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Scheidemann v. I.N.S.

May 16, 1996




On Petition for Review of an Order of the Board of Immigration Appeals

(No. A 29 116 697)

BEFORE: SLOVITER, Chief Judge, and STAPLETON and SAROKIN, Circuit Judges

STAPLETON, Circuit Judge

Argued December 5, 1995

Filed May 16, 1996)


Petitioner James Enrique Scheidemann, a permanent resident alien, seeks review of an order of the Board of Immigration Appeals ("BIA") dismissing his appeal from an immigration judge's deportation order. Petitioner, who faces deportation on account of a 1987 drug trafficking conviction for which he has served over five years in prison, does not contest his deportability. Rather, arguing that he is eligible to apply for discretionary waiver of deportation under Section(s) 212(c) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. Section(s) 1182(c), he urges us to reverse the BIA's finding that he is statutorily barred under that section from seeking discretionary relief because of his prior drug offense conviction.

Petitioner acknowledges, as he must, that Section(s) 212(c) plainly bars discretionary relief to aliens who have served at least five years' imprisonment for one or more "aggravated felonies," and that the Act's definition of "aggravated felony" includes drug trafficking offenses such as his. Because both the statutory bar and the underlying definition of "aggravated felony" were added to the Act by amendments enacted after petitioner's conviction, however, he argues that the BIA violated the presumption against retroactivity by applying the bar to his antecedent conviction. We find that the statutory bar does not have a retroactive effect as applied to petitioner's conviction, and we hold that the BIA correctly applied the statute in accordance with clear congressional intent. We will therefore deny the petition for review.


Petitioner, a 49 year-old native and citizen of Colombia, has been a lawful permanent resident in the United States since 1959. His wife, children, parents and siblings are all United States citizens. In June 1987, petitioner was convicted in the United States District Court for the District of New Jersey of (1) racketeering in violation of 18 U.S.C. Section(s) 1962(c), (2) conspiracy to commit racketeering in violation of 18 U.S.C. Section(s) 1962(d), (3) conspiracy to distribute and to possess with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. Section(s) 846, (4) possession with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. Section(s) 841(a)(1), and (5) use of a telephone to facilitate a drug conspiracy in violation of 21 U.S.C. Section(s) 843(b). Petitioner was sentenced to four concurrent ten-year terms for the racketeering and drug conspiracy and possession offenses, and to a four-year term, also to run concurrently, for the telephone offense. Petitioner actually served five years and ten months in prison.

In March 1992, while petitioner was still in prison, the Immigration and Naturalization Service ("INS") instituted deportation proceedings against him, charging him with deportability pursuant to 8 U.S.C. Section(s) 1251(a)(2)(B)(i) as an alien convicted of a controlled substance violation. At a deportation hearing held in November 1994, the immigration judge found petitioner deportable as charged. Petitioner then applied with the immigration judge for discretionary relief from deportation under Section(s) 212(c) of the Act. The INS opposed the application, arguing that discretionary relief is unavailable under the plain language of Section(s) 212(c) to an alien who has served a sentence of at least five years for one or more "aggravated felonies," and that petitioner's drug trafficking offenses are "aggravated felonies" within the Act's definition thereof. In December 1994, the immigration judge denied petitioner's application for relief and ordered petitioner deported to his native country of Colombia.

Petitioner appealed to the BIA. The BIA affirmed, holding that the Section(s) 212(c) statutory bar applies to all convictions within the original definition of "aggravated felony," regardless of the date of conviction, if the petitioner filed the application for relief after the statutory bar became effective on November 29, 1990. This timely petition for review followed.


We have jurisdiction over this petition to review the BIA's dismissal of an appeal from a deportation order pursuant to 8 U.S.C. Section(s) 1105a(a) because the petitioner's residence (as defined in 8 U.S.C. Section(s) 1101(a)(33)) is in New Jersey and he timely filed this petition. The deportation order became final upon the BIA's dismissal of petitioner's appeal therefrom, 8 C.F.R. Section(s) 243.1, and petitioner has exhausted his administrative remedies as of right.

The framework for judicial review of an agency's construction of the statute it administers is well settled. "The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter." Good Samaritan Hosp. v. Shalala, 113 S. Ct. 2151, 2157 (1993) (internal quotation marks and alteration omitted). But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984). "In sum, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program . . . unless that interpretation is arbitrary, capricious, or manifestly contrary to the statute." Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993) (citations and internal quotation marks omitted), cert. denied, 114 S. Ct. 902 (1994).


Section 212(c) grants the Attorney General discretion to waive the exclusion of otherwise excludable resident aliens seeking to reenter the United States from abroad:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General [despite being otherwise excludable] . . . . The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. Section(s) 1182(c). Though the statutory language expressly authorizes only a waiver of exclusion, courts have applied Section(s) 212(c) as also authorizing discretionary relief to deportable aliens who have not exited the United States. E.g., Katsis, 997 F.2d at 1070. The first quoted sentence is the waiver provision for which petitioner would be eligible but for the second quoted sentence, which is the statutory bar at issue.

When petitioner was convicted in 1987 and a fortiori at the time of his criminal conduct, there was no aggravated felony bar in 212(c). All deportable aliens, even those convicted of a felony, were thus eligible to apply for a discretionary waiver. Congress added the statutory bar to Section(s) 212(c) by amendment in 1990 to restrict the availability of the discretionary waiver. See Immigration Act of 1990, Pub. L. No. 101-649, Section(s) 511(a), 104 Stat. 4978, 5052 (1990) (the "1990 amendment"). *fn1 The 1990 amendment expressly applies to all "admissions [and, by implication, deportations] occurring after the date of the enactment" of the amendment on November 29, 1990. Section(s) 511(b), 104 Stat. at 5052.

The Attorney General has reasonably interpreted this to mean that the amendment applies to all applications for discretionary waiver submitted after November 29, 1990. 56 Fed. Reg. 50,033 (Oct. 3, 1991).

In 1987, the Act also lacked a definition of "aggravated felony." One was added to the definition section of the Act when Congress passed the Anti-Drug Abuse Act of 1988 ("ADAA"). Pub. L. No. 100-690, Section(s) 7342, 102 Stat. 4181, 4469-70 (1988). At that time, the significance of the definition was primarily in the context of statutory provisions setting forth the grounds for deportation and enhanced penalties for illegal entry of aliens convicted of such felonies. Prior to 1990, it had no significance in the context of discretionary waivers of deportation.

The 1988 definition of "aggravated felony" included "any drug trafficking crime as defined in section 924(c)(2) of title 18." *fn2 7342, 102 Stat. at 4469. This definition, codified at 8 U.S.C. Section(s) 1101(a)(43), did not include a specific effective date. Petitioner does not dispute that this definition encompasses his drug trafficking offenses (as 18 U.S.C. Section(s) 924(c)(2) defines "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)"), but he argues that the definition cannot retroactively define his 1987 offenses of conviction as "aggravated felonies" for purposes of Section(s) 212(c).

The issue before us is whether the BIA properly interpreted the Section(s) 212(c) statutory bar to apply to aliens convicted of "aggravated felonies" as originally defined in 1988 even where the conviction antedates the enactment of both the statutory bar and the underlying definition of "aggravated felony." *fn3 Petitioner asserts that the BIA's interpretation is impermissible because it violates the presumption against retroactivity as articulated by the Supreme Court in Landgraf v. USI Film Prod., 114 S. Ct. 1483 (1994), and Rivers v. Roadway Express, Inc., 114 S. Ct. 1510 (1994). *fn4 We disagree. *fn5


The Supreme Court in Landgraf prescribed the analysis for determining whether Congress intended a statute to apply retroactively.

When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive 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. If the ...

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