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January 6, 1999


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.

I. Factual Background

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 sections.

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.

II. Discussion

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 plea.

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], . . ...

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