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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  

 Case Name:
Case Number: Date Filed: 
9956530 11/17/00 



                                                     No. 99-56530
                                                     D.C. No.
                                                     CV-99-327 BTM
ADELE J. FASANO, District Director,

Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding

Argued and Submitted
October 12, 2000--Pasadena, California

Filed November 17, 2000

Before: Robert Boochever, A. Wallace Tashima, and
Richard Tallman, Circuit Judges.

Opinion by Judge Tashima

Richard Freitas, San Diego, California, for the petitioner-

Samuel W. Bettwy, Assistant United States Attorney, San
Diego, California, for the respondent-appellee.

TASHIMA, Circuit Judge:


Mario Richards-Diaz ("Richards") appeals the district
court's denial of his petition for a writ of habeas corpus. He
argues that S 440(d) of the Antiterrorism and Effective Death


Penalty Act of 1996 ("AEDPA") violates the Equal Protection
component of the Fifth Amendment of the Constitution; that
the application of AEDPA and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
("IIRIRA") to his case constitutes an impermissible retroac-
tive application of the laws; and that the Court should use its
equitable powers to terminate his removal proceedings and
compel the Attorney General to initiate deportation proceed-
ings. The government argues that we lack jurisdiction in the
matter. Alternatively, it contends that, if we do have jurisdic-
tion, we should affirm the district court on the merits.


Richards is a native and citizen of Mexico. He was lawfully
admitted into the United States in 1975. On February 21,
1996, pursuant to a guilty plea, Richards was convicted of
transportation of a controlled substance in violation of
S 11379(a) of the California Health and Safety Code. He was
sentenced to 180 days' incarceration. That conviction made
him deportable under the immigration law at the time. See 8
U.S.C. S 1251(a)(2)(B)(i) (1994) (making deportable "[a]ny
alien who at any time after entry has been convicted of a vio-
lation . . . relating to a controlled substance"). The Attorney
General, however, did not initiate proceedings at that time.
Rather, approximately 18 months later, on June 20, 1997, the
Attorney General issued Richards a Notice to Appear, charg-
ing him with removability under S 237 of the Immigration and
Naturalization Act ("INA"), as amended by IIRIRA. See 8
U.S.C. S 1227(a)(2)(A)(iii) (1999) ("Any alien . . . shall . . .
be removed if the alien is . . . convicted of an aggravated fel-
ony at any time after admission.").

After a hearing, the immigration judge ("IJ") found that
Richards' conviction rendered him removable as charged in
the Notice to Appear. Furthermore, because Richards'
removal proceeding was initiated pursuant to the permanent
provision of IIRIRA, the IJ held that Richards was not eligible


for discretionary relief under INA S 212(c) because of its
repeal by S 304(b) of IIRIRA, or under S 240A (as amended
by S 304(a) of IIRIRA)1 because of his status as an aggravated
felon. See 8 U.S.C. S 1229b(a)(3) (1999) ("The Attorney Gen-
eral may cancel removal . . . if the alien . . . has not been con-
victed of any aggravated felony."). Richards appealed the IJ's
decision to the Board of Immigration Appeals ("BIA"), which
agreed with the IJ, and dismissed the appeal.

Subsequently, Richards filed a petition for a writ of habeas
corpus in district court, pursuant to 28 U.S.C.S 2241.2 The
district court found that it had jurisdiction to hear the petition,
but denied it on the merits. It concluded that IIRIRA was not
impermissibly retroactive, that Richards had no standing to
challenge S 440(d), and that Richards's nunc pro tunc argu-
ment lacked any merit. Richards appeals. We review the dis-
trict court's denial of a habeas petition de novo. See Bowen
v. Hood, 202 F.3d 1211, 1218 (9th Cir. 2000).


A. Jurisdiction

The existence of subject matter jurisdiction is a question of
law which we review de novo. See Burlington N. Santa Fe Ry.
v. IBT Local 174, 203 F.3d 703, 707 (9th Cir. 2000) (en banc)
(citation omitted). We have recently held that "[n]either
IIRIRA's permanent nor transitional rules repeal the statutory
habeas corpus remedy available via 28 U.S.C. S 2241."
Barapind v. Reno, 225 F.3d 1100, 1110 (9th Cir. 2000) ( cit-
1 Section 304(a) of IIRIRA, which amended INA S 240A, incorporated
aspects of former S 212(c) into an entirely new form of discretionary
relief. See IIRIRA, Pub. L. No. 104-208,S 304(a), 110 Stat. 3009, 3009-
594 (1996) (codified as 8 U.S.C. S 1229b).
2 AEDPA S 440(a) and IIRIRAS 306 withdrew direct judical review of
deportation and removal orders of aliens convicted of aggravated felonies.
See Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996).


ing Flores-Miramontes v. INS, 212 F.3d 1133, 1136-38 (9th
Cir. 2000), and Magana-Pizano v. INS, 200 F.3d 603, 609
(9th Cir. 2000)). Thus, the district court had jurisdiction over
this habeas proceeding pursuant to S 2241. We have jurisdic-
tion over this appeal pursuant to 28 U.S.C. S 2253(a).

B. IIRIRA's Repeal of Section 212(c)

      1. Evolution of Discretionary Relief

Under the statutory scheme in effect prior to the enactment
of AEDPA and IIRIRA, aliens otherwise determined to be
deportable were entitled to apply for a waiver of deportation
under INA S 212(c). See 8 U.S.C. S 1182(c) (1994), repealed
by IIRIRA S 304(b). Discretionary relief under that section,
however, did "not apply to an alien who ha[d ] been convicted
of one or more aggravated felonies and ha[d] served for such
felony or felonies a term of imprisonment of at least five
years." Id.

In enacting S 440(d) of AEDPA, Congress expanded the
category of criminal convictions that would render an alien
ineligible to apply for S 212(c) relief. See AEDPA, Pub. L.
No. 104-132, S 440(d), 110 Stat. 1214, 1277 (1996). Specifi-
cally, under the amended version, a discretionary waiver
could not be granted to an alien convicted of certain enumer-
ated offenses, including a drug-related crime, a firearm-
related crime, two or more offenses involving moral turpitude,
and an aggravated felony, regardless of time served in prison.
See S 440(d). Soon thereafter, however, Congress enacted
IIRIRA, which, among other things, repealed S 212(c) alto-
gether and consolidated prior "suspension of deportation"
relief and aspects of former S 212(c) relief into a new form of
relief: "Cancellation of removal for certain permanent resi-
dents." IIRIRA S 304(a) (codified at 8 U.S.C. S 1229b(a)
(1999)).3 That section now makes any discretionary relief
3 Congress also changed the legal lexicon associated with immigration
proceedings. See generally, IIRIRA passim. Under the old scheme, aliens


unavailable to all aliens who have been "convicted of any
aggravated felony." IIRIRA S 304(a).

      2. Retroactivity

Richards argues that the repeal of S 212(c), which prevents
him from applying for discretionary relief, is impermissibly
retroactive. It is true that civil statutes are generally presumed
to apply prospectively only. See Landgraf v. USI Film Prods.,
511 U.S. 244, 271-72 (1994). "However, this presumption is
applied only if Congress has not clearly manifested its intent
to the contrary." Aragon-Ayon v. INS, 206 F.3d 847, 851 (9th
Cir. 2000) (internal quotation and citation omitted). There-
fore, the crucial question "is whether Congress has clearly
manifested an intent for [the repeal of S 212(c)] to apply
retroactively." Id. In answering that question, we not only
look to the words of the statute, but to its structure as well.
See Magana-Pizano, 200 F.3d at 611 (finding AEDPA's
structure important in "divining intent").

[1] We have already held that the amended definition of
"aggravated felony" in IIRIRA applies retroactively. See
Aragon-Ayon, 206 F.3d at 853. In so holding, we found that
the statutory language left no doubt of Congress' intent that
the new definition reach convictions that pre-dated the enact-
ment of IIRIRA. See id. at 852-53. Although the language at
issue here is not as definitive as the provision we were faced
with in Aragon-Ayon, S 309(a) of IIRIRA, which governs the
applicability of the sections at issue, is clear nonetheless. It
states that, in general, "the amendments made by [SS 301
through 309 of the IIRIRA, which include the repeal of
could either be "deported" or "excluded " from the United States, depend-
ing on their status, i.e., whether or not they had entered the United States.
Under IIRIRA, Congress eliminated the distinction between the two forms
of proceedings and replaced them with "removal " proceedings. See
IIRIRA S 304(a).


S 212(c) and the enactment of S 1229b, ] shall take effect on
[April 1, 1997]." IIRIRA, Pub. L. No. 104-208, S 309(a), 110
Stat. 3009, 3009-625 (1996). Although "[a] statement that a
statute will become effective on a certain date does not even
arguably suggest that it has any application to conduct that
occurred at an earlier date," Landgraf, 511 U.S. at 257, the
dates contained in S 309 are more than just "effective dates."
Cf. Magana-Pizano, 200 F.3d at 611 (holding that"[b]ecause
AEDPA has numerous effective date provisions, even within
chapters, AEDPA's structure has been important in divining
intent"). In enacting S 309, Congress went to great lengths to
implement a scheme of both transitional and permanent provi-
sions, which took many factors into consideration. In so
doing, Congress made certain provisions applicable to certain
aliens at certain times, while simultaneously exempting other
aliens from other provisions. See IIRIRAS 309(a) (exempting
SS 303(b)(2), 306(c), 308(d)(2)(D), or 308(d)(5) from the
general effective dates); IIRIRA S 309(c) (creating a transi-
tion scheme exempted from the general effective dates). In
analyzing this carefully-crafted scheme, we find Judge Walk-
er's analysis compelling:

      This legislative scheme of transitional provisions fol-
      lowed by permanent legislation can be reduced to
      one essential point relevant to IIRIRA's repeal of
      S 212(c): Congress intended the whole of IIRIRA's
      permanent provisions to apply to every alien as of
      April 1, 1997, except where it expressly exempted
      those provisions that were not meant to apply as of
      that date. The provision repealing S 212(c) was not
      one of them. 

St. Cyr v. INS, 2000 WL 1234850, at *16 (2d Cir. Sept. 1,
2000) (Walker, J., dissenting). We agree.4 
4 We recognize that our decision today differs from the Second Circuit's
in St. Cyr v. INS, 2000 WL 1234850 (2d Cir. Sept. 1, 2000). Our decision,
however, is mandated by our prior decisions in Aragon-Ayon and
Magana-Pizano, as well as by our own close reading of the statute. More-
over, as noted in St. Cyr, a three-way circuit split already exists on the
issue. See id. at *11 (collecting cases).


Congress' intent to repeal S 212(c) retroactively is further
evidenced by the fact that S 212(c)'s "waiver of deportation"
can no longer be given effect because "deportation" proceed-
ings no longer exist after the enactment of the IIRIRA. See
footnote 3, supra. Thus, to apply S 212(c)'s "waiver of depor-
tation" relief to an alien subject to an order of removal under
the new provisions,5 would create an "awkward statutory
patchwork sewn together . . . from scraps of IIRIRA and the
former INA." St. Cyr, 2000 WL 1234850, at *17 (Walker, J.,
dissenting). Such construction "faces insurmountable hurdles
even on a linguistic level." Id. We therefore conclude that
Congress was clear in its intent to have IIRIRA apply to all
aliens against whom removal proceedings were not yet pend-
ing as of April 1, 1997.

[2] We must also recognize, however, that in Magana-
Pizano we carved out a limited exception to this general rule:

      [W]e leave open the possibility that, under a specific
      factual showing that a plea was entered in reliance
      on the availability of discretionary waiver under
      S 212(c), a petitioner may be able to establish that
      [IIRIRA S 304(b)] has an impermissible retroactive
      application as to him. In doing so, we employ our
5 It is beyond doubt that the Attorney General can commence proceed-
ings against an alien at any time, and we have no power to review that
decision. See 8 U.S.C. S 1252(g) ("no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the decision
or action by the Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien"). Here, the Attorney
General commenced proceedings against Richards after the enactment of
the IIRIRA. Thus, the permanent provisions of the IIRIRA, embodied in
8 U.S.C. S 1227 apply (which Richards concedes). Also, after Aragon-
Ayon, it is beyond doubt that the Attorney General properly took Richards'
1996 conviction into account in determining his eligibility for removal
(which he also concedes). Accordingly, because of his conviction, the INS
determined that Richards was removable under the IIRIRA (which he also
concedes). As a removable alien, the only relief he may seek is that pro-
vided in 8 U.S.C. S 1229b ("Cancellation of Removal").


      sound instinct in applying the familiar considerations
      of fair notice, reasonable reliance, and settled expec-

200 F.3d at 613 (internal citations and quotation marks omit-

[3] Richards argued in the district court that he had relied
on the law in effect at the time of his guilty plea. He renews
this argument on appeal. The district court, whose order pre-
dates our opinion in Magana-Pizano, did not address this
argument. Although such a showing of reliance can only be
made in a rare circumstance, see id., without an evidentiary
hearing, we are unable to determine whether the circum-
stances here warrant such relief. Therefore, as mandated by
Magana-Pizano, 200 F.3d at 613-14, we remand so that the
district court can hold an evidentiary hearing as to the basis
of Richards' claim that he specifically relied on the availabil-
ity of a discretionary waiver when he entered his guilty plea.

C. Other Arguments

[4] We summarily reject Richards' arguments as to the
unlawfulness of S 440(d) of the AEDPA because we find that
Richards lacks standing to challenge this provision. This is so
because, by the time the INS started removal proceedings
against Richards, S 212(c), as amended byS 440(d), had
already been repealed. See IIRIRA SS 304(b), 309(a). There-
fore, S 440(d) had no effect on the IJ's or the BIA's decision
to deny him relief. Even if Richards were to obtain the relief
he seeks with this petition, and we were to hold that the IJ
should have applied the law as it existed at the time of Rich-
ards' conviction, AEDPA had not yet been enacted; thus,
S 212(c) would have stood in its original form, unaffected by
S 440(d). See City of Los Angeles v. Lyons , 461 U.S. 95, 101
-02 (1983) ("The plaintiff must show that he has sustained or
is immediately in danger of sustaining some direct injury as
the result of the challenged official conduct and the injury or


threat of injury must be both real and immediate, not conjec-
tural or hypothetical." (internal quotation marks omitted)).

[5] We also summarily reject Richards' novel argument
that we should use our equitable powers to enjoin the Immi-
gration and Naturalization Service ("INS") from continuing
the current removal proceedings, and instead require the INS
to reopen deportation proceedings under the old law. The jus-
tification for such request is that Richards was placed in
removal proceedings only by mistake and lack of diligence on
the INS' part, and that we can correct history through a nunc
pro tunc theory. This, however, we cannot do. We are in no
position to review the timing of the Attorney General's deci-
sion to "commence proceedings" against petitioner. See 8
U.S.C. S 1252(g) (1999) ("no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising
from the decision or action by the Attorney General to com-
mence proceedings, adjudicate cases, or execute removal
orders against any alien"); Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482-87 (1999) (con-
struing S 1252(g)).


In sum, we conclude that Congress intended that the repeal
of S 212(c) apply to all proceedings commenced after April 1,
1997. We further conclude that, as a general rule, the repeal
is not impermissibly retroactive. The district court should,
however, hold an evidentiary hearing to determine whether
Richards can make a specific showing, based on his alleged
reliance on S 212(c), that the retroactive application of the
repeal of S 212(c) is impermissible as to him and we remand
for this purpose. We otherwise affirm the decision of the dis-
trict court.

AFFIRMED in part, VACATED in part, and



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