Domond v. U.S. Imm'n and Natural'n Serv.

• Decision Date: 24 October 2000
• Docket Number: Docket No. 99-2619
• Citation: 244 F.3d 81
• Parties: (2nd Cir. 2001) GYNO DOMOND, Petitioner-Appellee, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 81

244 F.3d 81 (2nd Cir. 2001)

GYNO DOMOND, Petitioner-Appellee, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellant.

Docket No. 99-2619

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: Oct. 24, 2000.

Decided: March 23, 2001.

Appeal from judgment of the United States District Court for the District of Connecticut (Alan H. Nevas, Judge) finding that Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 8 U.S.C. § 1227 (Supp. IV 1998), does not retroactively eliminate eligibility for a hearing pursuant to former Section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182 (c) (1994).

Reversed.

JAMES K. FILAN JR., Assistant United States Attorney for the District of Connecticut, New Haven, Conn. (David W. Ogden, Acting Assistant Attorney General Civil Division, Stephen C. Robinson, United States Attorney for the District of Connecticut, Quynh Vu, Office of Immigration Litigation, Washington, D.C., on the brief) for Defendant-Appellant.

NANCY MORAWETZ, New York, NY (Michael G. Moore, Springfield, MA, on the brief) for Petitioner-Appellee.

Before: CARDAMONE, WINTER and POOLER, Circuit Judges.

POOLER, Circuit Judge:

Before Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), legal resident aliens facing deportation for the commission of crimes were entitled to Section 212(c) hearings, named for the section of the Immigration and Naturalization Act authorizing them. At a Section 212(c) hearing, deportees could win a discretionary waiver of deportation by arguing the equities weighed in favor of their remaining in the United States. Section 440(d) of AEDPA eliminated Section 212(c) hearings for certain criminal aliens when it went into effect on April 24, 1996. Congress simply chose not to afford those affected aliens any outlet to escape deportation. Gyno Domond came to the United States in 1985 from Haiti with his parents and obtained legal resident alien status in 1993. Domond committed the offense of robbery in November 1994, but Connecticut state court did not convict him of the crime until he pleaded guilty on November 8, 1996 to second-degree robbery. The Immigration and Naturalization Service ("INS") subsequently issued an order to show cause, charging Domond with being deportable because of his felony conviction. An immigration judge found Domond deportable as an alien convicted of an aggravated felony, robbery in the second degree. Domond's request for a Section 212(c) hearing was denied by an immigration judge, and the Board of Immigration Appeals denied his subsequent appeal because Domond's guilty plea came after AEDPA's effective date, even though his criminal conduct predated AEDPA's enactment. Domond filed a habeas corpus petition, pursuant to 28 U.S.C. § 2241, which the United States District Court for the District of Connecticut granted. The district court held that the laws in effect at the time of Domond's criminal conduct, that is, the laws in effect before AEDPA, should govern his deportation proceedings. See Dunbar v. Immigration & Naturalization Serv., 64 F. Supp. 2d 47, 53 (D. Conn. 1999). This appeal from the INS followed. For the reasons given below, we reverse.

BACKGROUND

For most of the past century, lawful permanent resident aliens convicted of certain crimes were deemed deportable, but they were able to apply for some form of discretionary relief from deportation. See St. Cyr v. Immigration & Naturalization Serv., 229 F.3d 406, 410 (2d Cir. 2000) (citing Francis v. Immigration & Naturalization Serv., 532 F.2d 268, 272-73 (2d Cir. 1976)) cert. granted, 121 S.Ct. 848 (2001).¹ Prior to the enactment of AEDPA in 1996, discretionary relief was available via a waiver of deportation, which allowed the Attorney General to "waive the grounds for deportation under certain conditions in the case of a lawfully admitted permanent resident in deportation proceedings." St. Cyr, 229 F.3d at 410; see also Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (repealed) (1994). Aliens were eligible to apply for these Section 212(c) waivers once they accrued seven years of lawful, permanent residence in the United States. See 8 U.S.C. § 1182(c) (repealed) (1994). So long as aliens met the residence requirements and were not convicted of an "aggravated felony," as defined in the statute, the Attorney General could chose to exercise her discretion to waive deportation. Id.

Congress decided to change the immigration statutory scheme by passing AEDPA, in part to increase the number of criminal aliens deported. See, e.g., H.R. Conf. Rep. No. 104-518, at 119 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 952. At issue here is AEDPA § 440(d), which eliminated Section 212(c) hearings for aliens convicted of certain crimes. See AEDPA § 440(d); Pub. L. No. 104-132, 110 Stat. 1214 et seq. (Supp. IV 1998). Subsequently, in September 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 100 Stat. 3009-546 et seq. IIRIRA repealed Section 212(c) altogether and replaced it with a different form of discretionary relief from deportation, known as cancellation of removal. See IIRIRA § 304(b), 110 Stat. at 3009-597; codified at 8 U.S.C. § 1229b (West 1998).

Caught in this web of statutory transition is Domond. As noted previously, immigration officials denied Domond discretionary relief from deportation because his conviction took place after AEDPA's enactment. Domond filed his habeas corpus petition in federal court, which the court heard in tandem with two similar habeas petitions. Domond argued that Section 440(d) should not apply to aliens whose criminal conduct occurred prior to AEDPA's effective date of April 24, 1996. Applying the retroactivity analysis set forth in Landgraf v. USI Film Prods., 511 U.S. 244 (1994), the district court held "petitioners should have their deportation proceedings governed by the laws that were in effect at the time they committed their crimes" and granted the writ. Dunbar, 64 F. Supp. 2d at 53. The INS appealed, and we review these matters of law de novo. See United States v. Figueroa, 165 F.3d 111, 114 (2d Cir. 1998).

DISCUSSION

A. Effect of St. Cyr

Shortly before oral argument in the matter before us, this Court issued its opinion in St.Cyr, which held that AEDPA's bar to a Section 212(c) hearing does not apply to aliens who pleaded guilty or nolo contendere prior to IIRIRA's and AEDPA's effective dates. See St.Cyr, 229 F.3d at 421. As a preliminary matter, we noted in St. Cyr:

[I]t is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct - as opposed to a plea going to the guilt of a deportable crime - constitutes an impermissible retroactive application of a statute. Indeed, we agree that,

It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation.

Id. at 418 (citations omitted). Although St. Cyr involved a different factual situation than the one before us, we reach the same result as the St. Cyr panel. We write to expand the analysis.

B. Retroactivity

We turn now to the issue of whether elimination of Section 212(c) hearings for those whose criminal conduct predates AEDPA's effective date but whose convictions post-date it is impermissively retroactive.² The presumption against retroactive legislation is "deeply rooted in our jurisprudence." Landgraf, 511 U.S. at 265. "Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." Id. at 265. Unless Congress clearly expresses its intent to the contrary, we presume that a law has no retroactive application to conduct predating it. See Hughes Aircraft Co. v. United States, 520 U.S. 939, 946 (1997). Retroactivity analysis requires two steps. First we ask whether Congress "expressly prescribed the statute's proper reach." Martin v. Hadix, 527 U.S. 343, 352 (1999) (citation omitted). If not, we proceed to the second step and determine whether applying the law to pre-enactment conduct would have a retroactive effect. See id. "If so, then in keeping with our 'traditional presumption' against retroactivity, we presume that the statute does not apply to that conduct." Id. (citation omitted).

The district court below extended our holding and discussion of retroactivity principles in Henderson v. Immigration & Naturalization Serv., 157 F.3d 106 (2d Cir. 1998), to the instant case. At issue in Henderson was the retroactive application of Section 440(d) to those aliens whose deportation cases began before AEDPA's enactment. See Henderson, 157 F.3d at 128. We held Section 440(d) posed no bar to Section 212(c) hearings when the deportation proceedings began before AEDPA's enactment. See id. at 130-31. As the district court recognized, we expressly declined in Henderson to reach the issue we face today: whether Section 440(d) applies to pre-AEDPA criminal conduct. See id. at 129 n.28. The district court then extended our holding in Henderson, and held that Congress knew how to make Section 440(d) explicitly apply retroactively but did not do so. See Dunbar, 64 F. Supp. 2d at 54. The district court then inferred that Congress did not intend to apply the section retroactively, as we did in Henderson. See id.; see also Henderson, 157 F.3d at 129.

We hold that the district court's extension of Henderson was erroneous because Domond's case raises a different issue than the one in Henderson. Here, the question is whether the lack of discretionary relief...