Jurado-Gutierrez v. Greene, JURADO-GUTIERRE
| Decision Date | 19 August 1999 |
| Docket Number | JURADO-GUTIERRE,Nos. 97-,PALAGANAS-SUARE,PETITIONER,s. 97- |
| Citation | 190 F.3d 1135 |
| Parties | (10th Cir. 1999) MANUEL- APPELLEE, V. JOSEPH R. GREENE, DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW AND JOHN DOE, RESPONDENTS - APPELLANTS. AMERICAN IMMIGRATION LAWYERS ASSOCIATION; NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD; LAW PROFESSORS, AMICI CURIAE. BENIGNO- APPELLANT, v. JOSEPH R. GREENE, DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, DENVER, COLORADO, RESPONDENT - APPELLEE. NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD; AMERICAN IMMIGRATION LAWYERS ASSOCIATION, AMICI CURIAE. ARNOLD DESMOND WILLIAMS, PETITIONER - APPELLEE, v. JOSEPH R. GREENE, DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, DENVER, COLORADO, RESPONDENT - APPELLANT. LAW PROFESSORS; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, AMICI CURIAE. URBANO DE JESUS DANIEL, PETITIONER - APPELLEE, v. JOSEPH R. GREENE, DISTRICT DIRECTOR, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, DENVER, COLORADO, RESPONDENT - APPELLANT. 1437, 98- 1017, 98- 1050, 98- 1310 |
| Court | U.S. Court of Appeals — Tenth Circuit |
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. D. Ct. Nos. 97-Z-1756, 97-M-1724, 97-B-2329, & 97-B-1709
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] In appeal number 97-1437, Jurado-Gutierrez v. Greene
David M. McConnell, Assistant Director, and Laura A. Smith, Trial Attorney (Lorri L. Shealy, Trial Attorney, with them on the briefs), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondents-Appellants.
Lucas Guttentag, Aclu Immigrants' Rights Project, San Francisco, California, and Sandra Saltrese-Miller, Boulder, Colorado (Lee Gelernt and Cecillia Wang, Aclu Immigrants' Rights Project, San Francisco, California, with them on the briefs), appearing for Petitioner-Appellee Jurado-Gutierrez.
Lenni B. Benson, New York Law School, New York, New York, filed an amici brief for Law Professors.
Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, filed an amicus brief for the National Immigration Project of the National Lawyers Guild.
Nadine Wettstein, Tucson, Arizona, filed an amicus brief for the American Immigration Lawyers Association.
In appeal no. 98-1017, Palaganas-Suarez v. Greene
Lucas Guttentag, Aclu Immigrants' Rights Project, San Francisco, California (Jim Salvator, Lafayette, Colorado, on the briefs), for Petitioner-Appellant Palaganas-Suarez.
Laura A. Smith, Trial Attorney (David M. McConnell, Assistant Director, with her on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondent-Appellee.
Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, filed an amici brief for the National Immigration Project of the National Lawyers Guild and the American Immigration Lawyers Association.
In appeal number 98-1050, Williams v. Greene
David M. McConnell, Assistant Director, and Laura A. Smith, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondent-Appellant.
Lucas Guttentag, Aclu Immigrants' Rights Project, San Francisco, California, and Sandra P. Saltrese-Miller, Boulder, Colorado (Jim Salvator, Lafayette, Colorado, on the brief), for Petitioner-Appellee Williams.
Lenni B. Benson, New York Law School, New York, New York, filed an amici brief for Law Professors.
Nadine Wettstein, Tucson, Arizona, filed an amicus brief for the American Immigration Lawyers Association.
Marc Van Der Hout and Zachary Nightingale, Van Der Hout & Brigagliano, San Francisco, California, filed an amicus brief for the National Immigration Project of the National Lawyers Guild.
In appeal number 98-1310, Daniel v. Greene
David M. McConnell, Assistant Director, and Laura A. Smith, Trial Attorney (Lorri L. Shealy, Trial Attorney, with them on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., appearing for Respondent-Appellant.
Lucas Guttentag, Aclu Immigrants' Rights Project, San Francisco, California, and Sandra P. Saltrese-Miller, Boulder, Colorado (Jim Salvator, Lafayette, Colorado, on the brief), for Petitioner-Appellee.
Before TACHA, LUCERO, Circuit Judges, and COOK * , District Judge.
We have consolidated for oral argument and decision four immigration cases presenting the same issues: (1) whether Congress abrogated, through enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), the district court's jurisdiction under the habeas corpus statute, 28 U.S.C. § 2241, to review petitioners' deportation orders; (2) whether AEDPA § 440(d) applies retroactively to cases in which an alien is convicted of an enumerated offense prior to its enactment; and (3) whether AEDPA § 440(d) violates the Equal Protection Clause.
Petitioners are four legal permanent residents who have had final orders of deportation entered against them because of past criminal convictions. They do not directly contest their deportability, but they seek from the Attorney General a discretionary waiver of their deportation order, as previously authorized by § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C.A. § 1182(c) (West 1996 Supp.). Prior to enactment of the AEDPA, certain aliens found deportable due to criminal convictions could apply to the Attorney General for discretionary waiver of deportation. In AEDPA § 440(d) Congress significantly enlarged the category of offenses that would render an alien, including petitioners, ineligible to apply for discretionary relief.1
The immigration Judges in each of these cases applied § 440(d) and found it precluded petitioners from applying for discretionary relief. After unsuccessfully appealing their final deportation orders to the Board of Immigration Appeals ("BIA"), petitioners filed habeas corpus petitions in federal district courts within the Tenth Circuit. Petitioners alleged that § 440(d) violates equal protection by prohibiting discretionary relief for certain criminal aliens in deportation proceedings but retaining such relief for criminal aliens in exclusion proceedings. 2 They also argued § 440(d) does not apply retroactively to their deportation proceedings. Each of the lower courts took jurisdiction under 28 U.S.C. § 2241 and addressed the merits of the habeas corpus petition. The district courts found that AEDPA § 440(d) applied to petitioner's case and held that § 440(d) violated equal protection. However, they differed as to the appropriate remedy.
We take jurisdiction under 28 U.S.C. §§ 1291 and 2253. We hold that the district courts had jurisdiction to review petitioners' claims under 28 U.S.C. § 2241. We further hold that AEDPA § 440(d) properly applies to petitioners and does not violate petitioners' equal protection rights.
Mr. Jurado-Gutierrez, a citizen of Mexico, has resided as a lawful permanent resident in the United States since 1988. In 1987, he married a United States citizen from whom he is now divorced. He and his ex-wife have an eleven year-old child who lives with her mother. In December 1995, Mr. Jurado-Gutierrez pled guilty to possession with intent to distribute a controlled substance. The court sentenced petitioner to four years imprisonment, followed by three years of parole. In September 1996, prior to the completion of his sentence, the Immigration and Naturalization Service ("INS") took Mr. Jurado-Gutierrez into custody and instituted deportation proceedings based upon his conviction for a controlled substance violation, an aggravated felony. At a hearing on December 19, 1996, Mr. Jurado-Gutierrez admitted his conviction, and the immigration Judge found him deportable.
After Mr. Jurado-Gutierrez pled guilty, but prior to the deportation proceedings against him, Congress enacted the AEDPA. As noted above, AEDPA § 440(d) amended the INA to eliminate discretionary relief from deportation for aliens convicted of most drug offenses. Mr. Jurado-Gutierrez argued to the immigration Judge that application of AEDPA § 440(d) is impermissibly retroactive because his conviction occurred prior to its enactment. The court rejected this argument, and the BIA affirmed.
Mr. Jurado-Gutierrez petitioned for a writ of habeas corpus in the district court. Initially, he argued only that AEDPA § 440(d) does not apply retroactively. At a second hearing, he further argued that § 440(d) violates Equal Protection and the Due Process Clause of the Fifth Amendment. The government moved to dismiss the petition, arguing that Congress eliminated the district court's subject matter jurisdiction when it enacted the AEDPA and IIRIRA. It further asserted that if the district court had jurisdiction, § 440(d) properly applied and did not violate the Equal Protection Clause.
The district court found in favor of petitioner. It held that it had jurisdiction under 28 U.S.C. § 2241 to hear petitioner's equal protection claim, an alleged substantial constitutional violation, and it applied § 440(d). On the merits, the court held that no rational basis existed to allow excludable aliens to apply for discretionary relief while barring applications of deportable aliens. The district court ordered a hearing to adjudicate Mr. Jurado-Gutierrez's application for waiver of deportation. The government appealed the decision to this court.
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