1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-13-1996

Salazar-Haro v. INS

Precedential or Non-Precedential:

Docket 96-3007

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Recommended Citation

"Salazar-Haro v. INS" (1996). 1996 Decisions. Paper 74.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/74
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 96-3007 

 ___________ 

 PEDRO ALEJANDRO SALAZAR-HARO, 

 Petitioner 

 V. 

 IMMIGRATION & NATURALIZATION SERVICE,

 Respondent 

 ___________ 

 PETITION FOR REVIEW OF AN ORDER OF THE IMMIGRATION 

 AND NATURALIZATION SERVICE 

 DATED DECEMBER 19, 1995 

 (BIA No. A38-267-921) 

 ___________ 

 Submitted Pursuant To Third Circuit LAR 34.1(a) 

 August 6, 1996 

 Before: MANSMANN, SCIRICA, and WEIS, Circuit Judges 

 (Filed September 13, 1996) 

 ___________ 

Richard J. Sharkey, Esquire 

515 Linden Street, 3rd Floor 

Allentown, PA 18101 

Attorney for Petitioner 

Frank W. Hunger, Esquire 

 Assistant Attorney General, Civil Division 

William J. Howard, Esquire 

 Senior Litigation Counsel 

Ernesto H. Molina, Jr., Esquire 

Office of Immigration Litigation, Civil Division 

Department of Justice 

P.O. Box 878 

Washington, D.C. 20044 

Attorneys for Respondent 

 ____________ 

 OPINION OF THE COURT 
 ___________ 

WEIS, Circuit Judge. 

 After this petition for review of a deportation order 

was filed with us, Congress enacted a statute providing that such 

matters would not be subject to review by any court. In the 

absence of language setting an effective date for the statute, we 

conclude that it became law on the day of enactment and withdrew 

our jurisdiction. Accordingly, we will dismiss the petition. 

 Petitioner, a native and citizen of Peru, entered the 

United States in 1978 and became a permanent resident in 1983. 

In June 1993, he was convicted on charges of conspiracy to 

distribute cocaine and of aiding and abetting and was sentenced 

to forty-two months imprisonment. His wife Amada Morales, the 

mother of his three sons, was a co-defendant. She pleaded guilty 

and was deported to Nicaragua in 1994. 

 Petitioner was released from prison after thirty-seven 

months, and thereafter, was ordered to show cause why he should 

not be deported. After a hearing, the Immigration Judge found 

that petitioner had been rehabilitated, was truly remorseful, had 

obtained a high school equivalency diploma, was caring for his 

three minor sons, who were United States citizens, and was 

gainfully employed. The Immigration Judge further found that 

petitioner had cooperated with the government in connection with 

his drug activities. 

 Weighing against these equities, however, the 

Immigration Judge noted that petitioner had started selling drugs 

in 1987. After a year absence from the country, beginning in the 

middle of 1988, petitioner returned to the United States and 

resumed drug trafficking. After the death of the individual for 

whom he had sold drugs originally, petitioner made new contacts 

and began a business of his own. By his own testimony, he sold 

over ten kilograms of cocaine. "[W]hile this Court has heavily 

weighed the consequences of this decision on three U.S. citizen 

children," the Immigration Judge concluded that "the well being 

of the community of the United States would not best be served by 

allowing [petitioner] to remain in the United States." 

 After reviewing the merits of the case, the Board of 

Immigration Appeals denied Salazar-Haro's appeal. 

 The petition for review was filed in this court on 

January 17, 1996. At that time, 8 U.S.C. § 1105a(a) provided for 

judicial review of all final orders of deportation. On April 24, 

1996, the President signed into law the Antiterrorism and 

Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 

Stat. 1214 (1996). Title IV, section 440(a) of the Act, codified 

at 8 U.S.C. § 1105a(a)(10), states: "Any final order of 

deportation against an alien who is deportable by reason of 

having committed a criminal offense covered in section 

1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any 

offense covered by section 1251(a)(2)(A)(ii) of this title for 

which both predicate offenses are covered by section 

1251(a)(2)(A)(i) of this title, shall not be subject to review by 

any court." 
 In view of this statutory provision, the INS contends 

that we should dismiss the appeal for lack of jurisdiction. 

Petitioner points out that the Act does not specify the effective 

date of the pertinent section, and that generally, statutes are 

not applied retroactively. He also notes that precluding 

judicial review of administrative actions can give rise to 

constitutional concerns. 

 There can be little doubt that Congress has the power 

to deprive a Court of Appeals of jurisdiction previously granted 

over certain categories of cases. Ex parte McCardle, 74 U.S. 506 

(1868). The issue before us is whether such action may 

retroactively affect cases commenced before the repealer, 

including those at various stages in the appellate process. 

 In McCardle, a statute permitting appeals in habeas 

corpus matters from the Circuit Courts to the Supreme Court was 

repealed after the case had been argued before the Supreme Court, 

but before entry of judgment. The Court held that "no judgment 

could be rendered in a suit after the repeal of the act under 

which it was brought and prosecuted." Id. at 514. "Jurisdiction 

is power to declare the law, and when it ceases to exist, the 

only function remaining to the court is that of announcing the 

fact and dismissing the cause." Id. 

 In more recent times, the Supreme Court has wrestled 

with the complex problem of statutory retroactivity, particularly 

when, as here, the legislation is silent as to both its effective 

date and congressional intention. In Landgraf v. USI Film 

Products, 511 U.S. 244, 114 S.Ct. 1483 (1994), the Court 

discussed the presumption against retroactive legislation, 

noting: "Since the early days of this Court, we have declined to 

give retroactive effect to statutes burdening private rights 

unless Congress had made clear its intent." 114 S.Ct. at 1499. 

On the other hand, "[w]e have regularly applied intervening 

statutes conferring or ousting jurisdiction, whether or not 

jurisdiction lay when the underlying conduct occurred or when the 

suit was filed." Id. at 1501. The Landgraf Court cited with 

approval Bruner v. United States, 343 U.S. 112, 116-17 (1952), 

which stated: "This rule -- that, when a law conferring 

jurisdiction is repealed without any reservation as to pending 

cases, all cases fall with the law -- has been adhered to 

consistently by this Court." See also The Assessors v. Osbornes, 

76 U.S. 567 (1869). 

 Therefore, unlike situations where retroactivity would 

affect pre-existing rights, withdrawal of jurisdiction, although 

realistically disrupting settled expectations, does not preserve 

pending litigation. Of course, by expressing its intention, 

Congress could provide that a court continue to process cases not 

yet adjudicated. Alternatively, Congress could direct the court 

to exercise its discretion, as is true with respect to procedural 

rules, which are applicable to pending cases "insofar as just and 

practicable." No such language, however, appears in Title IV of 

the Antiterrorism Act. 

 We have carefully reviewed Title IV to determine 

whether Congress provided expressly, or by implication, that the 

effective date of the section under consideration here would be 
other than the day of enactment. We have found no such 

indication, and thus, agree with similar conclusions by the 

Courts of Appeals for the Second, Fifth, and Ninth Circuits. SeeHincapieNieto v. INS, ___ F.3d ____, 1996 WL 431750 (2d Cir. 

August 2, 1996); Duldulao v. INS, 90 F.3d 396 (9th Cir. 1996); 

Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir. 1996). We hold, 

therefore, that the amendment to 8 U.S.C. § 1105a(a)(10) became 

effective on the day of enactment, April 24, 1996. 

 In addition to the three decisions by the Courts of 

Appeals cited above, we have carefully read the opinion of the 

United States Court of Appeals for the Seventh Circuit in ReyesHernandez v. INS, 89 F.3d 490 (7th Cir. 1996). There, the Court 

reasoned that it was unlikely Congress intended to withdraw 

jurisdiction where an applicant for discretionary relief had at 

least a colorable defense to deportability but conceded that fact 

in the administrative process in order to take his chances on 

appeal to the court. Although this approach is appealing, we do 

not find it persuasive. We hold, therefore, that the amendment 

to 8 U.S.C. § 1105a(a)(10) is applicable to this case and 

withdraws our jurisdiction to review the petition on the merits. 

 We think it appropriate to note that our ruling is a 

narrow one and is confined to the circumstances in this case 

where the petitioner seeks review of a final order of 

deportation. Like the Hincapie-Nieto Court, we do not foreclose 

judicial review of all claims by aliens arising in the course of 

deportation proceedings. 

 The Supreme Court has repeatedly acknowledged that "the 

power to expel or exclude aliens [i]s a fundamental sovereign 

attribute exercised by the Government's political departments 

largely immune from judicial control." Fiallo v. Bell, 430 U.S. 

787, 792 (1977) (citations omitted). Consequently, Congress is 

free to make rules that would be unacceptable if applied to 

citizens. Id. Nevertheless, "[i]t is well established that the 

Fifth Amendment entitles aliens to due process of law in 

deportation proceedings." Reno v. Flores, 507 U.S. 292, 306 

(1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100-01 

(1903)). 

 To the extent, therefore, that constitutional rights 

applicable to aliens may be at stake, judicial review may not be 

withdrawn by statute. See Felker v. Turpin, ____ U.S. ____, 116 

S.Ct. 2333 (1996) (statutory limitation on Supreme Court's 

certiorari jurisdiction does not infringe on the Court's 

constitutional power to grant habeas corpus.). See alsoMcCardle, 74 U.S. 

at 512-14; Hincapie-Nieto, 1996 WL 431750 at 

*3-4 (noting possible habeas corpus remedies available to aliens 

under detention subject to final orders of deportation). 

 Because we do not have jurisdiction, the petition for 

review will be dismissed.