Mayers v. U.S. Dept. of I.N.S.

• Decision Date: 20 May 1999
• Docket Number: 98-8185,Nos. 97-5537,s. 97-5537
• Citation: 1999 WL 317121,175 F.3d 1289
• Parties: 12 Fla. L. Weekly Fed. C 891 Trevor MAYERS, Petitioner-Appellant, v. UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION SERVICE; Attorney General, Janet Reno, et al., Respondents-Appellees. Efrain Gutierrez-Martinez, Petitioner-Appellant, v. Janet Reno, Attorney General of the United States; Doris Meissner, Commissioner of Immigration and Naturalization, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1289

175 F.3d 1289

12 Fla. L. Weekly Fed. C 891

Trevor MAYERS, Petitioner-Appellant, v. UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION

SERVICE; Attorney General, Janet Reno, et al.,

Respondents-Appellees.

Efrain Gutierrez-Martinez, Petitioner-Appellant, v. Janet Reno, Attorney General of the United States; Doris

Meissner, Commissioner of Immigration and

Naturalization, et al., Respondents-Appellees.

Nos. 97-5537, 98-8185.

United States Court of Appeals Eleventh Circuit.

May 20, 1999.

Dan Gelber, Holland & Knight LLP, Miami, FL, for Trevor Mayers.

Irwin P. Stotzky, Coral Gables, FL, Charles H. Kuck, Schwartz, Kuck & Associates, L.L.P., Atlanta, GA, for Amicus Curiae in docket No. 97-5537.

Thomas E. Scott, U.S. Attorney, Dawn Bowen, Adalberto Jordan, Assistant U.S. Attorneys, Miami, FL, Lorri L. Shealy, David McConnell, Ernesto H. Molina, Emily Radford, Department of Justice, Washington, DC, for Respondents-Appellees in docket No. 97-5537.

Charles H. Kuck, Schwartz, Kuck & Associates, L.L.P., Atlanta, GA, for Efrain Gutierrez-Martinez.

Janet S. King, U.S. Attorney, Amy Weil, Mary C. Roemer, Assistant U.S. Attorneys, Atlanta, GA, Ernesto H. Molina, Jr., Michelle Gluck, U.S. Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondents-Appellees in docket No. 98-08185.

Appeal from the United States District Court for the Southern District of Florida.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and HATCHETT, Circuit Judges, and KEITH ^*, Senior Circuit Judge. ^**

BIRCH, Circuit Judge:

Efrain Gutierrez-Martinez ("Gutierrez-Martinez") and Trevor Mayers ("Mayers") appeal the orders of the district courts denying their petitions for habeas corpus, in which they sought review of their claim that section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") should not apply to their pending applications for waiver of deportation.

I. BACKGROUND

We must consider, as an initial matter, the immigration scheme that provides the controlling law for the habeas corpus petitions of Gutierrez-Martinez and Mayers. In 1996, within a span of five months, Congress passed two separate pieces of legislation affecting the judicial review process for certain aliens. The more recent legislation further divided this group of aliens into those who would fall under transitional rules and those who would be considered under the permanent judicial review procedures outlined in the new legislation. For the sake of clarity, we provide below a brief overview of the statutory schemes that are relevant to this action.

A. Reform of Immigration Laws

1. AEDPA

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Portions of AEDPA amended the Immigration and Naturalization Act ("INA"), Pub.L. No. 87-301, 75 Stat. 651 (1961). Prior to the enactment of AEDPA, judicial review of deportation orders generally proceeded by a petition for review filed in the court of appeals. See 8 U.S.C.A. § 1105a(a)(2) (West 1995). In addition, INA § 106(a)(10), codified at 8 U.S.C.A. § 1105a(a)(10) (West 1995), also provided for review of an order of deportation by habeas corpus. Finally, aliens could challenge INS detention or deportation proceedings through a petition for habeas corpus review pursuant to 28 U.S.C. § 2241. See, e.g., Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990). AEDPA § 401(e) ¹, a non-codified provision, eliminated the earlier INA § 106(a)(10) and under AEDPA § 440(a) substituted the following language:

[A]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense [as set forth in the INA] shall not be subject to review by any court.

AEDPA § 440(a), codified at 8 U.S.C.A. § 1105a(a)(10) (West Supp.1998). AEDPA § 440(a) also eliminated immediate review in the court of appeals for some categories of deportation cases. See Boston-Bollers v. INS, 106 F.3d 352, 355 (11th Cir.1997). ²

Under the law in effect prior to the enactment of AEDPA, certain aliens, otherwise determined to be deportable, were entitled to apply for a waiver of deportation under INA § 212(c). The granting of a waiver was a discretionary act of the Attorney General, or her representatives, that would allow the alien to remain in the United States. The alien presented his application to the Immigration Judge ("IJ"), who had discretion to waive the deportation of an alien based upon such factors as time spent and family ties in the United States and restitution for criminal activity. Section 440(d) of AEDPA greatly expanded the category of criminal convictions that would render an alien, including petitioners here, ineligible to apply for relief under INA § 212(c). See AEDPA § 440(d), codified at 8 U.S.C.A. § 1182(c) (West Supp.1997). ³

2. IIRIRA

Several months after the enactment of AEDPA, the judicial review process for deportation orders once again was restructured when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, Div. C., 110 Stat. 3009-546, on September 30, 1996. Section 306 of IIRIRA repealed the judicial review process set out in INA § 106, as amended by AEDPA § 440(a), and replaced it with a new structure for judicial review in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999). ⁴

Under the transitional rules provided for in IIRIRA, judicial review for most aliens is to take place without regard to IIRIRA's amendments. See IIRIRA § 309(c)(1), as amended by Act of Oct. 11, 1997, § 2, Pub.L. No. 104-302, 110 Stat. 3656, 3657, set out as a note following 8 U.S.C.A. § 1101 (West 1999). ⁵ IIRIRA's transitional rule § 309(c)(4)(G), however, provides that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed" one of the enumerated crimes. This section applies to both Gutierrez-Martinez and Mayers.

The permanent rules for judicial review of aliens' claims are set forth in IIRIRA § 306. IIRIRA's permanent rules repeal the judicial review provisions of 8 U.S.C.A. § 1105a and create new, more narrowly-drawn rules regarding judicial review, located in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999). Because petitioners in the present case fall under the transitional rules of IIRIRA, only one provision of the permanent rules potentially impacts the instant case. IIRIRA § 306(a) adds INA § 242(g):

EXCLUSIVE JURISDICTION.--Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Chapter.

8 U.S.C.A. § 1252(g) (West 1999).

The special effective date for the new INA § 242(g) directs that it shall apply "without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings under [this] Act." IIRIRA § 306(c), as amended by Act of Oct. 11, 1997, § 2, Pub.L. No. 104-302, 110 Stat. 3656, 3657, set out as a note following 8 U.S.C.A. § 1252 (West 1999). The special effective date creates a statutory inconsistency whereby § 309(c) is to apply to defined transitional cases, but § 306(a), through the new INA § 242, is to apply to all cases, past, pending, or future, which would seem to include transitional cases. The question we face here is whether the provisions of AEDPA and IIRIRA preclude any exercise of habeas corpus jurisdiction over claims, constitutional or otherwise, of Gutierrez-Martinez and Mayers.

B. Petitioners

1. Gutierrez-Martinez

Gutierrez-Martinez is a citizen of Colombia who entered the United States as a lawful permanent resident on January 30, 1986. On September 29, 1988, Gutierrez-Martinez pled guilty to and was convicted of one count of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. On October 15, 1995, the Immigration and Naturalization Service ("INS") ordered Gutierrez-Martinez to show cause why he should not be deported on the basis of his conviction for possession of a controlled substance in violation of INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) (1994), (current version codified at 8 U.S.C.A. § 1227(a)(2)(B)(i) (West 1999)). On March 26, 1996, the IJ found Gutierrez-Martinez deportable because of his status as a convicted drug offender, but granted him additional time to file an application for waiver of deportation under the earlier INA § 212(c).

On April 26, 1996, Gutierrez-Martinez filed his application for a § 212(c) waiver. At a hearing on May 14, 1996, the IJ held that under the new provisions of the AEDPA, which became effective two days before Gutierrez-Martinez filed his waiver application, Gutierrez-Martinez was statutorily ineligible for § 212(c) relief. The Board of Immigration Appeals ("BIA") affirmed this holding and dismissed Gutierrez-Martinez' appeal. Gutierrez-Martinez filed a petition for review of the BIA's order with this court. We dismissed that petition for lack of jurisdiction, citing IIRIRA §§ 309(c)(4)(E) & (G). ⁶ On November 6, 1997, Gutierrez-Martinez then filed a petition for habeas corpus review under 28 U.S.C. § 2241 in the district court.

The district court found that habeas corpus jurisdiction under § 2241 survived the enactment of AEDPA and IIRIRA. The court held, however, that "habeas relief is available only if the Petitioner can identify a grave constitutional error or a fundamental miscarriage of justice in his deportation proceedings." R1-5-6. The district court further determined, however, that retroactive application of AEDPA § 440(d) to eliminate Gutierrez-Martinez' eligibility for the § 212(c) waiver...