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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FRANCIS LUKE
Petitioner/Plaintiff,

v.

JANET RENO, Attorney General of the United States; UNKNOWN COMMISSIONER, Commissioner Immigration and Naturalization Service; WARREN E. LEWIS, Newark, District Director; CHRISTINE DAVIS, Louisiana District Director; IMMIGRATION: AND NATURALIZATION SERVICE: UNITED STATES DEPARTMENT OF JUSTICE,
Respondents/Defendants

CIVIL ACTION NO: 01-0061 (MLC)

MEMORANDUM AND ORDER

FILED: MARCH 26, 2001

COOPER, District Judge

This matter comes before the Court on the ex parte motion of petitioner/plaintiff Francis Luke (“Luke”), appearing pro se, for the issuance of a stay of removal, pursuant to 5 U.S.C. § 705, pending the outcome of this 28 U.S.C. § 2241 habeas corpus proceeding. For the reasons stated herein, Luke's motion is denied.

BACKGROUND

Luke is a native and citizen of Dominica, West Indies, and was admitted to the United States at St. Croix, United States Virgin Islands on or about December 19, 1985. (Compl. for Declaratory and Injunctive Relief and Pet. for Writ of Habeas Corpus and with Stay of Deportation until Final Decision (“Compl.”) ¶ 1.) Luke is married to a United States citizen and is the father of two young children. (Id. ¶ 2.) Luke claims to be a resident of Long Branch, New Jersey. (Id. ¶ 14.)

On or about June 14, 1995, Luke was arrested and charged in the State of New Jersey for the offense of distributing more than five pounds of a controlled substance, to wit marijuana, in violation of N.J. Stat. Ann. § 2C:35-5(b)(10), and distributing a controlled substance within 1000 feet of a school, in violation of N.J. Stat. Ann. § 2C:35-7. (Id. ¶ 3 & Ex. A: Notice to Appear.) On August 24, 1998, Luke pled guilty to these offences and was convicted in the Superior Court of New Jersey. (Id. ¶¶ 4-5.) Neither Luke's defense counsel nor the Court advised Luke prior to the plea that a conviction for these offenses could subject him to removal proceedings by the Immigration and Naturalization Service (the “INS”). (See id. ¶ 6.) On January 15, 1999, Luke was sentenced to five years with one year of parole ineligibility. (Id. ¶ 5.)

On or about May 7, 1999, the INS initiated an investigation to determine whether Luke was subject to removal from the United States. (Id. Ex. A: Immigration Detainer - Notice of Action dated 5-7-99.) On August 26, 1999, the INS issued a Notice to Appear to Luke ordering him to appear before an immigration judge in Newark, New Jersey, on a date to be set to show why he should not be removed from the United States for the following two reasons: (1) pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (the “INA”), as amended (codified at 8 U.S.C. § 1227(a)(2)(iii)), following his admission into the United States, Luke was convicted of an aggravated felony as defined in Section 101(a)(43)(B) of the INA (codified at 8 U.S.C. § 1101(a)(43)(B)), an offense relating to the illicit trafficking in a controlled substance, as defined in section 102 of the Controlled Substance Act (codified at 21 U.S.C. § 802), including a drug trafficking crime, as defined in 18 U.S.C. § 924(c); and (2) pursuant to section 237(a)(2)(B)(i), as amended (codified at 8 U.S.C. § 1227(a)(2)(B)(i)), following his admission into the United States, Luke was convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance as defined in section 102 of the Controlled Substance Act (codified at 21 U.S.C. § 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana. (Id. Ex. A: Notice to Appear.)

Luke was arrested by the INS in New Jersey on April 21, 2000.See footnote 11 (Id. ¶ 8.) Luke claims that he first learned of the removal consequences of his guilty plea when he was arrested. (Id.) Following his arrest, Luke was detained in the custody of the INS. (Compl. Ex. A: Notice of Custody Determination dated 4-21-00.) Luke was informed that he could not be released pending a final determination in his removal proceedings because the INA prohibited his release. (Id.)

Sometime following his arrest, Luke was transferred to the INS's detention facility in Oakdale, Louisiana. (See id. ¶ 9.) Luke eventually appeared before an immigration judge located in Louisiana for his removal hearing. (See id. ¶ 26.) Luke was denied the opportunity to seek a waiver of removal under the pre- April 1, 1997 version of INA § 212(c), formerly codified at 8 U.S.C. § 1182(c) (repealed 1996), or the pre-April 1, 1997 version of INA § 212(h), codified at 8 U.S.C. § 1182(h), because his removal proceedings commenced after April 1, 1997. (See id. ¶¶ 26, 35, 38.) Following the removal hearing, the immigration judge ordered that Luke be removed from the United States. (See id. ¶ 10.) Luke claims that he “has been denied jurisdiction to entertain the review of the final order of the Board of Immigration Appeals by the Fifth Circuit Court of Appeals.” (Emergency Mandamus Compl. for Stay of Deportation filed 1-8-01 ¶ 3.) Luke alleges that he is now subject to an administrative final removal order and is being detained in the INS's Oakdale, Louisiana detention facility pending his ultimate removal. (See id. ¶ 4, Compl. ¶ 10.) On, January 22, 2001, the Court received a letter from Luke indicating that his removal was scheduled for January 15, 2001. (Letter of Francis D. Luke filed 1-22-01.) It is unknown whether Luke is still being detained in the INS's Oakdale, Louisiana detention facility or if he has been removed from the United States.

JURISDICTION

This Court has jurisdiction over this habeas proceeding pursuant to 28 U.S.C. § 2241, despite the judicial-review- limiting provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) (collectively the “1996 Amendments”).See footnote 22 Steele v. Blackman, 236 F.3d 130, 132-33 (3d Cir. 2001). Although the 1996 Amendments eliminated the federal courts' appellate review under the Administrative Procedure Act of the INS's denial of discretionary relief to aliens who had been convicted of certain crimes when removal proceedings began after March 31, 1997, the 1996 Amendments did not foreclose the ability of district courts to hear petitions for habeas corpus to review claims by aliens who have been ordered removed based on their criminal acts. See id. at 133; Liang v. INS, 206 F.3d 308, 316-23 (3d Cir. 2000), petition for cert. filed, 69 U.S.L.W. 3346 (Nov. 6, 2000); Catney v. INS, 178 F.3d 190, 195 (3d Cir. 1999); Sandoval v. Reno, 166 F.3d 225, 231-35. Thus, a challenge by a criminal alien to the Board of Immigration Appeal's interpretation of the immigration laws or to the constitutionality of these laws may be made through a habeas petition. Liang, 206 F.3d at 316-23; Catney, 178 F.3d at 195.

DISCUSSION

Pursuant to section 705 of the Administrative Procedures Act, a district court has the discretion to grant a stay of removal pending its review of an alien's petition for habeas corpus. See 5 U.S.C. § 705. Section 705 provides in relevant part:

On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.

5 U.S.C. § 705.

The test applied on an application to stay agency action pending judicial review is the same as that applied to a request for a preliminary injunction. See, e.g., Corning Sav. & Loan Ass'n v. Fed. Home Loan Bank Bd., 562 F. Supp. 279 (D. Ark. 1983). The following four factors govern a district court's decision whether to issue a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits, (2) whether the movant will be irreparably injured by denial of the relief, (3) whether granting preliminary relief will result in even greater harm to the nonmoving party, and (4) whether granting the preliminary relief will be in the public interest. ACLU v. Black Horse Pike Reg'l Bd of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir. 1996) (en banc).

Luke argues that the 1996 Amendments violate the Equal Protection, Substantive Due Process, and Procedural Due Process clauses of the United States Constitution because: (1) they retroactively penalize a person in Luke's position, (2) discriminate among aliens based on a distinction that is not rationally related to the purpose of the 1996 Amendments, and (3) they eliminate his right to a hearing on his application for a waiver under INA §§ 212(c) and 212(h).See footnote 33 (See Compl. ¶¶ 32, 35, 38.) In addition, Luke alleges that he is entitled to a stay of removal because:See footnote 44 (1) a stay is necessary to preserve the jurisdiction of the Court to enable Luke to obtain his constitutional right to a waiver of removal pursuant to the pre- April 1, 1997 versions of INA §§ 212(c) and 212(h) before he is removed from the United States;See footnote 55 and (2) there is a motion currently pending in the Superior Court of New Jersey to vacate Luke's criminal convictions on the basis that Luke's guilty plea, which formed the basis for his convictions, was not knowing and voluntary. (Compl. ¶¶ 3-7; Letter of Francis D. Luke filed 1-22- 01.)

Having examined the facts and the relevant law, the Court finds that Luke has failed to establish a reasonable probability of success on the merits. First, Luke is not likely to have his New Jersey convictions vacated. Under both federal and New Jersey law, neither a court nor a criminal defendant's attorney is required to inform the defendant of collateral consequences of a guilty plea, including the possibility that such a plea will subject the defendant to possible removal from the United States. See, e.g. United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir. 1988); New Jersey v. Chung, 210 N.J. Super. 427, 431-33 (App. Div. 1986); New Jersey v. Heitzman, 209 N.J. Super. 617, 621-23 (App. Div. 1986). Thus, Luke's pending motion to vacate his convictions does not provide a basis to stay his removal.


In addition, the 1996 Amendments do not violate Luke's constitutional rights. It is indisputable that the United States Constitution provides due process and equal protection guarantees to aliens as well as citizens. DeSousa v. Reno, 190 F.3d 175, 185-187 (3d Cir. 1999). We will now examine whether Luke's claims that these guarantees have been infringed.

I. Whether Luke's Equal Protection Rights Have Been Violated

Luke claims that his constitutional right to equal protection under the law has been violated because the respondents' interpretation of the 1996 Amendments discriminate against aliens such as he based on a distinction that is not rationally related to the purpose of the 1996 Amendments. Luke does not allege the distinction upon which he and other aliens are being discriminated against. For purposes of this motion, the Court will assume that the distinction is when the INS initiates removal proceedings against an alien. If removal proceedings were initiated prior to April 1, 1997, then an alien could request a waiver of removal based upon the pre-April 1, 1997 versions of INA §§ 212(c) and 212(h). On the other hand, if removal proceedings were initiated after April 1, 1997, then an alien could not request a waiver of removal based on these provisions. Disparate treatment of different groups of aliens triggers only rational basis review under the equal protection doctrine. Id. Under this minimal standard of review, a classification is accorded a “strong presumption of validity” and will be upheld as constitutional if a facially legitimate reason for the classification is found. Id. at 184. We find that the 1996 Amendments satisfy this minimal standard of review because one of Congress' goal in passing the 1996 Amendments was to enhance “the ability of the United States to deport criminal aliens.” Id. at 185 (quoting H.R. Conf. Rep. No. 104-518, at 119 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 952.) We find this reason to be facially legitimate. See id. Moreover, the 1996 Amendments had to go into effect at some time. Thus, a distinction must necessarily be drawn between those who are eligible under the former provisions of the INA and those who are limited to the post-1996 Amendments waiver provisions. Thus, we find that Luke has failed to demonstrate a reasonable probability of success on the merits of his equal protection claim. See id.

II. Whether Luke's Due Process Rights Have Been Violated

Luke claims that the 1996 Amendments violate his substantive due process rights because, as a long-time lawful permanent resident of the United States, they retroactively eliminated his ability to apply for a waiver of removal. (Compl. ¶ 32.) Luke also claims that the respondents have violated his procedural due process rights because they failed to grant him a hearing to determine his eligibility for a hearing under INA §§ 212(c) and 212(h).See footnote 66 (Id. ¶ 38.) Thus, both of Luke's claims rely on the assumption that the 1996 Amendments are impermissibly retroactive.

Retroactivity Analysis

The presumption against retroactive legislation is deeply rooted in our jurisprudence.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). “Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions.” General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992). “Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). This principle finds expression in several provisions of our Constitution. See id. (identifying various clauses). The Ex Post Facto Clauses prohibit retroactive application of penal legislation. U.S. Const. art. I, §§ 9, cl. 3 & 10, cl. 1. The Contracts Clause prohibits states from passing laws that impair the obligations of contracts. Id. art. I, § 10, cl. 1. The Fifth Amendment's Takings Clause prohibits the government from depriving persons of vested property rights except for public use and upon payment of just compensation. Id. amend. V. The Bill of Attainder Clauses prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. Id. art. I, §§ 9, cl. 3 & 10, cl. 1., Landgraf, 511 U.S. at 266. “The Due Process Clause[s of the Fifth and Fourteenth Amendments] also protect[] the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause 'may not suffice' to warrant its retroactive application.” Landgraf, 511 U.S. at 266.
    The Constitution's restrictions, however, are of limited scope. Id. at 267. “Absent a constitutional violation . . ., the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.” Id. Indeed,
    [r]etroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary.

“In some cases, however, the interest in avoiding the adjudication of constitutional questions will counsel against [interpreting a statute to have] a retroactive application. For if a challenged statute is to be given retroactive effect, the regulatory interest that supports prospective application will not necessarily also sustain its application to past events.” Landgraf, 511 U.S. at 267 n.21. Therefore, before deciding whether the 1996 Amendments violate the Due Process Clause, we will examine whether they should be retroactively applied to Luke's case.

In Landgraf v. USI Film Products, 511 U.S. 244 (1994), and Lindh v. Murphy, 521 U.S. 320 (1997), the Supreme Court set forth the analysis for defining the temporal reach of new federal statutes. See Mathews v. Kidder, Peabody & Co., 161 F.3d 156 (3d Cir. 1998). This analysis can be summarized as follows:

  1. First, we must look for an "unambiguous directive"from Congress as to the temporal reach of a statute. If one is found, we must follow it and our inquiry is done.
  2. In the absence of a clear statement from Congress, we must use normal statutory construction rules to determine if Congress manifested an intent to only apply a statute to future cases. Again, if we find an intent to not apply a statute retrospectively, our inquiry is done.
  3. If neither an express command in either direction nor an intent to apply a statute prospectively is found, we look at the effect that the statute will have. Does it have "retroactive effect," i.e., does it "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"? Or, conversely, does the statute affect only prospective relief, or change procedural rules, or simply allocate jurisdiction among fora?See footnote 77
    a. If the statute does not have retroactive effect, we apply the usual statutory construction rules to determine whether it should be applied to pending cases.
    b. However, if the statute does have retroactive effect, we employ the strong presumption against applying a statute with retroactive effect to pending cases: At this point, only Congress's clear intent to apply the statute retrospectively will overcome the presumption.See footnote 88

    Mathews, 161 F.3d at 161 (citations and footnotes omitted).

    Having set forth the framework for determining the temporal reach of a statute, we must now apply it to the facts of this case.  First, we ask whether Congress has expressly prescribed the temporal reach of the statute. See DeSousa, 190 F.3d at 186; Mathews, 161 F.3d at 161. Third Circuit precedent prescribes that Congress intended the 1996 Amendments to apply to convictions taking place prior to the effective date of the 1996 Amendments.See footnote 99 See Steele, 236 F.3d at 134; DeSousa, 190 F.3d at 185-187; Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996). Moreover, even if Congress did not clearly express such an intent, Third Circuit precedent prescribes the 1996 Amendments do not have a “retroactive effect” because they relate only to the discretion of the Attorney General to grant future waivers. Steele, 236 F.3d at 134; DeSousa, 190 F.3d at 187. Thus, pursuant to this Circuit's precedent, the waiver eligibility restrictions imposed by the 1996 Amendments had only a prospective impact.See footnote 1010 Id.

    Having established that the 1996 Amendments do not have an impermissible retroactive effect as applied to Luke, we must next determine whether application of the 1996 Amendments to Luke's case violates his due process rights notwithstanding the 1996 Amendments' nonretroactive effects.See footnote 1111

    The Due Process Clause of the Fifth Amendment provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law . . . ." U.S. Const. amend. V. The Supreme Court has held that

    the Due Process Clause protects individuals against two types of government action. So-called substantive due process' prevents the government from engaging in conduct that 'shocks the conscience,' or interferes with rights 'implicit in the concept of ordered liberty.' When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. This requirement has traditionally been referred to as 'procedural" due process.

    United States v. Salerno, 481 U.S. 739, 746 (1987) (citations omitted). Procedural due process is a flexible requirement and “calls for such procedural protections as the particular situation demands.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).


    B. Substantive Due Process Analysis

    Application of the 1996 Amendments to prevent the Attorney General from granting Luke a discretionary waiver does not implicate Luke's substantive due process rights. First, our constitution does not recognize the fundamental right of an alien to remain in this country. See, e.g., Harisiades v. Shaughnessey, 342 U.S. 580 (1952). “The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship.” Mathews v. Diaz, 426 U.S. 67, 78 ((1976). “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” Shaughnessey v. United States ex rel. Mezei, 345 U.S. 206, 222-23 (1953). “In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and reservation of the power to deport have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry.” Mathews, 426 U.S. at 79-80 (footnotes omitted).

    For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of government. Since decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary. . . . Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution. The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.

    Id. at 81.
        Second, application of the 1996 Amendments to Luke's situation does not shock the conscience of the Court. Although removal from the United States can impose an extreme hardship on those removed, it is clearly regulatory in nature and not punishment. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984). As stated above, one of Congress' goals in passing the 1996 Amendments was to enhance “the ability of the United States to deport criminal aliens.” DeSousa, 190 F.3d at 185 (quoting H.R. Conf. Rep. No. 104-518, at 119 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 952.) Congress has the power to declare past criminal activity a new grounds for denial of discretionary relief from removal, or even a new grounds for removal. See, e.g., Campos v. INS, 16 F.3d 118, 122 (6th Cir.1994) (citing cases) (cited with approval in Scheidemann, 83 F.3d at 1523 n.8). Eliminating the discretion of the Attorney General to grant waivers to criminal aliens certainly furthers that legitimate purpose. For these reasons, we find that Luke has failed to demonstrate a reasonable probability of success on the merits of his substantive due process claim.

    C. Procedural Due Process Analysis

    Luke's procedural due process argument appears to rely on his substantive right to have his application for a discretionary waiver determined according to the pre-April 1, 1997 immigration laws. Absent such a right, Luke has not alleged any additional process that could have been provided to him. As we can determine from the Complaint, Luke has in fact been provided all the process that he is due in connection with his removal proceeding. Therefore, we find that Luke has failed to demonstrate a reasonable probability of success on the merits of his procedural due process claim.

    CONCLUSION

    Luke has failed to show that the 1996 Amendments impermissibly discriminate against him in violation of the Equal Protection Clause. In addition, Luke has failed to show that the 1996 Amendments were retroactively applied to him in violation of his rights under the Due Process Clause. For these reasons, the Court concludes that Luke has not established a reasonable probability of success on the merits of his claim and therefore is not entitled to a stay of removal from the United States pending the litigation of this habeas proceeding.


        IT IS THEREFORE on this day of March 2001 ORDERED that
    Petitioner/Plaintiff's motion for a stay of his removal from the United States pending litigation of this habeas proceeding be and hereby is DENIED.

    MARY L. COOPER
    United States District Judge


    Footnote: 1    1 It appears that Luke was still being incarcerated for his New Jersey convictions when he was arrested by the INS because the Notice of Custody Determination dated April 21, 2000 listed the address for the New Jersey Department of Corrections in West Trenton, New Jersey, as Luke's address. (See Compl. Ex. A: Notice of Custody Determination dated 4-21-00.)
    Footnote: 2    2 The Court recognizes that at least three Courts of Appeals have reached a contrary conclusion. See Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000), petition for cert. filed, No. 00-6280 (Aug. 23, 2000); LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998); Richardson v. Reno, 180 F.3d 1311 (11th Cir. 1999) (concluding that IIRIRA's amendment to INA § 242 eliminated habeas jurisdiction under § 2241), cert. denied, 529 U.S. 1036 (2000). The inability of a district court sitting in the Fifth Circuit to entertain Luke's habeas corpus petition may explain why Luke filed his petition with this Court. See Max-George, 205 F.3d 194.
    Footnote: 3    3 Luke also argues that his mandatory detention pursuant to INA § 236(c), codified at 8 U.S.C. § 1226(c), pending his removal proceedings violates his constitutional right to substantive and procedural due process. (See Compl. ¶¶ 33, 37.) Though not relevant to Luke's request for a stay, Luke's motion could be read to request bail pending his removal proceedings. Had Luke still been in removal proceedings, such an argument might have merit. See, e.g., Kiota v. Reno, 113 F. Supp. 2d 737, 738-39 (M.D. Pa. 2000); Bouayad v. Holmes, 74 F. Supp. 2d 471 (M.D. Pa. 1999) (noting disagreement among courts regarding whether mandatory detention of alien pending removal proceeding unconstitutionally abridges alien's fundamental liberty interests under Due Process Clause and holding that due process required an individualized hearing on the necessity of his detention). As Luke admits, however, the removal proceedings have been completed and he is awaiting execution of a final order of removal. (See Emergency Mandamus Complaint for Stay of Deportation ¶ 4). Therefore, Luke's request for such relief is now moot because he is no longer being detained pursuant to INA § 236(c), but rather pursuant to INA § 241, codified at 8 U.S.C. § 1231. See Kiota, 113 F. Supp. 2d at 738-39. Section 241 requires that the Attorney General shall remove an alien within ninety days of entry of a final enforceable order of removal and that unless removed the alien cannot be released during this ninety day period. 8 U.S.C. § 1231(a)(2), (6). The Attorney General has the discretion to release an alien who is not removed within that ninety day period. Id. Thus, if Luke has been detained beyond this ninety day period, he has a right to apply for discretionary release pending his removal. Id.
    Footnote: 4    4 Federal Rule of Civil Procedure 8(f) states that "[a]ll pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f). Consistent with this rule is the well-established principle that a pro se prisoner's pleadings should be subject to less stringent standards of specificity and their complaints should be construed liberally. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972); Lewis v. Attorney General of the U.S., 878 F.2d 714, 722 (3d Cir. 1989); Micklus v. Carlson, 632 F.2d 227, 236 (3d Cir. 1980); United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 (3d Cir. 1979). Accordingly, we will construe Luke's pleadings liberally in evaluating the claims made therein.
    Footnote: 5    5 Contrary to Luke's assertions in his Complaint, this habeas proceeding would not become moot if he is removed. See Steele, 236 F.3d at 134 n.4 (holding that an alien's section 2241 habeas corpus petition did not become moot even though he was no longer in federal custody because of the existence of serious collateral consequences such as the inadmissibility barriers to future visits).
    Footnote: 6    6 Although Luke does not state the versions of INA §§ 212(c) and 212(h) for which he was denied a hearing, the Court assumes that he is alleging a right to a hearing pursuant to the pre-April 1, 1997 versions because he would not be entitled to a hearing under the post-April 1, 1997 versions.
    Footnote: 7    7 “However, as the Court noted in Landgraf, even procedural rules are subject to the presumption against retroactivity in a case in which the procedures affected have already transpired (e.g., the filing of a complaint in a pending case, evidentiary
    rulings in a case in which trial has been completed).” Mathews, 161 F.3d at 161 n.8 (citing Landgraf, 511 U.S. at 275 n. 29).

    Footnote: 8    8 The requirement that Congress first make clear its intent to apply a statute retroactively helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness. Landgraf, 511 U.S. at 267-68.
    Footnote: 9    9 Although Luke was arrested prior to passage of the 1996 Amendments, Luke pled guilty and was convicted after the 1996 Amendments took effect. Thus, Luke's retroactivity argument would lack merit even if the 1996 Amendments were found to have a retroactive effect. See note 10, infra.
    Footnote: 10    10 We recognize that the law in this Circuit is inconsistent with the law in a number of other circuits. See, e.g., Richards-Diaz v. Fasano, 233 F.3d 1160 (9th Cir. 2000) (holding that repeal of the 1182(c) waiver under the permanent provisions of IIRIRA has retroactive effects), petition for cert. filed, No. 00-1327 (Feb. 15, 2001); St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) (same), cert. granted, 121 S. Ct. 848 (Jan. 12 2001); Tasios v. Reno, 204 F.3d 544, 550-52 (4th Cir. 2000) (same); Mattis v. Reno, 212 F.3d 31 (1st Cir. 2000) (same); Morales-Ramirez v. Reno, 209 F.3d 977 (7th Cir. 2000) (same). However, we do not believe that Luke's claim would have merit if we were to apply the law of any of these circuits because Luke's guilty plea occurred after the 1996 Amendments became effective. See, e.g., St. Cyr, 229 F.3d at 418 (opining that no one could reasonably rely on availability of discretionary waiver of deportation when choosing to engage in illegal drug activity); Tasios, 204 F.3d at 151 (same). The above cases might result in a different outcome only if, prior to the effective date of the 1996 Amendments, an alien: (1) relied on the pre-existing law when he pled guilty to criminal activity, or (2) the alien relied on the pre-existing law when he conceded deportability. See, e.g., Tasios, 204 F.3d at 551.
    Footnote: 11    11 Although we have already held that the 1996 Amendments do not have a retroactive effect, Luke could not have known in 1995, when he committed the crimes in question, that a subsequent change in the law, passage of the 1996 Amendments, would eliminate his ability to obtain a discretionary waiver of removal from the United States as a result of his committing those crimes. Therefore, an argument could be made that Luke had a right to have his conduct judged in accordance with the law in effect at the time.


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