|
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MAGANA-PIZANO, Nos. 97-15678
Petitioner-Appellant, 97-70384
v. INS No.
A35-822-607
IMMIGRATION AND NATURALIZATION
SERVICE, D.C. No.
Respondent-Appellee. CV 97-00619 SMM
OPINION
ON REMAND FROM THE
UNITED STATES SUPREME COURT
Filed December 27, 1999
Before: Alfred T. Goodwin and Sidney R. Thomas,
Circuit Judges, Dean D. Pregerson,* District Judge.
Opinion by Judge Sidney R. Thomas
_________________________________________________________________
COUNSEL
Michael Franquinha, Stender & Larkin, Phoenix, Arizona, for
the appellant-petitioner.
14838
Hugh G. Mullane, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., for the
appellee-respondent.
Lucas Guttentag, San Francisco, California, for Amicus
Curiae, American Civil Liberties Union Foundation.
Lenni B. Benson, New York, New York, for Amici Curiae,
Law Professors.
Marc Van Der Hout, Van Der Hout & Brigagliano, San Fran-
cisco, California, for Amicus Curiae, The American Immigra-
tion Lawyers Association, and the National Immigration
Project of the National Lawyers Guild.
_________________________________________________________________
OPINION
THOMAS, Circuit Judge:
This appeal returns to us on remand from the Supreme
Court for further consideration in light of Reno v. American-
Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)
("American-Arab"), decided after the issuance of our prior
opinion in this case. See INS v. Magana-Pizano , 119 S. Ct.
1137 (1999). With the guidance of American-Arab , we con-
clude that the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct.
11, 1996, Pub. L. No. 104-302, 110 Stat. 3656, did not repeal
28 U.S.C. S 2241. This conclusion makes our consideration of
the constitutionality of such repeal, as we did in our prior
opinion, unnecessary. We therefore reverse the district court's
dismissal of the habeas corpus petition, and remand the case
to the district court for further proceedings.
I
The facts and procedural history are detailed in our prior
opinion. See Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir.),
14839
as amended, 159 F.3d 1217 (9th Cir. 1998) (" Magana I").
Daniel Magana-Pizano is a native and citizen of Mexico who
entered the United States in 1977, as the five-year old child
of a lawful permanent resident. He has remained here since
his admission, residing in Southern California and Arizona. In
February 1995, he pleaded nolo contendere to the charge of
being under the influence of cocaine and methaphetamine in
violation of section 11550(a) of the California Health and
Safety Code, a misdemeanor offense.
On May 17, 1996, the Immigration and Naturalization Ser-
vice ("INS") issued an Order to Show Cause 1 to Magana-
Pizano alleging that he was deportable as a result of this mis-
demeanor criminal conviction. At his deportation hearing,
Magana-Pizano conceded his deportability as a result of the
drug conviction, but indicated that he would apply for a dis-
cretionary waiver of deportation under section 212(c) of the
Immigration and Nationality Act ("INA").
By the time of the deportation hearing, Congress had
passed the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified
as amended in scattered sections of 8, 15, 18, 22, 28, 40, 42,
50 U.S.C.) ("AEDPA"). Section 440(d) of AEDPA amended
INA S 212(c) to eliminate discretionary relief for aliens con-
victed of most drug-related crimes, including Magana-
Pizano's.2 As a result of this statutory change, the INS filed
_________________________________________________________________
1 The Order to Show Cause alleged that Magana-Pizano was deportable
under INA S 241(a)(2)(B)(i), codified at 8 U.S.C. S 1251 (1994) (rede-
signated by IIRIRA S 305(a)(2) as INA S 237(a)(2)(i), to be codified at 8
U.S.C. S 1227(a)(2)(B)(i) (Supp. II 1996)). This section provides that
"[a]ny alien who at any time after entry has been convicted of a violation
of (or a conspiracy or attempt to violate) any law or regulation of a State,
the United States, or a foreign country relating to a controlled substance
. . . is deportable."
2 Section 440(d) of AEDPA modifies 8 U.S.C. S 1182(c) to provide that
the Attorney General no longer has the authority to waive deportation of
aliens convicted of certain crimes, such as those involving controlled sub-
stances. It provides:
14840
a motion to pretermit Magana-Pizano's application for relief
under INA S 212(c), arguing that section 440(d) of AEDPA
and its amendment to section 212(c) were effective as of the
date of passage on April 24, 1996. These changes provided
that any alien who, like Magana-Pizano, was deportable due
to a criminal conviction under 8 U.S.C. S 1251(a)(2)(B), was
statutorily ineligible for discretionary relief.
The immigration judge granted the INS motion to pretermit
Magana-Pizano's application and ordered Magana-Pizano
deported to Mexico. Magana-Pizano appealed this decision to
the Board of Immigration Appeals ("BIA"), which sustained
the deportation order based on AEDPA changes to INA
S 212(c) and the Attorney General's opinion in In re Soriano,
Int. Dec. 3289, 1996 WL 426888 (A.G. Feb. 21, 1997).
Magana-Pizano filed with this Court a timely petition for
review of the BIA's decision.
Magana-Pizano also filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. S 2241 in the United States Dis-
trict Court for the District of Arizona. In his habeas petition,
he argued that the BIA's decision and interpretation of
AEDPA section 440(d) violated the Equal Protection Clause
_________________________________________________________________
Aliens lawfully admitted for permanent residence who temporar-
ily proceeded abroad voluntarily and not under an order of depor-
tation, and who are returning to a lawful unrelinquished domicile
of seven consecutive years, may be admitted in the discretion of
the Attorney General without regard to the provisions of subsec-
tion (a) of this section (other than paragraphs (3) and (9)(c)).
Nothing contained in this subsection shall limit the authority of
the Attorney General to exercise the discretion in him under sec-
tion 1181(b) of this title. This subsection shall not apply to an
alien who is deportable by reason of having committed any crimi-
nal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D)
of this title, or any offense covered by section 1251(a)(2)(A)(ii)
of this title for which both predicate offenses are, without regard
to the date of their commission, otherwise covered by section
1251(a)(2)(A)(i) of this title.
14841
of the Constitution. The district court dismissed the complaint
without prejudice for lack of jurisdiction, explaining that the
statutory basis for habeas review for aliens in custody pursu-
ant to an order of deportation was repealed by a different sec-
tion of AEDPA. See AEDPA S 401(e), repealing 8 U.S.C.
S 1105a(a)(10). Magana-Pizano filed a timely appeal, and we
sua sponte consolidated both matters.
II
The Supreme Court's decision in American-Arab does not
alter our analysis of Magana-Pizano's petition for review of
the BIA decision holding that he was ineligible for discretion-
ary relief under INA S 212(c). Magana-Pizano challenged the
BIA's interpretation of AEDPA section 440(d) and its appli-
cability to his case. In Magana I, we held that we could not
reach the merits of the petition because Congress had repealed
our jurisdiction to entertain the petition. We have confirmed
this holding in Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir.
1999).
[1] Immigration proceedings initiated by the INS before
IIRIRA's general effective date of April 1, 1997, in which a
final deportation or exclusion order was filed after October
30, 1996, are governed by interim transitional rules. See
IIRIRA S309(c); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.
1997).3 Because the BIA's decision holding Magana-Pizano
statutorily ineligible for relief was issued March 17, 1997,
IIRIRA's transitional provisions apply to his case. See
IIRIRA S 309(c)(4); Kalaw, 133 F.3d at 1150.
[2] The IIRIRA provision relevant to this appeal, section
309(c)(4)(G), codified as 8 U.S.C. S 1252(g), provides:
_________________________________________________________________
3 The scope and validity of the permanent changes made by IIRIRA are
not before us and we therefore decline to address those issues.
14842
there shall be no appeal permitted in the case of an
alien who is inadmissible or deportable by reason of
having committed a criminal offense covered in sec-
tion 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C),
or (D) of the Immigration and Nationality Act (as in
effect as of the date of the enactment of this Act), or
any offense covered by section 241(a)(2)(A)(ii) of
such Act (as in effect on such date) for which both
predicate offenses are, without regard to their date of
commission, otherwise covered by section
241(a)(2)(A)(i) of such Act (as so in effect).
IIRIRA S 309(c)(4)(G). Under this provision, we do not have
appellate jurisdiction over petitions filed by aliens who are
deportable because they committed one of the criminal
offenses enumerated in IIRIRA section 309(c)(4)(G). See
Briseno, 192 F.3d at 1322; Yang v. INS, 109 F.3d 1185, 1192
(7th Cir.), cert. denied sub nom., Katsoulis v. INS, 118 S. Ct.
624 (1997). Magana-Pizano does not dispute that he is an
alien deportable by reason of having been convicted of one of
the enumerated offenses. Rather, he argues that the Immigra-
tion Judge's and BIA's reading of AEDPA S 440(d) constitute
an impermissible retroactive application of the amended stat-
ute. Because Magana-Pizano's arguments are not within the
narrow scope of our review on direct appeal under IIRIRA's
transitional rules, we dismiss his petition for review for lack
of jurisdiction.
III
American-Arab does alter our jurisdictional analysis of
Magana-Pizano's habeas petition; however, it does not change
the result. The district court denied Magana-Pizano's habeas
corpus petition after concluding that the statutory basis for
habeas review for aliens in custody pursuant to an order of
deportation had been repealed by AEDPA. In Magana I, we
held that the district court retains jurisdiction under 28 U.S.C.
14843
S 2241 when the petitioner has no other judicial remedy. We
adhere to that holding, although for different reasons.
[3] Prior to the passage of AEDPA and IIRIRA, aliens
wishing to challenge the constitutionality of a final order of
deportation via habeas corpus did so using one of two general
methods: (1) proceeding pursuant to INA S 106(a)(10); or (2)
proceeding pursuant to the general statutory habeas provision
of 28 U.S.C. S 2241.4 Prior to its repeal by AEDPA, INA
S 106(a) provided the primary means of habeas review.5
Given the repeal of INA S 106, Magana-Pizano filed his
habeas petition pursuant to 28 U.S.C. S 2241.
[4] While Magana-Pizano's appeal was pending, a panel of
this Court held that IIRIRA had repealed the remedy of
habeas corpus in immigration cases, including a remedy under
28 U.S.C. S 2241. See Hose v. INS, 141 F.3d 932, 935 (9th
Cir. 1998). Against the backdrop of that decision, we were
faced in Magana I with the question of whether that repeal
violated the Suspension Clause, and concluded that elimina-
tion of all judicial review of executive deportation violated
the Constitution. See Magana I, 153 F.3d at 1220. Because
the Suspension Clause prevented Congress from eliminating
access to general statutory habeas relief, we held that
Magana-Pizano could pursue his remedies under 28 U.S.C.
S 2241. See id. at 1222.
_________________________________________________________________
4 28 U.S.C. S 2241 provides that writs of habeas corpus may be granted
by the Supreme Court, any justice thereof, the district courts and any cir-
cuit judge within their respective jurisdictions. Among other things, it
affords a remedy through a writ of habeas corpus to persons in custody in
violation of the Constitution or laws or treaties of the United States.
5 Enactment of the INA S 106(a)(10) habeas remedy did not supplant the
district court's general habeas corpus jurisdiction under 28 U.S.C. S 2241.
Section 106 was enacted in 1961, after which we held that district courts
had jurisdiction under both INA S 106(a)(10) and 28 U.S.C. S 2241 to
review a final order of deportation, including the denial of discretionary
relief pursuant to INA S 212(c). See Sotelo Mondragon v. Ilchert, 653 F.2d
1254, 1255 (9th Cir. 1980).
14844
However, other circuits construed IIRIRA differently from
the Hose panel, holding that, as a matter of statutory construc-
tion, IIRIRA did not repeal 28 U.S.C. S 2241. 6 Although it
considered the statute in a different context, the Supreme
Court effectively resolved the inter-circuit conflict by constru-
ing 8 U.S.C. S 1252(g) in American-Arab . In American-Arab,
the Supreme Court rejected the government's claim that 8
U.S.C. S 1252(g) "covers the universe of deportation claims."
Rather, the Court held:
In fact, what S 1252(g) says is much narrower. The
provision applies only to three discrete actions that
the Attorney General may take: her "decision or
action" to "commence proceedings, adjudicate cases
or execute removal orders."
American-Arab, 119 S. Ct. at 943.
After construing the statutory reach of 8 U.S.C.S 1252(g),
the Supreme Court denied certiorari petitions in Goncalves
and Henderson and vacated the judgment in Magana I,
instructing us to reconsider our decision in light of American-
Arab.
Subsequently, the panel decision in Hose was vacated, and
that case was reheard en banc. See Hose v. INS , 161 F.3d
_________________________________________________________________
6 See Pak v. Reno, No. 98-3852, 1999 WL 791660, at *6 (6th Cir. Oct.
6, 1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306 (5th Cir.
1999); Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1146-47 (10th Cir.
1999); Selgeka v. Carroll, 184 F.3d 337, 342 (4th Cir. 1999); Shah v.
Reno, 184 F.3d 719, 724 (8th Cir. 1999); Sandoval v. INS, 166 F.3d 225,
238 (3d Cir. 1999); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert.
denied sub nom., Reno v. Navas, 119 S. Ct. 1141 (1999); Goncalves v.
Reno, 144 F.3d 110, 117 (1st Cir. 1998), cert. denied, 119 S. Ct. 1140
(1999); but see LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998),
petition for cert. filed, No. 99-418 (U.S. Sept. 7, 1999). Compare
Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999), petition for cert.
filed, No. 99-887 (U.S. Nov. 23, 1999), with Mayers v. U.S. Dep't of INS,
175 F.3d 1289, 1297 (11th Cir. 1999).
14845
1225 (9th Cir. 1998). Upon rehearing en banc, we concluded
that following American-Arab, the Hose panel's construction
of 8 U.S.C. S 1252(g) was no longer viable. See Hose v. INS,
180 F.3d 992, 994 (9th Cir. 1999) (en banc). However, we
expressly declined to decide what habeas corpus remedies
remained under IIRIRA. See id. at 995 n.2. That question was
reserved for resolution by this panel.
Thus, the threshold question before us on remand is
whether IIRIRA repealed the statutory habeas corpus remedy
contained in 18 U.S.C. S 2241. We join the majority of our
sister circuits in concluding that it did not.
[5] Although AEDPA repealed INA S 106(a)(10), the pri-
mary avenue of habeas relief in immigration cases, neither
AEDPA nor IIRIRA expressly repealed statutory habeas cor-
pus relief pursuant to 28 U.S.C. S 2241. The theory that 8
U.S.C. S 1252(g) eliminated all habeas corpus relief (includ-
ing, by implication, 28 U.S.C. S 2241) cannot be reconciled
with the Supreme Court's narrow construction of 8 U.S.C.
S 1252(g) in American-Arab.
Indeed, throughout the history of our Republic, the
Supreme Court has consistently rejected attempts to repeal
statutory habeas corpus jurisdiction by implication. See Felker
v. Turpin, 518 U.S. 651 (1996); Ex parte Yerger, 75 U.S. 85,
105 (1869). The Court's pronouncement in Felker is instruc-
tive. In Felker, the Court addressed whetherS 106(b) of the
AEDPA -- which prohibits inmates from filing successive
habeas petitions in the district courts absent permission from
a court of appeals -- operated to eliminate the Supreme
Court's original jurisdiction to entertain a habeas petition. See
Felker, 518 U.S. at 658. Section 106(b) also provides that a
decision by a court of appeals denying permission to file a
successive habeas petition "shall not be appealable and shall
not be the subject of a petition for rehearing or for a writ of
certiorari." See AEDPA S 106(b) (to be codified at 28 U.S.C.
S 2244(b)(3)(E)). Despite this provision, the Supreme Court
14846
unanimously held that it retained jurisdiction to entertain orig-
inal habeas petitions pursuant to 28 U.S.C. S 2241. The Court
explained that "[n]o provision . . . mentions our authority to
entertain original habeas petitions [under S 2241]." Felker,
518 U.S. at 660.
[6] Like the provision at issue in Felker, IIRIRA S 242(g)
limits judicial review, but does not refer to habeas jurisdiction
under 28 U.S.C. S 2241. Presumably, the holding in Felker
placed Congress on notice that it could repeal habeas jurisdic-
tion under S 2241 only by express command, and not by
implication. See Pak, 1999 WL 791660, at *5. That it failed
to make explicit reference to section 2241, coupled with the
Supreme Court's guidance in American-Arab, lead us unerr-
ingly to the conclusion that IIRIRA did not strip the district
court of jurisdiction over Magana-Pizano's habeas petition
under 28 U.S.C. S 2241.
[7] Furthermore, the scope of habeas review extends to
both constitutional and statutory questions. 28 U.S.C. S 2241
expressly permits the federal courts to grant writs of habeas
corpus to aliens when those aliens are "in custody in violation
of the Constitution or laws or treaties of the United States."
See Henderson, 157 F.3d at 121; Goncalves, 144 F.3d at 125.
[8] Accordingly, we join the vast majority of our sister cir-
cuits, and conclude that neither AEDPA nor IIRIRA repealed
statutory habeas remedies other than INA S 106(a)(10). Thus,
28 U.S.C. S 2241 remains an available remedy to those chal-
lenging executive detention.
IV
The INS argues that to the extent the federal courts have
any jurisdiction over Magana-Pizano's habeas petition, such
jurisdiction lies with the Court of Appeals. We rejected this
theory in Magana I, see 152 F.3d at 1222, and nothing in
American-Arab changes our analysis. The plain language of
14847
28 U.S.C. S 2241 provides an unambiguous grant of jurisdic-
tion to the district courts, stating, "Writs of habeas corpus
may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective
jurisdictions." 28 U.S.C. S 2241(a) (1994). Indeed, bifurcated
review of immigration matters has been the norm, not the
exception. Compare Foti v. INS, 375 U.S. 217, 221 (1963)
(Court of Appeals review of discretionary relief) and Giova v.
Rosenberg, 379 U.S. 18 (1964) (Court of Appeals review of
motion to reopen), with Cheng Fan Kwok v. INS , 392 U.S.
206, 216 (1968) (district court review of denial of stay of
deportation). Moreover, it is appropriate that any evidentiary
hearings with respect to habeas matters take place at the dis-
trict court level which is uniquely positioned to handle such
issues and develop the appropriate record. Magana-Pizano's
petition raises factual questions which are best committed to
the wisdom of the district court for resolution.
Regardless of these policy considerations, in the end the
choice of jurisdictional assignment is a Congressional one,
and Congress vested the district courts with the power to
review habeas corpus petitions. It is not only a proper choice,
but one which we lack the power to divest.
V
The antecedent issue raised by Magana-Pizano's habeas
petition is whether AEDPA S 440(d), which precludes discre-
tionary relief under INA S 212(c) for aliens convicted of drug-
related crimes, applies to him.7 The question of whether
AEDPA applies to deportation proceedings pending at the
time of enactment has mostly been settled by other circuits,
who have concluded that it does not. See Wallace v. Reno,
_________________________________________________________________
7 This is a statutory claim cognizable in habeas proceedings as a claim
that one "is in custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. S 224; see also Mayers, 175 F.3d at 1300;
Sandoval, 166 F.3d at 238; Henderson, 155 F.3d at 122.
14848
194 F.3d 279, 287 (1st Cir. 1999); Pak, 1999 WL 791660, at
*6; Mayers, 175 F.3d at 1301-04; Sandoval, 166 F.3d at 242;
Henderson, 157 F.3d at 129-30; see also Shah, 184 F.3d at
724.
This is not the first occasion we have had to examine
AEDPA's effective date. In Jeffries v. Wood, we examined
Title I of AEDPA8 and concluded based on the statutory struc-
ture and history that the provisions of AEDPA at issue could
not be applied to habeas petitions filed before AEDPA's
effective date. See 114 F.3d 1484, 1494-99 (9th Cir.), cert.
denied, 118 S. Ct. 586 (1997). A similar analysis applies to
the provisions of Title IV, with a similar result.
We begin with the presumption, "deeply rooted in our
jurisprudence," that legislation applies prospectively.
Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). With
this presumption as a backdrop, we then determine whether
Congress has prescribed the statute's proper temporal reach.
See id. at 280. Here, as in Jeffries, we conclude that Congress
has. Because AEDPA has numerous effective date provisions,
even within chapters, AEDPA's structure has been important
in divining intent. See Lindh v. Murphy, 521 U.S. 320, 326
(1997); Jeffries, 114 F.3d at 1495.
[9] The structure of Title IV clearly indicates that section
440(d) was not intended to apply to pending deportation
cases. Title IV restricts discretionary relief from deportation
for two categories of aliens: (1) those involved in terrorism
and (2) those convicted of certain crimes, including drug-
_________________________________________________________________
8 AEDPA is divided into nine titles, namely: Title I (Habeas Corpus
Reform); Title II (Justice for Victims); Title III (International Terrorism
Prohibitions); Title IV (Terrorist and Criminal Alien Removal and Exclu-
sion); Title V (Nuclear, Biological, and Chemical Weapons Restrictions);
Title VI (Implementation of Plastic Explosives Convention); Title VII
(Criminal Law Modifications to Counter Terrorism); Title VIII (Assis-
tance to Law Enforcement) and Title IX (Miscellaneous).
14849
related crimes. For those in the first category, 9 AEDPA
became effective as to all pending cases in which "final
action" had not yet been taken. See AEDPAS 413(g).10
AEDPA provided a similar effective date for its new provi-
sions concerning asylum applications from alien terrorists.
See AEDPA S 421. There is no similar effective date estab-
lished for aliens in the second category, namely, those like
Magana-Pizano who have been convicted of designated
crimes. We found a similar structure dispositive of congres-
sional intent in Title I of AEDPA. See Jeffries , 114 F.3d at
1495. The Supreme Court reached the same conclusion in
Lindh. See 521 U.S. at 327. As the Supreme Court put it in
Lindh: "Nothing, indeed, but a different intent explains the
different treatment." Id. at 329. The fact that AEDPA was
expressly made applicable to pending deportation cases
involving alien terrorists, but not expressly applicable to those
deportable by reason of criminal conviction, was dispositive
for those circuits who have examined the issue. See Pak 1999
WL 791660, at *8; Mayers 175 F.3d at 1302-03; Sandoval,
166 F.3d at 241; Henderson, 157 F.3d at 129-30; Gonclaves
144 F.3d at 128-129.
In addition, the legislative history supports the conclusion
that AEDPA S 440(d) was not intended to apply to pending
deportation proceedings. The original Senate bill contained
express language making the provision which became
AEDPA S 440(d) retroactive. See 141 Cong. Rec. S7553,
7559 (daily ed. May 25, 1995) (containing text of Senate's
version of AEDPA, and including in S 303 the provisions
which eventually became included in AEDPA S 440). How-
ever, this language was eliminated by the conference commit-
_________________________________________________________________
9 An alien terrorist is defined as one "who has engaged, is engaged, or
at any time after entry engages in any terrorist activity." AEDPA S 401(a).
10 In full, the statute reads:"The Amendments made by this section shall
take effect on the date of the enactment of this Act and shall apply to
applications filed before, on or after such date if final action has not been
taken on them before such date." AEDPA S 413(g).
14850
tee and not included in the final bill. See H.R. Rep. No. 104-
518, at 119 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 952
(adopting S 303(e)(4) of Senate bill without adopting the
retroactivity provision contained in S 303(f)). "A contrast in
statutory language is `particularly telling' when it represents
a decision by a conference committee to resolve a dispute in
two versions of the bill, and the committee's choice is then
approved by both Houses of Congress." Goncalves, 144 F.3d
at 132 (citing FEC v. NRA Political Victory Fund , 513 U.S.
88, 95 (1994)). Other circuits have also found this legislative
history persuasive. See Pak 1999 WL 791660, at *8; Mayers
175 F.3d at 1304; Sandoval, 166 F.3d at 241; Henderson, 157
F.3d at 130.
[10] Given our own analysis, and the weight of authority
from other circuits, we conclude that AEDPA S 440(d) cannot
be applied to deportation cases pending on the date AEDPA
became law.11
VI
[11] There remains one additional issue regarding the
potential retroactive application of AEDPA, namely, whether
it applies to crimes for which the alien pled guilty before
AEDPA's enactment, but where deportation proceedings were
initiated after AEDPA's effective date. Where Congress pro-
vides no express command as to the temporal reach of a stat-
ute, as is the case with this issue, Landgraf instructs us to
"determine whether the new statute would have retroactive
_________________________________________________________________
11 The government urges that we give deference to the Attorney Gener-
al's decision in Soriano, which reached the opposite conclusion. This
argument has been rejected by all other circuits to consider it. See Jurado-
Gutierrez, 190 F.3d at 1147-48; Shah, 184 F.3d at 724; Sandoval, 166
F.3d at 239-40. Because the issue presented is a question of pure law and
does not implicate agency expertise in any meaningful way, we need not
defer under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 843, 865 (1984), to the Attorney General's interpreta-
tion. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987).
14851
effect, i.e., whether it would impair rights a party possessed
when he acted, increase a party's liability for past conduct, or
impose new duties with respect to transactions already
completed." 511 U.S. at 280. The inquiry into whether a stat-
ute operates retroactively requires a "common sense, func-
tional judgment" about "whether the new provision attaches
new legal consequences to events completed before its
enactment." See Martin v. Hadix, 119 S. Ct. 1998, 2006
(1999) (quoting Landgraf, 511 U.S. at 270). If so, then
"Landgraf's default rule would deny application" of the stat-
ute "when a retroactive effect would otherwise result." Lindh,
521 U.S. at 326.
[12] In general, denying eligibility for discretionary relief
from deportation on the basis of past criminal convictions
does not constitute an impermissible retroactive application of
a statute. See Samaniego-Meraz v. INS, 53 F.3d 254, 256 (9th
Cir. 1995). It is difficult to argue, for example, that a convict
would have refrained from committing the criminal act if he
had just known of the potential for future adverse deportation
consequences.
[13] However, the same cannot necessarily be said for deci-
sions to enter a plea of guilty or nolo contendere. That an
alien charged with a crime involving controlled substances
would factor the immigration consequences of conviction in
deciding whether to plead or proceed to trial is well-
documented. See Wallace v. Reno, 24 F. Supp. 2d 104, 110
(D. Mass. 1998), aff'd, 194 F.3d 279 (1st Cir. 1999); Mojica
v. Reno, 970 F. Supp. 130, 177 (E.D.N.Y. 1997), aff'd in part,
dismissed in part, Henderson v. INS, 157 F.3d 106 (2d Cir.
1998). For example, the district court in Wallace noted that it
was widely recognized as a violation of an attorney's profes-
sional duty to his client not to advise him of the immigration
consequences of a plea or conviction. See Wallace, 24 F.
Supp. 2d at 110; see also Mojica, 970 F. Supp. at 177; People
v. Barocio, 264 Cal. Rptr. 573, 578-79 (Cal. Ct. App. 1989).
14852
Indeed, many states require a court to advise a defendant of
the immigration consequences of the plea, or risk vacation of
the conviction. See, e.g., Cal. Penal CodeS 1016.5 (imposing
statutory duty upon judiciary to warn aliens about immigra-
tion consequences of guilty plea); Or. Rev. Stat.
S 135.385(2)(d) (same); Wash. Rev. Code Ann.S 10.40.200
(same); People v. Gontiz, 68 Cal. Rptr. 2d 786 (Cal. Ct. App.
1997) (court must inform defendant of all immigration conse-
quences as required by statute); People v. Soriano, 240 Cal.
Rptr. 328, 336 (Ct. App. 1987) (allowing defendant to with-
draw guilty plea for failure to advise of immigration conse-
quences).
[14] Thus, prior to AEDPA, a legal permanent resident
alien could plead guilty or nolo contendere after receiving
assurances in open court that the entry of the plea would not
have any adverse immigration consequences. In fact, that
might be the motivation for entering into the plea bargain. To
those aliens who entered a plea in reliance upon representa-
tions of deportation consequences, the alteration in the law
would severely disturb their settled expectations.
[15] We also note that, until the passage of IIRIRA, "the
definition of `conviction' for immigration purposes had been
a fluid one." In re Roldan, Int. Dec. 3377, 1999 WL 126433
(BIA 1999).12 In fact, there was no statutory definition of what
constituted a "conviction" for deportation purposes, even
under AEDPA.13
_________________________________________________________________
12 See, e.g., Pino v. Landon, 349 U.S. 901 (1955); In re Ozkok, 19 I&N
Dec. 546, 551-52 (BIA 1988); In re L--R-- , 8 I&N Dec. 269, 270 (BIA
1959). In fact, in Roldan, the BIA took the position that IRRIRA changed
immigration law to allow a vacated conviction to serve as a basis for
deportation, in contradiction of our prior decisions in Wiedersperg v. INS,
896 F.2d 1179, 1181-82 (9th Cir. 1990) and Estrada-Rosales v. INS, 645
F.2d 819, 821 (9th Cir. 1981).
13 In IIRIRA, Congress for the first time clarified that guilty and nolo
contendere pleas would be considered convictions. See IIRIRA S 322(a).
Although Congress expressly applied the new definition retroactively, see
IIRIRA S 322(c), the transitional rules govern this action.
14853
[16] For all these reasons, applying new rules to past guilty
or nolo contendere pleas has the potential of attaching new
legal consequences to past decisions. In such a case, applica-
tion of AEDPA S 440 would, in fact, "disrupt[ ] settled expec-
tations and actions taken in reliance on them." See Jeffries,
114 F.3d at 1494. We, of course, cannot say that this is true
uniformly. Indeed, one would assume that such a showing
could only be made in a rare circumstance. Thus, we decline
to hold as a matter of law that AEDPA S 440(d) does not
apply to pre-enactment guilty or nolo contendere pleas to oth-
erwise qualifying offenses. Accordingly, we join the other cir-
cuits who have considered the issue in concluding that, as a
general rule, AEDPA does apply in such circumstances.14
However, we leave open the possibility that, under a specific
factual showing that a plea was entered in reliance on the
availability of discretionary waiver under S 212(c), a peti-
tioner may be able to establish that AEDPA S 440(d) has an
impermissible retroactive application as to him. Cf. Burris v.
Parke, 95 F.3d 465, 468-69 (7th Cir. 1996) (en banc) (peti-
tioner's detrimental reliance on ability to file second succes-
sive habeas petition rendered AEDPA S 106(b)(2)
retroactive). In doing so, we employ our "sound instinct" in
applying the "familiar considerations of fair notice, reason-
able reliance, and settled expectations." Landgraf, 511 U.S. at
270.
_________________________________________________________________
14 Many circuits have expressly left open the question of whether
AEDPA S 440(d) applies to cases in which "the alien pled guilty to the
crime before AEDPA's enactment date but a deportation proceeding had
not yet begun" -- precisely Magana-Pizano's situation. See Wallace, 194
F.3d at 287; Henderson, 157 F.3d at 128-29 & n.28. Those circuits that
have addressed the question squarely, however, have concluded that pre-
AEDPA convictions can trigger AEDPA S 440(d). See Requena-
Rodriguez, 190 F.3d at 307-08; DeSousa v. Reno, 190 F.3d 175, 186-87
(3d Cir. 1999); Jurado-Gutierrez, 190 F.3d at 1150; Turkhan v. Perryman,
188 F.3d 814, 827-28 (7th Cir. 1999). No circuit has squarely addressed
an individual case in which the petitioner based his claim on factual reli-
ance on pre-AEDPA INA S 212(c).
14854
VII
In summary, we deny for lack of jurisdiction Magana-
Pizano's petition for review. We reverse the district court's
dismissal for lack of jurisdiction of Magana-Pizano's petition
for a writ of habeas corpus pursuant to 28 U.S.C.S 2241. On
the merits of Magana-Pizano's claim,15 we hold that AEDPA
S 440(d)'s bar of discretionary relief previously afforded by
INA S 212(c) should not apply to aliens whose deportation
proceedings were pending when AEDPA became law and to
those who can demonstrate that they entered guilty or nolo
contendere pleas in reliance upon the relief afforded by INA
S 212(c). However, we also hold that, absent a showing of
specific reliance, AEDPA applies to those aliens who were
convicted of crimes prior to the enactment of AEDPA, but
who were not placed in deportation or exclusion proceedings
until after AEDPA's effective date. We remand this case to
the district court for determination of whether, under the spe-
cific facts of this case, AEDPA applies to Magana-Pizano. If
it does, then the district court should proceed to the merits of
Magana-Pizano's other claims. Otherwise, the writ should
issue.
PETITION FOR REVIEW DISMISSED; JUDGMENT
REVERSED AND REMANDED
_________________________________________________________________
15 In addition to the retroactivity claim, Magana-Pizano also argues that
AEDPA S 440(d) violates the Equal Protection Clause, and that his case
is factually and legally distinguishable from U.S. v. Estrada-Torres, 179
F.3d 776, 778 (9th Cir. 1999). However, we need not reach this issue
because resolution of the question of retroactivity may make its consider-
ation unnecessary, and there are potential factual issues associated with
the claim best examined in the first instance by the district court.
14855
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