89 F.3d 490 (7th Cir. 1996), 95-3677, Reyes-Hernandez v. I.N.S.

Docket Nº:95-3677.
Citation:89 F.3d 490
Party Name:Antonio REYES-HERNANDEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:July 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 490

89 F.3d 490 (7th Cir. 1996)

Antonio REYES-HERNANDEZ, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-3677.

United States Court of Appeals, Seventh Circuit

July 17, 1996

Argued May 16, 1996.

Page 491

Javier H. Rubinstein, Gary S. Feinerman, Mayer, Brown & Platt, Chicago, IL, Lucas Guttentag, American Civil Liberties Union Foundation, New York City, Arthur A. Liberty, Park Forest, IL, for Petitioner.

Philemina Jones, Michele Y.F. Sarko, Department of Justice, Office of Immigration Litigation, Washington, DC, Samuel Der-Yeghiayan, Immigration and Naturalization Service, Chicago, IL, David M. McConnell, Stephen W. Funk, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, Chief Judge, and ESCHBACH and ROVNER, Circuit Judges.

POSNER, Chief Judge.

The petitioner is a 45-year-old citizen of Mexico who became a lawful permanent resident of the United States in 1981 following his marriage to a U.S. citizen named Gail Reyes. He has three children who are U.S. citizens. He and his wife divorced in 1986, shortly before his conviction in a state court for unlawful possession of cocaine. He was sentenced to probation for that offense. Three years later he was arrested and convicted of a similar charge. After his release from prison the following year, he and Gail remarried and there is substantial evidence that he is fully rehabilitated and that deporting him would be a considerable hardship to Gail, who has health problems.

The petitioner conceded deportability but applied for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). That provision has been interpreted to give the Attorney General discretionary authority to waive the deportation of deportable aliens who have been lawful permanent residents of the United States for at least seven consecutive years. Cordoba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir.1991). No standard for guiding this discretion is set forth in the statute, but the Board of Immigration Appeals--the Attorney General's delegate for the exercise of the statutory discretion-considers the hardship to the deportee and other equitable factors bearing for and against the deportee's plea to be allowed to remain. In re Marin, 16 I. & N. Dec. 581, 585 (B.I.A.1978). An immigration judge conducted an evidentiary hearing on Reyes-Hernandez's application and concluded that it should be denied. The Board of Immigration Appeals affirmed this denial in October of last year, issuing a final order of deportation, and the petitioner seeks our review of that order pursuant to 8 U.S.C. § 1105a(a), which gives the federal courts of appeals exclusive jurisdiction to review such final orders.

On April 24 of this year, shortly before the oral argument of the appeal, the President signed into law the Antiterrorism and Effective

Page 492

Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. Section 440(a) of the Act, amending section 106(a)(10) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a)(10), provides that "any final order of deportation against an alien who is deportable by reason of having committed" certain criminal offenses, including those of which this petitioner was convicted, "shall not be subject to review by any court." And section 440(d) of the new Act amends section 212(c) of the Immigration and Nationality Act to make such aliens ineligible for relief under that section. The new Act does not specify the effective date of these two sections, 440(a) and 440(d). The government, contending that they took effect the minute the President signed the Act into law, filed a motion on May 9 asking us to dismiss the petition for review on the basis of these two sections of the new Act, which if applicable disentitle the petitioner to relief as well as to any judicial review of the denial of his application for relief. We invited full briefing of the issue. The briefs have been submitted and the appeal is ripe for decision.

A statute that diminishes substantive rights, or remedies, or augments substantive liabilities, or sanctions, will not be applied retroactively, which is to say to events completed before the effective date of the statute (or the date of enactment if no separate effective date is stated), unless the statute provides explicitly for retroactive application. Landgraf v. USI Film Products, 511 U.S. 244, ---- - ----, 114 S.Ct. 1483, 1498-1502, 128 L.Ed.2d 229 (1994). This means that (with the same qualification--the lack of a clear statement in the legislation that it is to be applied retroactively) such a statute will not be applied to pending cases, because a pending case will, with the exception of a suit to enjoin a continuing or prospective harm, have grown out of events completed before the case began. In contrast, jurisdictional and procedural provisions normally are applied to pending cases despite the absence of a clear statement of legislative intent to do so. Id. at ---- - ----, 114 S.Ct. at 1501-02. People normally don't rely on such provisions in planning and conducting the affairs of life, and...

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