Tasios v. Reno

• Citation: 2000 WL 223333,204 F.3d 544
• Decision Date: 24 September 1999
• Docket Number: No. 99-6061,99-6061
• Parties: (4th Cir. 2000) KONSTANTINOS TASIOS, Petitioner-Appellee, v. JANET RENO; DORIS MEISSNER, Commissioner of the Immigration and Naturalization Service; PATRICK J. WALTERS, as the Officer in Charge for the Charlotte Subdivision Office of the Immigration and Naturalization Service, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 544

204 F.3d 544 (4th Cir. 2000)

KONSTANTINOS TASIOS, Petitioner-Appellee, v. JANET RENO; DORIS MEISSNER, Commissioner of the Immigration and Naturalization Service; PATRICK J. WALTERS, as the Officer in Charge for the Charlotte Subdivision Office of the Immigration and Naturalization Service, Respondents-Appellants.

No. 99-6061.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

September 24, 1999, Argued.

February 28, 2000, Decided.

ARGUED: John Darren Williams, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Lee P. Gelernt, AMERICAN CIVIL LIBERTIES UNION, New York, New York; Cynthia Ann Aziz, C. A. AZIZ, P.A., Charlotte, North Carolina, for Appellee. ON BRIEF: David W. Ogden, Acting Assistant Attorney General, Christopher C. Fuller, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Sean P. Devereux, LAW OFFICE OF SEAN DEVEREUX, Asheville, North Carolina, for Appellee.

Before LUTTIG, MICHAEL, and KING, Circuit Judges. Affirmed by published opinion. Judge Michael wrote the opinion, in which Judge King joined. Judge Luttig wrote a concurring opinion.

OPINION:

MICHAEL, Circuit Judge:

Konstantinos Tasios petitioned for a writ of habeas corpus in federal district court, challenging the INS's refusal to consider his application for a discretionary waiver of deportation. The INS argued that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) divested the district court of subject matter jurisdiction. In addition, the INS argued that under AEDPA 440(d) Tasios's 1995 drug conspiracy conviction barred him from making any application for discretionary relief. The district court rejected both arguments, granted Tasios's petition, and instructed the INS to make a determination on Tasios's application for a waiver of deportation. The INS appeals, and we affirm.

I.

Tasios is a Greek citizen who has been a lawful permanent resident of the United States since 1967 when, at age 10, he came to this country with his family. His six-year-old son, three brothers, and an uncle are U.S. citizens, while his parents are lawful permanent residents. In 1995 Tasios was indicted on a single count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. 846. He entered a plea agreement with the government (and pled guilty) on the understanding that he would be sentenced to less than five years in prison and thus be eligible to seek relief from deportation. Tasios and the government stipulated to facts, including the drug amount, that led the district court to find that his total offense level was 15. This, together with Tasios's criminal history category of I, yielded a guideline imprisonment range of 18 to 24 months; he was sentenced to 18 months in prison. Tasios's drug conviction satisfied the definition of an "aggravated felony," as defined in the Immigration and Nationality Act (INA) 101(a)(43), 8 U.S.C. 1101(a)(43) (1995), and thus rendered him deportable. See INA 241(a)(2)(A)(iii), 8 U.S.C. 1251(a) (2)(A)(iii) (1995), recodified at 8 U.S.C. 1227(a)(2)(A)(iii) (1999). Nevertheless, because his actual prison sentence was under five years, Tasios (in 1995) could still apply to the Attorney General for discretionary relief from deportation, see INA 212(c), 8 U.S.C. 1182(c) (1995), and ultimately petition for review in the court of appeals.

In the year following Tasios's plea and sentence, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996). That legislation, which worked sweeping changes in the immigration laws, is relevant to this case in two respects. First, AEDPA 440(d) amended INA 212(c) to preclude discretionary relief for aliens, like Tasios, who have been convicted of drug trafficking offenses, regardless of the length of the sentence. Second, AEDPA and IIRIRA combined to narrow the availability of appellate review over deportation proceedings. See Bowrin v. INS, 194 F.3d 483, 486 (4th Cir. 1999); Hall v. INS, 167 F.3d 852, 854-56 (4th Cir. 1999).

In November 1996 the INS initiated deportation proceedings against Tasios. He conceded deportability and sought discretionary relief under INA 212(c). The immigration judge issued an order of deportation and denied Tasios's 212(c) application, reasoning that AEDPA 440(d) applied retroactively to convictions entered before its enactment. After exhausting his administrative remedies, Tasios petitioned for a writ of habeas corpus in federal district court, arguing that the INS's interpretation of 440(d) was incorrect. The district court held that it had habeas jurisdiction over Tasios's claim pursuant to 28 U.S.C. 2241 and that AEDPA 440(d) did not apply retroactively. The INS appeals both determinations. We affirm the district court for the reasons set out below.

II.

The INS challenges the district court's holding that AEDPA and IIRIRA do not eliminate that court's jurisdiction to decide Tasios's claim under 28 U.S.C. 2241. First, the INS contends that the 1961 enactment of the INA implicitly repealed 2241 jurisdiction over claims arising from deportation proceedings. In the alternative, the INS argues that AEDPA implicitly repealed 2241 habeas jurisdiction for aliens who are deportable because they committed certain crimes. Finally, the INS argues that INA 242(g), as amended by IIRIRA, repealed 2241 habeas jurisdiction over Tasios's claim that the Attorney General has misinterpreted AEDPA 440(d). Each of these arguments is foreclosed by our recent holding in Bowrin that district courts have jurisdiction under 2241 to review the very claim presented here, one involving a question of law relating to the administrative denial of 212(c) relief. See Bowrin, 194 F.3d at 489-90.

III.

After the INS ordered Tasios's deportation in August 1997, he sought discretionary relief under INA 212(c), 8 U.S.C. 1182(c).¹ Prior to AEDPA that section permitted the Attorney General to waive deportation so long as the person subject to deportation had not committed an aggravated felony and had not served five years or more in prison. See 8 U.S.C. 1182(c) (1995). Thus, when Tasios pled guilty to conspiracy to possess with intent to distribute cocaine, his conviction for that offense would not have precluded him from applying for 212(c) relief if the INS tried to deport him. The following year, however, AEDPA 440(d) expanded the list of criminal convictions that would render a person ineligible for 212(c) relief. Under the amended law any alien who "has been convicted of a violation of (or a conspiracy or an attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana is deportable" and ineligible for discretionary waiver of deportation. 8 U.S.C. 1227(a)(2)(B)(i); AEDPA 440(d).

As we noted above, after the INS sought to deport Tasios because of his drug conviction, Tasios conceded deportability and sought 212(c) relief. The immigration judge denied Tasios's application for 212(c) relief, and the Board of Immigration Appeals (BIA) dismissed his appeal. The immigration judge and the BIA relied on the Attorney General's decision in Matter of Soriano, 1996 BIA LEXIS 27, Int. Dec. 3289, 1996 WL 426888, at *38 (Op. Att'y Gen. Feb. 21, 1997), which held that AEDPA 440(d) bars an alien convicted of an aggravated felony from seeking relief pursuant to section 212(c) of the Act, regardless of the date of his conviction. Tasios argues, and the district court agreed, that the INS erred in applying AEDPA 440(d) retroactively.

We begin by asking "whether Congress has expressly prescribed the statute's [temporal] reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). "If there is no congressional directive on the temporal reach of a statute, we determine whether the application of the statute to the conduct at issue would result in a retroactive effect. If so, then in keeping with our 'traditional presumption' against retroactivity, we presume that the statute does not apply to that conduct." Martin v. Hadix, 527 U.S. 343, 352, 119 S. Ct. 1998, 2003, 144 L. Ed. 2d 347 (1999). We conclude that Congress has not clearly indicated the temporal reach of AEDPA 440(d) and that application of the section to pleas of guilt or concessions of deportability predating AEDPA's enactment would have retroactive effect. Thus, we affirm the district court.

A.

To determine whether AEDPA 440(d) reaches backward, we of course begin with the language of the statute, using the normal rules of statutory construction. See Lindh v. Murphy , 521 U.S. 320, 326, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997). If Congress has made its intent clear, while acting within the limits of its power, our inquiry is concluded. As we demonstrate below, however, Congress's intent to make AEDPA 440(d) retrospective or prospective is anything but clear.

The question before the Supreme Court in Lindh was whether AEDPA 104, which amended 28 U.S.C. 2254(d), applied to non-capital habeas proceedings that were pending at the time of AEDPA's enactment. As 104 was silent on that point, the Court turned to the general scheme of AEDPA, in particular AEDPA Title I, which contains 104. The Court noted that Title I stands "independent of the Act's other titles" in that it provides for "the revision of federal habeas corpus practice, and does two main things." Lindh, 521 U.S. at 326 (footnote omitted). First, 101-106 amended various provisions...