In all four cases, the petitioners were lawful permanent residents who were convicted of crimes that made them deportable and whose convictions occurred prior to the Apr. 24, 1996, enactment of the AEDPA.  Likewise, in all four cases the Immigration and Naturalization Service had commenced deportation proceedings against the petitioners after the AEDPA’s enactment.  The petitioners sought to apply for a waiver of deportation under INA section 212(c) but were denied first by the immigration judge and then by the Board of Immigration Appeals because of AEDPA section 440(d).  Section 440(d) amended the INA to make waivers unavailable to individuals who are deportable because of a wide variety of criminal convictions.  The petitioners then filed habeas petitions in federal district court.  The district court judges dealt with the cases in different ways, and all four cases were appealed, resulting in this consolidated opinion.

The first issue before the appellate court was whether AEDPA sections 401(e) and 440(a), as well as similar provisions enacted as part of the IIRIRA, eliminated jurisdiction to review deportation orders by means of the federal habeas corpus statute.  AEDPA section 401(e) eliminated the provision of the INA that specifically authorized habeas actions to review deportation orders, while section 440(a) bars review of deportation orders issued against individuals convicted of specified offenses.  However, because neither provision referenced the federal habeas statute, the court therefore concluded that they did not eliminate habeas jurisdiction.  As noted above, most other circuits that considered this issue have reached the same conclusion. See Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), cert. denied, 119 S.Ct. 1140 (1999); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied, 119 S.Ct. 1141 (1999); Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999); Selgeka v. Carroll, 184 F.3d 337 (4th Cir. 1999) (finding habeas jurisdiction available after enactment of the IIRIRA); Shaw v. Reno, 184 F.3d 719 (8th Cir. 1999); and Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999).  The issue is currently pending in the Ninth Circuit, in a case in which the court previously ruled that the IIRIRA eliminated habeas jurisdiction but that such restriction violates the Constitution if it is applied to individuals who do not have access to any other avenue of judicial review.  Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998), cert. granted & judgment vacated, 119 S.Ct. 1137 (1999).  The Seventh Circuit has held that the AEDPA and the IIRIRA eliminated district court habeas jurisdiction.  LaGuerre v. Reno, 164 F.3d 1040 (7th Cir. 1998).

Turning to the merits, the court noted that the retroactivity issue in this consolidated appeal is different from that presented in the above-cited cases.  In Goncalves, Henderson, Sandoval, Shaw, and Mayers, the courts found that the government erred in applying AEDPA section 440(d) to deportation cases that were pending at the time the statute was enacted.  In this case, on the other hand, the petitioners’ proceedings were not commenced until after the enactment of the AEDPA.  However, the court also rejected the analyses underlying the other circuit courts’ decisions, concluding that the language of the AEDPA is ambiguous as to whether Congress intended the statute to apply to pending cases.  And, the three-judge panel ruled, the presumption against retroactivity does not apply in the appeal before it because section 440(d)’s restriction on the availability of waivers is "akin to a change in prospective relief."  Judge Lucero filed a concurring opinion, agreeing with the majority that applying section 440(d) to individuals who were not in proceedings when AEDPA was enacted is not impermissibly retroactive, but contending that applying the provision to individuals who did have proceedings pending on the date of the statute’s enactment would violate Congress’s intent.

While this is the first appellate decision to rule on the issue of whether section 440(d) can be applied to pre-AEDPA convictions, there have been two district court rulings finding such application to be impermissibly retroactive.  See Maria v. McElroy, 1999 U.S. Dist. LEXIS 13502 (E.D.N.Y. Aug. 27, 1999), and Pottinger v. Reno, 51 F.Supp.2d 349 (E.D.N.Y. 1999).