Mattis v. Reno

• Decision Date: 06 March 2000
• Docket Number: No. 99-1429,99-1429
• Citation: 2000 WL 554957,212 F.3d 31
• Parties: (1st Cir. 2000) DWIGHT W. MATTIS, PETITIONER, APPELLANT, V. JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL., RESPONDENTS, APPELLEES. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 31

212 F.3d 31 (1st Cir. 2000)

DWIGHT W. MATTIS, PETITIONER, APPELLANT,

V.

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL RESPONDENTS, APPELLEES.

No. 99-1429

United States Court of Appeals For the First Circuit

Heard March 6, 2000

Decided May 8, 2000

Christopher J. Meade, American Civil Liberties Union, with whom Allan M. Tow was on brief, for petitioner, appellant.

Lyle D. Jentzer, Attorney, Office of Immigration Litigation, Civil Division, U.S Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Norah A. Schwarz, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondents, appellees.

Before Boudin, Stahl, and Lynch, Circuit Judges.

Lynch, Circuit Judge.

Before April 1996, lawful permanent resident aliens who were deportable because they had committed certain criminal offenses had one last hope to remain in the United States. They could apply for a waiver of deportation, technically known as a § 212(c) waiver, and the Attorney General, by act of grace, could grant relief. ¹ The act of grace was not rare: in the years immediately preceding the statute's passage, over half the applications were granted. See Mojica v. Reno, 970 F. Supp. 130, 178 (E.D.N.Y. 1997); cf. Wallace v. Reno, 24 F. Supp. 2d 104, 110 (D. Mass. 1998).

Congress changed this in April of 1996 when it passed AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996, Pub. Law No. 104-132, 110 Stat. 1214. In AEDPA § 440(d), Congress eliminated § 212(c) relief for a significant number of criminal aliens. In September of 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. Law No. 104-208, 110 Stat. 3009-546. IIRIRA eliminated § 212(c) relief altogether and replaced it with a new form of relief, "cancellation of removal." See 8 U.S.C. § 1229b. Compared with pre-AEDPA § 212(c) relief, this new form of relief applies to a much smaller group of aliens who have committed crimes. Compare id. § 1229b(a), with INA § 212(c), 8 U.S.C. § 1182(c) (1994).

Some deportable aliens, as a result, have been caught in the transition between the different legal schemes established by these statutory changes. Thus, a series of questions has arisen as to which aliens are subject to which rules. Congress was not explicit in this regard, and so it has fallen to the courts to try to best determine what Congress intended and, failing that, which judicial default rules should apply.

This case is the third in a trilogy of cases that has dealt with those types of questions. The first question was whether § 212(c) relief had been eliminated for deportable aliens who had applications for such relief pending when AEDPA became effective. We answered that question "no" in Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir. 1998), cert. denied, 526 U.S. 1004 (1999). The second question was whether such relief was nonetheless eliminated as to aliens who had not applied for § 212(c) relief prior to AEDPA's effective date but against whom deportation proceedings had begun as of that date. We answered that question "no" in Wallace v. Reno, 194 F.3d 279, 285 (1st Cir. 1999).

This case presents a third question, one which we expressly reserved in Wallace: whether § 212(c) relief was eliminated for aliens whose convictions predated AEDPA's passage but who were not placed into deportation proceedings until after AEDPA's passage. See id. at 287. We answer "yes, except." The "except" is for cases where the deportable alien has demonstrated to the INS that, prior to AEDPA's passage, he or she actually relied on the availability of § 212(c) relief in entering a guilty plea or not contesting a criminal charge. For the reasons stated herein, we affirm the dismissal of the habeas petition and vacate the stay of deportation. ²

I.

Dwight W. Mattis is a native and citizen of Jamaica. In February 1989, at the age of sixteen, he entered the United States as a lawful permanent resident and has been here since. He is married to a U.S. citizen and he has a child. The rest of his family is in this country. For several years, he ran two beauty salons in Springfield, Massachusetts, that had several employees. He lives within walking distance of his parents' home and has occasionally given them financial support.

On January 22, 1997, the INS issued an Order to Show Cause against Mattis, charging him with deportability as an alien convicted of a controlled substance violation under former INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994), and as an alien convicted of an aggravated felony under former INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994). ³ The charges were based upon convictions for five different offenses: (1) a 1991 conviction for possession of cocaine; (2) a 1992 conviction for possession of cocaine; (3) a 1994 conviction for possession of marijuana; (4) a 1995 conviction for trafficking in cocaine; and (5) a 1995 conviction for statutory rape. ⁴ At his deportation hearing, Mattis admitted the INS's allegations and made no objection to the INS's entry into evidence of certified copies of the convictions. Mattis sought relief in the form of a discretionary waiver of deportation under INA § 212(c).

After the hearing, the IJ ruled that the INS had proven, by clear and convincing evidence, that Mattis was deportable. Specifically, the IJ found that the INS had established deportability on two grounds: (1) Mattis's conviction of a controlled substance offense under former INA § 241(a)(2)(B)(i), and (2) his convictions of aggravated felonies under former INA § 241(a)(2)(A)(iii), pursuant to three separate statutory definitions of "aggravated felony." Mattis's aggravated felonies included (1) trafficking in cocaine, which is an aggravated felony under INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B); (2) statutory rape, which is an aggravated felony under INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A); and (3) statutory rape, which is also an aggravated felony under INA § 101(a)(43)(F), 8 U.S.C. § 1101(a)(43)(F). Applying AEDPA § 440(d), the IJ denied Mattis's application for § 212(c) relief because he was deportable by reason of having been convicted of an aggravated felony. The BIA upheld this decision. ⁵

The "aggravated felony" point has some importance. IIRIRA expanded the definition of "aggravated felony." See IIRIRA § 321. Under former INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (1994), only Mattis's cocaine trafficking conviction would have constituted an aggravated felony conviction. The expanded definition of "aggravated felony," which renders Mattis's statutory rape conviction an aggravated felony on two grounds, applies to Mattis, since "action" was taken on his case after IIRIRA's passage. See IIRIRA § 321(c); Choeum v. INS, 129 F.3d 29, 36-37 (1st Cir. 1997).

Mattis filed a petition for habeas corpus in the district court pursuant to 28 U.S.C. § 2241, seeking review of the BIA's decision. ⁶ Mattis argued there, as he does here, that applying AEDPA § 440(d) to preclude him from eligibility for a § 212(c) waiver of deportation constitutes an impermissible retroactive application of the section because his guilty pleas pre-dated AEDPA's passage. The district court dismissed his petition, finding that applying AEDPA § 440(d) to Mattis would not have a retroactive effect. See Mattis v. Reno, 44 F. Supp. 2d 379, 383-84 (D. Mass. 1999). The district court reasoned that because the INS had not instituted deportation proceedings against Mattis until nine months after he pled guilty to the 1995 charges, Mattis could not have had a reliance interest in the availability of § 212(c) relief when he pled guilty. See id. at 384. Mattis then filed this appeal.

The petition involves a pure issue of law and review is de novo. See Goncalves, 144 F.3d at 116.

II.

A. Statutory Provisions

AEDPA § 440(d) narrowed the availability of § 212(c) relief by rendering ineligible (for withholding of deportation) any alien deportable because of, inter alia, an aggravated felony conviction, regardless of the amount of time served. ⁷ See AEDPA § 440(d) (removing availability of § 212(c) relief for aliens who are "deportable by reason of having committed any criminal offense" covered in, inter alia, INA § 241(a)(2)(A)(iii) (aggravated felons)). Section 440(d), unlike some other sections of AEDPA, has no specified temporal reach. See Wallace, 194 F.3d at 286 (stating that certain sections of AEDPA are expressly retroactive and others expressly prospective, while § 440(d) contains no such express provisions).

Absent § 440(d), Mattis would have been eligible for consideration for § 212(c) relief at his deportation hearing. By the time the Show Cause Order issued, Mattis had apparently maintained seven consecutive years of residency in the United States, ⁸ and he had served less than five years in prison for his aggravated felony convictions. There is also no question that Mattis would be ineligible for § 212(c) relief if AEDPA § 440(d) applies to him. ⁹

B. Retroactivity Analysis

The "presumption against retroactive legislation is deeply rooted in our jurisprudence," and the "principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994) (internal quotation marks and citation omitted). Accordingly, absent Congress's clear intent to the contrary, we presume that a law will not apply retroactively to conduct that occurred prior to the law's enactment. See Hughes Aircraft Co. v. United States, 520 U.S. 939, 946 (1997). Thus, we first attempt to discern congressional intent. If that intent is not clear, a second-level inquiry must be made to ascertain whether applying the law to the conduct at issue would have a "retroactive effect," id., as a law does not operate...