Kolster v. I.N.S.

• Decision Date: 06 September 1996
• Docket Number: No. 96-1194,96-1194
• Citation: 101 F.3d 785
• Parties: Alfredo A. KOLSTER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 785

101 F.3d 785

65 USLW 2385

Alfredo A. KOLSTER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-1194.

United States Court of Appeals,

First Circuit.

Heard Sept. 6, 1996.

Decided Dec. 4, 1996.

Lee Gelernt, New York City and Richard L. Iandoli, Boston, MA, argued (Iandoli & Associates, Lucas Guttentag, Los Angeles, CA, Letitia Volpp, San Francisco, CA, and American Civil Liberties Union, on the brief), for petitioner.

Linda S. Wendtland, Washington, DC, argued (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, on the brief), for respondent.

Before BOUDIN, Circuit Judge, BOWNES, Senior Circuit Judge, LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

This case requires us to 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 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, 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 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) 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 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, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (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 ----, 114 S.Ct. at 1492. If the court determines that Congress did not "expressly prescribe[ ] the statute's proper reach," the court presumes that Congress acts consistently with a series of "judicial default rules." Id. at ----, 114 S.Ct. 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 ----, 114 S.Ct. at 1502 (quoting Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 203, 60 L.Ed. 409 (1916) and Republic Nat'l Bank v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 565, 121 L.Ed.2d 474 (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 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, 511 U.S. at ----, 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...