### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 05/20/99 THOMAS K. KAHN CLERK PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______________ No. 97-5537

_______________ D. C. Docket No. 97-2443-CV-FAM

TREVOR MAYERS, Petitioner-Appellant,

versus

UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION SERVICE; ATTORNEY GENERAL, Janet Reno, et al., Respondents-Appellees.

______________________________ Appeal from the United States District Court for the Southern District of Florida

______________________________

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_______________ No. 98-8185

_______________ D. C. Docket No. 1:97-CV-3361-TWT

EFRAIN GUTIERREZ-MARTINEZ,2 Petitioner-Appellant,

versus
JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commissioner of Immigration and Naturalization, et al., Respondent-Appellees.

______________________________ Appeal from the United States District Court for the Northern District of Georgia

______________________________ (May 20, 1999)
Before BIRCH and HATCHETT, Circuit Judge s, and KEITH*, Senior Circuit Judge.** BIRCH, Circuit Judge: Efrain Gutierrez-Martinez (“Gutierr ez-Martinez”) and Trevor Mayers (“Mayers”) appeal the orders of the district courts denying their petitions for habeas corpus, in which they sought review of their claim that section 440(d) of the Antiterrorism and Effective Death Pe nalty Act of 1996 (“AEDPA”) should not apply to their pending applications for waiver of deportation.

_______________ *Honorable Damon J. Keith, Senior U.S. Circ uit Judge for the Sixth Circuit, sitting by designation. **This decision is rendered by a quorum, due to the retirement of then-Chief Judge Hatchett on May 14, 1999. 28 U.S.C. § 46(d).3 I. BACKGROUND We must consider, as an initial matter, the immigration scheme that provides the controlling law for the habeas cor pus petitions of Gutierrez-Martinez and Mayers. In 1996, within a span of fi ve months, Congress passed two separate pieces of legislation affecting the judicial review process for certain aliens. The more recent legislation further divided th is group of aliens into those who would fall under transitional rules and those who would be considered under the permanent judicial review procedures outlin ed in the new legislation. For the sake of clarity, we provide below a brief overv iew of the statutory schemes that are relevant to this action. A. Reform of Immigration Laws
1. AEDPA On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214. Portions of AEDPA amended the Immigration and Naturalization Act (“INA”), Pub. L. No. 87-301, 75 Stat. 651 (1961). Prior to the enactment of AEDPA, judicial review of deportation orders generally proceeded by a petition for review filed in the court of appeals. See 8 U.S.C.A. § 1105a(a)(2) (West 1995). In addition, INA § 106(a)(10), codified at 8 U.S.C.A. § 1105a(a)(10) (West 1995), also provided for1 AEDPA § 401(e) states (e) ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS. – Section 106(a) of the Immigration and Nationality Act (8 U.S.C. § 1105a(a)) is amended

– * * * * * * (3) by striking paragraph (10). INA § 106(a)(10) had provided that “any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.” 8 U.S.C.A. § 1105a(a)(10) (West 1995). 4 review of an order of deportation by habeas corpus. Finally, aliens could challenge INS detention or deportation proceedings through a petition for habeas corpus review pursuant to 28 U.S.C. § 2241. See , e.g. , Orozco v. INS , 911 F.2d 539, 541 (11th Cir. 1990). AEDPA § 401(e) 1 , a non-codified provision, eliminated the earlier INA § 106(a)(10) and under AEDPA § 440(a) substituted the following language: [A]ny final order of deportation agai nst an alien who is deportable by reason of having committed a criminal offense [as set forth in the INA] shall not be subject to review by any court.

AEDPA § 440(a), codified at 8 U.S.C.A. § 1105a(a)(10) (West Supp. 1998). AEDPA § 440(a) also eliminated immediat e review in the court of appeals for2 In Boston-Bollers , we held that § 440(a) divested the courts of appeals of initial jurisdiction to consider petitions for review brought by aliens deportable on the basis of one of the specified criminal offenses, but we specifica lly did not address whether the district court retained habeas corpus jurisdiction. 106 F.3d at 354 n.1.

3 8 U.S.C.A. § 1182(c)(West Supp. 1997) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) § 304(b), and replaced by new INA § 240A, codified at 8 U.S.C.A. § 1229b (West 1999) . INA § 240A consolidates “suspension of deportation” relief with provisions of the old I NA § 212(c) to create a new form of relief called “cancellation of removal.” “Cancellation of removal” relief is available for aliens whose criminal convictions do not qualify as “aggravated felonies.” See IIRIRA § 304(a), codified at 8 U.S.C.A. § 1229b (West 1999). These permanent provisions of IIRIRA apply only to those aliens ordered deported after April 1, 1997, the effective date for IIRIRA, and are not applicable 5 some categories of deportation cases. See Boston-Bollers v. INS , 106 F.3d 352, 355 (11th Cir. 1997). 2 Under the law in effect prior to th e enactment of AEDPA, certain aliens, otherwise determined to be deportable, were entitled to apply for a waiver of deportation under INA § 212(c). The granting of a waiver was a discretionary act of the Attorney General, or her repres entatives, that would allow the alien to remain in the United States. The alien pr esented his application to the Immigration Judge (“IJ”), who had discretion to waiv e the deportation of an alien based upon such factors as time spent and family ties in the United States and restitution for criminal activity. Section 440(d) of AEDPA greatly expanded the category of criminal convictions that would rende r an alien, including petitioners here, ineligible to apply for relief under INA § 212(c). See AEDPA § 440(d), codified at 8 U.S.C.A. § 1182(c) (West Supp. 1997). 3here.

4 AEDPA § 440(a) governs deportation orders that became final before October 31, 1996. Orders that became final after this date, but before April 1, 1997, are governed by IIRIRA's transitional rules (set forth in § 309(c) and notcodified in the United States Code). All proceedings that commence after April 1, 1997, are governed by IIRIRA's permanent rules, set forth in new INA § 242 and codified at 8 U.S.C.A. § 1252 (West 1999). Because the deportation proceedings for both petitioners in the present case commenced before April 1, 1997, the effective date of IIRIRA, and became final after October 30, 1996, IIRIRA's transitional rules apply to both petitioners . See IIRIRA, § 309(c), set out as a note following 8 U.S.C.A. § 1101 (West 1999).

5 IIRIRA § 309(c)(1) provides: Subject to the succeeding provision of this subsection, in the case of an alien who is in exclusion or deportation proceedings [before April 1, 1997] -- A. the amendments made by this subtitle shall not apply, and 6 2. IIRIRA Several months after the enactment of AEDPA, the judicial review process for deportation orders once again was re structured when Congress enacted the Illegal Immigration Reform and Immigr ant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, Div. C., 110 Stat. 3009-546, on September 30, 1996. Section 306 of IIRIRA repealed the judicial review process set out in INA § 106, as amended by AEDPA § 440(a), and replaced it with a new structure for judicial review in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999). 4 Under the transitional rules provided fo r in IIRIRA, judicial review for most aliens is to take place without re gard to IIRIRA's amendments. See IIRIRA § 309(c)(1), as amended by Act of Oct. 11, 1997, § 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657, set out as a note following 8 U.S.C.A. § 1101 (West 1999). 5 IIRIRA'sB. the proceedings (including judicial review thereof) shall continue to be conducted without regard to such amendments. 7 transitional rule § 309(c)(4)(G), however, provides that “there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed” one of the enumerated crimes. This section applies to both Gutierrez-Martinez and Mayers. The permanent rules for judicial reviewof aliens' claims are set forth in IIRIRA § 306. IIRIRA's permanent rules repeal the judicial review provisions of 8 U.S.C.A. § 1105a and create new, more narro wly-drawn rules regarding judicial review, located in the new INA § 242, codified at 8 U.S.C.A. § 1252 (West 1999). Because petitioners in the present case fa ll under the transitional rules of IIRIRA, only one provision of the permanent rules potentially impacts the instant case. IIRIRA § 306(a) adds INA § 242(g): EXCLUSIVE JURISDICTION. – Except as provided in this section and notwithstanding any othe r provision of law, 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, ad judicate cases, or execute removal orders against any alien under this Chapter. 8 U.S.C.A. § 1252(g) (West 1999). The special effective date for the new INA § 242(g) directs that it shall apply “without limitation to claims arising from all past, pending, or future exclusion,8 deportation, or removal proceedings unde r [this] Act.” IIRIRA § 306(c), as amended by Act of Oct. 11, 1997, § 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657, set out as a note following 8 U.S.C.A. § 1252 (West 1999). The special effective date creates a statutory inconsistency wh ereby § 309(c) is to apply to defined transitional cases, but § 306(a), through the new INA § 242, is to apply to all cases, past, pending, or future, which would s eem to include transitional cases. The question we face here is whether the provisions of AEDPA and IIRIRA preclude any exercise of habeas corpus jurisdic tion over claims, constitutional or otherwise, of Gutierrez-Martinez and Mayers.
B. Petitioners 1. Gutierrez-Martinez Gutierrez-Martinez is a citizen of Colo mbia who entered the United States as a lawful permanent resident on January 30, 1986. On September 29, 1988, Gutierrez-Martinez pled guilty to and was c onvicted of one count of conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 846. On October 15, 1995, the Immigration and Na turalization Service (“INS”) ordered Gutierrez-Martinez to show cause why he should not be deported on the basis of his conviction for possession of a controlled substance in violation of INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i) ( 1994), (current version codified at 86 Another panel of this court dismissed Gutierrez-Martinez’ petition for review in an unpublished, two sentence order. Subsequent to that dismissal, we held in Lettman v. Reno , 168 F.3d 463 (11 thCir. 1999) (per curiam), that the court of appeals has jurisdiction to determine whether an alien is deportable under § 309 (c)(4)(G). As explained in Lettman , this determination involves considering two questions: whether the petitioner is (1) an alien and (2) deportable by reason of a criminal offense listed in the statute. Id . at 465. If these questions are answered in the affirmative, then the court loses its jurisdiction pursuant to § 309(c)(4)(G). Lettmandid not address whether this avenue of review would encompass any substantial claims. We need not reach this issue because it is clear that the claims of Gutierrez-Martinez were not reviewed under his petition for review. 9 U.S.C.A. § 1227(a)(2)(B)(i) (West 1999)). On March 26, 1996, the IJ found Gutierrez-Martinez deportable because of hi s status as a convicted drug offender, but granted him additional time to file anapplication for waiver of deportation under the earlier INA § 212(c). On April 26, 1996, Gutierrez-Martinez filed his application for a § 212(c) waiver. At a hearing on May 14, 1996, the IJ held that under the new provisions of the AEDPA, which became effective two days before Gutierrez-Martinez filed his waiver application, Gutierrez-Martinez was st atutorily ineligible for § 212(c) relief. The Board of Immigration Appeals (“BIA”) affirmed this holding and dismissed Gutierrez-Martinez' appeal. Gutierrez-Martinez filed a petition for review of the BIA's order with this court. We dismissed that petition for lack of jurisdiction, citing IIRIRA §§ 309(c)(4)(E) & (G). 6 On November 6, 1997, Gutierrez-Martinez then filed a petition for habeas corpus review under 28 U.S.C. § 2241 in the district

court.10 The district court found that habeas corpus jurisdiction under § 2241 survived the enactment of AEDPA and IIRIRA. The court held, however, that “habeas relief is available only if the Petitioner can identify a grave constitutional error or a fundamental miscarriage of jus tice in his deportation proceedings.” R1- 5-6. The district court further determin ed, however, that retroactive application of AEDPA § 440(d) to eliminate Gutierrez- Martinez' eligibility for the § 212(c) waiver process was not a constitutional erro r and, therefore, could not be reviewed on the limited scope of habeas corpus re view available under the new immigration regime. The district court also reject ed Gutierrez-Martinez' claim that AEDPA § 440(d) violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment because it distinguished between deportable and excludable aliens. As a result, the district court denied Gutierrez-Martinez' petition for habeas corpus review. Gutierrez-Martinez now appeals that decision. 2. Mayers Mayers is a citizen of Barbados adm itted to the United States as a lawful permanent resident on July 19, 1977. On January 20, 1993, Mayers pled guilty to and was convicted of possession with intent to distribute more than fifty kilograms of marijuana in violation of 21 U.S.C. § 841. On November 15, 1993, the INS commenced deportation proceedings ag ainst Mayers based on his criminal11 conviction, pursuant to INA § 241(a)(2)(A)(iii), 8 U.S.C.A. § 1251(a)(2)(A)(iii) (1994), (current version codified at 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999)). On July 7, 1994, Mayers filed for a wa iver of deportation under INA § 212(c). At the first hearing to consider the waiver application, the IJ indicated that she was inclined to grant a § 212(c) waiver. A second hearing on the waiver was not held until April 30, 1996, six days after Preside nt Clinton signed the AEDPA into law. The IJ granted Mayers' § 212(c) waiver petition, and the BIA affirmed this decision. On March 17, 1997, however, th e BIA reconsidered its decision in light of a new opinion by the Attorney General indicating that AEDPA § 440(d) applies to pending deportation cases. As a result, the BIA found Mayers to be statutorily ineligible for relief under § 212(c) and orde red Mayers deported. Mayers filed a petition for habeas corpus review in the district court on July 31, 1997, seeking review of the final deportation order and challenging on due process and equal protection grounds the application of AEDPA § 440(d) to his § 212(c) waiver request. In contrast to Gutierrez-Martinez' petition, the district court reviewing Mayers' habeas corpus petition found it l acked subject-matter jurisdiction because “Congress has eliminated all avenues of j udicial review of criminal orders of deportation, including the writ of habeas corpus” in the new immigration regime.12 Mayers v. Reno , 977 F. Supp. 1457, 1461 (S. D. Fla. 1997). The district court held that this elimination of review suffere d no constitutional infirmities because “[n]o judicial review [of deportation orders ] is guaranteed by the Constitution.” Id

. (quoting Carlson v. Landon , 342 U.S. 524, 537, 72 S. Ct. 525, 533, 96 L.Ed. 547 (1952)). In the alternative, the districtcourt found that even if there were still some form of habeas corpus review of constitutional claims, Mayers' claim that AEDPA § 440(d) should not apply retroactively to his deportation proceedings did not rise to the level of “grave constitu tional error or fundamental miscarriage of justice.” Id . at 1462. The district court concluded, therefore, that it lacked jurisdiction to review Mayers' claim. Upon a motion by Mayers, these cases were consolidated for appeal on September 9, 1998. We therefore re fer to Mayers and Gutierrez-Martinez collectively as “petitioners” when discussing common claims. Petitioners argue that under the new immigration schemes, th e district court retains habeas corpus jurisdiction under 28 U.S.C. § 2241. Petiti oners further argue that AEDPA § 440(d), which makes certain aliens inelig ible for relief under the old INA § 212(c) waiver application process, should not apply retroactively to their deportation proceedings. We review de novo issues of subject-matter jurisdiction. See Jairath v. Dyer , 154 F.3d 1280, 1281-82 (11th Cir. 1998). We also review de novo the13 purely legal question of whether a statute' s provisions apply retroactively. See United States v. Olin Corp. , 107 F.3d 1506, 1509 (11th Cir. 1997).
II. JURISDICTION A. Habeas Corpus Jurisdiction The petitioners argue that AEDPA and IIRIRA did not repeal habeas corpus jurisdiction in the district court unde r 28 U.S.C. § 2241 to review deportation orders. In the alternative, petitioners argue that the Suspension Clause of the Constitution entitles them to judicial review of their constitutional and statutory claims. On the merits, petitioners contend that AEDPA § 440(d), which restricts the old INA's § 212(c) waiver application process, should not be applied retroactively. Finally, petitioners argue that § 440(d) violates equal protection because deportable criminal aliens inside the country are not eligible for § 212(c) waivers, while identically situated aliens seeking reentry are eligible to request a waiver. The government argues that by enacting AEDPA § 401(e), Congress expressly repealed the grant of habeas cor pus jurisdiction to district courts found in the former INA § 106(a)(10). Furthermore, the government contends, the new INA § 242 places “exclusive jurisdiction” over deportation matters in the courts of appeals. The government asserts that th ere is review available by means of a7 The government makes several attempts throughout its argument to diminish the severity of the petitioners’ position here. First, the government asserts that whatever kind of review available to petitioners must be done in the court of appeals. The government then contends that petitioners would be able to raise at least “substantial constitutional challenges” to their deportation proceedings at the court of appeals. Gutierrez-Martinez did file a petition for review. As previously mentioned, his petition was dismissed by this court for lack of jurisdiction under IIRIRA § 309(c)(4)(G). As we discussed in note 6, under Lettman , the court of appeals now has jurisdiction to determine whether an alien is deportable. Lettmandid not consider whether substantial claims affecting the deportability of an alien can be addressed under § 309(c)(4)(G). As the district court noted, “a conclusion that the Petitioner must seek whatever relief is available in the court of appeals is somewhat of a red herring.” Mayers , 977 F. Supp. at 1460 (footnote omitted). In the alternative, the government next argues that should we exercise habeas corpus jurisdiction, review must be limited to “fundamental miscarriage[s] of justice.” This standard is extracted from cases involving successive petitions for habeas corpus, implicating abuse of the writ. See , e.g. , Herrera v. Collins , 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L.Ed.2d 203 (1993). We decline to apply that standard here to a first-time habeas corpus petitioner in detention as a result of an executive, rather than judicial, process. 14 petition for review in the court of appeals for “substantial constitutional challenges” to the final deportation orders of aliens. The government contends, however, that petitioners' claims do not rise to this level. The government recognizes that under our decision in Boston-Bollers , aliens with certain criminal convictions may not obtain judicial review of their deportation orders in the court of appeals and, therefore, its interpretati on of the immigration statutes would leave petitioners here with no judicial review outside the administrative agency process. 7 1. Exclusive Jurisdiction under INA § 242(g)

. The Supreme Court recently has addr essed the scope of the new INA § 242(g) in Reno v. American-Arab Anti-Discrimination Committee , 525 U.S. ___, 119 S. Ct. 936, ___ L.Ed.2d. ___ (1999) (“AADC ”). In AADC , the Court8 The Court then provided examples of actions that are part of the deportation process, but are not included in § 1252(g), such as “the decision to open an investigation, to surveil the suspected violator, to reschedule a deportation hear ing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.” AADC , 525 U.S. at ___, 119 S. Ct. at 943. The Court noted this section was designed to insulate from judicial review certain “no deferred action” discretionary determinations of the Attorney General 15 recognized an “interpretive anomaly” withrespect to the tension between IIRIRA's transitional rules and the new INA § 242(g). The Court described the “horns of this dilemma” by noting: If the jurisdiction-excluding provision of § 1252(g) [INA § 242(g)] eliminates other sources of jurisdiction in all deportation-related cases, and if the phrase in § 1252(g) “[e]xcept as provided in this section” incorporates (as one would suppose) all the other jurisdiction-related provisions of § 1252, then § 309(c)(1) [IIRIRA’s transitional rules] would be rende red a virtual nullity. To say that there is no jurisdiction in pending INS cases “except as” § 1252 provides jurisdiction is simply to say that § 1252's jurisdictional limitations apply to pending cases as well as future cases – which seems hardly what § 309(c)(1) is about. If, on the other hand, the phrase “[e]xcept as provided in this section” were (somehow) interpreted not to incorporate the other jurisdictional provisions of § 1252 – if § 1252(g) stood alone, so to speak – judicial review would be foreclosed for all deportation claims in all pending deportation cases, even after entry of a final order.
AADC , 525 U.S. at ___, 119 S. Ct. at 941 (emphasis in original). The Court declared this “seeming anomaly” to be a “mirage” by narrowing the universe to which § 1252(g) applies to “three discrete actions that the Attorney General may take: her 

### < decision or action' to 

### < commence proceedings, adjudicate cases, or
execute removal orders.'” Id . at 943 (emphasis in original). 8 Section 1252(g), then,that “developed without express statutory authorization.” Id. at ___, 119 S. Ct. at 944. Here, by contrast, we review a final order of deportation concerning petitioners' ability to utilize old INA § 212(c), a statutorily described waiver process.

9 In Richardson v. Reno , 162 F.3d 1338 (11th Cir. 1998), a panel of this court addressed the scope of § 1252(g). Id . at 1356-59. The Richardsoncourt was without the benefit of the Supreme Court's explication on this matter in AADC . Moreover, the petitioner in Richardson was not challenging a final order of deportation and fell under IIRIRA's permanent rules. We rely, therefore, on the Supreme Court's analysis in AADC to inform our conclusions here. The Supreme Court vacated and remanded Richardson for further consideration in light of the Court’s decision in AADC . See 67 U.S.L.W. 3561 (June 1, 1999) (No. 98-1367). 16 “performs the function of categorically excluding from non-final-order judicial review – even as to transitional cases otherwise governed by § 1105a . . . – certain specific decisions and actions of the INS.” Id . Section 1252(g), as applied to transitional rule cases, thus, reflects the intention of Congress to eliminate review of certain interim, discretionary decisions the INS may make. As a result, we hold that in transitional cases, review of final orders falls outside of § 1252(g)'s exclusive jurisdiction provision. 9 2. Habeas Corpus Jurisdiction After the Enactment of AEDPA

. Since the exclusive jurisdiction provision of § 1252(g) does not apply to final orders of deportation for aliens fa lling under the transitional rules of IIRIRA, we look next to whether habeas corpus jurisdiction survives the enactment of AEDPA, as modified by the transitional rules of IIRIRA. As we have noted, a panel of this court held in Richardson that there is no habeas corpus jurisdiction under the permanent rules of IIRIRA. See Richardson ,10 We note that the Seventh Circuit has applied the reasoning of Richardsonto a petitioner seeking habeas review of his challenge to the retroactive application of AEDPA § 440(a). See LaGuerre v. Reno , 164 F.3d 1035 (7th Cir. 1998). LaGuerre does not discuss IIRIRA, but rather focuses on the application of AEDPA §§ 401(e) and 440(a) to the old INA § 106(a)(10). In LaGuerre , the court found that there would be no difficulty under the Suspension Clause of the Constitution were habeas corpus jurisdiction to be eliminated as a procedure for challenging final orders of deportation when it is clear the immigration authorities had jurisdiction in the case, an issue which could be assured by extremely narrow court of appeals review. 164 F.3d at 1040. The court notes that to hold otherwise would create an “irrational ratchet” where habeas corpus could be enlarged, but once enlarged could not be returned to its original position. Id . at 1038. LaGuerre found that the purpose of the 1996 immigration 17 162 F.3d at 1359. The petitioner in Richardsonwas attempting to bring a habeas corpus petition challenging the constitutionality of denial of bond pending the outcome of a removal hearing. In contra st, the petitioners in the present case are seeking habeas corpus review of a final order of deportation. For these petitioners,there are no other opportunities for judicial review. Furthermore, GutierrezMartinez and Mayers fall under IIRIRA's tr ansitional rules, which, by definition, serve as a bridge between the old and new regimes. The transitional statute states the general proposition that the new rule s do not apply to aliens already in proceedings as of April 1, 1997. See IIRIRA § 309(c)(1), set out as note following 8 U.S.C.A. § 1101 (West 1999). The only exception to the general rule for petitioners in the present case is IIRIRA § 309(c)(4)(G) which places certain limitations on a criminal alien’s “appeal.” The term “appeal” refers to a petition for review in the court of appeals and nota petition for habeas corpus review. See Goncalves , 144 F.3d 110, 117 (1st Cir. 1998). 10amendments was “to curtail and speed up judicial review of deportation orders directed against disfavored classes of criminals, such as drug offenders.” Id . at 1039. Finally, the court concluded that “for the class of aliens encomp assed by section 440(a), judicial review by means of habeas corpus did not survive the enactment of that section.” Id. at 1040. At the same time, however, the court stepped back from its position by noting that, with respect to whether § 440(d) should apply retroactively, it “seems unlikely that Congress would have wanted the [BIA] to have the final word on so pure and fundamental a question of law as to when the statute went into effect. So maybe the door to judicial review has been left a little more ajar than we have suggested.” Id . at 1041. It would seem then, that the LaGuerre court, with a measure of ambiguity, concedes that some sort of judicial review is available. 18 Since the permanent rules of IIRIRA do not apply in the present case, and petitioners here were unable to obtain any re view in the court of appeals, we must now consider whether the INA, as amende d by AEDPA and prior to the effective date of the permanent rules of IIRIRA, a llows for habeas corpus jurisdiction under these circumstances. As we previously have noted: [p]rior to 1996, INA § 106 set out the judicial-review scheme for deportation and exclusion orders. INA § 106(a)(2) provided for petition of review in the court of appeals. In addition, INA § 106(a)(10) allowed aliens in custody to seek habeas corpus review of final deportation orders under the I NA. Aliens also could rely on 28 U.S.C. § 2241 habeas corpus to challenge INS detention or deportation proceedings. Richardson , 162 F.3d at 1353 (footnotes omitted). AEDPA amended the INA to eliminate habeas corpus review under § 106(a)(10). See § 401(e) (a non-codified provision of AEDPA that eliminated th e earlier form of INA § 106(a)(10)) and AEDPA § 440(a) (restricting judicial review for criminal aliens) (codified at 8 U.S.C.A. § 1105a(a)(10) (West Supp. 1998)). AEDPA did not, however,11 Because the petitioner in Richardsoncame under the permanent rules of IIRIRA, the panel did not discuss in detail the effect of AEDPA § 440(a) on habeas corpus jurisdiction in the district courts. Richardson , rather, applied the more narrow judicial review scheme of the new INA § 242. Since we hold in the instant case that the new INA §§ 242(a)-(f) do not apply to transitional cases that seek review of a final order of deportation and that the exclusive jurisdiction provision of § 242(g) applies only to interim administrative decisions of the INS, we proceed to an independent review of the effect of AEDPA § 440(a) on habeas corpus jurisdiction under 28 U.S.C. § 2241. 19 specifically discuss 28 U.S.C. § 2241. Cf . Richardson , 162 F.3d at 1358 (AEDPA eliminated “the specific habeas reviewgranted under former INA § 106(a)(10)”); Auguste v. Reno , 152 F.3d 1325, 1329 n.9 (11th Cir. 1998) (“AEDPA § 401(e) deprives this court of jurisdiction to h ear a petition for habeas corpus under INA § 106.”). Neither Richardsonnor Auguste discusses the availability of habeas corpus under 28 U.S.C. § 2241 after AEDPA. We must decide, then, whether in immigration cases, habeas corpus jurisdiction under § 2241 implicitly was eliminated by Congress when it enacted AEDPA § 401(e). 11
Other circuits have held that hab eas corpus jurisdiction under 28 U.S.C. § 2241 survives the enactment of AEDPA. In Goncalves v. Reno , 144 F.3d 110 (1st Cir. 1998), the First Circuit held that Congress could not repeal habeas corpus jurisdiction under 28 U.S.C. § 2241 by impli cation, but only by express command.
See 144 F.3d at 119 (citing Felker v. Turpin , 518 U.S. 651, 116 S. Ct. 2333, 135 L.Ed.2d 827 (1996)). The court then determined that throughout the history of immigration statutes, both broad and narrow, habeas corpus review remained12 The court further noted that Aliens without other recourse had traditionally been able to obtain review by habeas corpus, even in the face of statutory language precluding all other review. See Heikkila v. Barber , 345 U.S. 229, 233-35, 73 S. Ct. 603, 605-06, 97 L.Ed. 972 (1953). In enacting AEDPA, Congress was concerned about abuses of duplicative judicial remedies, and the elimination of old INA § 106(a)(10) served that congressional purpose. It does not fo llow from the repeal of this provision of the INA that § 2241 habeas jurisdiction has been repealed altogether in immigration cases. Had Congress wished to eliminate any possible habeas jurisdiction under 28 U.S.C. § 2241, it could easily have inserted an explicit reference, but it did not. 144 F.3d at 121 (footnote omitted).

13 Five other circuits that have addressed similar issues have reached the same, or analogous, conclusions as that reached by the First Circuit in Goncalves . See , e.g. , Henderson v. INS , 157 F.3d 106 (2d Cir. 1998) (proper mechanism fo r judicial review of deportation against criminal aliens was through habeas corpus petition in district court); Sandoval v. Reno , 166 F.3d 225 (3d Cir. 1999) (same); and Magana-Pizano v. INS , 152 F.3d 1213 (9th Cir.), amended by , 20 available to aliens. Id. at 120 (citing Foti v. INS , 375 U.S. 217, 231, 84 S. Ct. 306, 315, 11 L.Ed.2d 281 (1963) (the vesting of jurisdiction to review orders under the APA exclusively in the court of appeals “in no way impairs the . . . availability of habeas corpus relief.”)). The Goncalves court noted that while AEDPA § 401(e) explicitly repealed old INA § 106(a)(10), which had provided a form of habeas corpus jurisdiction, AEDPA did not expressly amend 28 U.S.C. § 2241. Old INA § 106(a)(10), the court continued, assure d aliens of a “supplemental collateral remedy,” but did not apply to aliens “w ho could not obtain review under the APA judicial review provisions.” Id . at 121. 12 We are persuaded by the reasoning in Goncalves , holding that habeas corpus jurisdiction under 28 U.S.C. § 2241 survived the enactment of AEDPA. 13 In159 F.3d 1217 (9th Cir. 1998) (where petitioner has no other means of judicial review, habeas corpus jurisdiction must be available to avoid constitutional infirmities). The Supreme Court denied certiorari in Hendersonand Goncalves . See ___ U.S. ___, 119 S. Ct. 1140, 1141 (1999). The Court vacated and remanded Magana-Pizano for further consideration in light of the Court's decision in AADC . See id. at ___, 119 S. Ct. at 1137.

14 Furthermore, it is not unusual for courts to distinguish between a statute's directive that there should be no “judicial review” and the separate notion of habeas corpus. See Heikkila , 345 U.S. at 236, 73 S. Ct. at 607. Prior immigration decisions, even during restrictive regimes, have noted that some decisions could not be challe nged “on review”, but could be challenged through a narrower habeas window. See , e.g. , Nishimura Ekiu v. United States , 142 U.S. 651, 663, 12 S. Ct. 336, 340, 35 L.Ed. 1146 (1892) (exclusion decision subject to habeas review, but cannot be “impeached or reviewed”); Chew Heong v. United States , 112 U.S. 536, 559, 5 S. Ct. 255, 266- 67, 28 L.Ed. 770 (1884) (considering, on habeas corpus review, the ability of Chinese laborers to reenter the United States where previously vested right to reenter without a certificate would be adversely affected by giving statute retroactive effect). Although the government also argues that the 1961 Immigration Act previously eliminated all habeas review over deportation orders, we have held to the contrary. See United States ex rel. Marcello v. District Director , 634 F.2d 964, 971 (5th Cir. 1981). In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 

### See also Orozco , 911 F.2d at 541 (“Challenges to deportation proceedings are cognizable under 28 U.S.C. § 2241.”).
21 Felker v. Turpin , 518 U.S. 651, 116 S. Ct. 2333, 135 L.Ed.2d 827 (1996), the Supreme Court held that when Congress intends to repeal or restrict habeas jurisdiction under § 2241, it generallymust do so explicitly. See id . at 660, 116 S. Ct. at 2238-39. AEDPA does not explicitly eliminate habeas corpus jurisdiction under § 2241, although Congress was explicit in eliminating habeas review under old INA § 106(a)(10). See Goncalves , 144 F.3d at 121. Generally, repeal of jurisdictional provisions by implication is disfavored. See Felker , 518 U.S. at 659- 63, 116 S. Ct. at. 2338-39. 14 In sum, while AEDPA e liminated the habeas corpus22 jurisdiction available under the old INA § 106(a)(10), it did not explicitly repeal the habeas corpus jurisdiction traditiona lly available to aliens under 28 U.S.C. §
2241. We further note that the petitioners’ ch allenge to the Attorney General’s retroactive application of AEDPA § 440(d) is a matter appropriate for the court, rather than the BIA or the Attorney Gene ral, to decide. The Supreme Court has noted that the “Due Process Clause also prot ects 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 v. USI Film Prods. , 511 U.S. 244, 266, 114 S. Ct. 1483, 1497, 128 L.Ed .2d 229 (1994) (citation omitted). Furthermore, in immigration cases, the S upreme Court has held that a review of statutory questions implicates due process of law. See , e.g., Brownell v. We Shung , 352 U.S. 180, 182 n.1, 77 S. Ct. 252, 255 n.1, 1 L.Ed.2d 225 (1956) (“due process” includes “conformity to statutory grounds”); United States ex rel. Accardi v. Shaughnessy , 347 U.S. 260, 265, 268, 74 S. Ct. 499, 502, 504, 98 L.Ed. 681 (1954) (using habeas to ensure the “ due process required by the regulations” because the “crucial question is whether the alleged conduct of the Attorney15 The government attempts to muddy the waters by arguing that petitioners cannot seek review of a discretionary decision by the BIA. To the contrary, petitioners are not seeking to review a decision to grant or deny a § 212(c) waiver , but rather are seeking to review a decision concerning the ability to apply for such waiver. See Accardi , 347 U.S. at 268, 74 S. Ct. at 503- 04 (“It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. Rather we objectto the [BIA's] alleged failure to exercise its own discretion contrary to existing valid regulations.”) (emphasis in original); Goncalves , 144 F.3d at 125 (“Analytically, the decision whether an alien is eligible to be considered for a particular discretionary form of relief is a st atutory question separate from the discretionary component of the administrative decision whether to grant relief.”). 23 General deprived petitioner of any of the rights guaranteed him by the statute or by the regulation issued pursuant thereto.”). The Supreme Court also permitted habeas corpus review of issues similar to petitioners' here concerning the authorityto grant discretionary relief. See , e.g. , United States ex rel. Hintopoulos v. Shaughnessy , 353 U.S. 72, 78, 77 S. Ct. 618, 621, 1L.Ed.2d 652 (1957) (reviewing by ha beas corpus and finding no abuse of discretion in denial of suspension of deportation); Accardi , 347 U.S. at 268, 74 S. Ct. at 504 (reviewing by habeas corpus and finding failure to exercise discretion in accordance with regulations concerning the suspension of deportation). 15 The Supreme Court permitted these statutory reviews through the mechanism of habeas corpus during the period when, according to Heikkila v. Barber , judicial review in immigration cases was limited to the minimum required by the Constitution. See 345 U.S. at 234-35, 73 S. Ct. at 605-06. Finally, the “pure issue of law, of whether Congress intended to make a particular provi sion of a statute retroactive, is of a16 We note, again, the distinction with our holding in Richardson , which based its analysis of the availability of habeas corpus jurisdiction on IIRIRA § 242(g), a provision that does not apply to the petitioners here who seek review of a final order of deportation under IIRIRA's transitional rules. When considering final removal orders, Richardsonspecifically left open the issue of whether the Constitution would require judicial review of “statutory or legal errors other than to the extent necessary to determine whether a jurisdictional bar to judicial review exists.” 162 F.3d at 1378 n.182. 24 type traditionally resolved by the courts.” Goncalves , 144 F.3d at 113. See also
LaGuerre , 164 F.3d at 1041 (it “seems unlikely that Congress would have wanted the [BIA] to have the final word on so pure and fundamental a question of law as to when [§ 440(d)] went into effect.”). As a result, we exercise habeas corpus over the claims of petitioners here on the que stion of whether AEDPA § 440(d) applies to pending cases to deprive petitioners of the ability to apply for a waiver of deportation under § 212(c). B. Summary We hold that for aliens whose petitions fall within the purview of IIRIRA's transitional rules and who seek review of a final order of deportation, AEDPA’s elimination of § 106(a)(10)'s grant of habeas jurisdiction does not extend to eliminate the federal habeas jurisdicti on previously available under 28 U.S.C. §
2241. 16 It is important to emphasize, as did the Henderson court, that in exercising habeas corpus jurisdiction in this case, we do not decide whether every statutory claim raised by an alien is cognizable on habeas. See 157 F.3d at 122. The17 We arrive at this decision only after much consideration, noting that whether review of such claims as presented here resides in a habeas petition or a petition for review presents difficult issues. See Henderson , 157 F.3d at 119 n.9 (“Neither approach is without problems in terms of the text and legislative history.”). We decline to make a broad statement about the scope of habeas corpus relief available to criminal aliens in IIRIRA transitional cases. Rather, we hold only that in the circumstances presented in the case where petitioners' claims are ones affecting substantive rights that traditionally have been reviewed by courts even in the most restrictive immigration schemes, and where petitioners have no other avenue for relief, we exercise habeas corpus jurisdiction in these narrow circumstances and leave to another day a determination of whether habeas corpus jurisdiction would be available in other circumstances. See Henderson , 157 F.3d at 122. 25 petitioners' claims in the present case, howev er, affect the aliens' substantial rights and are of the nature that courts have enforced through judicial review even when Congress has attempted to limit the courts ' jurisdiction in immigration matters as far as constitutionally permitted. See id . We further note again that our exercise of habeas corpus jurisdiction in this case is informed by the facts that GutierrezMartinez and Mayers were unable to obtain any judicial review and are challenging final orders of deportation, not inte rim discretionary decisions by the INS. 17
III. MERITS A. Retroactive Application of AEDPA Section 440(d) As previously stated, AEDPA § 440(d) made certain criminal aliens, including Gutierrez-Martinez and Mayers, in eligible to apply for an old INA § 212(c) waiver of deportation. In the Matter of Soriano , Int. Dec. 3289 (A.G. Feb. 21, 1997) (beginning at *16), the Attorney General ruled that AEDPA § 440(d) applies to pending § 212(c) application cases . The BIA affirmed the IJ's decision18 Furthermore, as Goncalves notes, even if deference is due, it may very well be due to the agency's, that is the BIA's, decision that § 440(d) should not apply to pending cases, as opposed to the Attorney General's decision that it should. See 144 F.3d at 126 n.20. 26 that under AEDPA, Gutierrez-Martinez was statutorily ineligible to apply for a § 212(c) waiver. The BIA granted Mayers a § 212(c) waiver, but then reconsidered its decision in light of the Attorney General's determination in Soriano that § 440(d) applies to pending deportation cases . Petitioners argue that the Attorney General improperly determined that AE DPA § 440(d) applied retroactively to pending cases. The government first argues that the Attorney General's decision in Soriano is entitled to deference under Chevron U.S .A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron generally requires that, in the absence of a direct expression of congressional intent, courts defer to an agency's reasonable interpretation of its governing statute. Id . at 843-44, 104 S. Ct. at 2782. It is far from clear, however, that deference is appropriate under these circumstances. See , e.g. , Sandoval , 166 F.3d at 239-40; Henderson , 157 F.3d at 129; Goncalves , 144 F.3d at 126-27. 18 The question of a statute's effective date is generally cons idered to be a pure question of law for courts to decide. See Goncalves , 144 F.3d at 113. In contrast, Chevronis most applicable in those statutory interpretati on situations where Congress has delegated27 rule-making authority to an agency, in some respects, to rely on its expertise in a substantive field. See 467 U.S. at 865, 104 S. Ct. at 2793. Assuming, arguendo , that Chevrondoes apply, it directs that courts should ascertain, “employing traditional tools of statutory construction,” whether Congress has expressed “an intention on the precise question at issue.” 467 U.S. at 843 n.9, 107 S. Ct. at 2781-82 n.9. Landgraf v. USI Film Products , 511 U.S. 244, 114 S. Ct. 1483, 128 L.Ed.2d 229 (1994), provides the framework for analyzing whether Congress expressed an intention for newly enacted statutory provisions to apply to pending cases. When a case implicates a federal st atute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contai ns no such express command, the court must determine whether the ne w statute would have retroactive effect, i.e. , whether it would 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. If the statute would operate retroactively, our tr aditional presumption teaches that it does not govern absent clear congr essional intent favoring such a result. 511 U.S. at 280, 114 S. Ct. at 1505. “The presumption against retroactive legislation is deeply rooted in our jurisprudence.” Id. at 265, 114 S. Ct. at 1497. Generally, statutes should not be applie d retroactively unless “Congress has clearly28 manifested its intent” to do so. Hughes Aircraft Co. v. United States ex rel. Schumer , 520 U.S. 939, ___, 117 S. Ct. 1871, 1876, 138 L.Ed.2d 135 (1997). The Supreme Court further explicated Landgraf in Lindh v. Murphy , 521 U.S. 320, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997), decided after the Attorney General issued her decision in Soriano . Importantly, Lindhexpands the tools available to courts to determine congressi onal intent and directs that a court should use the “normal rules of construction” and examine the text, structure, and history of the legislation to determine whether Congress intended for there to be retrospective application. 521 U.S. at ___, 117 S. Ct. at 2063. In Lindh , where Congress expressly provided for retro active application in one provision of AEDPA, the court determined that silence in another provision created a “negative implication” that Congress intended pr ospective application when it had not expressly provided for retr oactive application. Id . at ___, 117 S. Ct. at 2065-68. Our application of the analysis instructed by Lindhto the present case shows that several of AEDPA's immigration provisions contain explicit retroactivity language, while § 440(d) is silent on this question. See Goncalves , 144 F.3d at 128-31 (citing § 413, giving explicit effective date and § 421, which applied a restriction on discretionary relief retroactively by employing an express “effective date”19 In Boston-Bollers , we held that AEDPA § 440(a) applies to pending cases as a “prospective application of a jurisdiction eliminating statute.” See 106 F.3d at 354-55. Section 440(d) is not a pure jurisdiction-eliminating statute, and therefore must be analyzed against the backdrop of Landgraf 's presumption against retroactivity.

20 This analysis, thereby, satisfies the Chevroninstruction. See Chevron , 467 U.S. at 843 n.9, 104 S. Ct. at 2781-82 n.9 (“If a court, employi ng traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”). 29 provision). 19 “Where Congress includes particul ar language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
See INS v. Cardoza-Fonseca , 480 U.S. 421, 432, 107 S. Ct. 1207, 1213, 94 L.Ed.2d 434 (1987) (citation omitted). Lindh 's expansion of Landgraf allows us to determine by “negative implication” thatCongress did not intend for § 440(d) to apply to cases pending on the date of enactment. 20 The government argues, however, that c ongressional intent is not clear and we should apply Landgraf 's second step which analyzes whether applying AEDPA § 440(d) to petitioners here would have a retroactive effect. The government asserts that there would be no retroactiv e effect because a criminal alien has no “vested right” to discretionary relief. While we have established that Congress intended only prospective application of AEDPA § 440(d), and therefore need not reach the second step of the Landgraf analysis, the Supreme Court noted in that case, that “[e]very statute, which take s away or impairs vested rights acquired30 under existing laws, or creates a new . . . disability, in respect to transactions or considerations already past, must be d eemed retrospective.” 511 U.S. at 269, 114 S. Ct. at 1499 (citation omitted). Prior to the passage of AEDPA, the petitioners had a statutory right to apply for a § 212(c) waiver. To prohibit them from making such an application now arguably “attaches a new disability” and imposes additional burdens on past conduct. See Hughes Aircraft , 520 U.S. at ___, 117 S. Ct. at 1877 (holding that statute eliminating defense to False Claims Act could not be applied retroactively). The government further argues that aliens' criminal convictions do not entitle them to hold civil immigration laws static. We are not persuaded by this reasoning. “Even when the conduct in ques tion is morally reprehensible or illegal, a degree of unfairness is inherent when ever the law imposes additional burdens based on conduct that occurred in the past.” Landgraf , 511 U.S. at 282-83 n.35,
114 S. Ct. at 1506 n.35. See also Goncalves , 144 F.3d at 130 (the fact that an alien commits a crime that makes him deportable prior to AEDPA and “that the new restrictions merely eliminated a possibl e form of relief from those consequences, do not suffice to rebut the presumption against retroactivity”). A review of the legislative history c onfirms our interpretation of § 440(d).
See Landgraf , 511 U.S. at 262, 114 S. Ct. at 1495 (analyzing legislative history to31 confirm textual analysis). The original Senate version of the bill that became AEDPA contained an explicit instruction that the provision, later structured as AEDPA § 440(d), would apply to pending cases . See 141 Cong. Rec. S7559 (daily ed. May 25, 1995) (“[§ 440(d)] shall take effect on the date of enactment of this Act and shall apply to cases pendi ng before, on, or after such date of enactment.”). The House version of that same provision, in contrast, was prospective. See 142 Cong. Rec. H2295 (daily ed. Mar. 14, 1996) (citing H.R. 2703, 104th Cong. § 662 (1996), at 142). When the bill emerged from the conference committee, the original Senate language making § 440(d)'s restrictions retroactive had been removed. See H.R. Rep. No. 104-518 (1996), reprintedin142 Cong. Rec. H3305, H3323 (daily ed. Apr. 15, 1996). Congress was thus aware of the issue of the effective date of this provision and made a purposeful decision in rejecting the Senate's re troactive language. See Cardoza-Fonseca , 480 U.S. at 442- 43, 107 S. Ct. at 1218-19 (“Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier di scarded in favor of other language.”) (citation omitted). In conclusion, we hold that Congr ess intended that AEDPA § 440(d)'s amendment of INA § 212(c) should not apply to pending cases. As a result, we32 need not reach petitioners' claim thatAEDPA § 440(d) violates the Equal Protection Clause by eliminating the wavi er process only for aliens deportable on the basis of certain criminal offenses a nd not for aliens excludable from the United States on the basis of those same offens es. We note that our analysis here is limited to those cases involving aliens who fall under the transitional rules of IIRIRA. Our holding does not affect, encompass, or decide the availability of habeas corpus review to those petitione rs who fall under the permanent rules of IIRIRA. Our consideration of the specific claims addressed in this case, however, convinces us that these petitioners have raised a meritorious challenge to the Attorney General’s application of AEDPA § 440(d) to pending cases.
IV. CONCLUSION For the foregoing reasons, we conclude that the district court erred in denying Gutierrez-Martinez’ petition for habeas corpus on the ground that he failed to raise an issue of grave constitutional dimensions over which the court could exercise habeas corpus jurisdiction under the new immigration regime. We therefore REMAND Gutierrez-Martinez’ case to the district court for reconsideration of his petition for habeas corpus relief pursuant to § 2241 in light of this opinion. We further conclude that the district court erred in denying Mayers’ petition for habeas corpus on the grounds that it lacked subject-matter33 jurisdiction to review his case and, in th e alternative, that his challenge to the retroactive application of AEDPA § 440(d) did not constitute a potential fundamental miscarriage of justice that c ould be reviewed within the parameters of the new immigration statutes. We theref ore REVERSE the district court’s order denying Mayers’ habeas corpus petition. Since Mayers had been granted a § 212(c) waiver by the BIA, the district court should instruct the BIA to reinstate Mayers' § 212(c) waiver.