LaFontant v. I.N.S.

• Decision Date: 10 February 1998
• Docket Number: No. 96-1310,96-1310
• Parties: Jean Fritzner LaFONTANT, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 158

135 F.3d 158

328 U.S.App.D.C. 359

Jean Fritzner LaFONTANT, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 96-1310.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 21, 1998.

Decided Feb. 10, 1998.

Susan M. Demske, student counsel, Washington, DC, argued the cause for petitioner, with whom Steven H. Goldblatt, appointed by the Court, and Catherine E. Lhamon, Washington, DC, were on the briefs.

Lisa M. Arnold, Attorney, United States Department of Justice, Washington, DC, argued the cause for respondent, with whom Frank W. Hunger, Assistant Attorney General, and Michael P. Lindemann, Assistant Director, were on the brief. Ethan B. Kanter, Attorney, Washington, DC, entered an appearance.

Before: EDWARDS, Chief Judge, WALD and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioner Jean Fritzner LaFontant, a resident alien living in the United States, brought this action to challenge a deportation order issued by the Bureau of Immigration Appeals ("BIA") based on his multiple convictions for crimes involving moral turpitude, Immigration and Naturalization Act ("INA") § 241(a)(2)(A)(ii), 8 U.S.C.A. § 1251(a)(2)(A)(ii) (1995), and his firearm conviction, INA § 241(a)(2)(C), 8 U.S.C.A. § 1255(a) (1995). LaFontant claims that the BIA abused its discretion by failing to provide him with a waiver of inadmissibility, as provided by INA § 212(c), 8 U.S.C.A. § 1182(c) (1995), or an adjustment of status to lawful permanent resident, as provided by INA § 245(a), 8 U.S.C.A. § 1255(a) (1995). LaFontant further claims that application to LaFontant's petition for review of section 440(a) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended at 8 U.S.C.A. § 1105a) ("AEDPA"), which divests this court of jurisdiction to review certain deportation orders, would be impermissibly retroactive because it would attach new legal consequences to events completed before the Act's enactment. The government, in turn, argues that section 440(a) deprives this court of jurisdiction over LaFontant's petition for review. It explains that application of section 440(a) to LaFontant's petition is not impermissibly retroactive but is instead a permissible prospective application of a jurisdictional statute. We hold that section 440(a) of the AEDPA is not impermissibly retroactive as applied in this case. ¹ We therefore dismiss this case for lack of jurisdiction. We also hold that the fee requirements of the Prison Litigation Reform Act of 1996 ("PLRA"), Pub.L. No. 104-134, 100 Stat. 1321 (1996), do not apply to LaFontant's petition for review of the BIA's deportation order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jean Fritzner LaFontant was born in Haiti on October 23, 1957. Transcript at 32, In re LaFontant, No. 17-018-333, United States Department of Justice Executive Office for Immigration Review, Immigration Court (Dec. 7, 1995) ("Imm. Ct. Tr."). He entered the United States as a lawful permanent resident in 1966 at the age of eight and has not returned to Haiti since. Id. at 32. He does not speak Creole, the primary language spoken in Haiti, and his siblings and parents all live in the United States. Id. at 34, 68, 117-18. While residing in the United States, LaFontant has been employed as a bicycle carrier and has filed tax returns for years in which he earned more than $5,000. Id. at 36-37, 39-40.

At his deportation hearing on November 20, 1995, LaFontant acknowledged that he had been convicted on December 4, 1981, of the crimes of second degree burglary, grand larceny, and the unauthorized use of a vehicle in the District of Columbia. Id. at 42. The INS also presented evidence that he had pled guilty on December 4, 1981, to the crimes of receiving stolen property and carrying a dangerous weapon in the District of Columbia and, in 1994, had pled guilty to committing the crime of burglary in Alexandria, Virginia. Id. at 49-54.

During his testimony, LaFontant admitted that he had been arrested "roughly 20 or so" times. Id. at 42-43. A copy of LaFontant's "rap sheet" was introduced into evidence. Id. at 47, 86. The sheet indicated that from 1978 until he was placed into custody pending deportation proceedings, LaFontant had been arrested for forty-five crimes, eleven of which resulted in criminal convictions. See Joint Appendix ("J.A.") 147-56.

On November 30, 1994, while LaFontant was on probation, the INS detained him, took him into custody, and ordered him to show cause why he should not be deported. See Order to Show Cause and Notice of Hearing, No. A17-018-333, J.A. 112-18. LaFontant contested his deportability but presented no evidence to support his claims. See Imm. Ct. Tr. at 4-10. Instead, he relied entirely on his application for discretionary relief under INA § 212(c) (waiver of inadmissibility) and INA § 245(a) (adjustment of status to lawful permanent resident). On December 7, 1995, the Immigration Judge issued a decision holding that LaFontant was deportable under section 241(a)(2)(a)(ii) of the INA for having committed two crimes involving moral turpitude which did not arise out of a common scheme or plan and, under section 241(a)(2)(C) of the Act, for his firearms conviction. See In re LaFontant, No. 17-018-333, United States Department of Justice Executive Office for Immigration Review, Immigration Court (Dec. 7, 1995). The Immigration Judge found that LaFontant was statutorily eligible to be considered for a grant of discretionary relief under sections 212(c) and 245(a). Id. After weighing the equities, however, the Judge concluded that LaFontant's case did not merit a favorable exercise of discretion. Id.

LaFontant filed his notice of appeal to the BIA on December 18, 1995. The BIA, after weighing the factors for and against a granting of discretionary relief, also concluded that LaFontant was not entitled to discretionary relief in the form of either a waiver of inadmissibility or an adjustment of status. See In re LaFontant, No. 17-018-333, United States Department of Justice Executive Office for Immigration Review, B.I.A. (Aug. 22, 1996). Consequently, on August 22, 1996, the BIA dismissed the appeal. Id.

On April 24, 1996, while LaFontant's appeal was still pending before the BIA, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996. Section 440(a) of the Act provided that any final order of deportation against an alien who is deportable by reason of having committed a criminal offense shall not be subject to review by any court. Four months later, on August 30, 1996, LaFontant filed his petition for review with this court.

II. ANALYSIS

A. Jurisdiction

Prior to the enactment of the AEDPA, section 106(a)(1)-(6) of the INA authorized the circuit courts of appeals to review final orders of deportation from the BIA. Section 440(a) of the AEDPA amended section 106(a)(10) of the INA to exclude final orders of deportation entered against certain criminal aliens from judicial review. Section 440(a), as amended by section 306(d) of the Illegal Immigration and Immigrant Responsibility Act, provides:

(a) JUDICIAL REVIEW--Section 106 of the Immigration and Nationality Act (8 U.S.C. § 105a (a)(10)) is amended to read as follows:

"(10) Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i), shall not be subject to review by any court."

Pub.L. No. 104-132, § 440(a), 110 Stat. 1214, 1276 (1996), as amended by Pub.L. No. 104-208, § 306(d), 110 Stat. 3009 (1996). The statute did not specify an effective date. It was therefore effective on the date of enactment--April 24, 1996. See United States v. Shaffer, 789 F.2d 682, 686 (9th Cir.1986) (" 'In the absence of an express provision in the statute itself, an act takes effect on the date of its enactment.' ") (citation omitted). LaFontant's petition for review was not filed with this court until August 30, 1996.

LaFontant argues that section 440(a) of the AEDPA does not apply to him because such an application would have an impermissible retroactive effect. LaFontant explains that he made strategic choices concerning what to argue at his deportation hearing more than a year before the AEDPA was enacted, when deportable aliens were authorized to seek judicial review. Applying section 440 of the AEDPA to him would therefore attach new legal consequences to events completed before the Act's enactment, in violation of principles established by the Supreme Court in Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 1499-1500, 128 L.Ed.2d 229 (1994). The government, in turn, argues that application of section 440(a) to this case is not impermissibly retroactive, but is instead a permissible prospective application of a jurisdictional statute. The prohibitive nature of the bar holds especially true in this case, the government argues, because LaFontant's petition for review was not filed until four months after the AEDPA's enactment. In addition, the government notes that, with the exception of the Seventh Circuit, every circuit to consider this issue has held that section 440(a) applies to cases pending at the time of its enactment, justifying their immediate dismissal. We similarly find that application of section 440(a) to LaFontant's petition for review is not impermissibly retroactive and that we do not have jurisdiction to hear this case.

The Supreme Court established the framework for evaluating retroactivity in Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). The Court explained that "[w]hen a case implicates a federal statute...