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
_____________
Associates,
__________

and

Richard
L. Iandoli,
_____________________

Lucas
Guttentag,
_________________

Letitia Volpp,
______________

with
and

whom

Iandoli
_______

American Ci
____________

Liberties Union were on brief for petitioner.

_______________
Linda S. Wendlandt, with whom Frank W.

Hunger, Assistant Attor

__________________
General,

Civil Division,

________________
Michael P. Lindemann,
_____________________

Assistant Direct

Office of Immigration Litigation, and Lisa Arnold, Attorney, Office

___________
Immigration Litigation, were on brief for respondent.
____________________
December 4, 1996
____________________

LYNCH,
LYNCH,

determine whether

Effective

Death

Circuit Judge.
Circuit Judge.
_____________

section

Penalty

This

440(a) of

Act

unconstitutional.

into

law on

enacted

us to

and

after this

Alfredo Kolster, an

alien

argues that if it does apply, it is

Section 440(a)

April 24,

the Antiterrorism

(AEDPA),

petition was filed, applies here.

under deportation order,

case requires

of AEDPA, which was signed

1996, prohibits

judicial

review of

deportation orders issued

against aliens who have

committed

certain types

Kolster had previously pled guilty

of crimes.

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)

ineligible,

decision

that

he

is

under

the

BIA's

interpretation of the Immigration

for discretionary

relief from

deportation.

the BIA erroneously interpreted

years

of

lawful

permanent

eligible for the relief

and Nationality Act (INA),

He

argues that

the statute to require seven

residence by

the

alien

to be

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

jurisdiction

to

immediately

hear this

to

petition

divest

this

for

review.

responds that section 440(a) does not apply to

on

the date of AEDPA's

enactment, and that,

-22

court

of

Kolster

cases pending

if the statute

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

petitions, like Kolster's, which were pending on the date

AEDPA's enactment.

provided

by the

covered by section

to

of

Because at least the habeas corpus review

Constitution

remains

440(a), we find

available to

aliens

that the prohibition

of

judicial

review

Constitution.

in

section

440(a)

does

not

offend

the

Accordingly, we dismiss Kolster's petition for

review under the Immigration and Nationality

Act for lack of

jurisdiction.

I.

Alfredo

entered

New

Kolster,

the United States in

York.

He remained

school and college,

September, 1988.

Venezuelan

citizen,

1980 to attend

in the

first

high school in

United States

through high

earning a B.S. from Boston University in

During this

time, Kolster had

a F-1,

or

brief visit

to

foreign student, visa.

On

September

Venezuela, Kolster

11, 1988,

after

re-entered the United States

as a member

of the

immediate family of

organization.

Organization.

permanent

His mother

an employee of

an international

worked for the Pan-American Health

On August 24,

1989, Kolster became

resident of the United States.

-33

a lawful

From 1989 to 1991,

Kolster

lived in the Boston area and worked at various sales

jobs.

In 1991,

Kolster was indicted in

Massachusetts for conspiracy

to distribute.

He later

twenty-four

months'

recommended

that Kolster

federal court in

to possess cocaine

pled guilty and

imprisonment.

not be

The

with intent

was sentenced

sentencing

deported upon

to

judge

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

section 241(a)(2)(B)(i)

convicted of

Kolster

was

deportable pursuant

of the INA, which

to

applies to aliens

controlled substance offenses, and

pursuant to

section 241(a)(2)(A)(iii), which applies to

of aggravated felonies.

On

Immigration

See 8 U.S.C.
___

April 5, 1994, Kolster

Judge.

At

that

aliens convicted

1251 (a).

had a hearing before an

hearing,

Kolster,

through

counsel, conceded deportability on the grounds charged by the

INS.

However, he also requested

apply

of

a continuance in order to

for a waiver of deportation pursuant to section 212(c)

the INA.

Section

212(c) gives the

discretionary authority to

excludable aliens,

see 8
___

Attorney General the

waive the exclusion of

U.S.C.

1182(c).1

otherwise

A longstanding

____________________

1.

Section 212(c) of the

INA, 8 U.S.C.

amendment by AEDPA, read in relevant part:

1182(c),

prior to

-44

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

admission,

his concession of

found "based on

[Kolster's]

deportability through counsel,

and the documentary evidence of record that deportability has

been

established

evidence."

As to

by

clear,

convincing

and

unequivocal

Kolster's request for

a continuance, the

Immigration Judge

found that Kolster did

not have statutory

eligibility

section

for

pretermitted his

212(c)

application for

relief,

and

waiver of

therefore

deportation.

Accordingly, she ordered Kolster deported to Venezuela.

On January 30, 1996, the BIA affirmed the order

deportation.

Kolster's

Kolster

of

The Board agreed with the decision to pretermit

application

had "not

for a

been a

section 212(c)

lawful permanent

waiver because

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

residence .
lawful

. .

admitted for

permanent

who are returning

unrelinquished domicile

to a

of seven

consecutive years, may be admitted in the

discretion of the Attorney General.

-55

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

residence."

statutory

mean

Kolster

seven

years

points

to

issue, noting

that

of

"lawful

circuit

some courts

split

permanent

on

this

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

106(a)(10)

Section 440(a) of AEDPA,

of

the

INA, 8

which amends

U.S.C.

1105(a)(10),

provides:

Any final order of deportation against an

alien

who

having

is

deportable

committed

including

by

reason of

[certain

aggravated

controlled substance

crimes,

felonies

and

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.

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."

-66

lacked

subject

Kolster

date

matter

responds that

for section

presumed not

jurisdiction

AEDPA does

440(a),

to have

and that

to

hear

not specify

this

an effective

statutes are

retroactive effect.

case.3

generally

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

Film Products, 114 S.

_____________

for

decision in

Landgraf v.
________

Ct. 1483 (1994), provides

USI
___

a framework

determining whether a statute should be applied to cases

pending

at the

question

question.

and

Court's

of

time

of enactment.

legislative

First, the

determine

intent,

This is

constitutional

court must look at the

statutory text

"manifests

an

intent" that

statute should be applied to pending cases.

Id. at 1492.
___

the

not

court

determines

whether it

not

initially

that

Congress

did

the

If

"expressly

____________________

3.

The INS originally also

relief --

a waiver

argued that this petition sought

of deportation

under section

which petitioner was no longer eligible

440(d)

of AEDPA amends section

applies
committed

to receive.

212(c) so that

Section

it no longer

to aliens

who are

deportable

by reason

of having

certain

crimes,

including

controlled

substance

offenses and
currently

212(c) --

aggravated felonies.

considering whether

to

The Attorney
apply

General is

section 440(d)

to

section 212(c) applications filed before April 24, 1996.

See
___

In re Soriano,
______________

12,

1996),

vacating
________

Order

of the

Int. Dec.

amended July 18, 1996).

Attorney

No.

3289

Because we find

General (Sept.
(BIA June

27,

1996,

that the court does

not

have jurisdiction to hear this petition, we do not reach

the

question of

whether section

applications.

-77

440(d) applies

to pending

prescribe[] the statute's

that Congress acts

default rules."

proper reach," the court

consistently with

Id. at 1505.
___

a series

In applying

presumes

of "judicial

these rules, the

court must:

determine whether the

new statute

would

have retroactive effect, i.e., whether it

would

impair

when

he

rights

acted,

a party

increase

possessed
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,

jurisdictional

but

because

the court rather

U.S. 506,

that is to

hear the case'"

"jurisdictional statutes 'speak to

parties.'"

a new

rule usually 'takes away no substantive right

simply changes the tribunal

and because

"[a]pplication of

than to

Id. at 1502
___

508

(1916)

the rights or

the power of

obligations of

(quoting Hallowell v.
_________

and Republic Nat'l Bank

_____________________

the

Commons, 239
_______

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

explicit textual

on the

date of

enactment.

reference to an effective

There is

no

date for section

440(a).

of the

Effective dates are provided for some other sections

AEDPA, including section 440(e),

which adds offenses

to the INA definition of "aggravated felony."

See 8 U.S.C.
___

1101

"unrelated

note.

However,

those

sections

are

to

-88

jurisdiction, [and] are too

far removed from judicial review

under 8 U.S.C.

1105a(a)

section 440(a)."

Duldulao v. INS,
________
___

Cir.

1996).

expressly

Accordingly,

addressed

the

to impute an

we

effective date

for

90 F.3d 396, 398 n.2 (9th

find that

issue

of

Congress

section

has not

440(a)'s

applicability to pending cases.

The next inquiry under

approach

to

determining

the "judicial default rule"

congressional

intent

is

whether

440(a) has a retroactive effect upon petitioner's substantive

rights,

duties,

1505.

If

it

or obligations.

does

not,

then

Landgraf,
________

we

apply

114 S.

the

jurisdictional

statutes apply to pending cases.

statute would

have such retroactive effects, it

applied, "absent

rule

Id.
___

Ct. at

that

If the

will not be

clear congressional intent favoring

such a

result."

Id.
___

Kolster

argues

that

Landgraf
________

jurisdictional statutes only effect

assumes

that

a change in the tribunal

that will hear the case, and that the presumption in favor of

immediate

application

statute's

effect

is to

judicial review at all.

jurisdictional

is

therefore

deprive a

inapposite

party

It is true that

statutes as

of access

the

to any

Landgraf speaks of
________

usually "'simply

tribunal that is to hear the case.'"

where

chang[ing] the

Landgraf, 114 S. Ct. at

________

1502 (quoting Hallowell, 239 U.S. at 508).

_________

-99

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

district

that

deprived

jurisdiction over

the

federal

courts

of

certain Indian probate disputes and vested

"final

and conclusive"

Interior.

final

239 U.S.

authority

Landgraf's
________

at 508.

in

an

from

in the

makes us

Article

III

court

the

similarly vests

administrative tribunal,

from the Supreme Court,

an

Secretary of

Section 440(a)

citation to Hallowell
_________

more guidance

change

authority

the

BIA.

doubtful, absent

that a jurisdictional

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

concerning

inquiry

whether

must

therefore

Kolster's

focus on

substantive

the

rights

facts

or

obligations or duties have been changed by the deprivation of

judicial review.

Kolster

suggests that his guilty plea

and

concession of

that

he

could

deportability were

apply

for

made with the

section

212(c)

expectation

waiver

of

deportation.

The

facts, to

Seventh

a similar argument

F.3d 490, 492 (7th Cir.

the denial

Circuit gave

on different

in Reyes-Hernandez v.
_______________

1996).

of petitioner's

credence,

There, the BIA

application

-1010

INS, 89
___

had affirmed

for section

212(c)

relief,

Seventh

and

the petitioner

Circuit

found

sought

that,

judicial

when

review.

petitioner

The

conceded

deportability, he knew that, if the immigration judge and the

BIA

turned down

"could

have a

petitioner known

"he might have

his request for

go at"

judicial

that judicial

section 212(c)

review.

Id.
___

review would

contested deportability."

relief, he

at 492.

Had

be foreclosed,

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

conceded

apply to

prior to

AEDPA's

cases

in which

enactment,

deportability was

"provided

that

applicant for discretionary relief would have had at least

colorable defense to deportability."

In contrast

to

us

determination based

which

is

on facts which may

ascertained, would realistically

Id.
___

to the Seventh Circuit,

that deportability,

the

it is unclear

a largely

mechanical

often be objectively

be conceded because

of the

availability of discretionary relief or of judicial review of

the denial of such relief.

("It

is

far

more

See Hincapie-Nieto, 92 F.3d at 30

___ ______________

likely that

deportability

is

because there is no conceivable defense available.").

conceded

In any

case, here the Immigration Judge explicitly based her finding

of

drug

deportability on

offense

the

conviction,

documentary evidence

as

well as

on

of Kolster's

his

concession.

-1111

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

section 212(c).

by

reliance on

By Kolster's own

domicile"

for section

September

11, 1988.

section

date

of

discretionary relief

212(c)

Thus,

under

calculations, his "lawful

purposes only

dates back

to

even under the interpretation of

212(c) that he urges,

as of September

2, 1992, the

of his guilty plea, Kolster had only accrued four years

lawful domicile.

from being

He

was, as a

result, three years away

eligible for section 212(c)

highly unlikely

that his guilty

relief, rendering it

plea was predicated

on the

availability of such relief.

Moreover, this

court

and others

found that aliens do not have a cognizable

in

See,

the availability of

have

previously

reliance interest

discretionary section 212(c) relief.

e.g., Scheidemann v. INS,

83 F.3d 1517,

1523 (3d Cir.

___

____

___________

1996); Campos v. INS,

______
___

___

16 F.3d 118 (6th Cir.

v. INS, 989 F.2d 62 (1st Cir. 1993).

___

was

1994); Barreiro
________

At issue in those cases

an amendment to section 212(c) which made aliens who had

served at

felony

least five

ineligible

years' imprisonment for

for

Barreiro, 989 F.2d at 62.

________

discretionary

relief.

an aggravated

See,
___

e.g,
___

In Barreiro, this court found that

________

the

amendment's application

to prisoners

and

prison terms predated its

whose convictions

enactment did not violate the

-1212

presumption

against

retroactivity.

presumption

against a retroactive

Id.
___

at

64.

interpretation is to give

fair warning so that a party may avoid consequences.

scarcely a situation calling for any such warning."

Similar logic

said in Schiedemann,
___________

him to deportation

"The

applies here.

As

This is

Id.
___

the Third Circuit

petitioner's "conduct clearly subjected

as well as criminal sanctions,

and . . .

[section] 212(c), as it then existed, offered relief from the

former

General

only at

the

. .

unfettered discretion

."

Schiedemann, 83
___________

availability of purely

substantive rights

nor

does the

of the

F.3d

at

1523.

discretionary relief does

in otherwise deportable

availability of judicial

Attorney

The

not create

criminal aliens,

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.

other

circuit courts

We note that five of

to consider

this question

that section 440(a) applies upon enactment.

the six

have found

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

________

Mendez-Rosas
____________

under the

Landgraf
________

v. INS,
___

___

90 F.3d 396

(9th Cir.

v. INS, 87 F.3d 672 (5th Cir. 1996).

___

"judicial default

and which

rules" that are

provide a

guide to

-1313

1996);

We hold,

articulated in

legislative intent,

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

of judicial

commission of

review of final

certain crimes

section 440(a)'s

preclusion

orders of deportation

violates both the

based on

Due Process

Clause and the principles of separation of powers embodied in

Article III.

Due

Kolster argues that deportation deprives him of

constitutionally protected liberty

Process Clause

protections,

thus

including

interest, and that the

guarantees him

judicial

Kolster argues that section

review.

certain procedural

Additionally,

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

constitutional exercise of

to provide or

courts,

as

Congress' well-established

power

withhold jurisdiction from statutorily-created

well

as

its

plenary

immigration and naturalization."

be

section 440(a) is "clearly a

serious

question,

this

power

over

matters

of

Because we consider this to

court

requested

additional

briefing on whether habeas corpus review remains available to

aliens who

review.

are covered by

section 440(a)'s bar

on judicial

-1414

The question of section

is

not wholly

resolved

440(a)'s constitutionality

by reference

to Congress'

power over matters concerning immigration.

plenary

While it is true

that "over no conceivable subject is the legislative power of

Congress more complete,"

(1996)(citation

Reno v. Flores, 507 U.S.

____
______

omitted), the

Supreme Court

292, 305

has also

said

that:

once

an

country
that

alien

gains

and begins

go

with

to develop

permanent

constitutional
accordingly.
suggested
alien

admission

to our
the ties

residence

status
Our

that

changes

cases have
a

his

frequently

continuously

present

is entitled to a fair hearing when

threatened
although

with
we have

deportation,
only rarely

the procedures provided by

were

inadequate,

that

held that

the executive

we developed

continuously

and,

present

the rule
permanent

resident alien has a right to due process

in such a situation.

Landon
______

v.

Plasencia,
_________

citations omitted).

present

status,

aliens, like

our

459

U.S.

21,

32

(1982)(internal

Given this recognition that continuously

Kolster, do

analysis

of

have some

whether

constitutional

judicial

review

is

constitutionally required

here cannot turn on

section 440(a) only affects

the fact that

the rights of such aliens.

See
___

Salazar-Haro, 95 F.3d at 311.

____________

The

Kolster's

constitutional

claim

question

may

be

the

decision

consequences

of

continuously

present

stated

alien,

as

are

may

-1515

at

the

follows:

the

heart

Where

deportation

Congress,

by

of

the

of

precluding

judicial

review

authority

over a

section 212(c)'s

in

of final

question of

the

law --

orders,

place final

here, the

meaning of

phrase "lawful unrelinquished

the hands of an

does

deportation

administrative body (i.e.,

Constitution

require

an

domicile" --

the BIA), or

independent

judicial

determination of questions of law, or at least of whether the

agency's determination

statute?

See Fallon et
___

was a reasonable construction

of the

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

review of

final

106(a)(10)

orders

contained

in

section

of the INA, any habeas review that is required by

the Constitution

the

deportation

habeas

repeal of

remains available.4

the specific

Kolster

INA habeas

contends that

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'

would be 28 U.S.C.

2241, section 1651, or a 'free standing'

Constitutional

review of

authorization."

For

a deportation

present

order

purposes, we

describe the alternatives as "habeas review."

-1616

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

Turpin,
______

116 S.

one

Ct.

Kolster raises

2333, 2339

here.

(1996)

Cf. Felker
___ ______

(declining to

v.

find

jurisdictional repeal by implication).

Because the

judicial

review

constitutional

remains

and

section 440(a)'s

INS acknowledges that some

available

jurisdictional

to

address

concerns, we

repeal of our jurisdiction

avenue for

core

find

to review final

deportation orders does not raise a constitutional issue.

the nature

and scope

like Kolster

not reach

of habeas

review available

is not properly before

those questions.

that

us at this

As

to aliens

time, we do

See Hincapie-Nieto, 92
___ ______________

F.2d at

31.

Accordingly, the petition

for review is

dismissed

for lack of jurisdiction.

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