Wallace v. Reno

• Decision Date: 17 September 1999
• Docket Number: 99-1596,Nos. 98-2317,s. 98-2317
• Citation: 194 F.3d 279
• Parties: (1st Cir. 1999) TASFA WOLDE WALLACE, Appellee, v. JANET RENO, ET AL. Appellants. CARLOS ALBERTO LEMOS, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 279

194 F.3d 279 (1st Cir. 1999)

TASFA WOLDE WALLACE, Appellee, v. JANET RENO, ET AL. Appellants.

CARLOS ALBERTO LEMOS, Petitioner, Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellee.

Nos. 98-2317, 99-1596.

United States Court of Appeals for the First Circuit.

Heard Sept. 17, 1999.

Decided Oct. 26, 1999.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Edward J. Duffy, Office of Immigration Litigation, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Christopher C. Fuller, Senior Litigation Counsel, were on brief for appellants Janet Reno, et al.

Christopher J. Meade and Frederic A. Marzilli for petitioner Carlos Alberto Lemos.

Randy Olen for appellee Tasfa Wolde Wallace.

David M. McConnell, Assistant Director, Civil Division, Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Laura A. Smith, Civil Division, Department of Justice, and Frank J. Crowley, Special Assistant United States Attorney, Immigration and Naturalization Service, were on brief for respondent Immigration and Naturalization Service.

Before Boudin, Circuit Judge, Coffin and Campbell, Senior Circuit Judges.

BOUDIN, Circuit Judge.

This pair of cases is the next installment in a series presenting legal questions of reviewability and retroactivity under newly enacted immigration statutes. The issues are legal ones, which we review de novo, and arise out of the following facts.

In No. 99-1596, the appellant is Carlos Lemos, a native of Portugal who entered the United States as an immigrant on December 18, 1974. In June 1995, Lemos was convicted in Rhode Island state court of unlawfully delivering cocaine. As a result, the Immigration and Naturalization Service ("INS") began deportation proceedings against Lemos on August 16, 1995. Under the Immigration and Nationality Act ("INA"), an alien is deportable if convicted of an aggravated felony or any controlled substance violation (other than possession of less than 30 grams of marijuana for personal use).¹

Lemos conceded deportability on September 24, 1996, and sought a waiver of deportation under section 212(c) of the INA as it existed before April 24, 1996, as codified at 8 U.S.C. § 1182(c) (1994).² This provision, although explicitly directed at certain excludable aliens not yet admitted, had been read to give the Attorney General discretionary authority to waive deportation for aliens already within the United States who were deportable for having committed aggravated felonies or controlled substance violations, see Francis v. INS, 532 F.2d 268 (2d. Cir. 1976); see also Almon v. Reno, 192 F.3d 28, 29 (1st Cir. 1999). Congress thereafter precluded waiver for aggravated felons who had served five years in jail. See Immigration Act of 1990 ("IMMACT"), Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052.

After Lemos's deportation proceeding had begun but before it was completed, Congress enacted two new statutes amending the INA: these amendments, commonly reduced to the acronyms AEDPA and IIRIRA, were enacted on April 24, 1996 and September 30, 1996, respectively.³ Pertinently, the amendments were designed to limit, even beyond IMMACT, the Attorney General's authority to waive deportation for certain felons; and, by complementary jurisdictional changes, Congress sought to curtail judicial review, especially for this same class of felons.

Substantively, AEDPA enlarged the existing statutory ban on discretionary waivers of deportation. Under the newly revised INA section 212(c), waivers could not be granted to an alien convicted of a drug offense (minor marijuana convictions aside) regardless of the amount of jail time served. See AEDPA § 440(d). As for IIRIRA, it contained further changes to the waiver rules but we ignore those changes here because IIRIRA explicitly provided that only its "transitional rules," and not the new waiver and other permanent provisions, applied to proceedings, like Lemos's, commenced before April 1, 1997. See IIRIRA § 309(c).

The other set of changes that concern us involve judicial review. Under the old INA, deportation orders were reviewable directly in the courts of appeals, see 8 U.S.C. § 1105a(a) (1994), but the statute provided that a deportee in custody could also resort to habeas corpus, see 8 U.S.C. § 1105a(a)(10) (1994). AEDPA repealed this explicit habeas provision, see AEDPA § 401(e), and replaced it with a specific prohibition on "review by any court" of "any final order" deporting an alien "by reason of" the commission of specified criminal offenses, including that of which Lemos was convicted. AEDPA § 440(a).⁴

On April 29, 1997, the immigration judge found that AEDPA's expansion of the category of persons not eligible for waivers barred Lemos from such relief and ordered him deported. On this ground, the Board of Immigration Appeals ("BIA") dismissed his appeal. In the meantime, this court had held that the AEDPA ban on "review by any court" of final orders of deportation against those in Lemos's "by reason of" category became effective immediately upon enactment of AEDPA and applied to pending deportation proceedings, thus preventing a direct appeal to the court of appeals in such cases. Kolster v. INS, 101 F.3d 785, 790 (1st Cir. 1996).

On February 12, 1999, Lemos petitioned for habeas corpus in the district court pursuant to 28 U.S.C. § 2241. He asserted that AEDPA's new limitation on waivers was erroneously being applied retroactively as to him.⁵ The district court (Judge Keeton) dismissed the habeas petition for lack of jurisdiction, finding that a contrary position taken by this court affirming habeas jurisdiction in Goncalves v. Reno, 144 F.3d 110, 123 (1st Cir. 1998), cert. denied, 119 S. Ct. 1140 (1999), had been undermined by Reno v. American-Arab Anti-Discrimination Comm., 119 S. Ct. 936 (1999). Lemos now appeals to us.

In No. 98-2317, the appellee is Tasfa Wallace, a native of Jamaica, who entered this country as an immigrant on May 10, 1988. In February 1996, Wallace was convicted in Rhode Island state court after pleading guilty to possessing marijuana with intent to deliver. Based on that conviction, the INS served Wallace on March 20, 1996, with an order to show cause charging him with deportability. The show cause order was filed with the Office of the Immigration Judge on June 14, 1996.

On December 18, 1996, Wallace conceded deportability and indicated his intention to apply for a discretionary waiver of deportation under section 212(c) of the old INA. The hearing was continued until August 1997. As with Lemos, the immigration judge in a resumed hearing on August 18, 1997 found Wallace ineligible for waiver because section 440(d) of AEDPA had enlarged the category of persons for whom waivers were prohibited to include drug offense felons like Wallace. The BIA dismissed Wallace's appeal on May 5, 1998, on the same basis.

Wallace then filed a habeas petition in the district court, claiming that it was impermissibly retroactive to apply AEDPA's new limitation on waivers to him. On October 7, 1998, the district court (Judge Gertner) granted the petition, agreeing with Wallace that the limitation could not be applied to him because AEDPA had not yet been enacted when he pleaded guilty in his underlying criminal case. Wallace v. Reno, 24 F. Supp.2d 104 (D. Mass. 1998). Acting prior to American-Arab, the district court premised its habeas authority on our Goncalves decision. The government now appeals from this decision.

At the threshold of both appeals is the question whether habeas is available to those who, like Lemos and Wallace, are subject to IIRIRA's transitional rules (because proceedings to deport them began prior to April 1, 1997). The transitional rules treat such persons as subject to the INA as modified by AEDPA, but--with a couple of qualifications--not as further modified by IIRIRA. Under this transitional rules regime, the provisions already cited preclude "review" and "appeal" of a final deportation order by persons deportable "by reason of" drug felonies. The government argues that American-Arab has undermined Goncalves's ruling that district courts still have authority to consider habeas petitions in transitional rule cases.

In Goncalves, this court held that AEDPA's repeal of the INA provision recognizing habeas as a remedy for aliens in custody was not an affirmative ban on habeas jurisdiction. Goncalves, 144 F.3d at 121. The court declined to treat the AEDPA repeal as qualifying the general authority of courts to grant habeas petitions for persons held in violation of the Constitution or laws of the United States. 28 U.S.C. § 2241 (1994). Goncalves said that repeals of habeas by implication are not favored and that without habeas, AEDPA and IIRIRA's statutory bans on review or appeal would otherwise preclude any court from considering statutory challenges brought by a person deportable "by reason of" a covered offense. Goncalves, 144 F.3d at 122.

When a panel of this circuit has decided an issue, another panel will ordinarily not revisit that issue; but, of course, this limitation does not apply where an intervening decision of the Supreme Court overturns or undermines our earlier decision. Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir.), cert. denied, 516 U.S. 807 (1995). Thus, the government is free to attack Goncalves based on American-Arab even though the Supreme Court denied certiorari in Goncalves in March 1999, only a few days after it decided American-Arab. But American-Arab was concerned with a different issue, and the government's effort to use American-Arab by analogy is farfetched.

In American-Arab, a group of aliens brought an action against the Attorney General seeking to enjoin deportation proceedings against them; they claimed that they were being targeted for deportation because of their political views. American-Arab, 119...