De Sousa v. Reno

• Decision Date: 09 December 1998
• Docket Number: Civil Action No. 98-1470.
• Citation: 30 F.Supp.2d 844
• Parties: Fernando Jorge DE SOUSA, Petitioner, v. Janet RENO, Attorney General, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

30 F.Supp.2d 844

Fernando Jorge DE SOUSA, Petitioner, v. Janet RENO, Attorney General, et al., Respondents.

Civil Action No. 98-1470.

United States District Court, E.D. Pennsylvania.

December 9, 1998.

Martin A. Kascavage, Philadelphia, PA, for Plaintiff.

Stephen J. Britt, Philadelphia, PA, for Defendant.

MEMORANDUM

BRODY, District Judge.

Before me is petitioner Fernando Jorge DeSousa's request for habeas corpus relief, filed pursuant to 28 U.S.C. § 2241. The petition presents the question whether Respondents violated DeSousa's constitutional rights by refusing to consider his application for discretionary relief from a deportation order.

On July 6, 1998, United States Magistrate Judge Peter B. Scuderi filed a Report and Recommendation concluding that DeSousa was entitled to habeas corpus relief and recommending that the case be remanded to respondents to consider and rule on the merits of DeSousa's application. The Attorney General filed objections ("Objections") to the Report and Recommendation on July 22, 1998. After de novo review of those portions of the Report and Recommendation objected to by the Attorney General, I conclude that I have jurisdiction to entertain this petition and that respondents' refusal to consider DeSousa's application violated his right to equal protection under the law. I accept Magistrate Judge Scuderi's conclusion and agree with his reasoning on two of the issues presented in this case, but depart from his reasoning and conclusion on the third.

I. BACKGROUND

As the procedural and factual history underlying this petition is not in dispute, I adopt the following description taken almost verbatim from the Report and Recommendation.

DeSousa, a native and citizen of Portugal, has been a lawful permanent resident of the United States since December 28, 1969. According to the petition, DeSousa was convicted of the following crimes: (1) in 1978, he was convicted of "burglary and theft by unlawful taking or dispositioning criminal conspiracy" for which he was sentenced to three years probation; (2) in 1985, he was convicted of "driving under the influence" for which he was fined and his license was suspended; (3) in 1989, he was convicted of "aggravated assault and possession of an instrument of crime" and sentenced to eight years probation; and (4) in 1992, he was convicted of "aggravated assault and recklessly endangering another person" and sentenced to four and a half to nine months imprisonment. As an alien convicted of two crimes of moral turpitude and also as an aggravated felon, DeSousa became subject to deportation pursuant to section¹ 241(a)(2)(A)(ii), 8 U.S.C. § 1251(a)(2)(A)(ii) (two crimes of moral turpitude) and section 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (aggravated felony) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1685 ("INA").² At the time DeSousa was convicted of the crimes that rendered him deportable, INA § 212(c) provided that:

Aliens lawfully admitted for permanent residence who temporarily proceed abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile, may be admitted in the discretion of the Attorney General.

Although section 212(c) applied on its face only to "excludable" aliens (those who are trying to get into the country), and not to "deportable" aliens (those who are trying to stay in the country), the Third Circuit had extended section 212(c) to apply to deportable aliens as well. Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993) (citing Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976) (holding that distinction between lawfully admitted aliens who temporarily left the country and those who never left violated equal protection because it was "wholly unrelated to any legitimate governmental interest")); see also Morel v. INS, 90 F.3d 833, 837 & n. 3 (3d Cir.1996) (vacated on other grounds, 144 F.3d 248 (1998)).

Subsequent to DeSousa's date of conviction, but prior to the commencement of deportation proceedings, Congress enacted two statutes, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (enacted April 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (enacted September 30, 1996), both of which enacted amendments to the INA which are relevant to this case. Section 440(d) of the AEDPA greatly expanded the category of criminal convictions that would render an alien ineligible to apply for section 212(c) relief. In particular, AEDPA § 440(d) amended INA § 212(c) to render aliens, like DeSousa, convicted of an aggravated felony under INA § 241(a)(2)(A)(iii) (now codified at 8 U.S.C. §§ 1227(a)(2)(A)(iii)) ineligible for § 212(c) relief.³ Judicial review of deportation orders was overhauled in IIRIRA. Section 306(a) of IIRIRA added a new section 242(g) to the INA providing that:

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 Act.

IIRIRA § 306(c)(1) provides that the new INA § 242(g) applies "without limitation to claims arising from all past, pending or future exclusion, deportation or removal proceedings. ..." In addition to section 306(a), IIRIRA § 309(c)(4) contained "transition rules" for deportation proceedings pending on April 1, 1997, providing in part that "there shall be no appeal of any discretionary decision under section 212(c) ... of the [INA] (as in effect as of the date of the enactment of this Act)." IIRIRA § 309(c)(4)(E).

On October 28, 1996, the INS issued an order to show cause why DeSousa should not be deported. DeSousa was personally served with the Order on March 13, 1997. A deportation hearing was held on May 27, 1997, at which DeSousa contested his deportability. In July 1997 DeSousa applied for a discretionary waiver of deportation under INA § 212(c). On August 4, 1997, an Immigration Judge ("IJ") ordered DeSousa deported to Portugal after finding that he was not statutorily eligible to file for section 212(c) relief pursuant to AEDPA § 440(d) and refusing to reach the merits of his application. On February 25, 1998, the Board of Immigration Appeals ("BIA") affirmed the IJ's order of deportation and held that DeSousa was not statutorily eligible for section 212(c) relief. The BIA based its ruling on a determination made by the Attorney General on February 21, 1997, that AEDPA § 440(d) applied to applications for relief pending on the date of the AEDPA's enactment. In re Soriano, 16 Immig.Case Rep. B1-239, 240.1 (Op.Atty.Gen. Feb. 21, 1997) ("Soriano II"). On May 14, 1997, the BIA determined in an unrelated case that, although section 440(d) eliminated section 212(c) relief for certain deportable aliens situated like DeSousa, the plain language of the amendment left section 212(c) relief available to excludible aliens. See In re Fuentes-Campos, Interim Dec. No. 3318, at 4 (BIA May 14, 1997).

On March 20, 1998, DeSousa filed the instant petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania seeking review of his final order of deportation. DeSousa contends that section 440(d) does not apply with respect to crimes committed before the date of the AEDPA's enactment; and even if section 440(d) applies retroactively, application of section 440(d) pursuant to In re Fuentes-Campos violates the Equal Protection Clause. Accordingly, DeSousa seeks an order directing the BIA to consider and rule on the merits of his application for INA § 212(c) relief.

II. DISCUSSION

This case presents the following issues: (1) whether this court has jurisdiction under 28 U.S.C. § 2241 despite amendments to the INA, set forth in AEDPA and IIRIRA, limiting judicial review of deportation orders; (2) whether AEDPA § 440(d) applies to foreclose section 212(c) relief to aliens convicted prior to the date of the AEDPA's enactment; and (3) whether the BIA's application of section 440(d) "irrationally" distinguishes between "deportable" and "excludable" aliens in violation of the Equal Protection Clause of the Fourteenth Amendment, as incorporated into the Fifth Amendment.

In his Report and Recommendation, Judge Scuderi concluded that: (1) this Court properly exercised jurisdiction over this petition; (2) AEDPA § 440(d) was not intended to apply retroactively to conduct pre-dating AEDPA; and (3) the BIA's application of section 440(d) to DeSousa violated his right to equal protection of the laws. The Attorney General objected to the Report and Recommendation's conclusions regarding jurisdiction and retroactivity.

A. Jurisdiction

The Attorney General concedes that AEDPA and IIRIRA cannot deprive the federal courts of jurisdiction under 28 U.S.C. § 2241 to collaterally review final orders of deportation against criminal aliens. She contends, however, that Congress intended such jurisdiction to be in the courts of appeals and to be limited to cases involving Constitutional claims.⁴ It is well settled that parties cannot confer subject-matter jurisdiction either by agreement or by waiver. See, e.g., Brown v. Francis, 75 F.3d 860, 866 (3d Cir.1996); United Indus. Workers v. Government of Virgin Islands, 987 F.2d 162, 168 (3d Cir. 1993) (collecting cases). Accordingly, I must independently determine whether Congress intended for jurisdiction over this petition for writ of habeas corpus to be vested in the district court.

There is no question that, unless it has been expressly repealed, 28 U.S.C. § 2241 provides a jurisdictional basis for reviewing immigration decisions upon petition for writ of habeas corpus. I find no express congressional intent in the language in IIRIRA § 306 or ...