Trevor Mayers, Petitioner-appellant, v. United States Department of Immigration and Naturalizationservice; Attorney General, Janet Reno, et al.,respondents-appellees.efrain Gutierrez-martinez, Petitioner-appellant, v. Janet Reno, Attorney General of the United States; Dorismeissner, Commissioner of Immigration Andnaturalization, et al., Respondents-appellees, 175 F.3d 1289 (11th Cir. 1999)

Efrain Gutierrez-Martinez ("Gutierrez-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 Penalty Act of 1996 ("AEDPA") should not apply to their pending applications for waiver of deportation.

We must consider, as an initial matter, the immigration scheme that provides the controlling law for the habeas corpus petitions of Gutierrez-Martinez and Mayers. In 1996, within a span of five months, Congress passed two separate pieces of legislation affecting the judicial review process for certain aliens. The more recent legislation further divided this group of aliens into those who would fall under transitional rules and those who would be considered under the permanent judicial review procedures outlined in the new legislation. For the sake of clarity, we provide below a brief overview of the statutory schemes that are relevant to this action.

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 for 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 against 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 immediate review in the court of appeals for 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 the 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 representatives, that would allow the alien to remain in the United States. The alien presented his application to the Immigration Judge ("IJ"), who had discretion to waive 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 render 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).³ 

Several months after the enactment of AEDPA, the judicial review process for deportation orders once again was restructured when Congress enacted the Illegal Immigration Reform and Immigrant 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 for in IIRIRA, judicial review for most aliens is to take place without regard 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's 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 review of 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 narrowly-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 fall 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 other 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, adjudicate 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, deportation, or removal proceedings under [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 whereby § 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 seem to include transitional cases. The question we face here is whether the provisions of AEDPA and IIRIRA preclude any exercise of habeas corpus jurisdiction over claims, constitutional or otherwise, of Gutierrez-Martinez and Mayers.

Gutierrez-Martinez is a citizen of Colombia 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 convicted 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 Naturalization 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 8 U.S.C.A. § 1227(a) (2) (B) (i) (West 1999)). On March 26, 1996, the IJ found Gutierrez-Martinez deportable because of his status as a convicted drug offender, but granted him additional time to file an application 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 statutorily 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.

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 justice in his deportation proceedings." R1-5-6. The district court further determined, however, that retroactive application of AEDPA § 440(d) to eliminate Gutierrez-Martinez' eligibility for the § 212(c) waiver process was not a constitutional error and, therefore, could not be reviewed on the limited scope of habeas corpus review available under the new immigration regime. The district court also rejected 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.

Mayers is a citizen of Barbados admitted 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 against Mayers based on his criminal 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 waiver 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 President 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, the 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 ordered 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 lacked subject-matter jurisdiction because "Congress has eliminated all avenues of judicial review of criminal orders of deportation, including the writ of habeas corpus" in the new immigration regime. Mayers v. Reno, 977 F. Supp. 1457, 1461 (S.D. Fla. 1997). The district court held that this elimination of review suffered 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 district court 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 constitutional 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 refer to Mayers and Gutierrez-Martinez collectively as "petitioners" when discussing common claims. Petitioners argue that under the new immigration schemes, the district court retains habeas corpus jurisdiction under 28 U.S.C. § 2241. Petitioners further argue that AEDPA § 440(d), which makes certain aliens ineligible 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 the 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).

The petitioners argue that AEDPA and IIRIRA did not repeal habeas corpus jurisdiction in the district court under 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 corpus 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 there is review available by means of a 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 interpretation 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 addressed the scope of the new INA § 242(g) in Reno v. American-Arab Anti-Discrimination Committee, ---U.S. ----, 119 S. Ct. 936, 142 L. Ed. 2d 940 (1999) ("AADC "). In AADC, the Court recognized an "interpretive anomaly" with respect 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 rendered 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, --- 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, "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 falling 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, 162 F.3d at 1359. The petitioner in Richardson was attempting to bring a habeas corpus petition challenging the constitutionality of denial of bond pending the outcome of a removal hearing. In contrast, 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, Gutierrez-Martinez and Mayers fall under IIRIRA's transitional rules, which, by definition, serve as a bridge between the old and new regimes. The transitional statute states the general proposition that the new rules 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 not a petition for habeas corpus review. See Goncalves, 144 F.3d 110, 117 (1st Cir. 1998).¹⁰ 

Since the permanent rules of IIRIRA do not apply in the present case, and petitioners here were unable to obtain any review in the court of appeals, we must now consider whether the INA, as amended by AEDPA and prior to the effective date of the permanent rules of IIRIRA, allows 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 INA. 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 the 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, specifically discuss 28 U.S.C. § 2241. Cf. Richardson, 162 F.3d at 1358 (AEDPA eliminated "the specific habeas review granted 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 hear a petition for habeas corpus under INA § 106."). Neither Richardson nor 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 habeas 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 implication, 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 remained 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, assured aliens of a "supplemental collateral remedy," but did not apply to aliens "who 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  In 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 generally must do so explicitly. See id. at 660, 116 S. Ct. at 2338-39. 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 eliminated the habeas corpus jurisdiction available under the old INA § 106(a) (10), it did not explicitly repeal the habeas corpus jurisdiction traditionally available to aliens under 28 U.S.C. § 2241.

We further note that the petitioners' challenge 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 General, to decide. The Supreme Court has noted that the "Due Process Clause also protects 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 Supreme 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 Attorney 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 authority to grant discretionary relief. See, e.g., United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 78, 77 S. Ct. 618, 621, 1 L. Ed. 2d 652 (1957) (reviewing by habeas 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 provision of a statute retroactive, is of a 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 question 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).

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 jurisdiction 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. The petitioners' claims in the present case, however, 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 Gutierrez-Martinez and Mayers were unable to obtain any judicial review and are challenging final orders of deportation, not interim discretionary decisions by the INS.¹⁷ 

As previously stated, AEDPA § 440(d) made certain criminal aliens, including Gutierrez-Martinez and Mayers, ineligible 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 decision 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 AEDPA § 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 considered to be a pure question of law for courts to decide. See Goncalves, 144 F.3d at 113. In contrast, Chevron is most applicable in those statutory interpretation situations where Congress has delegated 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 Chevron does 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, 104 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 statute 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 contains no such express command, the court must determine whether the new 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 traditional presumption teaches that it does not govern absent clear congressional 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 applied retroactively unless "Congress has clearly manifested its intent" to do so. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946, 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, Lindh expands the tools available to courts to determine congressional 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 326, 117 S. Ct. at 2063. In Lindh, where Congress expressly provided for retroactive application in one provision of AEDPA, the court determined that silence in another provision created a "negative implication" that Congress intended prospective application when it had not expressly provided for retroactive application. Id. at 330-38, 117 S. Ct. at 2065-68. Our application of the analysis instructed by Lindh to 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" provision).¹⁹  "Where Congress includes particular 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" that Congress did not intend for § 440(d) to apply to cases pending on the date of enactment.²⁰ 

The government argues, however, that congressional 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 retroactive 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 takes away or impairs vested rights acquired under existing laws, or creates a new ... disability, in respect to transactions or considerations already past, must be deemed 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 948, 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 question is morally reprehensible or illegal, a degree of unfairness is inherent whenever 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 possible form of relief from those consequences, do not suffice to rebut the presumption against retroactivity").

A review of the legislative history confirms our interpretation of § 440(d). See Landgraf, 511 U.S. at 262, 114 S. Ct. at 1495 (analyzing legislative history to 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 pending 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), reprinted in 142 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 retroactive 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 discarded in favor of other language.") (citation omitted).

In conclusion, we hold that Congress intended that AEDPA § 440(d)'s amendment of INA § 212(c) should not apply to pending cases. As a result, we need not reach petitioners' claim that AEDPA § 440(d) violates the Equal Protection Clause by eliminating the wavier process only for aliens deportable on the basis of certain criminal offenses and not for aliens excludable from the United States on the basis of those same offenses. 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 petitioners 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.

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-matter jurisdiction to review his case and, in the alternative, that his challenge to the retroactive application of AEDPA § 440(d) did not constitute a potential fundamental miscarriage of justice that could be reviewed within the parameters of the new immigration statutes. We therefore 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.