The decision comes in a case with a lengthy procedural history.  The petitioner in the case, a Mr. Magana, was admitted to the United States as a lawful permanent resident more than twenty years ago, when he was five years old.  In 1995 he was convicted of a misdemeanor charge of being under the influence of cocaine and methamphetamine.  In April 1996, the AEDPA was enacted.  It includes a provision making persons ineligible for waivers of deportation under INA section 212(c) if they are deportable because of any of a wide range of criminal offenses, including any controlled substance offense.  In May 1996, the Immigration and Naturalization Service commenced deportation proceedings against Magana.  At his deportation hearing, he attempted to apply for a 212(c) waiver, but the immigration judge pretermitted the application and ordered him deported.  Magana then appealed to the Board of Immigration Appeals, which ultimately dismissed the appeal, relying on the attorney general’s decision in Matter of Soriano, Int. Dec. 3289 (A.G. Feb. 21, 1997).

In response to the BIA’s decision, Magana filed a petition for review with the Ninth Circuit.  However, because both the AEDPA and the IIRIRA contain provisions that bar federal appellate court jurisdiction to review deportation orders entered against individuals deportable for specified criminal convictions, he also filed a petition for habeas corpus in federal district court.  The district court dismissed the petition for lack of jurisdiction, and Magana appealed that decision to the Ninth Circuit.  The Ninth Circuit consolidated the appeal of the dismissal with the petition for review of the deportation order.  The court issued a decision in September 1998, but this decision ultimately was vacated by the Supreme Court and remanded for reconsideration.  Magana-Pizano v. INS, 152 F.3d 1213, amended, 159 F.3d 1217 (9th Cir. 1998), vacated and remanded, 119 S.Ct. 1137 (1999).  The new decision comes as a result of that remand.

Addressing the jurisdictional issues first, the court found that it did not have jurisdiction over Magana’s petition for review because of the IIRIRA’s transitional judicial review provisions, which bar appeals in cases of individuals who are inadmissible or deportable because of specified criminal convictions.  However, the court concluded that it did have jurisdiction over the habeas petition, rejecting the government’s claim that the AEDPA and the IIRIRA repealed habeas jurisdiction to review deportation orders.  In so holding, the court joined the majority of other circuits that have found that habeas jurisdiction was not repealed by these statutes.  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 sub nom Reno v. Navas, 119 S.Ct. 1141 (1999); Sandoval v. INS, 166 F.3d 225 (3rd Cir. 1999); Selgeka v. Carroll, 184 F.3d 337 (4th Cir. 1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir. 1999); Pak v. Reno, 196 F.3d 666 (6th Cir. 1999); Shah v. Reno, 184 F.3d 719 (8th Cir. 1999); Mayers v. INS, 175 F.3d 1289 (11th Cir. 1999); but see LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998), petition for cert. filed, No. 99-418 (U.S. Sep. 7, 1999) and Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999), petition for cert. filed, No. 99-887 (U.S. Nov. 23, 1999) (finding that the IIRIRA’s permanent judicial review provisions bar habeas jurisdiction).

The court also addressed the scope of habeas review that is available.  Rejecting the INS’s arguments for imposing a more restrictive standard of review, the court concluded that habeas review is available both for constitutional and statutory claims.

Turning to the merits, the court examined the structure and history of the AEDPA in order to determine whether its restrictions on section 212(c) relief apply to deportation cases that were pending at the time the statute was enacted.  The court noted that, while some provisions of the AEDPA expressly apply to pending cases, the 212(c) restrictions do not.  The court also noted that the statute’s legislative history supports the conclusion that AEDPA section 440(d) was not intended to apply to pending cases.  Accordingly, the court concluded that the AEDPA’s 212(c) restrictions do not apply to deportation cases that were pending on Apr. 22, 1996, when the law was enacted.

Finally, the court turned to the question of whether the AEDPA’s 212(c) restrictions apply to individuals such as Magana, who were not in deportation proceedings at the time the AEDPA was enacted but who pled guilty to criminal charges prior to the law’s enactment.  The court concluded that, as a general matter, it would not be impermissibly retroactive to apply the restrictions to such individuals.  However, the court expressly left open "the possibility that, under a specific factual showing that a plea was entered in reliance on the availability of a discretionary waiver under section 212(c)," it would be impermissible to apply the AEDPA’s restrictions to an individual.  The court therefore ordered the case remanded to the district court to determine whether Magana entered his guilty plea in reliance on the availability of relief from deportation.