Desousa v. Reno

• Decision Date: 25 August 1999
• Docket Number: No. 99-1115,99-1115
• Citation: 190 F.3d 175
• Parties: (3rd Cir. 1999) FERNANDO JORGE DESOUSA, v. JANET RENO, Attorney General; DORIS MEISSNER, Commissioner of Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE; DEPARTMENT OF JUSTICE; J. SCOTT BLACKMAN, Acting District Director, Appellants
• Court: U.S. Court of Appeals — Third Circuit

Page 175

190 F.3d 175 (3rd Cir. 1999)

FERNANDO JORGE DESOUSA, v. JANET RENO, Attorney General; DORIS MEISSNER, Commissioner of Immigration and Naturalization Service; IMMIGRATION AND NATURALIZATION SERVICE; DEPARTMENT OF JUSTICE; J. SCOTT BLACKMAN, Acting District Director, Appellants

No. 99-1115

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued July 13, 1999

Decided August 25, 1999

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 98-01470) District Judge: Honorable Anita B. Brody [Copyrighted Material Omitted] Martin A. Kascavage (argued), Schoener & Kascavage, 400 Market Street, Suite 420, Philadelphia, PA 19106, Attorneys for Appellee

David W. Ogden, Acting Assistant Attorney General, Civil Division, Christopher C. Fuller, Senior Litigation Counsel, Michael P. Lindemann, Edward J. Duffy (argued), Attorneys Office of Immigration Litigation, Civil Division, U.S. Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Attorneys for Appellants

BEFORE: GREENBERG, ALITO, and ROSENN, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Fernando Jorge DeSousa, seeking to avoid deportation for crimes he committed while a legal resident of the United States, applied for a discretionary waiver of inadmissibility under former 8 U.S.C. S 1182(c). The Board of Immigration Appeals ("BIA") ruled that as a deportable, rather than an excludable, alien, DeSousa was not eligible for a discretionary waiver. DeSousa then filed a petition for habeas corpus in the district court against the Attorney General and the Immigration and Naturalization Service ("INS"), arguing that former S 1182(c), as applied by the BIA, violated the equal protection guarantee of the Fifth Amendment's Due Process Clause by irrationally distinguishing between aliens in deportation and in exclusion proceedings. The district court concluded that it had habeas corpus jurisdiction to hear DeSousa's claims and granted him a writ based on his equal protection challenge. Although we agree with the district court that recent changes in the immigration laws have not eliminated district courts' habeas jurisdiction over deportation-related claims, at least in cases such as this in which deportation proceedings were instituted before April 1, 1997, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996), we find that S 1182(c), as interpreted by the BIA, does not violate the Fifth Amendment's equal protection guarantee and therefore will reverse.

II. JURISDICTION

DeSousa claims that the district court had subject matter jurisdiction over his habeas petition under 28 U.S.C. S 2241. Whether changes in the immigration laws eliminated the district court's habeas jurisdiction over DeSousa's deportation-related challenge is the first issue presented by this appeal and is discussed fully below. We have appellate jurisdiction under 28 U.S.C. S 1291 over the district court's final order granting DeSousa relief.

III. FACTS AND PROCEEDINGS

Fernando Jorge DeSousa, a citizen of Portugal, entered the United States as a lawful permanent resident in December 1969. In the 1970s, 1980s and early 1990s, DeSousa was convicted of various crimes including aggravated assault, recklessly endangering another person, burglary and theft. For his second aggravated assault conviction in 1992, DeSousa served four and one-half years in prison. He was released from prison on December 15, 1996.

As an alien convicted of two crimes of moral turpitude and also as an aggravated felon, DeSousa became subject to deportation under the Immigration and Nationality Act ("INA") S 241(a)(2)(A)(ii), 8 U.S.C.S 1251(a)(2)(A)(ii) (two crimes of moral turpitude), and S 241(a)(2)(A)(iii), 8 U.S.C. S 1251(a)(2)(A)(iii) (aggravated felony).¹ On October 28, 1996, the INS issued an order to DeSousa to show cause why he should not be deported because of his criminal convictions.

At his immigration hearing, DeSousa sought to prevent his deportation by applying for a discretionary waiver of inadmissibility under former S 212(c) of the INA, codified at 8 U.S.C. S 1182(c) (repealed 1996). At the time of DeSousa's convictions, S 212(c) permitted the Attorney General, in her discretion, to issue waivers to legal aliens who had traveled abroad voluntarily and were seeking entry back into the country but who would be excludable based on their criminal convictions. See former 8 U.S.C.S 1182(c) (1990).² Although the waiver provision applied on its face only to aliens in exclusion proceedings, the BIA and federal courts routinely had applied it to aliens in deportation proceedings as well. See, e.g., Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).³ Moreover, at the time of DeSousa's latest conviction in 1992, S 212(c) waivers were unavailable only to those aliens who had been convicted of an aggravated felony, and who had served a term of imprisonment of at least five years for such felonies. See former 8 U.S.C. S 1182(c) (1990). Although DeSousa's convictions qualified as aggravated felonies, see 8 U.S.C. S 1101(a)(43) (1990), he nevertheless would have been eligible for a waiver under the previous version of S 212(c) because he had served a prison term of only four and one-half years for his convictions.

The immigration judge found, however, that DeSousa was not eligible for the waiver under the new version of S 212(c) enacted by S 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). As amended, S 212(c) precludes "deportable" aliens who have been convicted of an aggravated felony or two crimes of moral turpitude from receiving waivers of inadmissibility, regardless of the prison term served for such crimes. See AEDPA S 440(d).⁴

The BIA affirmed the immigration judge's decision. Although DeSousa argued that new S 212(c) violated his right to equal protection by withdrawing waivers only from aliens in deportation proceedings, rather than from those in exclusion proceedings, the BIA, stating that it could not rule on the constitutionality of laws enacted by Congress, did not consider this argument on the merits.

DeSousa then brought a habeas corpus proceeding in the district court under 28 U.S.C. S 2241 challenging the BIA's final order. See DeSousa v. Reno, 30 F. Supp.2d 844 (E.D. Pa. 1998). First, he contended that the BIA had erred in applying the new S 212(c) to him because his criminal convictions predated AEDPA's amendment of the statute. Second, DeSousa argued that even if new S 212(c) did apply to pre-AEDPA convictions, it violated the Fifth Amendment's equal protection guarantee by preventing only aliens in deportation proceedings, rather than those in exclusion proceedings, from applying for waivers. Thus, DeSousa sought an order directing the BIA to consider and rule on the merits of his application for a S 212(c) waiver. The Attorney General and the INS opposed DeSousa's application for a writ, arguing primarily that AEDPA as well as IIRIRA had eliminated habeas corpus jurisdiction over deportation-related claims.

After a de novo review of a magistrate judge's report and recommendation, the district court granted a writ to DeSousa. It concluded first that neither AEDPA nor IIRIRA had eliminated its habeas jurisdiction over cases like DeSousa's. See DeSousa, 30 F. Supp.2d at 849. Then, it found that AEDPA S 440(d), which amended the INA waiver of inadmissibility provision, applied to cases pending at the time of its enactment and therefore also applied to DeSousa even though his criminal convictions predated AEDPA's effective date. See id. at 855. The court also ruled, however, that the amended S 212(c) violated DeSousa's right to equal protection of the law by drawing an irrational distinction between aliens subject to exclusion and those subject to deportation. See id. at 857. The Attorney General and the INS appeal, arguing that the court erred in finding habeas jurisdiction, and that even if such jurisdiction exists, S 212(c) is constitutional.

IV. DISCUSSION

A. Standard of Review

The district court's conclusion that AEDPA and IIRIRA did not eliminate habeas corpus jurisdiction over all deportation-related claims and that S 440(d) applies to pre- AEDPA convictions relies on statutory interpretation, which we review de novo. See Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998). We also afford de novo review to the district court's conclusions regarding the constitutionality of S 440(d). See Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 169 (3d Cir. 1999).

B. Did the District Court Have Jurisdiction Under 28 U.S.C. S 2241 to Review DeSousa's Habeas Petition Challenging His Final Deportation Order on Constitutional and Statutory Grounds?

Recognizing that we recently have addressed the availability of habeas corpus jurisdiction after AEDPA and IIRIRA, the Attorney General and INS argue that a later Supreme Court decision requires us to reconsider our opinion in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999). In Sandoval, as in this case, an alien sought habeas corpus review of a deportation order approved by the BIA. We held that the district courts continued to have habeas corpus jurisdiction to review deportation orders despite changes in the law created by AEDPA and IIRIRA. See Sandoval, 166 F.3d at 238. The Attorney General and INS claim that Reno v. American-Arab Committee, 119 S.Ct. 936 (1999), undermines this conclusion.

1. Sandoval v. Reno

In Sandoval, we addressed a case nearly identical to this one. Sandoval, like DeSousa, had petitioned for a writ of habeas corpus in a district court seeking relief from a deportation order. See Sandoval, 166 F.3d at 228. Because the effective date of most IIRIRA provisions was...