Opinion
Civil Action No. 98-1873 Section "R" (2).
March 23, 2000.
ORDER AND REASONS
Before the Court is the petition of John Oliver Waddell for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Waddell is a legal permanent resident ("LPR") of the United States who has been ordered deported because of past criminal convictions, and he seeks judicial review of the Board of Immigration Appeals' ("BIA") deportation order. For the following reasons, Waddell's petition for habeas corpus is denied.
I. Background
Waddell has resided in the United States as an LPR since 1956 and is a native and citizen of Canada. On November 22, 1994, the State of Mississippi convicted him of two counts of transfer of a controlled substance (Cocaine) and sentenced him to two concurrent ten-year terms of imprisonment.
Waddell's conviction rendered him deportable under the Immigration and Nationality Act ("INA") § 241(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and under INA § 241(a)(2)(B)(I), as an alien convicted of a controlled substance violation. See codification at 8 U.S.C. § 1227(a)(2)(A)(iii) 8 U.S.C. § 1227(a)(2)(B)(I). On December 8, 1994, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Waddell. It delayed his deportation hearing until he completed his sentence in 1997.
At his deportation hearing on July 24, 1997, Waddell conceded deportability under INA § 241 but sought a "waiver of inadmissibility" under then existing INA § 212(c) (formerly codified at 8 U.S.C. § 1182(c)). This provision, traditionally allowed the Attorney General to waive the grounds of deportability for longtime LPRs based on factors such as length of prior residences in the United States, family and personal ties to this country, history of employment and community service, and proof of rehabilitation. See Henderson v. Immigration and Naturalization Service, 157 F.3d 106, 109 (2d Cir. 1998).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), however; renders Waddell ineligible for a § 212(c) waiver of deportability. Specifically, the AEDPA § 440(d) greatly expanded the range of crimes for which a § 212(c) waiver is unavailable, including conviction of an aggravated felony or violation of a law relating to a controlled substance. AEDPA, Pub.L. No. 104-132 § 440(d), 110 Stat. 1214, 1277 (1996). Accordingly, the Immigration Judge ordered Waddell deported to Canada.
Waddell appealed the IJ's decision to the BIA. He conceded that the AEDPA makes him ineligible for a § 212(c) waiver of his "deportable" status, but argued that he remained eligible for a waiver of his "excludable" status. On May 7, 1998, the BIA dismissed the appeal based on its decision in Matter of Gonzales-Camarillo, Int. Dec. 3320 (BIA 1997). Waddell then filed his petition for habeas corpus in this Court.
When Waddell originally applied for habeas relief on June 26, 1998, his case presented unresolved questions as to the scope of federal jurisdiction over deportation orders under recently adopted federal immigration laws. Specifically, he challenged the retroactive application of these laws and asserted an equal protection claim. On March. 11, 1999, this Court denied Waddell's claims and dismissed his habeas petition. It found that although. the Fifth Circuit had yet to rule on this precise issue, it was likely to agree with the Seventh. Circuit that the constitutional writ of habeas corpus: is narrower than, statutory habeas; and that district courts are therefore not required to review either discretionary decisions of the BIA or mere legal errors. See Waddell v. BIA, 1999 WL 151661 at *7 (E.D. La. Mar. 11, 1999). Accordingly, the Court determined that it lacked jurisdiction to review Waddell's statutory interpretation claim regarding the retroactive application of AEDPA § 440(d), and limited its review to his constitutional claim that AEDPA § 440(d)'s limits on § 212(c) relief violated his right to equal protection because those limits denied the opportunity for discretionary relief to deportable aliens but not to excludable aliens. This Court found that there was a rational basis for this distinction and thus that petitioner had failed to state an equal protection violation. Waddell appealed this Court's decision to the Fifth Circuit.
In the meantime, the Fifth Circuit decided Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir. 1999), in which it held that there was a rational, basis for the distinction between deportable and excludable aliens, and thus that AEDPA § 440(d)'s limits on § 212(c) relief do not; violate the equal protection clause. 190 F.2d at 309. It also held that
§ 2241 habeas jurisdiction continues to exist under IIRIRA's [Illegal Immigration Reform and Immigrant Responsibility Act] transitional rules in cases involving final orders of deportation against criminal aliens, and that habeas jurisdiction is capacious enough to include constitutional and statutory challenges if those challenges cannot be considered on direct review by the court of appeals.Id. at 305. On appeal, the Fifth Circuit affirmed this Court's dismissal of Waddell's equal protection claim, and vacated and remanded its dismissal of his statutory interpretation claim for consideration in light of Requena-Rodriguez. See Waddell v. BIA, No. 99-30318 (5th Cir. Feb. 3, 1999). Thus, this Court must determine whether AEDPA § 440(d) prohibits Waddell from seeking § 212(c) relief.
II. Discussion
A. Jurisdiction
In Requena-Rodriguez, the Fifth Circuit held that after IIRIRA was passed on September 30, 1996, either transitional or permanent rules apply to immigration proceedings, depending on their timing. 190 F.3d at 302-03. The transitional rules govern those proceedings that commence before April 1, 1997, and conclude more than thirty days after IIRIRA's passage. See id., citing Lerma de Garcia v. INS. 141 F.3d 215, 216 (5th Cir. 1998); IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, -626. Waddell's deportation proceedings began on December 8, 1994, and became final on May 7, 1998, when the BIA dismissed his appeal of his final order of deportation. See 8 U.S.C.A. § 1011(a)(47)(B) (West 1999) (defining final, order of deportation as earlier of determination by BIA affirming such order, or expiration of period in which alien is permitted to seek review of the order by the BIA). Thus, Waddell's case falls under the regime of the transitional rules, and this Court has jurisdiction to review his statutory claim. See Requena-Rodriguez, 190 F.3d at 305.
B. Application of AEDPA § 440(d) to § 212(c) Relief
In Requena-Rodriguez, the Fifth Circuit held that AEDPA § 440(d)'s bar on discretionary relief applies to convictions that predate AEDPA. 190 F.3d at 3. In that case, petitioner pled nolo contendere to a felony in February of 1994, and the INS initiated deportation proceedings against him in February of 1996, both before AEDPA became effective on April 24, 1996. Requena filed his application for § 212(c) relief after AEDPA took effect, and in August of 1996, the IJ found that Requena was statutorily ineligible for a waiver. In determining whether § 440(d) applied to petitioner's claims, the court in Requena-Rodriguez performed a Landgraf analysis and found that although congressional intent was unclear as to that section, "the consequence of allowing AEDPA § 440(d) to be triggered by convictions that came before AEDPA's enactment is not genuinely retroactive." Id. at 307-08. See Landgraf v. USI Film Products, 511 U.S. 244, 245, 269-70, 114 S.Ct. 1483, 1487, 1499 (1994) (holding that to determine the temporal reach of a statute, courts must first look to congressional intent, and when it is unclear, then determine whether the statute is genuinely retroactive by asking whether the new provision attaches new legal consequences to events contemplated before its enactment). Requena-Rodriguez found that § 440(d) is not genuinely retroactive because it merely shrinks the class of already deportable criminal aliens who can seek discretionary relief. 190 F.3d at 308. Thus, it was proper for the district court to apply it to his case. See id.
The Fifth Circuit reaffirmed the holding of Requena-Rodriguez under nearly identical facts in Alfarache v. Cravener, 203 F.3d 381, 383 (5th Cir. 2000), in which it held that an alien petitioner who filed for § 212(c) relief after AEDPA took effect was barred from seeking a discretionary waiver.
This case is factually indistinguishable from Requena-Rodriguez and Alfarache in all material respects. Here, Waddell was convicted, in November of 1994, and they INS initiated deportation proceedings against him in December of 1994, both before AEDPA became effective. He first raised the issue of § 212(c) relief, however, in June of 1997, after AEDPA's effective date, and the IJ found him ineligible in July of 1997. (See Govt.'s Opposition Ex. 5.) Therefore, under Requena-Rodriguez and Alfarache, § 440(d): prohibits Waddell from seeking discretionary relief from deportation under § 212(c).
Accordingly, his petition for habeas corpus must be dismissed.
III. Conclusion
For the foregoing reasons, Waddell's petition for habeas corpus is dismissed.
New Orleans, Louisiana, this 23rd day of March, 2000.