* Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 00-2130

JOHN BRIAN ATTWOOD,

Petitioner, Appellant,

v.

JOHN ASHCROFT, ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Coffin, Senior Circuit Judge,

and Schwarzer, Senior District Judge.

*

Brenda M. O'Malley, Attorney, Office of Immigration Litigation,

Civil Division, United States Department of Justice, with whom David W.

Ogden, Assistant Attorney General and Christopher C. Fuller, Senior

Litigation Counsel, were on brief, for appellant.

Robert D. Watt, Jr. for appellee.
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August 2, 2001
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LYNCH, Circuit Judge. This is an appeal from a

district court decision granting a petition for a writ of habeas

corpus in the context of a removal order issued by the Board of

Immigration Appeals. We affirm the district court, though on

alternate grounds.

John Brian Attwood is a native and citizen of Canada

who was admitted to the United States as a lawful permanent

resident on January 16, 1963. On May 24, 1995, Attwood pled

guilty to trafficking in cocaine, and was sentenced to a term of

imprisonment of five to seven years (ultimately he served only

four years and eleven months). On April 18, 1996, the

Immigration and Naturalization Service issued, signed, and dated

an Order to Show Cause charging Attwood with deportability under

sections 241(a)(2)(A)(iii) and 241(a)(2)(B)(i) of the

Immigration and Naturalization Act, 8 U.S.C. §§

1251(a)(2)(A)(iii) and 1251(a)(2)(B)(i) (1994), as an alien

convicted of both an aggravated felony and a controlled

substance violation. The OSC, however, was not served on

Attwood until June 6, 1996, and was filed with the immigration

court on July 8, 1996.
1 Section 212(c) of the INA (as it existed before April

24, 1996, as codified at 8 U.S.C. § 1182(c) (1994)), "although

explicitly directed at certain excludable aliens not yet

admitted, had been read to give the Attorney General

discretionary authority to waive deportation for aliens already

within the United States who were deportable for having

committed aggravated felonies or controlled substance

violations." Wallace v. Reno, 194 F.3d 279, 281 (1st Cir.

1999). Such waiver was precluded for aggravated felons who had

served five years or more in jail. Id. (citing Immigration Act

of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052).

2 Enacted on April 24, 1996, § 440(d) of AEDPA revised

§ 212(c) of the INA to eliminate the availability of waiver for

aliens convicted of most drug offenses, regardless of the amount

of time served. See Wallace, 194 F.3d at 281.

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Attwood conceded proper service of the OSC and

deportability before the immigration judge, but requested leave

to file for relief in the form of a discretionary waiver under

former § 212(c) of the INA.1 The immigration judge denied his

request for leave to file for § 212(c) relief, holding that his

consideration for such relief was precluded under § 440(d) of

the Antiterrorism and Effective Death Penalty Act,2 and on June

18, 1997, ordered Attwood deported. Attwood appealed this

decision to the Board of Immigration Appeals, and on May 19,

1998, the BIA denied Attwood's appeal.

Attwood then filed a petition for a writ of habeas

corpus in federal district court, challenging the denial of his
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request for consideration for § 212(c) relief on several

grounds. First, Attwood contended that since the INS had issued

(and signed) the OSC on April 18, 1996, he was in deportation

proceedings prior to the enactment of AEDPA § 440(d), and

therefore its limitations on waiver are inapplicable to his

case. See Wallace v. Reno, 194 F.3d 279, 286-87 (1st Cir. 1999)

(considering a case where the OSC was served but not filed prior

to AEPDA's enactment and finding that § 440(d) did not affect

the statutory entitlement to consideration for § 212(c) waiver

in such a case because deportation proceedings had already begun

prior to its enactment). Attwood also argued that retroactive

application of AEDPA § 440(d) in his case, where he pled guilty

to the crime before AEDPA's enactment, would violate principles

of providing fair notice and protecting reasonable expectations

and reliance interests. Finally, Attwood said that the refusal

to afford him consideration for § 212(c) relief violated equal

protection and due process.

The district court granted Attwood's petition.

Extending the reasoning of Wallace, the district court concluded

that deportation proceedings against Attwood fairly began on the

date the OSC was issued by the INS (April 18, 1996), not the
3 Upon granting Attwood's petition, the district court

remanded the case to the INS to consider whether, assuming his

statutory eligibility for § 212(c) relief, Attwood merited that

relief in the exercise of discretion. While this appeal was

pending, immigration proceedings resumed under the district

court's order, and on July 21, 2000, the immigration judge

granted Attwood a discretionary waiver. The INS appealed to the

BIA, challenging only Attwood's statutory eligibility for the

waiver and not the immigration judge's favorable exercise of

discretion. On October 18, 2000, BIA dismissed the INS's

appeal, finding that it was compelled to do so in light of the

district court's determination of statutory eligibility. At

oral argument, it was suggested that these subsequent decisions

render the current appeal moot, as the subsequent order of the

immigration judge granting Attwood relief is not properly before

the court. While it is correct that this order is not before

us, and hence our holding does not have direct legal effect on

that order, this does not render the dispute between the parties

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date that he was served (June 6, 1996). This determination

placed the initiation of deportation proceedings against Attwood

prior to the enactment of AEDPA and therefore rendered his

application for § 212(c) relief outside of AEDPA's statutory

bar.

The INS appeals, contesting the district court's

determination that the deportation proceedings began on the date the

OSC was issued and not the date it was served. Attwood responds, both

defending the district court's determination that deportation proceeds

had fairly begun and again raising his arguments that even if they had

not, application of AEDPA § 440(d) in his case would violate other

fundamental principles of fairness, due process, and equal protection.3
moot. Rather, the INS and Attwood both have a continued stake

in the outcome of this appeal -- the BIA explicitly relied on

the district court's remand order in affirming the immigration

judge, and a decision on appeal vacating that order would leave

the INS free to pursue a remedy before the Board. 

4 Because Attwood is entitled to consideration for §

212(c) relief under St. Cyr, we do not address the district

court's conclusion that deportation proceedings had fairly begun

on the date of issuance of the OSC.

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At the time of Attwood's petition, a defendant in this

circuit who pled guilty prior to AEDPA's enactment was entitled to

consideration for § 212(c) relief only if he could demonstrate actual

reliance on the availability of such relief. See Mattis v. Reno, 212

F.3d 31, 33 (1st Cir. 2000). Subsequent to the district court's

decision, the Supreme Court addressed the availability of § 212(c)

relief to such defendants in INS v. St. Cyr, --- U.S. ---, 121 S. Ct.

2271 (2001). In St. Cyr, the Court held that "§ 212(c) relief remains

available for aliens . . . whose convictions were obtained through plea

agreements and who, notwithstanding those convictions, would have been

eligible for § 212(c) relief at the time of their plea under the law

then in effect." Id. at 2293. As the government has properly conceded

in supplemental briefing, this holding applies to Attwood. Therefore,

on the ground that he pled guilty prior to the enactment of AEDPA,

Attwood is, and was, entitled to a hearing on his request for a

discretionary waiver under § 212(c).4 We assume that, since Attwood was
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given such a hearing and awarded § 212(c) relief, our affirmance of the

district court's order will conclude this matter in Attwood's favor.

Affirmed.