The opinion of the court was delivered by: Barry, District Judge.
Petitioner, Gibbon W. Farquharson, is presently detained at
the Sussex County Correctional Center in Newton, New Jersey
awaiting deportation. On August 25, 1998, he filed a petition
with this court seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2241. The Immigration and Naturalization Service ("INS"
or "respondent") opposed the petition asserting, among other
things, that this court does not have jurisdiction because of the
recently enacted Anti-Terrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, and Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub.L. 104-208, 110 Stat. 30009-546, (collectively as
"1996 amendments"). For the reasons which follow, the petition
will be granted and the case will be remanded for action
consistent with this opinion.
Originally from Jamaica, petitioner has resided in the United
States as a legal permanent resident for twenty-seven years.
Petitioner has four children each of whom was born in the United
States. In 1990, petitioner pled guilty in the Superior Court of
New Jersey, Passaic County, to possession of a controlled
substance with intent to distribute within 1000 feet of school
property, and to resisting arrest. He was sentenced on April 19,
1990 to a term of incarceration of five years with a minimum
period of eighteen months before being eligible for parole.
On July 12, 1994, the INS issued an order to show cause why
petitioner should not be deported under what were then §
241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i), and §
241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii), of the
Immigration and Naturalization Act ("INA"). INA § 241(a)(2)(B)(i)
provided in pertinent part that:
[a]ny alien who at any time after entry has been
convicted of a violation of . . . any law or
regulation . . . relating to a controlled substance .
. . is deportable.
INA § 241(a)(2)(A)(iii) provided that "[a]ny alien who is
convicted of an aggravated felony at any time after entry is
deportable."*fn1 Petitioner contested deportability but the
Immigration Judge found petitioner deportable under both
In July 1995, petitioner filed a request for a waiver of
deportability under § 212(c) of the INA. See 8 U.S.C. § 1182(c)
(1994). At that time, INA § 212(c) vested the Attorney General
with discretion to waive the deportation of an otherwise
deportable resident alien.*fn2 See Katsis v. INS, 997 F.2d 1067,
1070 (3d Cir. 1993) (holding that, despite its plain language,
INA § 212(c) applies to deportable aliens as well as excludable
aliens), cert. denied, 510 U.S. 1081, 114 S.Ct. 902, 127 L.Ed.2d
93 (1994). When presented with an application for a waiver
pursuant to INA § 212(c), an immigration judge was "required to
balance the positive and adverse factors in determining whether
a waiver was warranted, and to justify his or her decision,
whether in favor or against granting a waiver. . . ." Goncalves
v. Reno, 144 F.3d 110, 114 (1st Cir. 1998), petition for cert.
filed, 67 U.S.L.W. 3364 (U.S. Nov. 18, 1998) (No. 98-835). The
factors to be considered included length of prior residence in
the United States, family and personal ties to the United States,
positive employment history, community service involvement,
evidence of good character, and proof of genuine rehabilitation
for those who committed crimes. See, e.g., Katsis, 997 F.2d at
1074 (listing factors); Henderson v. Immigration and
Naturalization Service, 157 F.3d 106, 109 (2d Cir. 1998) (same),
petition for cert. filed Dec. 17, 1998 (No. 98-996); Wallace v.
Reno, 24 F. Supp.2d 104, 106 (D.Mass. 1998) (same); Matter of
Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978) (same).
According to the Immigration Judge, petitioner's request for a
waiver was not acted upon because at some point he was moved out
of the custody of the New Jersey Department of Corrections and
placed in a county jail whereupon his case was administratively
closed. When petitioner reentered the state prison system, the
case was recalendered and resumed.
On April 24, 1996, with petitioner's § 212(c) waiver
application pending, the AEDPA was signed into law. The AEDPA
effected significant changes to the INA. As relevant here,
section 440(d) of the AEDPA rendered aliens who were deportable
by reason of having committed offenses relating to controlled
substances ineligible for discretionary waivers.*fn3 See AEDPA §
440(d) (amending INA § 212(c), 8 U.S.C. § 1182(c) (1996)).*fn4
In June of 1996, the BIA held that AEDPA § 440(b) could not
be applied retroactively to aliens who had requested waivers
before the AEDPA was enacted. See In re Soriano, Int. Dec. No.
3289, 1996 WL 426888 (BIA June 27, 1996). Shortly thereafter,
however, the Attorney General overruled the BIA and determined
that AEDPA § 440(d) was to be applied retroactively to all
pending cases regardless of the date of the waiver application.
See Matter of Soriano, Int. Dec. No. 3289 (Op.Att'y Gen. Feb. 21,
1997) (beginning at 38).
Constrained by AEDPA § 440(d) and Matter of Soriano, the
Immigration Judge found petitioner ineligible for a § 212(c)
waiver and, on September 12, 1997, denied his application. On
March 30, 1998; the BIA dismissed petitioner's appeal, noting
that it was bound by the opinion of the Attorney General absent
a contrary decision by the Court of
Appeals of the Third Circuit.*fn5 This petition followed.
Petitioner argues that (1) AEDPA § 440(d) should not have
been applied retroactively to deny him a hearing on the merits of
his § 212(c) waiver application, and (2) the INS should not be
able to use his plea of guilty as the basis for deporting him
because he was unaware that he could be deported if he pled
guilty to a drug-related crime. The INS responds, first, that
this court does not have jurisdiction to consider petitioner's
habeas petition given the 1996 amendments to the INA. It
contends, as well, that the Immigration Judge did not err in
applying AEDPA § 440(d) to petitioner and that petitioner cannot
attempt to avoid deportation by collaterally attacking his guilty
Whether this court has jurisdiction is, of course, the first
issue to be decided. If this court finds that jurisdiction
exists, it must then determine whether petitioner's claims fall
within the scope of review permissible under § 2241. These
apparently clear-cut issues are neither clear-cut nor simple.
This court, however, concludes that one of petitioner's claims —
whether AEDPA § 440(d) should have been applied to prohibit
consideration of petitioner's application for a waiver even
though that application was filed before the AEDPA was enacted —
is properly before it, and will be addressed.
A. Jurisdiction under 28 U.S.C. § 2241
The INS argues that this court does not have jurisdiction
because the AEDPA and the IIRIRA amended the INA such that habeas
jurisdiction was abolished leaving only review in the courts of
appeals pursuant to 8 U.S.C. § 1252 (1996). Before addressing the
jurisdictional argument, however, and to place that argument in
some context, it is appropriate to review the applicable
statutory framework for review of orders of removal together with
the changes made to the INA by the AEDPA and the IIRIRA.
Parenthetically, this review has convinced this court, and should
convince the reader, of the accuracy of one judge's bemoaning of
the wording of the INA as "an excellent example of Congress's
penchant for hastening the aging process of judges."
1. Statutory Framework for Judicial Review
Under § 106(a) of the INA, as amended in 1961, "the sole and
exclusive procedure for . . . the judicial review of all final
orders of deportation" was by filing a petition for review with
the appropriate court of appeals. INA § 106(a), 8 U.S.C. § 1105a(a)
(1994); see also Massieu v. Reno, 91 F.3d 416, 421 (3d
Cir. 1996). The INA also contained a habeas provision which
provided that "any alien held in custody pursuant to an order of
deportation may obtain judicial review thereof by habeas corpus
proceedings." INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1994).
Everything changed when, on April 24, 1996, the AEDPA was
signed into law. For starters, AEDPA § 401(e) expressly repealed
the habeas provision of the INA and replaced it with AEDPA §
440(a), which provides in pertinent part:
any final order of deportation against an alien who
is deportable by reason of having committed [certain
enumerated criminal offenses including offenses
related to controlled substances], . . ...