane considerations the might countervail evidence of their undesirability as lawful permanent residents." Int. Dec. 3289, slip op. at 6 (emphasis added). To deny such aliens eligibility for Section 212(c) relief would clearly fly in the face of the anti-retroactivity principles expressed by the Supreme Court in Landgraf.

Other individuals who had "settled expectations" of being able to apply for Section 212(c) relief when they undertook certain actions and, thus, against whom retroactive application of Section 440(d) would offend "(e)lementary considerations of fairness", Landgraf, 114 S. Ct. at 1499-1500, include, for example, those aliens who: did not contest their deportability, in the hopes of gaining a favorable exercise of discretion under Section 212(c); agreed to a continuance of their deportation hearing until after April 24, 1996, believing they would still be eligible to apply for Section 212(c) relief; orally requested Section 212(c) relief well before April 24, 1996 but were given a hearing date after April 24 because of scheduling problems of a particular judge; did not apply for other forms of relief from deportation -- perhaps due to lack of funds -- because they believed they were eligible for a Section 212(c) waiver; made motions in immigration court -- Fleuti motions, for example -- based upon their assumptions about the availability of Section 212(c) relief; pursued an appeal of their criminal conviction, believing that Section 212(c) relief would continue to be available; and many more.

Concerns with warning and fair notice also apply to individuals who, upon advice of counsel, accepted a guilty plea to a crime expecting to be able to apply for a waiver of deportation. Had these aliens been forewarned of the risk of losing eligibility for Section 212(c) relief, they might have opted for a different plea; alternatively, they might have chosen to go to trial. The category of persons affected also includes individuals who did not appeal their convictions, believing that the conviction was not a bar to a waiver of deportation.

All of these people, and no doubt many others, had "settled expectations" to which they conformed their conduct. See Landgraf, 114 S.Ct. at 1497. As the courts have long held (ratified most recently by the Supreme Court in Landgraf), the "(r)etroactive application of laws is undesirable where advance notice of the change in law would motivate a change in an individual's behavior or conduct." Griffon v. INS, 802 F.2d 146, 153 (5th Cir. 1986). In the present context, those rights included the right to petition for relief from deportation, a right protected by the Constitution. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994); Snajder v. INS, 29 F.3d 1203, 1207-08 (7th Cir. 1994); Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993); Cununan v INS, 856 F.2d 1373, 1374 (9th Cir. 1988).

2. The Decisions of the Board in Matter of A-A- and Matter of Gomez-Giraldo, and the Ninth Circuit's Decision in Samaniego-Meraz Do Not Compel a Different Result

The statutory context of AEDPA Section 440(d) differs significantly from the context of the statute reviewed by the Board of Immigration Appeals ("Board") in Matter of A-A- and Gomez-Giraldo, and by the Ninth Circuit Court of Appeals in Samaniego-Meraz v. INS, 53 F.3d 254 (9th Cir. 1995). Thus, those cases do not control the analysis on the issue of retroactivity of the AEDPA.

In Matter of A-A-, supra, the Board determined that Congress had clearly manifested its intent to retrospectively apply the bar to Section 212(c) relief to aggravated felons filing their applications for relief after November 29, 1990, who had served at least five years in prison, regardless of when the convictions occurred. 20 I&N Dec. at 502. Reviewing the issue after Landgraf, the Board noted in Gomez-Giraldo that since Congress had specified the statute's temporal reach, it was not required to proceed to the second step of the Landgraf test. Gomez-Giraldo, 20 I&N Dec. at 963. It did so nonetheless and, in dicta, found that since the concerns underlying the presumption against retroactive application of new statutes were not implicated by the new bar to Section 212(c) relief, the statute had no retroactive effect. Id.

In Samaniego-Meraz, the Ninth Circuit deferred to the Board's conclusion in Matter of A-A- that Congress had spoken as to the temporal reach of the five-year bar and intended to apply the bar to Section 212(c) for those who had served five years in prison for convictions prior to the effective date of the Anti-Drug Abuse Act of 1988. However it, too, proceeded to the second step of the Landgraf inquiry and found that retroactivity concerns were not implicated. Samaniego, 53 F.3d at 256. The court stated, "[s]ection 212(c) involves discretionary relief from deportation. Congressional repeal of a discretionary power to relieve an alien from deportation does not attach any new legal consequence to the pre-enactment events (i.e., the drug convictions)." Id. (citing De Osorio v. INS, 10 F.3d 1034 (4th Cir. 1993)).

These cases do not resolve the issue of whether Section 440(d), if applied to pre-enactment convictions, would have retroactive effect. Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995), is instructive. There, the court addressed the issue of whether time accrued as a lawful temporary resident under INA Section 245A counts toward the requirement in Section 212(c) that the applicant have seven years of "lawful unrelinquished domicile." The Ninth Circuit had previously held, in Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979), that only time as a lawful permanent resident fulfilled this requirement. However, the court in Ortega de Robles noted that this holding did not dispose of the issue before the court, because the enactment of Section 245A provided a new context in which to examine the issue. 58 F.3d at 1358-59.

In this case, the AEDPA provides a new context in which to examine the issue of whether a statute proscribing relief for some categories of aliens operates "retroactively" when applied to pre-enactment convictions. First, as noted above, prior analysis of this issue took place in a statutory context in which the Board found that Congress had clearly manifested its intent for the bar to relief to apply to pre-enactment convictions, a finding to which the Ninth Circuit deferred. Moreover, the prior analysis involved a provision that would have operated to create a "'super-prospectivity' provision." Gomez-Giraldo 20 I&N Dec. at 962 (citing Buitrago-Cuesta v. INS, 7 F.3d 291, 295 (2d Cir. 1993)). The provision would be "super-prospective" because, since only one who has served five years in prison is subject to the bar, application of the bar to post-1990 convictions would delay implementation of the provision for five years. The Board stated that "[a]bsent ... [a] specific command, we will generally not presume that Congress intended a statute to operate 'super-prospectively.'" Gomez-Giraldo 20 I&N Dec. at 962 n.4. Thus, in interpreting the 1990 bar, the Board applied a presumption against "super-prospectivity." This concern is not implicated by AEDPA Section 440(d).

Another concern not presented by the five-year bar but presented by the AEDPA is that raised by the prospect of applying the new law to applications pending at the time of enactment. Stating that the five-year bar did not offend concerns underlying the presumption against retroactivity, the Board noted in Gomez-Giraldo, "[t]he bar does not affect those aliens who applied for a section 212(c) waiver on or prior to the enactment date." Id. at 963.

In contrast, the provision at issue here does not differentiate between pending and non-pending cases. The presumption against super-prospectivity and the limitation of the 1990 bar to post-enactment convictions may account for the fact that neither the Board in Gomez-Giraldo nor the Ninth Circuit in Samaniego considered certain other factors relevant to the determination of whether a statute operates retroactively. Both Gomez-Giraldo and Samaniego cite a pre-Landgraf case, De Osorio v. INS, 10 F.2d 1034 (4th Cir. 1993), in support of the conclusion that Landgraf did not affect the validity of the holding in Matter of A-A-. Gomez-Giraldo, 20 I&N Dec. at 964; Samaniego, 53 F.3d at 256. De Osorio reasoned that concerns of deprivation of rights without notice and fair warning are not implicated by application of the bar to pre-enactment convictions because an individual does not rely on the availability of a waiver when deciding to break the law. De Osorio, 10 F.2d at 1042.

But criminal defendants frequently do take immigration consequences into account when determining whether to plead guilty to a crime. Defense attorneys frequently craft pleas to avoid immigration consequences or preserve eligibility for relief. Thus, while non-U.S. citizen criminals are unlikely to rely on the availability of deportation waivers at the time they decide to break the law, they do rely on existing immigration law at the time they choose whether to accept a plea agreement or appeal their convictions.

In fact, in many states a trial court judge has the obligation of advising a non-U.S. citizen defendant of the potential immigration consequences of his plea. See, e.g., Cal. Penal Code Section 1016.5 (1996). In some states, it has been held to constitute ineffective assistance of counsel for an attorney not to investigate and advise a non-citizen defendant of the potential immigration consequences of a possible guilty plea. See, e.g., People v. Soriano, 194 Cal. App. 3d 1470 (Cal. Ct. App. 1987). (Thus, if both the court and defense counsel did not advise respondent of the potential immigration consequences of his plea, the conviction could not stand.)

Limiting section 440(d)'s reach to post-enactment convictions would not render the statute "super-prospective." Failing to do so, on the other hand, would implicate concerns of notice and fair warning, among others. Thus, because Section 440(d), if applied to pre-enactment convictions, would attach new disabilities to the respondent's past transactions and considerations, it is "genuinely retroactive" under Landgraf.

3.Part Three: The Traditional Presumption Against Retroactive Temporal Reach of New Statutes Must Be Applied.

In the third part of its retroactivity analysis, the Supreme Court in Landgraf invoked the "uniformly" accepted rule against giving statutes retroactive effect "whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature." 114 S. Ct. at 1500 (emphasis added). The Landgraf Court considered that the principles favoring prospective application of a statute are based in part on the "timeless and universal" considerations regarding fairness and the notion that an "individual," not only a citizen, has a right to notice of changes in laws based on his conduct. Id. at 1497. This principle is deeply imbedded in the Constitution. Id. As Justice Scalia has stated:

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 855, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990) (Scalia, J., concurring; emphasis added).

Applying a presumption against retroactivity, the Landgraf Court said, accords with widely held intuitions about how statutes normally operate and coincides with legislative and public expectations. 114 S. Ct. at 1501. Moreover, the Court also observed that the presumption against retroactivity counterbalances "[t]he Legislature's unmatched powers ... to sweep away settled expectations suddenly and without individualized considerations," sometimes as a means of retribution against unpopular groups or individuals. Id. at 1497. For these reasons, requiring that a statute express clear congressional intent that a statute should apply retroactively assures that Congress itself affirmatively considered the potential unfairness of retroactive application. Id. Possible sources of such intent include the statutory text itself, necessary implication, and legislative history. Id. at 1491-96; Scheidemann, 83 F.3d 1517 (3d Cir. 1996); Gomez-Giraldo, 20 I&N Dec. at 960 n.2.

However, as the Supreme Court made clear in Landgraf, such intent cannot be inferred from indirect and ambiguous language. 114 S. Ct. at 1495; James Cable Partners v. The City of Jamestown, 43 F.3d 277, 280 (6th Cir. 1995) ("The statutory language is simply not clear enough to allow the conclusion that Congress intended retroactive application. If Congress had decided that some policy consideration justified the invalidation of existing contracts and the disruption of the parties' settled expectations, it would have stated its intent more clearly"; Dion v. Secretary of HHS, 823 F.2d 669 (1st Cir. 1987) ("In order to attribute retrospective effect to a statute, there must be found expression of the legislative will in terms so plain as to admit of no doubt that such was the intention"); United States ex rel. Newsham and Bloem v. Lockheed Missiles and Space Company, Inc., 907 F. Supp. 1349, 1354 (N.D. Cal. 1995) (a "restorative purpose may be relevant to whether Congress specifically intended a new statute to govern past conduct, but we do not 'presume' an intent to act retroactively in such cases....We still require clear evidence of intent to impose a restorative statute retroactively"; emphasis added).

1. The Text of the AEDPA Does Not Evidence an Intent to Apply Section 440(d) Retroactively

Examining the text of the AEDPA itself, it is clear that there is no intent expressed in the statute to apply Section 440(d) retroactively. As discussed above, there is no question that Congress did not expressly prescribe Section 440(d)'s proper reach.

As discussed above, the fact that Congress expressly stated in at least one other section of the AEDPA (Section 440(f)) that the amendments to Section 440(e) would apply only prospectively, and did not do so with respect to Section 440(d), does not imply that Congress intended Section 440(d) to apply to pre-enactment convictions. To the contrary, as the Ninth Circuit has held, it only indicates that Congress was silent on this issue. Duldulao, 96 C.D.O.S. at 5454 n.2.

In fact, the AEDPA did include provisions that expressly require some retroactive operation. See, e.g., Section Section 401(f) ("the amendments made by this section ... shall apply to all aliens without regard to the date of entry or attempted entry into the United States"); 413(g) ("The amendments made by this section ... shall apply to applications filed before, on, or after such date if final action has not been taken on them before such date").

The assertion that the statute operates retroactively absent some directive indicating otherwise -- rejected by the Ninth Circuit in Duldulao -- would stand Landgraf on its head. See Landgraf, 114 S. Ct. at 1501 (noting that "prospectivity remains the appropriate default rule"). As the Supreme Court in Landgraf held, silence cannot be used to infer a retroactive intent; rather, absent clearly expressed intent to the contrary, a court must apply the statute prospectively only. Id. at 1494-95, 1501.

2. There is Not a Necessary Implication That Section 440(d) Apply Retroactively

The Board and several appellate courts, considering the retroactive effect of the bar to Section 212(c) relief for aggravated felons who had served five years' imprisonment, concluded that if it were interpreted as applying only to post-enactment convictions, by its terms the statutory bar could not have applied until five years after the bar's enactment. See, e.g., Matter of Gomez-Giraldo, 20 I&N Dec. at 962. Such a "super-prospectivity statute" would "render absurd Congress's provision that [Section 212(c)] would apply 'after' the date of enactment." Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996).

No such necessary implication exists here. The eligibility of certain aggravated felons for Section 212(c) relief is foreclosed for aliens convicted of any of the enumerated offenses. If the statute is applied prospectively, such relief is immediately denied to aliens whose convictions were entered on or after enactment. Therefore, unlike the situation that the Board considered in Gomez-Giraldo, retroactive application of Section 440(d) would not be necessary to begin enforcing the new statute on the enactment date.

The conference report on the AEDPA, H. Conf. Rep. No. 104-518, states that the Senate bill S. 735, which is now the AEDPA, was intended "to prevent and punish acts of terrorism, and other purposes." Cong. Rec. H3305 (daily ed. Apr. 15, 1996). The vast majority of the discussion in the Congressional Record concerning the AEDPA addresses removal provisions for alien terrorists and habeas corpus relief, and there is no discussion concerning Section 212(c) relief or the specific retroactivity of the statute. See e.g., 142 Cong. Rec. H3605-17 (daily ed. Apr. 18, 1996).

Thus, in the absence of clear congressional intent to the contrary, the traditional presumption against retroactive temporal reach of statutes must be applied. See Landgraf, 114 S. Ct. at 1505. Here, as in Landgraf, the traditional presumption against the statute's retroactive temporal reach is invoked to protect against the unfairness of attaching new legal consequences -- a complete ban on eligibility for release from detention -- to convictions sustained and transactions completed before the AEDPA's enactment. Id. at 1499.

4.The Result of Applying the Landgraf Inquiry to Section 440(d) is That Section 440(d) Does Not Bar Individuals Whose Criminal Convictions Were Entered Prior to April 24, 1996 From Pursuing Section 212(c) Relief

The bar to Section 212(c) relief contained in Section 440(d) cannot then, consistently with Landgraf, apply to convictions entered before the AEDPA's enactment date. That was, after all, the holding in Landgraf: although there was some liability for conduct wrongful at the time it occurred, the new compensatory and punitive damages provisions of the Civil Rights Act of 1991 could only be applied to conduct engaged in after the statute's enactment date. Similarly, in the context of Section 440(d), a conviction may have had criminal consequences, but cannot have the immigration consequences prescribed by Section 440(d) until after the enactment date.

II.212(c) APPLICANTS WHOSE CASES HAVE BEEN, OR MAY BE, REMANDED DUE TO PROCEDURAL, LEGAL OR FACTUAL ERRORS HAVE ESPECIALLY WELL-SETTLED EXPECTATIONS TO PURSUIT OF THAT RELIEF

The Landgraf principles apply with special force to individuals whose 212(c) applications have been, or may be, remanded due to procedural, legal or factual errors. Each of these individuals has a clearly settled expectation to pursue and be considered for such relief.

The federal courts have long recognized that special considerations that comes into play when an individual has been denied his or her right to competent counsel. Batanic v. INS, 12 F.3d 662 (7th Cir. 1993), Snajder v. INS, 29 F.3d 1203 (7th Cir. 1994); Rabiu v. INS, 41 F.3d 879 (2d Cir. 1994). Due process mandates that these individuals be put in the place they would have been in but for that violation, even if the law has changed in the interim. Batanic v. INS, supra, is instructive. There, the alien, who was incarcerated on the basis of a state court conviction for delivery of a controlled substance, had his first Master Calendar hearing on February 22, 1990 at a state correctional center in Illinois. His attorney arrived at the correctional facility, but was denied entry because he had not filed an appearance form in advance of the hearing (even though the notice stated the form could be filed at the hearing). The immigration judge ("IJ") entered a deportation order. Mr. Batanic filed an appeal, arguing that his right to counsel had been violated. By the time the BIA had sent the case back to the immigration judge, amendments to the asylum statute had taken effect, rendering Mr. Batanic ineligible for asylum. On appeal to the circuit court, the Seventh Circuit found that Mr. Batanic had indeed been denied his right to be represented at his hearing by counsel of his choice. Regarding the proper remedy, the court stated that "when the procedural defect has also resulted in the loss of an opportunity for statutory relief", the only effective remedy is to allow the individual the right to apply for the relief sought on a nunc pro tunc basis:

12 F.2d at 667.

Similarly, in Snajder v. INS, 29 F.3d 1203 (7th Cir 1994), the court remanded with instructions to place Snajder in the place he would have been in at the time of the BIA's dismissal of his appeal. At Snajder's initial hearing, the INS had lodged an additional charge against him and the immigration judge had failed to again inform him of his right to be represented by counsel. The court found that this failure constituted reversible error, and remanded the case to allow Mr. Snajder the opportunity to apply for Section 212(c) relief in conjunction with application for adjustment of status. Regarding his eligibility for Section 212(c) relief, the court noted that if Mr. Snajder had not yet served a term of incarceration of five years at the time of the BIA's decision, then "the IJ should take this consideration into account at the new deportation hearing", 29 F.3d at 1208 n. 12. In other words, Mr. Snajder's eligibility for Section 212(c) relief was to be determined on a nunc pro tunc basis.

Likewise, individuals whose appeals are based on other procedural errors are generally granted a remand to pursue nunc pro tunc relief. For example, in Campos v. Nail, 43 F.3d 1285 (9th Cir. 1994), a class of asylum seekers challenged an immigration judge's policy of denying, on a blanket basis, all requests for a change of venue. The court upheld a district court decision finding that these actions constituted a violation of the plaintiffs' statutory and regulatory rights, and also upheld the lower court's order nullifying all deportation orders that IJ had entered against class members. See also Bui v. INS, 76 F.3d 268 (9th Cir. 1996) (case remanded where IJ failed to inform the respondent of the relief for which he was eligible).

Other individuals whose 212(c) applications were cut off due to legal and procedural errors, and who thus have a settled expectation to pursue that relief on remand, include those individuals for whom the Board incorrectly interpreted the 212(c) eligibility requirement of "lawful domicile". Several circuit courts disagreed with the Board and Attorney General's interpretation of "lawful domicile", set out in Matter of Anwo, 16 I&N Dec. 293 (BIA 1977), that an individual was "lawfully domiciled" for purposes of Section 212(c) eligibility only after admission to lawful permanent resident status. See, e.g., White v. INS, 75 F.3d 213 (5th Cir. 1996) (individuals admitted to lawful temporary resident status pursuant to the Immigration Reform & Control Act of 1986 are "lawfully domiciled" for Section 212(c) purposes); Avelar-Cruz v. INS, 58 F.3d 338 (7th Cir. 1995) (same); Robles v. INS, 58 F.3d 1355 (9th Cir. 1995) (same); Lok v. I.N.S., 681 F.2d 107 (2d Cir. 1982) (an individual is "lawfully domiciled" when s/he has an intent to remain in the U.S., which intent if legal under the immigration laws). Recently, the Board reversed itself and, in Matter of Cazares, Int. Dec. 3262 (BIA 1996), held that a temporary resident may accrue time towards the seven-year lawful domicile requirement. But for the Board's earlier, erroneous, interpretation of "lawful unrelinquished domicile", most of these individuals would already have completed their Section 212(c) hearings. These individuals, whose cases are now back in front of the IJ on remand, have a clearly settled expectation of pursuing Section 212(c) relief.

Similarly, individuals whose Section 212(c) cases have been, or will be, remanded due to other legal and factual errors have a settled expectation of continuing to pursue their applications on remand. Examples include (but are not limited to) individuals for whom the IJ incorrectly applied the "balancing" of equities for Section 212(c) relief, see Matter of Arreguin de Rodriguez, Int Dec. 3247 (BIA 1995); where the IJ incorrectly interpreted a first offender drug statute, see Matter of Manrique, Int. Dec. 3250 (BIA 1995); and where the IJ incorrectly denied a motion to reopen, see Matter of Rodarte, Int. Dec. 3260 (BIA 1995). Each of these individuals has a clearly settled expectation to be able to pursue relief for Section 212(c) on remand.

The right to pursue nunc pro tunc relief in the 212(c) context is well-recognized. Recently promulgated regulations governing motions to reopen recognize that an individual may reopen a deportation or exclusion proceeding to apply for Section 212(c) relief "if the alien demonstrates that he or she was statutorily eligible for such relief prior to the entry of the administratively final order of deportation." 8 C.F.R. Section 3.2(c)(1) (June 26, 1996).

This regulation was promulgated in the wake of several circuit court decisions holding that an individual does not automatically lose lawful permanent resident status for all purposes after entry of a final order of deportation. See, e.g., Butros v. INS, 990 F.2d 1142, 1145 (9th Cir. 1993) (finding the Board's "comprehensive notion of finality" was "untenable" and remanding); Henry v. INS, 8 F.3d 426 (7th Cir. 1993) (alien remains statutorily eligible to reopen and pursue Section 212(c) relief); Vargas v. INS, 938 F.2d 358 (2d Cir. 1991) (same); Goncalves v. INS, 6 F.3d 830 (1st Cir. 1993) (same). In other words, even though a deportation order is administratively final, and individual who was previously eligible for a Section 212(c) waiver may nonetheless reopen proceedings to pursue that relief -- the individual is returned to the position she had at the time the administrative order was entered, and she pursues relief nunc pro tunc. See also: Butros, 990 F.2d at 1145 Rivera v INS, 810 F.2d 540, 541 (5th Cir. 1987), both citing Matter of Lok, 18 I & N Dec. 101, 107 (BIA 1981), for the principle that: "In those relatively rare instances where the court determines that the Board erred, as a mater of fact or law, with respect to its deportability finding, reversal of the Board's order of deportation nullifies the order and restores the alien's lawful permanent resident status."

As do aliens whose Section 212(c) applications have been or may be remanded, individuals whose Section 212(c) cases have been reopened have a settled expectation of pursuing that relief. Thus, Section 440(d) of AEDPA cannot, consistent with Landgraf, extend to individuals whose Section 212(c) applications have been, or may be remanded because of procedural, legal or factual errors. These individuals have a clearly settled expectation of pursuing their applications for relief.

III.THE QUESTION OF THE EFFECT OF THE 1996 IMMIGRATION REFORM ACT IS NOT BEFORE THE ATTORNEY GENERAL AND SHOULD NOT BE DECIDED AT THIS JUNCTURE.

While this matter was pending before the Attorney General, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) was enacted. Inter alia, that law repeals Section 212(c) of the INA. It also modifies what is now known as 212(c) relief, and recodifies it as "cancellation of removal." These amendments do not go into effect until April 1997. The question of what effect IIRAIRA will have on pending cases is not before the Attorney General at this time. That question has not been determined by the BIA, and will not be considered by the BIA until after the new law takes effect in April.

The Attorney General accepted review only of the BIA's decision in In Re Soriano. Any decision on IIRAIRA's effects would be entirely premature. Legal issues must be raised in a timely manner by the litigants in order for the adjudicator to issue a decision. Tejada-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980); Cisternas-Estay v. INS, 531 F.2d 155, 160 (3d Cir. 1976); Chung Young Chew v. Boyd, 309 F.2d 857, 861 (9th Cir. 1962).

In prior decisions on review from the BIA, the Attorney General did not consider issues of first impression or matters that were not first decided by the BIA. Matter of Hernandez-Casillas, 20 I & N Dec. 262 (A.G. 1991); Matter of Leon-Orosco and Rodriguez-Colas, 19 I & N Dec. 136 (A.G. 1984). Amici respectfully submit that the Attorney General must decide only the issues before her and not usurp the BIA's function to interpret and apply the new law in the first instance.

For the foregoing reasons and authorities, amici respectfully request the Attorney General to modify the BIA's decision in In Re Soriano, as argued herein.

RESPECTFULLY SUBMITTED this 4th day of November, 1996.

_________________________
NADINE K. WETTSTEIN, for

Marc Van Der Hout
Kelly M. McCown
Van Der Hout & Brigagliano
180 Sutter St, 5th Floor
San Francisco CA 94101
Phone: (415) 981-3000
Fax: (415) 981-3003

Susan Compernolle
Legal Assistance Foundation
of Chicago
Legal Services Center for Immigrants
343 S. Dearborn St., Suite 848
Chicago IL 60604
Phone:(312) 341-0255
Fax:(312) 341-1041

Attorneys for Amicus Curiae
National Immigration Project

Nadine K. Wettstein
P. O. Box 64673
Tucson AZ 85728
Phone:(520) 529-6731
Fax:(520) 529-6912

Attorney for Amicus Curiae
American Immigration LawyersAssociation

CERTIFICATE OF SERVICE

I, Nadine K. Wettstein, affirm that on this 4th day of November, 1996, I served, by overnight delivery, the foregoing Brief of Amici Curiae American Immigration Lawyers Association and National Immigration Project on the following person:

Christopher H. Schroeder
Acting Assistant Attorney General
U.S. Department of Justice
Office of Legal Counsel
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001

and caused to be served by regular mail from the offices of the American Immigration Lawyers Association, one copy to the following persons:

Philip D. Bartz
U.S. Department of Justice - Civil Division
Office of Immigration Litigation
950 Pennsylvania Avenue, N.W., Room 3613
Washington, D.C. 20530-0001

Barry F. Kenyon
45 White Street, 3rd floor
New York NY 10013

Nancy Morawetz
New York University
School of Law/Fuchsberg Hall
249 Sullivan Street
New York NY 10012-1079

William W. Chip
Federal for American Immigration Reform
1666 Connecticut Avenue, N.W.
Washington, D.C. 20009

_________________________________
Nadine K. Wettstein

© 1999, American Immigration Lawyers Association