Lee v. Reno, Civ.A. 97-2308(JHG).

• Decision Date: 27 July 1998
• Docket Number: No. Civ.A. 97-2308(JHG).,Civ.A. 97-2308(JHG).
• Court: U.S. District Court — District of Columbia
• Parties: Hsue Li LEE, Petitioner, v. Janet RENO, Attorney General of the United States, Respondent.

15 F.Supp.2d 26

Hsue Li LEE, Petitioner, v. Janet RENO, Attorney General of the United States, Respondent.

No. Civ.A. 97-2308(JHG).

United States District Court, District of Columbia.

July 27, 1998.

COPYRIGHT MATERIAL OMITTED

Ronald Lee Castle, Lynda Zengerle, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for Hsue Li Lee, petitioner.

Suzanne Claire Nyland, U.S. Attorney's Office, Washington, DC, for Janet Reno, Attorney General of the United States, respondent.

Lee Gelernt, Lucas Guttentag, Cecilia Wang, Michael Wishnie, New York City, for American Civil Liberties Union Immigrants' Rights Project, Amicus.

OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

Recent sweeping changes to the nation's immigration laws, passed by Congress and signed by President Clinton in 1996, have presented a number of difficult interpretive issues to the federal courts. This is one of those cases — one that raises two very important questions of statutory and, potentially, constitutional interpretation. The first is whether Congress intended only to streamline judicial review of final orders of deportation or whether it intended to remove federal courts from the picture altogether. If it is the latter intent, the question arises as to whether the Constitution imposes limits on Congress's ability to sideline the federal judiciary in this context. The second question of interpretation concerns whether Congress intended one of the 1996 statutes to apply retroactively so as to eradicate all pending applications for a waiver of deportation filed by aliens facing deportation for reasons of prior criminal convictions.

With respect to the issue of federal court jurisdiction, the applicable provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") provides in part that except as otherwise stated in § 1252 of the Immigration and Nationality Act ("INA") and "notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim" related to the Attorney General's decision to deport an alien. Pub.L. No. 104-208, Div.C., § 306, 110 Stat. 3009-546 (enacted Sept. 30, 1996). An average reader might well conclude that Congress intended the agency's decision to be the final decision, with no recourse to the judicial branch of government available. Such a reader might be surprised to learn that the majority of courts that have interpreted the above-quoted language have concluded that the doors of the federal courts remain open to persons seeking to challenge such agency decisions. Indeed, even counsel for the Government does not argue that the statute really means that no court is available to hear petitions for habeas corpus, only that this Court cannot hear this case.

To understand this puzzling position, it is necessary to explore certain sophisticated understandings that have arisen between the legislative, executive, and judicial branches regarding how statutes that test the reach of Congress's power under the Constitution will be interpreted by the courts. In the final analysis, this Court joins those that have held that Congress did not intend to deprive federal district courts of jurisdiction to hear cases such as this.

Because jurisdiction is present, the Court also addresses the merits of this case concerning retroactive application of the 1996 legislation. To understand the merits, more detail is in order. Hsue Li Lee (a.k.a. "Davy Lee" and hereafter "Lee"), a legal permanent resident in the United States for twenty-six years, has been ordered by the United States Immigration and Naturalization Service ("INS") to be deported to Taiwan. Lee has filed a petition for a writ of habeas corpus, asking this Court to review the legality of his detention by the INS. He admits that he is "deportable" because he fired a handgun at some road signs in rural Virginia in 1988, and has a prior burglary conviction, but he says that he should not be deported without receiving a hearing on his application for a waiver of deportation.¹

Lee filed his application for a waiver near the end of 1994, and his application remained pending for nearly two years while he was released on bail. When the INS took up Lee's application, it refused to consider whether it should give Lee such a waiver because Attorney General Reno had determined that Congress meant to extinguish all pending applications for waivers, such as Lee's, when it passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, § 440(d), 110 Stat. 1214 (Apr. 24, 1996). For the reasons stated below, the Court holds that the Attorney General erroneously interpreted AEDPA and that Lee is entitled to have a hearing before the INS on whether he should receive a waiver of deportation.

I.

For purposes of the present motion, the facts alleged by Lee are taken to be true. Lee was born in Taiwan in February 1963. At that time, his father was a permanent resident of the United States. In February 1972, just shy of Lee's eighth birthday, Lee, his mother, and his siblings entered the United States. He has remained in this country since that time.

A.

During high school, Lee began to abuse alcohol, and he began to get into trouble. When he was 18, he was convicted of petty larceny. Shortly after serving one month of a year-long sentence, he traveled to Illinois, became intoxicated, and engaged in acts that led to a burglary conviction. He served 12 months of a three-year sentence. In 1984, Lee violated the terms of his probation by traveling to California without advising his probation officer. He was extradited to Illinois, where the three-year sentence was reimposed. There is no dispute that under 8 U.S.C. § 1251(a)(4), these convictions rendered Lee a "deportable alien." Although the INS was made aware of Lee's incarceration in Illinois, the agency did not initiate deportation proceedings at that time.

In September 1988, Lee was arrested for having shot some road signs in rural Virginia with his hand gun. He was drunk at the time. Lee was convicted on three misdemeanor counts of: (1) discharging a firearm along a road, (2) destruction of property, and (3) reckless handling of a firearm. Lee disputes whether, under the INA, these misdemeanor counts were "crimes of moral turpitude" that would have independently rendered him deportable, but he acknowledges that a subsequent amendment to the INA, Pub.L. No. 100-690 § 7344(a), codified as 8 U.S.C. § 1251(a)(14) (West Supp.1989), explicitly made retroactive by Congress, rendered him deportable for the shooting incident. See Pet.'s Mem. at 6.

In December 1989, shortly after serving his sentence on the misdemeanor convictions, Lee received another in a series of citations for driving while intoxicated. He was charged as a habitual offender, and he received a five-year sentence, of which he served approximately 15 months. He was released in March 1991.

B.

In September 1991, Lee met Elaine ("Poore") Vasbinder ("Poore"), and his life took a turn for the better. Poore is a United States citizen who was separated from her husband, David Vasbinder ("Vasbinder"), at the time she met Lee. Poore was living on public assistance with her father, stepmother, and her partially-disabled son, Jonathan. Under the terms of an August 1991 consent order, Poore and Vasbinder had agreed that Poore would have permanent custody of Jonathan; Vasbinder would provide interim child support.

Lee moved in with Poore and her family shortly after they met. He secured employment, began to participate in Alcoholics Anonymous, and sought out individual therapy to help him overcome his dependence on alcohol. Shortly after meeting Lee, Poore also secured employment and became independent of public assistance. Since 1991, Lee has not consumed alcohol. Lee's only post-1991 trouble with the law resulted in several months of incarceration after he refused to go to a live-in rehabilitation program, as directed by his probation officer. Poore 2d. Aff. ¶¶ 19-20.

Lee and Poore discussed the prospect of marrying after Poore's divorce from Vasbinder became final. However, progress toward an uncontested divorce was blocked by disagreements over alimony, the division of assets, and the amount of child support. In August 1992, Vasbinder sued for divorce, and Poore cross billed for adultery. After contentious discovery, trial was set for September 1993, and was subsequently continued. Poore and Lee had agreed that they would marry promptly after the final divorce decree was entered. In October 1993, Poore, with Lee's support, rejected a settlement and pressed ahead for trial.

In December 1993, INS officers arrested Lee and served him with an order to show cause why he should not be deported as a result of his 1988 criminal conviction—the sign-shooting incident. Poore realized that were she to marry Lee, it might provide a basis to prevent Lee's deportation. As a result, in December 1993, she offered Vasbinder a divorce settlement on nearly the same terms he had offered in October. Nonetheless, Vasbinder was slow to respond. Ultimately, they reached a settlement, and a final divorce decree was entered on April 18, 1994. Lee and Poore obtained a marriage license on April 12, and they were wed on April 21, 1994.

C.

The timing of Lee's marriage to Poore had significant consequences with respect to his deportation proceedings. Lee contends that at the time of his arrest, certain factors weighed in favor of his obtaining a waiver of deportation under Section 212(c) of the INA, codified as 8 U.S.C. § 1182(c) [hereafter "§ 212(c)"], such as his length of residence in the United States, his lack of connections in Taiwan, his employment history, and the nature, severity, and age of the crimes rendering him deportable. See Mojica v. Reno, 970 F.Supp. 130, 178-79 (E.D.N.Y.1997). Arguably these considerations were irrelevant because the above-mentioned post facto amendments to the INA foreclosed...