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July 27, 1998

HSUE LI LEE, Petitioner,
JANET RENO, Attorney General of the United States, Respondent.

The opinion of the court was delivered by: GREEN


 Recent sweeping changes to the nation's immigration laws, passed by Congress and signed by President Clinton in 1996, have presented a number of difficult interpretive issues to the federal courts. This is one of those cases -- one that raises two very important questions of statutory and, potentially, constitutional interpretation. The first is whether Congress intended only to streamline judicial review of final orders of deportation or whether it intended to remove federal courts from the picture altogether. If it is the latter intent, the question arises as to whether the Constitution imposes limits on Congress's ability to sideline the federal judiciary in this context. The second question of interpretation concerns whether Congress intended one of the 1996 statutes to apply retroactively so as to eradicate all pending applications for a waiver of deportation filed by aliens facing deportation for reasons of prior criminal convictions.

 With respect to the issue of federal court jurisdiction, the applicable provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") provides in part that except as otherwise stated in § 1252 of the Immigration and Nationality Act ("INA") and " notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim" related to the Attorney General's decision to deport an alien. Pub. L. No. 104-208, Div. C., § 306, 110 Stat. 3009-546 (enacted Sept. 30, 1996). An average reader might well conclude that Congress intended the agency's decision to be the final decision, with no recourse to the judicial branch of government available. Such a reader might be surprised to learn that the majority of courts that have interpreted the above-quoted language have concluded that the doors of the federal courts remain open to persons seeking to challenge such agency decisions. Indeed, even counsel for the Government does not argue that the statute really means that no court is available to hear petitions for habeas corpus, only that this Court cannot hear this case.

 To understand this puzzling position, it is necessary to explore certain sophisticated understandings that have arisen between the legislative, executive, and judicial branches regarding how statutes that test the reach of Congress's power under the Constitution will be interpreted by the courts. In the final analysis, this Court joins those that have held that Congress did not intend to deprive federal district courts of jurisdiction to hear cases such as this.

 Because jurisdiction is present, the Court also addresses the merits of this case concerning retroactive application of the 1996 legislation. To understand the merits, more detail is in order. Hsue Li Lee (a.k.a "Davy Lee" and hereafter "Lee"), a legal permanent resident in the United States for twenty-six years, has been ordered by the United States Immigration and Naturalization Service ("INS") to be deported to Taiwan. Lee has filed a petition for a writ of habeas corpus, asking this Court to review the legality of his detention by the INS. He admits that he is "deportable" because he fired a handgun at some road signs in rural Virginia in 1988, and has a prior burglary conviction, but he says that he should not be deported without receiving a hearing on his application for a waiver of deportation. *fn1"

 Lee filed his application for a waiver near the end of 1994, and his application remained pending for nearly two years while he was released on bail. When the INS took up Lee's application, it refused to consider whether it should give Lee such a waiver because Attorney General Reno had determined that Congress meant to extinguish all pending applications for waivers, such as Lee's, when it passed the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, § 440(d), 110 Stat. 1214 (Apr. 24, 1996). For the reasons stated below, the Court holds that the Attorney General erroneously interpreted AEDPA and that Lee is entitled to have a hearing before the INS on whether he should receive a waiver of deportation.


 For purposes of the present motion, the facts alleged by Lee are taken to be true. Lee was born in Taiwan in February 1963. At that time, his father was a permanent resident of the United States. In February 1972, just shy of Lee's eighth birthday, Lee, his mother, and his siblings entered the United States. He has remained in this country since that time.


 During high school, Lee began to abuse alcohol, and he began to get into trouble. When he was 18, he was convicted of petty larceny. Shortly after serving one month of a year-long sentence, he traveled to Illinois, became intoxicated, and engaged in acts that led to a burglary conviction. He served 12 months of a three-year sentence. In 1984, Lee violated the terms of his probation by traveling to California without advising his probation officer. He was extradited to Illinois, where the three-year sentence was reimposed. There is no dispute that under 8 U.S.C. § 1251(a)(4), these convictions rendered Lee a "deportable alien." Although the INS was made aware of Lee's incarceration in Illinois, the agency did not initiate deportation proceedings at that time.

 In September 1988, Lee was arrested for having shot some road signs in rural Virginia with his hand gun. He was drunk at the time. Lee was convicted on three misdemeanor counts of: (1) discharging a firearm along a road, (2) destruction of property, and (3) reckless handling of a firearm. Lee disputes whether, under the INA, these misdemeanor counts were "crimes of moral turpitude" that would have independently rendered him deportable, but he acknowledges that a subsequent amendment to the INA, Pub. L. No. 100-690 § 7344(a), codified as 8 U.S.C. § 1251(a)(14) (West Supp. 1989), explicitly made retroactive by Congress, rendered him deportable for the shooting incident. See Pet.'s Mem. at 6.

 In December 1989, shortly after serving his sentence on the misdemeanor convictions, Lee received another in a series of citations for driving while intoxicated. He was charged as a habitual offender, and he received a five-year sentence, of which he served approximately 15 months. He was released in March 1991.


 In September 1991, Lee met Elaine (Poore) Vasbinder ("Poore"), and his life took a turn for the better. Poore is a United States citizen who was separated from her husband, David Vasbinder ("Vasbinder"), at the time she met Lee. Poore was living on public assistance with her father, stepmother, and her partially-disabled son, Jonathan. Under the terms of an August 1991 consent order, Poore and Vasbinder had agreed that Poore would have permanent custody of Jonathan; Vasbinder would provide interim child support.

 Lee moved in with Poore and her family shortly after they met. He secured employment, began to participate in Alcoholics Anonymous, and sought out individual therapy to help him overcome his dependence on alcohol. Shortly after meeting Lee, Poore also secured employment and became independent of public assistance. Since 1991, Lee has not consumed alcohol. Lee's only post-1991 trouble with the law resulted in several months of incarceration after he refused to go to a live-in rehabilitation program, as directed by his probation officer. Poore 2d. Aff. PP 19-20.

 Lee and Poore discussed the prospect of marrying after Poore's divorce from Vasbinder became final. However, progress toward an uncontested divorce was blocked by disagreements over alimony, the division of assets, and the amount of child support. In August 1992, Vasbinder sued for divorce, and Poore cross billed for adultery. After contentious discovery, trial was set for September 1993, and was subsequently continued. Poore and Lee had agreed that they would marry promptly after the final divorce decree was entered. In October 1993, Poore, with Lee's support, rejected a settlement and pressed ahead for trial.

 In December 1993, INS officers arrested Lee and served him with an order to show cause why he should not be deported as a result of his 1988 criminal conviction -- the sign-shooting incident. Poore realized that were she to marry Lee, it might provide a basis to prevent Lee's deportation. As a result, in December 1993, she offered Vasbinder a divorce settlement on nearly the same terms he had offered in October. Nonetheless, Vasbinder was slow to respond. Ultimately, they reached a settlement, and a final divorce decree was entered on April 18, 1994. Lee and Poore obtained a marriage license on April 12, and they were wed on April 21, 1994.


 The timing of Lee's marriage to Poore had significant consequences with respect to his deportation proceedings. Lee contends that at the time of his arrest, certain factors weighed in favor of his obtaining a waiver of deportation under Section 212(c) of the INA, codified as 8 U.S.C. § 1182(c) [hereafter "§ 212(c)"], such as his length of residence in the United States, his lack of connections in Taiwan, his employment history, and the nature, severity, and age of the crimes rendering him deportable. See Mojica v. Reno, 970 F. Supp. 130, 178-79 (E.D.N.Y. 1997). Arguably these considerations were irrelevant because the above- mentioned post facto amendments to the INA foreclosed Lee from obtaining a waiver under § 212(c) on the ground that the offense rendering him deportable involved a firearm. However, if Lee were to have his immigration status adjusted based on a bona fide marriage to a United States citizen, the § 212(c) waiver would be available notwithstanding the firearm offense. Poore's assessment had been correct. Her marriage to Lee, if bona fide, would indeed impact the probability of his deportation.

 Under applicable law, when a marriage occurs after deportation proceedings have commenced, the INS must approve the marriage as bona fide before it can consider the marriage as a basis for adjusting the immigration status of the alien facing deportation. See 8 U.S.C. § 1255(e). Poore expeditiously filed the necessary paperwork to have the marriage approved, but because of the delays in finalizing her divorce, Lee's deportation proceedings were far along by the time that paperwork was filed.

 Indeed, the hearing on the INS's show cause order was held April 20, 1994 -- the day before Lee and Poore were married. Lee had retained immigration counsel shortly after he was arrested. Lee's immigration counsel asked the Immigration Judge ("IJ"), who had presided over Lee's bond hearing, to continue the show cause hearing on the basis that Lee's imminent marriage would render him eligible for an adjustment of status and a waiver. Lee's immigration counsel also requested that a hearing be scheduled to consider an adjustment of status and waiver. Counsel for the INS argued that no matter how soon the wedding would be, there was no basis in the record for delay as of that moment, and asked for the hearing to proceed. The IJ agreed, and after Lee pled to the underlying convictions, he was ordered to be deported. The IJ did suggest that if the INS approved the Lee-Poore marriage, Lee could move to reopen the proceeding to have a hearing on an adjustment of status and application for a § 212(c) waiver.

 The application for INS approval of their marriage ("Form I-130") was completed May 10, 1994, and filed with Bruce Dizengoff, the INS attorney prosecuting Lee's deportation case, on May 16, 1994. The final hearing before the IJ was held on May 27, 1994 to determine whether Lee was eligible for voluntary departure. At that hearing, Lee's immigration counsel again requested a continuance so that a decision on Lee's Form I-130 application could be made first. In particular, counsel pointed out that because Dizengoff's office had control over the initial Form I-130 decision, it would be fundamentally unfair to allow the same office that had the power to make Lee eligible for a waiver of deportation to, at the same time, press ahead for his speedy deportation. In response, Dizengoff argued that, fairness aside, precedent from the Board of Immigration Appeals ("BIA") specifically precluded a continuance to await a decision on a pending Form I-130 application. The IJ did not grant a continuance and held that Lee was statutorily ineligible for voluntary departure.

 Approximately one week after the hearing, the INS scheduled interviews to consider the Form I-130 application. It was evident that the deadline for appeal of the deportation order would expire before the Form I-130 process could be complete. Consequently, Lee appealed to the BIA, removing jurisdiction over the case from the IJ. Lee was released on bail pending decision on his appeal. On June 22, 1994, the INS approved Lee's marriage to Poore.

 On September 14, 1994, Lee's immigration counsel filed a motion to reopen the deportation proceedings so that Lee could be considered for an adjustment of status and a waiver of deportation under INA § 212(c). The motion was not frivolous. See 8 C.F.R. § 3.2(a) (setting out factors governing motions to reopen). At the same time, briefing on Lee's appeal continued, and was completed on November 28, 1994.

 In the meantime, Lee continued to be employed as a sheet metal worker. Poore became pregnant with the couple's daughter, Ashley, who was born in December 1995. There had been difficulties during the pregnancy, and the couple decided that Poore would not return to work; they would instead rely solely on Lee's income. Poore 2d. Aff. P 63. On April 24, 1996, 17 months after Lee's pending appeal and application to reopen the record had become ripe for decision, Congress passed AEDPA. AEDPA amended INA § 212(c) to preclude waivers for those, such as Lee, convicted of multiple "crimes of moral turpitude." AEDPA did not expressly state whether the amendment would apply retroactively to applications for § 212(c) waivers pending at the time of enactment.


 The BIA took up the question of retroactivity and decided en banc that pending applications were unaffected by the amendment. Matter of Soriano, Interim Dec. (BIA) 3289, 1996 WL 426888 *4-5 (June 27, 1996). The Commissioner of the INS moved the Attorney General to review the BIA's decision, which she did. On February 21, 1997, the Attorney General reversed the BIA. Matter of Soriano, Int. Dec. 3289, 1996 WL 426888 (Op. Att'y Gen. Feb. 21, 1997) (beginning at *16).

 Approximately two months later, the BIA dismissed Lee's case on the ground that the Attorney General's Soriano decision rendered Lee statutorily ineligible for an adjustment of status and a waiver of deportation. See Pet.'s Mem. Ex. 17. On May 23, 1997, Lee sought direct review of the BIA decision by filing a petition for review in the United States Court of Appeals for the Fourth Circuit. That Court denied the petition for lack of jurisdiction, id. Ex. 19 (Order in Lee v. INS, No. 97-1677 (4th Cir. Aug. 14, 1997), presumably interpreting AEDPA § 440(a) and IIRIRA § 309(c)(4) to extinguish direct review of final orders of deportation in the federal courts of appeals.

 On October 3, 1997, Lee filed the instant Petition for a Writ of Habeas Corpus asking this Court to review whether the BIA's dismissal of his case was based on an erroneous interpretation of AEDPA. On October 9, 1997, the Court issued an Order to Show Cause why a writ should not issue. *fn2" On that same day, Lee was arrested and detained by the INS. Until very recently, he was being held at a correctional facility in Hopewell, Virginia. On the day before this Opinion and Order issued, Lee's counsel, serving pro bono publico, advised the Court that Lee had been released pendente lite on July 7, 1998.


 As was stated at the opening of this Opinion, two principal issues are presented here: (1) which federal court, if any, has jurisdiction to hear Lee's claims; and (2) if this Court retains jurisdiction, whether the Attorney General erroneously interpreted AEDPA § 440(d) to have retroactive effect. For the reasons set forth below, the Court holds that, with respect to two 1996 amendments to the INA, Congress neither explicitly nor impliedly repealed the grant of jurisdiction in 28 U.S.C. § 2241 to issue writs of habeas corpus to persons in federal custody, such jurisdiction having been continuously exercised since 1789 and having at all times been available in immigration cases. The Court further holds that the scope of such habeas review extends at least to pure issues of law, such as that presented by the instant petition. Finally, with respect to the legal issue presented by Lee's petition, the Court holds that Congress did not intend AEDPA § 440(d) to extinguish applications such as Lee's. The writ shall issue.


 Enshrined in the Constitution is the fundamental right to test the legitimacy of an executive detention in a habeas corpus proceeding. U.S. CONST. art. I, § 9, cl. 2 ("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."); see also Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 970-76 (1998) [hereafter "Neuman, Habeas Corpus "] (discussing history and interpretation of the Suspension Clause). To enforce that right, Congress brought the lower federal courts into existence and conferred upon them habeas jurisdiction in the Judiciary Act of 1789; that jurisdictional grant now being codified at 28 U.S.C. § 2241. See Felker v. Turpin, 518 U.S. 651, 659, 135 L. Ed. 2d 827, 116 S. Ct. 2333 & nn. 1, 2 (1996).

 More than a century ago, the Supreme Court recognized that aliens had the right to invoke the habeas jurisdiction of the federal courts, United States v. Jung Ah Lung, 124 U.S. 621, 626, 31 L. Ed. 591, 8 S. Ct. 663 (1888), and, prior to 1996, aliens facing deportation could rely on § 2241 as the basis for challenging the lawfulness of their detention. E.g., Orozco v. INS, 911 F.2d 539, 541 (11th Cir. 1990). At issue in this case is whether § 2241 has survived the enactment of AEDPA and IIRIRA, and if it has not, whether the Suspension Clause or some other constitutional provision requires that a non-legislative court be available to review the order of deportation. Both sides in this dispute agree that the plain language of AEDPA and IIRIRA purporting to eliminate all judicial review of deportation orders cannot be given effect precisely as stated, and that the statutes must be interpreted with reference to certain background understandings and interpretive rules of which Congress was aware at the time the Acts were passed. The dispute between the Government on one side and Lee and amicus, the American Civil Liberties Union ("ACLU"), on the other centers on which background rules should guide interpretation of these Acts.

 Historical understandings of federal habeas jurisdiction are one source to which both sides refer. Congress first acted to limit aliens' access to federal courts more than 100 years ago. As described in Heikkila v. Barber, 345 U.S. 229, 233-36, 97 L. Ed. 972, 73 S. Ct. 603 (1953), in immigration acts passed in 1891, 1903, 1907, and 1917, Congress expressed an intent to make certain decisions of the Attorney General or inferior officers "final." While none of those Acts expressly repealed statutory habeas jurisdiction, it was recognized that "Congress had intended to make these administrative decisions nonreviewable to the fullest extent possible under the Constitution." 345 U.S. at 234. *fn3" Whether as a matter of constitutional law or statutory construction, it was understood that Congress had not suspended, and, perhaps, could not suspend, the availability of habeas corpus proceedings for aliens facing ...

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