Goncalves v. Reno

• Citation: 144 F.3d 110
• Decision Date: 09 January 1998
• Docket Number: No. 97-1953,97-1953
• Parties: Raul Percira GONCALVES, Petitioner, Appellant, v. Janet RENO, Attorney General of the United States; Dorris Meissner, Commissioner of the Immigration and Naturalization Service; Steve Farquharson, INS District Director, Boston District; Department of Justice; and Immigration and Naturalization Service, Respondents, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 110

144 F.3d 110

Raul Percira GONCALVES, Petitioner, Appellant, v. Janet RENO, Attorney General of the United States; Dorris Meissner, Commissioner of the Immigration and Naturalization Service; Steve Farquharson, INS District Director, Boston District; Department of Justice; and Immigration and Naturalization Service, Respondents, Appellees.

No. 97-1953.

United States Court of Appeals First Circuit.

Heard Jan. 9, 1998.

Decided May 15, 1998.

Frederick Q. Watt, with whom Watt & Sylvia and Lee Gelernt, Lucas Guttentag, Cecillia Wang, Michael Wishnie and the American Civil Liberties Union Immigrants' Rights Project were on brief, for appellant.

Frank W. Hunger, Assistant Attorney General, Civil Division, with whom William J. Howard, Senior Litigation Counsel, and Edward J. Duffy, Attorney, Civil Division, Office of Immigration Litigation, United States Department of Justice were on brief, for appellees.

Gerald L. Neuman and Lenni B. Benson for amici curiae Debra Anker, Lecturer in Law, Harvard Law School; Prof. Lenni B. Benson, New York Law School; Carolyn Patty Blum, Lecturer in Law, University of California at Berkeley School of Law; Prof. Richard A. Boswell, Hastings College of the Law, University of California; Prof. Erwin Chemerinsky, University of Southern California; Prof. David D. Cole, Georgetown University Law Center; Prof. Michael J. Churgin, University of Texas School of Law; Prof. Mary L. Dudziak, University of Iowa College of Law; Prof. Joan M. Fitzpatrick, University of Washington School of Law; Prof. Maryellen Fullerton, Brooklyn Law School; Prof. Kevin R. Johnson, University of California at Davis School of Law; Prof. Daniel Kanstroom, Boston College Law School; Prof. Harold Hongju Ko, Yale Law School; Prof. Stephen H. Legomsky, Washington University School of Law; Prof. Hiroshi Motomura, University of Colorado School of Law; Prof. Gerald L. Neuman, Columbia University School of Law; Prof. Carol Sanger, Columbia University School of Law; Prof. John Scanlan, Indiana University School of Law at Bloomington; Prof. Peter H. Schuck, Yale Law School; Prof. Peter J. Spiro, Hofstra University School of Law; Prof. Margaret H. Taylor, Wake Forest University School of Law; Prof. Larry W. Yackle, Boston University School of Law. ^*

Linton Joaquin and Manuel D. Vargas for amici curiae National Immigration Law Center and American Immigration Lawyers Association.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Raul Goncalves has been a permanent resident alien for twenty-five years, ever since he arrived in the United States at the age of three, and now is subject to deportation because he has committed crimes of moral turpitude such as theft, possession of marijuana and the like. He filed an application in 1994 for discretionary relief from deportation with the immigration authorities under § 212(c) of the Immigration and Nationality Act (INA), as the law permitted him to do.

While Goncalves' application was still pending, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which, at § 440(d), restricted the availability of discretionary relief. The question then arose as to whether Congress intended these restrictions to apply retroactively. The Board of Immigration Appeals (BIA) said that Congress did not intend the restrictions to be fully retroactive, and that at least those aliens whose applications were pending on the date of AEDPA's enactment, like Goncalves, could continue to pursue their applications for relief. The Attorney General disagreed, reversed the BIA, and required the dismissal of all pending applications for § 212(c) relief (even appeals from cases where immigration judges had said relief should be granted). As a result, Goncalves' application was dismissed without being heard by the BIA and he was taken into custody by federal officials.

Goncalves filed a petition for habeas corpus in the district court, rather than filing for direct review in this court. This he was required to do by the precedent of this court. See Kolster v. INS, 101 F.3d 785 (1st Cir.1996). The district court dismissed the petition, finding the Attorney General, and not the BIA, was correct in the interpretation of the statute.

Goncalves appealed, raising pure issues of law, including a challenge to the Attorney General's interpretation of the statute and constitutional claims. The Attorney General defends on two fronts. Goncalves filed in the wrong court, she says. He should have filed in the court of appeals, he missed the deadline to do so, and so the case must be dismissed. In fact, she says, Congress sub silentio stripped the district courts of their traditional habeas jurisdiction under 28 U.S.C. § 2241 to hear claims of the type Goncalves asserts. Secondly, she says, no court may review her decision as to whether Congress intended the restrictions in AEDPA § 440(d) to apply to pending applications. Congress exempted her decision from any judicial review when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C., 110 Stat. 3009-546 (enacted Sept. 30, 1996). In any event, she argues, her decision is entitled to deference. We find the Attorney General's arguments unpersuasive and agree that Goncalves may still pursue his claim for § 212(c) relief. We reverse and remand this case to the BIA.

A summary of our reasoning may be helpful. This case presents two sets of major issues. The first is which federal court, if any, has jurisdiction to hear Goncalves' claims. We conclude that Congress has divested the United States Courts of Appeals of their former statutory jurisdiction to hear such cases on direct review of the administrative agency's decision. We further conclude, following Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), that Congress neither explicitly nor by implication repealed the grant of jurisdiction in 28 U.S.C. § 2241 to issue writs of habeas corpus to persons in federal custody which the federal district courts have had since 1789 and which has always been available in immigration cases.

If there is jurisdiction, we ask whether Congress intended nevertheless to restrict the scope of review to preclude review of Goncalves' claims. To the extent that Congress intended to narrow the scope of review of discretionary decisions by the administrative agency, we note that this case does not involve any such exercise of discretion, but rather concerns a pure issue of law. That pure issue of law, of whether Congress intended to make a particular provision of a statute retroactive, is of a type traditionally resolved by the courts. We discern no intent by Congress to restrict the scope of judicial review of that question. Our conclusion avoids the need to reach novel and complex constitutional issues under the Suspension Clause, Article III, the Due Process Clause and the Equal Protection Clause.

The second major set of issues addresses the merits: is the Attorney General correct in her interpretation that AEDPA § 440(d), as amended by IIRIRA, eliminates eligibility for § 212(c) relief retroactively for aliens convicted of crimes involving moral turpitude? We analyze the question under Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997), cases concerning the temporal application of new statutes. We conclude, contrary to the Attorney General, that Congress did not intend its new provisions restricting such discretionary relief to apply retroactively. The statute's text reveals numerous instances where Congress used explicit language to make its new restrictions apply retroactively; for example, it used such language with respect to alien terrorists. But there is no such explicit text as to aliens in Goncalves' position.

We check our interpretation of the text against the legislative history to ensure we have not gone astray. That history shows three things. First, Congress expressly considered a provision which would have explicitly made the new restrictions on § 212(c) relief applicable retroactively and chose not to enact that provision. Second, Congress was keenly aware of the problem of whether restrictions on relief should apply retroactively. Third, Congress enacted IIRIRA against the backdrop of an administrative ruling by the BIA that the restrictions on § 212(c) relief for aliens convicted of crimes involving moral turpitude, contained in AEDPA § 440(d), was not fully retroactive and did not apply to pending applications. In the face of that ruling, the same Congress that had enacted AEDPA chose, in IIRIRA, not to amend AEDPA explicitly to provide that the AEDPA § 440(d) restrictions applied retroactively. It made that choice even though, in IIRIRA § 306, it amended AEDPA § 440(d), the very subsection at issue, in other respects. We therefore conclude that the BIA is required to consider Goncalves' application for § 212(c) relief from deportation. Whether the immigration authorities grant or deny that application, is, of course, within their discretion.

I. Facts and Procedural History

Raul Percira Goncalves is a lawful permanent resident of the United States. He committed a series of thefts, he says while under the influence of alcohol, and was incarcerated. He has been convicted of charges of breaking and entering, larceny, possessing burglary tools, receiving stolen property, and one charge of possession of marijuana. Those non-violent offenses, Goncalves conceded, are crimes "involving moral turpitude" and subjected him to deportation. See Immigration and Nationality Act (old INA) § 241(a)(2)(A)(ii), House Judiciary Comm. Print, 104th Cong., 1st Sess. (10th ed.1995) (reflecting laws enacted as of ...