No. 96-8501 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JOAO ALBANO SANTOS, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE IMMIGRATION AND NATURALIZATION SERVICE IN OPPOSITION WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General DONALD E. KEENER ALISON R. DRUCKER BRENDA E. ELLISON Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 616 - 4868 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether Section 440(a) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which precludes judicial review of final orders of deportation entered against aliens who have been convicted of certain serious crimes, divested the court of appeals of jurisdiction over a petition for review that was pending at the time of the AEDPA'S enactment. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8501 JOAO ALBANO SANTOS, PETITIONER v. IMMIGRATION AND NATURALIZATION SERVICE ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE IMMIGRATION AND NATURALIZATION SERVICE IN OPPOSITION OPINIONS BELOW The court of appeals' order dismissing the petition for review (Pet. App. B) is not reported. The opinions of the Board of Immigration Appeals (Pet. App. C) and the Immigration Judge (Pet. App. D) are also unreported. JURISDICTION The judgment of the court of appeals was entered on Novem- ber 6, 1996. A petition for rehearing was denied on January 7, 1997. Pet. App. A. The petition for a writ of certiorari was filed on April 4, 1997. This Court's jurisdiction is invoked under 28 U.S.C. 1254 (1). ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Petitioner, a native and citizen of Brazil, entered the United States without a visa in 1975. Pet. App. D at 1. He was granted permanent resident status in 1978. Id. at 1-2. Since arriving in the United States, petitioner has been arrested 21 times and convicted of at least eight crimes (including burglary, theft, uttering of a forged instrument, possession of cocaine, and conspiracy to traffic in cocaine) in five separate proceedings. Id. at 7,11. The Immigration and Naturalization Service (INS) ordered petitioner to show cause why he should not be deported under Section 241(a) (2) (A) (ii) and (B) (i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1251(a) (2)(A) (ii) and (B)(i) (crimes of moral turpitude and controlled substance violations). Pet. App. D at 2. At a hearing commenced in July 1995, petitioner admitted his convictions and conceded that he was deportable, and the Immigration Judge (IJ) found that deportability had been established by "clear, convincing and unequivocal evidence." Ibid.; see id. at 7. Petitioner requested discretionary relief from deportation under former Section 212(c) of the INA, 8 U.S.C. 1182(c). Pet. App. D at 2. Relying on decisions of the Board of Immigration Appeals (BIA), the IJ held that petitioner, in light of his serious criminal history, would have to show "unusual or outstanding countervailing equities" in order to merit a favorable exercise of discretion. Pet. App. D. at 5-6, 13. The IJ concluded that ---------------------------------------- Page Break ---------------------------------------- 3 the balance of equities weighed against petitioner, and he denied petitioner's request for discretionary relief. Id. at 12-13. The BIA affirmed. Pet. App. C at 1. The Board agreed with the IJ that petitioner's asserted equities (long residence, family ties, employment record, remorsefulness, and "efforts at self-improvement") were not sufficiently "unusual or outstanding" to merit relief in light of his "pattern of criminal activity." Id. at 2. Noting that petitioner had not shown that he would experience any hardship "beyond that normally associated with repatriation to one's native country," the Board affirmed the IJ's decision to deny discretionary relief and to order petitioner deported. Ibid. 2. In January 1996, petitioner sought review of the BIA's final order of deportation in the United States Court of Appeals for the Eleventh Circuit, under the provision for such review contained at that time in Section 106(a) of the INA, 8 U.S.C. 1105a(a) . On April 24, 1996, while the petition for review was pending, the President signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. Section 440(a) of the AEDPA, 110 Stat. 1276, amended Section 106(a) (10) of the INA (previously codified at 8 U.S.C. 1105a(a) (10)) to provide, in pertinent part:: Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in Section 241(a) (2) (A) (iii), (B), (C), or (D) * * * shall not be subject to review by any court. ---------------------------------------- Page Break ---------------------------------------- 4 Section 440(d) of the AEDPA further amended Section 212 (c) of the INA, 8 U.S.C. 1182(c), to eliminate the Attorney General's authority to grant discretionary relief from deportation to any alien who "is deportable by reason of having committed any [such] criminal offense." 110 Stat. 1277. As noted above, petitioner is deportable under Section 241(a) (2) (B) (i) of the INA because of his controlled substance offenses. Pet. App. C at 1. The INS moved to dismiss petitioner's request for review of the BIA's decision, on the ground that the jurisdictional amendment effected by the AEDPA took effect on the day that Act was signed and divested the court of appeals of jurisdiction over pending petitions for review. In November 1996, the court of appeals granted the INS's motion. Pet. App. B. ARGUMENT Petitioner contends (Pet. 4-5) that the court of appeals erred in dismissing his petition for judicial review, which was pending at the time that Section 440(a) of the AEDPA was enacted. l. This Court has recently denied review in four cases raising the same issue, and there is no reason for a different result here. See Salazar-Haro v. INS, No. 96-1310 (May 27, 1997); Uwaqbale v. INS, 117 S. Ct. 1338 (1997); Chamorro-Torres v. INS, 117 S. Ct. 1106 (1997); Mendez-Rosas V. INS, 117 S. Ct. 694 (1997); see also Oasguargis v. INS, 117 S. Ct. 1080 (1997). ___________________(footnotes) 1 The petition cites Section 441(a) of the AEDPA, but clearly refers to Section 440(a). See Pet. 2 (quoting relevant provision) . ---------------------------------------- Page Break ---------------------------------------- 5 1. We note at the outset that petitioner's request for judicial review of the BIA's order is effectively moot, because the Attorney General no longer has the authority to grant the relief -- a waiver of deportation under Section 212(c) of the INA -- that petitioner seeks. Section 440(d) of the AEDPA amended Section 212(c) of the INA, 8 U.S.C. 1182(c), to exclude from the scope of its discretionary waiver provision "an[y] alien who is deportable by reason of having committed any criminal offense covered in section 241(a) (2) (A) (iii)" of the INA (previously codified at 8 U.S.C. 1251(a) (2) (A) (iii)). 110 Stat. 1277. Petitioner admitted before the IJ (Pet. App. D at 7) that he has been convicted of conspiracy to traffic in cocaine, an "aggra- vated felony" that is "covered in Section 241(a) (2) (A) (iii) ." See 8 U.S.C. 11O1(a) (43)(B). Thus, petitioner is no longer statutorily eligible for the discretionary relief that he seeks through this proceeding. 2 The AEDPA does not specify whether Section 440(d) bars the Attorney General from acting on a petition for relief under Section 212(c) filed on or before the date of the AEDPA's ___________________(footnotes) 2 Section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104- 208, Div. C, 110 Stat. 3009-587, repeals Section 212(c) in its entirety and replaces it with Section 240A of the INA, which authorizes a new form of discretionary relief termed "cancellation of removal." See IIRIRA 304(a) (3) and (b). With certain limited exceptions not applicable here, however, the IIRIRA's provisions respecting cancellation of removal apply only to administrative proceedings initiated on or after April 1, 1997. See IIRIRA 309(a) and (c). In any event, petitioner's drug-trafficking conviction would make him ineligible for relief under the new provisions. See INA 240A(a) (3) (as amended by IIRIRA), to be codified at 8 U.S.C. 1229b(a) (3). ---------------------------------------- Page Break ---------------------------------------- 6 enactment. In her recent decision in a case referred to her by the BIA under 8 C.F.R. 3.l(h) (iii), however, the Attorney General formally determined that Section 440(d) applies to cases that were pending before the Executive Office for Immigration Review on the date of enactment. In re Soriano (Feb. 21, 1997). 3 Discretionary relief under the immigration laws is prospective in nature, and the new provision limits the Attorney General's power to confer such relief. Id. at 3-6. 4. Because the Attorney General lacks any authority under current law to grant peti- tioner's request for a waiver of deportation under Section 212(c), even a judicial reversal of her previous discretionary decision to deny relief could not avail petitioner now. ___________________(footnotes) 3 We have provided petitioner with a copy of the Attorney General's opinion. A copy of the opinion was lodged with the Clerk of this Court in connection with our opposition to the petition in No. 96-1310, Salazar-Haro v. INS (cert. denied May 27, 1997). 4 See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) ("The deportation hearing looks prospectively to the respondent's right to remain in this country in the future."); see also Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996) ("Like statutes alter- ing the standards for injunctive relief," changes in the scope of the Attorney General's discretionary authority "ha[ve] only a prospective impact."). Moreover, just as new "jurisdictional statutes 'speak to the power of the court rather than to the rights or obligations of the parties,'" Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994), the repeal of Section 212(c) speaks to the power of the Attorney General to waive deportation, not to any "right" of an alien to obtain such relief. The prin- ciples underlying the present application of jurisdictional rules to pending cases, discussed below, thus apply equally to cases affecting the Attorney General's power to act. See Scheidemann, 83 F.3d at 1523 ("Like statutes constricting the jurisdiction of a judicial body," changes to the class of aliens eligible for Section 212(c) relief "speak only to the power of a public agency. ") ---------------------------------------- Page Break ---------------------------------------- 7 2. The court of appeals correctly dismissed petitioner's pending case, because Section 440(a) operated immediately to divest it of jurisdiction. In Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994), this Court explained that "application of new statutes passed after the events in suit is unquestionably proper in many situations." Id. at 273. In particular, the Court noted that "intervening statutes conferring or ousting jurisdiction" are ordinarily given immediate effect, "whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed." Id. at 274. A new law "normally governs in such situations because jurisdictional statutes 'speak to the power of the court rather than to the rights or obligations of the parties.' " Ibid. 5 Landgraf reaffirmed the long-standing principle that "when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law." Bruner v. United States, 343 U.S. 112, 116-117 (1952) (citing Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922); Gwin v. United States, 184 U.S. 669, 675 (1902); Gurnee v. Patrick County, 137 U.S. 141, 144 (1890); Sherman v. Grinnell, 123 U.S. 679, 680 (1887); Railroad Co. v. Grant, 98 U.S. 398, 401 (1879); and Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869)). "When the ___________________(footnotes) 5 Accord 511 U.S. at 293 (Scalia, J., concurring in the judgments) ("Our jurisdiction cases are explained * * * by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power -- so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised."). ---------------------------------------- Page Break ---------------------------------------- 8 very purpose of Congress is to take away jurisdiction, of course it does not survive, even as to pending suits, unless expressly reserved. * * * If the aim is to destroy a tribunal or to take away cases from it, there is no basis for finding saving excep- tions unless they are made explicit." De La Rama S.S. Co. v. United States, 344 U.S. 386, 390 (1953). Accord, Assessors v. Osbornes, 76 U.S. (9 Wall.) 567, 575 (1870); Insurance Co. v. Ritchie, 72 U.S. (5 Wall.) 541, 544 (1867). No provision of the AEDPA preserves the courts of appeals' jurisdiction over petitions for review that were pending at the time of its enactment. 6. Accordingly, Section 440(a) operated immediately to eliminate that jurisdiction. Although the dismissal of pending petitions may disappoint litigants who anticipated a further level of review, see Pet. 5, a new provision is not impermissible "merely because it * * * upsets expectations based in prior law." Landgraf, 511 U.S. at 269. Like other new jurisdictional provisions, Section 440(a) speaks immediately and prospectively to deny courts the power to review final orders of deportation entered against alien aggravated felons. Id. at 274. ___________________(footnotes) 6 Section 440(f) of the AEDPA provides that the amendments made by Section 440(e) (relating to modifications made to the definition of "aggravated felony") "apply to convictions entered on or after the date of [enactment]." 110 Stat. 1278. There is no provision regarding the effective date of other subsections of Section 440, however, and provisions relating to various other Sections provide no reliable indication of Congress's intent in that regard. See Duldulao v. INS, 90 F.3d 396, 398 n.2 (9th Cir. 1996); Mendez-Rosas v. INS, 87 F.3d 672, 675 & n.4 (5th Cir. 1996), cert. denied, 117 S. Ct. 694 (1997). ---------------------------------------- Page Break ---------------------------------------- 9 With the exception of the Seventh Circuit, which deviated from the others in a limited respect not applicable here, every court of appeals that has considered the matter has reached the same conclusion as the court below in this case, resulting in the dismissal of petitions pending before them. See Fernandez v. INS, Nos. 95-9550 & 96-9504 (10th Cir. May 12, 1997); Figueroa- Rubio v. INS, 108 F.3d 110 (6th Cir. 1997); Boston-Bollers v. INS, 106 F.3d 352, 354-355 (11th Cir. 1997); Kolster v. INS, 101 F.3d 785, 787-791 (1st Cir. 1996); Salazar-Haro v. INS, 95 F.3d 309 (3d Cir. 1996), cert. denied, No. 96-1310 (May 27, 1997); Hincapie-Nieto v. INS, 92 F.3d 27, 29 (2d Cir. 1996); Duldulao v. INS, 90 F.3d 396, 398-400 (9th Cir. 1996); Mendez-Rosas v. INS, 87 F.3d 672, 674-676 (5th Cir. 1996), cert. denied, 117 S. Ct. 694 (1997). In Reyes-Hernandez v. INS, 89 F.3d 490, 492-493 (7th Cir. 1996), the Seventh Circuit held that Section 440 (a) would not divest the court of jurisdiction to entertain a petition for review filed by an alien who had, as part of litigating strategy based on pre-AEDPA law, waived a colorable defense to deportability in order to focus on a request for relief under Section 212(c). The court concluded that, under those limited circumstances, "to make the concession of deportability a bar to relief under section 212(c) would be to attach a new legal consequence to the concession, an event that occurred before the new law came into existence." 89 F.3d at 492-493. That con- clusion is at odds with this Court's teaching that jurisdictional ---------------------------------------- Page Break ---------------------------------------- 10 statutes apply to cases pending at the time of their enactment because they address the power of the courts, not the expecta- tions of litigants. See Landqraf, 511 U.S. at 274-275. More - over, we share the Second Circuit's skepticism "that any alien concedes deportability only because of the expected possibility of section 212 (c) relief and the availability of a petition for review of the denial of such relief." Hincapie-Nieto, 92 F.3d at 30. As that court recognized, "[i]t is far more likely that deportability is conceded because there is no conceivable defense available." Ibid. The Seventh Circuit has since limited Reyes-Hernandez to its facts. In Arevalo-Lopez v. INS, 104 F.3d 100 (7th Cir. 1997), the court made clear that it would not assert continuing juris- diction if the petitioner either contested deportability, or had no colorable defense. See also Yang v. INS, 109 F.3d 1185, 1191 (7th Cir. 1997) ("Reyes-Hernandez is a decision with a limited domain, as Arevalo-Lopez properly recognizes -- a domain that it would be inappropriate to expand, given the force of precedent in other circuits."). In this case, petitioner admitted the string of criminal convictions that rendered him deportable, and the IJ found that deportability had been established "by clear, con- vincing, and unequivocal evidence." Pet. App. A at 2. There is no reason to believe that the Seventh Circuit would have asserted jurisdiction over petitioner's case. 3. The statutory issue petitioner seeks to raise affects only a limited and rapidly diminishing class of cases in which ---------------------------------------- Page Break ---------------------------------------- 11 petitions for judicial review brought by alien felons were pending before the courts of appeals when the AEDPA was enacted in April, 1996. Moreover, as noted above (see note 2, supra), Congress has comprehensively revised the entire statutory frame- work relating to discretionary relief from deportation, with general effect as of April 1, 1997. The question whether Sec- tion 440(a)'s amendment of Section 106(a) (10) of the INA -- a provision that has now been repealed in its entirety -- was or was not immediately effective is therefore of little continuing importance. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General FRANK W. HUNGER Assistant Attorney General DONALD E. KEENER ALISON R. DRUCKER BRENDA E. ELLISON Attorneys JUNE 1997