Garcia v. Pasquarell

Full title: Adan Garcia, Petitioner, v. Ken Pasquarell, District Director of the…

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jul 23, 1999

Civil Action No. SA-99-CA-255-EP (W.D. Tex. Jul. 23, 1999)

Opinion

Civil Action No. SA-99-CA-255-EP.

July 23, 1999.

ORDER REJECTING MAGISTRATE'S RECOMMENDATIONS

EDWARD C. PRADO, United States District Judge.

On this date the Court considered the Magistrate's Memorandum and Recommendation, filed in this case on June 28, 1999, and Petitioner's objections to that report filed on July 12, 1999. After careful review the court will reject the Magistrate's Recommendation.

Facts and Procedural History

The Petitioner, Adan Garcia, has been a lawful permanent resident alien of the United States since June 17, 1986. Deportation proceedings against the Petitioner were commenced by the Immigration and Naturalization Service (INS)on December 13, 1995, under § 241(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) based upon Garcia's prior conviction for an aggravated felony. Garcia conceded deportability on May 1, 1996. Prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), a permanent resident alien who had been found deportable by reason of having committed criminal offenses covered by § 241(a)(2)(A)(iii) could file for a waiver of deportation under § 212(c) of the INA. The AEDPA was signed into law on April 24, 1996. Section 440(d) of the AEDPA eliminated § 212(c) relief for permanent residents in deportation proceedings who had been convicted of crimes enumerated in § 241(a)(2)(A)(iii) of the INA (aggravated felonies).

Garcia filed his application for relief under INA § 212(c) on April 22, 1996. The INS argued that § 440(d) precluded Garcia's application. The Immigration Judge found that § 440(d) of the AEDPA should not be applied retroactively in the case of the Petitioner and granted Mr. Garcia's § 212(c) application. However, on appeal the Board of Immigration Appeals decided that § 440(d) should be applied retroactively and entered an order that the Petitioner be deported to Mexico. The Petitioner filed a petition for review of the deportation order by the Fifth Circuit Court of Appeals, but that court granted the Government's motion to dismiss the petition for lack of jurisdiction.

The Magistrate correctly concluded that this Court has habeas corpus jurisdiction to review the final deportation order of the Petitioner. The magistrate also concluded that § 440(d) should be applied retroactively and that such an application does not violate the Equal Protection Clause by distinguishing between deportable and excludable aliens. Because the court disagrees with the conclusion that § 440(d) should be applied retroactively, the court rejects the Magistrate's conclusion on that basis.

Discussion

The principal basis for the Magistrate's determination that § 440(d) should be applied retroactively was dicta from Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034 (5^th Cir. 1997), cert. denied, 117 S.Ct. 694 (1997), in which the court pointed out the similarities between § 440(d) and § 440(a). The court had already applied § 440(a) retroactively in Mendez-Rosa v. INS, 87 F.3d 672, 756-76 (5^th Cir. 1996). However, the Fifth Circuit has not yet analyzed § 440(d) under the procedures detailed by the Supreme Court in Landgraf v. USI Film Products, 114 S.Ct. 1483 (1994), to determine whether a federal statute should be applied retroactively or not. Therefore, a Landgraf analysis of § 440(d) must be performed to determine the temporal scope of § 440(d).

In Landgraf, the Court laid out a test to determine whether a statute should be applied retroactively. The court must first consider the express language of the statute to determine if congress intended for the law to be applied retroactively. Id. at 1505. If it is unclear whether Congress intended the statute to be applied retroactively, the court must use traditional canons of statutory construction to determine the intended temporal scope of the statute. Lindh v. Murphy, 117 S.Ct. 2059, 2063 (1997). Only if it is expressly clear that the statute should be applied retroactively should the court do so. Landgraf 114 S.Ct. at 1505. If the court finds that the law could be interpreted to apply retroactively, then the court must determine whether the application of the law would have an impermissible retroactive effect before it can be so applied. Id. According to the Court, a statute has an impermissible retroactive effect when it "takes away or impairs vested rights under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability to a past transaction." Id. at 1499. If a new statute does not have an impermissible retroactive effect it may be applied by courts even though the statute was not enacted until after the events to which the suit pertains. Id. at 1501.

The Fifth Circuit has yet to specifically address whether § 440(d) should be applied retroactively directly. However, in Matter of Soriano, Int. Dec. 3289 (Atty. Gen. June 27, 1996), the United States Attorney General issued an opinion that § 440(d) should be applied retroactively to petitioners whose deportation proceedings began prior to the enactment of § 440(d). Courts must grant some degree of deference to the opinion of the Attorney General, but the judiciary remains the final authority on statutory construction. Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 104 S.Ct. 2778, 2781 n. 9 (1984). Based upon their judicial power as the final authority on statutory construction both the First, Second, and Third Circuits have rejected the Attorney General's opinion and found that § 440(d) should not be applied retroactively. See Sandavol v. Reno, 166 F.3d 225 (3^rd Cir. 1999), Henderson v. INS, 157 F.3d 106 (2^nd Cir. 1998) cert. denied, 119 S.Ct. 1141 (1999), Goncalves v. Reno 144 F.3d 110 (1^st Cir. 1998), cert. denied, 119 S.Ct. 1140 (1999). The court in Henderson based its rejection of the Attorney General's opinion on the fact that upon reading § 440(d) "in conjunction with the rest of the AEDPA and with the legislative history of the statute, there is abundant direct evidence that the section was not intended to apply retroactively." Henderson, 157 F.3d at 129. The courts in Goncalves and Sandavol reached the same conclusion. Goncalves, 144 F.3d at 132, Sandavol, 166 F.3d at 242. All three circuit courts clearly detailed their use of the Landgraf analysis in reaching the conclusion that § 440(d) should not be applied retroactively. Additionally, Judge Briones of the El Paso Division of the United States District Court for the Western District of Texas has also concluded that § 440(d) should not be applied retroactively to deny a deportable alien the opportunity to seek relief under § 212(c). Cedillo-Gonzales v. Garcia, EP-98-CA-456-DB, Memorandum Opinion and Order dated June 11, 1999. This Court adopts the reasoning of these opinions.

The overwhelming weight of authority requires this court to conclude that § 440(d) should not be applied retroactively to deportation cases that were pending at the time the AEDPA was enacted. Having found that § 440(d) does not prevent the Petitioner from applying for a § 212 waiver the court does not reach the Petitioner's equal protection argument.

ACCORDINGLY, it is ORDERED that the Magistrate's recommendation in this cause is REJECTED and the Petitioner's writ of habeas corpus is GRANTED.