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. e du/thir dc ir c uit_1996/74UNITED 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 IMMIG RATION
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)

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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 deport ation order was filed with us, Congress enacted a statute provi ding that such matters would not be subject to review by any court . In the absence of language setting an effective date for t he 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 reside nt in 1983. In June 1993, he was convicted on charges of conspi racy to distribute cocaine and of aiding and abetting and w as sentenced to forty-two months imprisonment. His wife Amada M orales, the mother of his three sons, was a co-defendant. She p leaded guilty and was deported to Nicaragua in 1994. Petitioner was released from prison after thirty-seven months, and thereafter, was ordered to show cause w hy he should not be deported. After a hearing, the Immigration Judge found that petitioner had been rehabilitated, was truly r emorseful, had obtained a high school equivalency diploma, was car ing 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 co nnection 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, be ginning in the middle of 1988, petitioner returned to the United S tates and resumed drug trafficking. After the death of the i ndividual for whom he had sold drugs originally, petitioner made new contacts and began a business of his own. By his own testim ony, 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 "th e well being of the community of the United States would not bes t be served by allowing [petitioner] to remain in the United State s." After reviewing the merits of the case, th e 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 Antiterrori sm 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 ord er of deportation against an alien who is deportable by r eason of having committed a criminal offense covered in sect ion 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1251(a)(2)(A)(ii) of thi s title for which both predicate offenses are covered by sectio n 1251(a)(2)(A)(i) of this title, shall not be subjec t to review by any court."In view of this statutory provision, the I NS contends

that we should dismiss the appeal for lack of juris diction. 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 prec luding judicial review of administrative actions can give rise to
constitutional concerns. There can be little doubt that Congress ha s the power to deprive a Court of Appeals of jurisdiction previ ously granted over certain categories of cases. Ex parte McCardl e, 74 U.S. 506 (1868). The issue before us is whether such action may retroactively affect cases commenced before the rep ealer, 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 Supre me 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 ann ouncing the fact and dismissing the cause." Id. In more recent times, the Supreme Court ha s 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. U SI Film Products, 511 U.S. 244, 114 S.Ct. 1483 (1994), the Court discussed the presumption against retroactive legis lation, noting: "Since the early days of this Court, we ha ve declined to give retroactive effect to statutes burdening priva te rights unless Congress had made clear its intent." 114 S. Ct. at 1499. On the other hand, "[w]e have regularly applied int ervening statutes conferring or ousting jurisdiction, whethe r or not jurisdiction lay when the underlying conduct occurr ed 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 conf erring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law -- has been adhe red to consistently by this Court." See also The Assessor s v. Osbornes, 76 U.S. 567 (1869). Therefore, unlike situations where retroac tivity would affect pre-existing rights, withdrawal of jurisdict ion, although realistically disrupting settled expectations, does not preserve pending litigation. Of course, by expressing its i ntention, Congress could provide that a court continue to pro cess cases not yet adjudicated. Alternatively, Congress could dir ect the court to exercise its discretion, as is true with respect to procedural rules, which are applicable to pending cases "insof ar as just and practicable." No such language, however, appears i n Title IV of
the Antiterrorism Act. We have carefully reviewed Title IV to det ermine whether Congress provided expressly, or by implicat ion, that the
effective date of the section under consideration h ere would beother than the day of enactment. We have found no such

indication, and thus, agree with similar conclusion s 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 opi nion of the United States Court of Appeals for the Seventh Circ uit in ReyesHernandez v. INS, 89 F.3d 490 (7th Cir. 1996). The re, the Court reasoned that it was unlikely Congress intended to withdraw jurisdiction where an applicant for discretionary r elief had at least a colorable defense to deportability but conc eded that fact in the administrative process in order to take his chances on appeal to the court. Although this approach is app ealing, we do not find it persuasive. We hold, therefore, that t he amendment to 8 U.S.C. § 1105a(a)(10) is applicable to this ca se and withdraws our jurisdiction to review the petition o n the merits. We think it appropriate to note that our r uling 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 acknowled ged that "the power to expel or exclude aliens [i]s a fundamental sovereign attribute exercised by the Government's political d epartments largely immune from judicial control." Fiallo v. B ell, 430 U.S. 787, 792 (1977) (citations omitted). Consequently, Congress is free to make rules that would be unacceptable if ap plied to citizens. Id. Nevertheless, "[i]t is well establi shed that the Fifth Amendment entitles aliens to due process of l aw 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 constitutio nal rights applicable to aliens may be at stake, judicial revi ew 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 Co urt'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 availa ble to aliens under detention subject to final orders of deportat ion). Because we do not have jurisdiction, the p etition for
review will be dismissed.