Alfredo A. KOLSTER, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, 101 F.3d 785

LYNCH, Circuit Judge. This ease requires us to determine whether

section 440(

a) of the Antiterrorism and Effective Death Penalty Act (AEDPA), enacted after this petition was filed, applies here. Alfredo Kolster, an alien under deportation order, argues that if it does apply, it is unconstitutional.

Section 440(

a) of AEDPA, which was signed into law on April 24, 1996, prohibits judicial review of deportation orders issued against aliens who have committed certain types of crimes. Kolster had previously pled guilty to such a crime. In a petition filed with this court on February 28,1996, Kolster seeks review of a Board of Immigration Appeals (BIA) decision that he is ineligible, under the BIA’s

interpretation ‘of the Immigration and Nationality Act (INA), for discretionary relief from deportation. He argues that the BIA erroneously interpreted the statute to require seven years of lawful permanent residence by the alien to be eligible for the relief from deportation afforded by

section 212(

c) of the INA The Immigration and Naturalization Service (INS) has moved to dismiss this action, arguing that

section 440(

a) of AEDPA operates immediately to divest this court of jurisdiction to hear this petition for review. Kol-ster responds that

section 440(

a) does not apply to cases pending on the date of AED-PA’s enactment, and that, if the statute applies, its preclusion of judicial review violates the Due Process Clause and

Article III of the Constitution. We find that

section 440(

a) does apply to petitions, like Kolster’s, which were pending on the date of AEDPA’s enactment. Because at least the habeas corpus review provided by the Constitution remains available to aliens covered by

section 440(a), we find that the prohibition of judicial review in

section 440(

a) does not offend the Constitution. Accordingly, we dismiss Kolster’s petition for review under the Immigration and Nationality Act for lack of jurisdiction. I. Alfredo Kolster, a Venezuelan citizen, first entered the United States in 1980 to attend high school in New York. He remained in the United States through high school and college, earning a B.S. from Boston University in September, 1988. During this time, Kolster had a F-l, or foreign student, visa.

On September 11, 1988, after a brief visit to Venezuela, Kolster re-entered the United States as a member of the immediate family of an employee of an international organization. His mother worked for the Pan-American Health Organization. On- August 24, 1989, Kolster became a lawful permanent resident of the United States. From 1989 to 1991, Kolster lived in the Boston area and worked at various sales jobs. In 1991, Kolster was indicted in federal court in Massachusetts for conspiracy to possess cocaine with intent to distribute. He later pled guilty and was sentenced to twenty-four months’ imprisonment.

The sentencing judge recommended that Kolster not be deported upon his release from custody. Nonetheless, while Kolster was incarcerated, the INS ordered him to show cause why he should not be deported. The INS charged that Kolster was deportable pursuant to

section 241(a)(2)(B)(

i) of the INA, which applies to aliens convicted of controlled substance offenses, and pursuant to

section 241(a)(2)(A)(iii), which applies to aliens convicted of aggravated felonies. See 8 U.S.C. § 1251(a). On April 5, 1994, Kolster had a hearing before an Immigration Judge. At that hearing, Kolster, through counsel, conceded de-portability on the grounds charged by the INS. However, he also requested a continuance in order to apply for a waiver of deportation pursuant to

section 212(

c) of the INA.

Section 212(

c) gives the Attorney General the discretionary authority to waive the exclusion of otherwise excludable aliens, see 8 U.S.C. § 1182(e). A longstanding

interpretation of that

section extends the Attorney General’s discretion to otherwise deportable aliens. See, e.g., Joseph v. INS, 909 F.2d 605, 606 n. 1 (1st Cir.1990). The Immigration Judge found “based on [Kolster’s] admission, his concession of de-portability through counsel, and the documentary evidence of record that deportability has been established by clear, convincing and unequivocal evidence.” As to Kolster’s request for a. continuance, the Immigration Judge found that Kolster did not have statutory eligibility for

section 212(

c) relief, and therefore pretermitted his application for a waiver of deportation. Accordingly, she ordered Kolster deported to Venezuela. On January 30,1996, the BIA affirmed the order of deportation. The Board agreed with the decision to pretermit Kolster’s application for a

section 212(

c) waiver because Kolster had “not been a lawful permanent resident of the United States for seven years as is required.” Kolster filed a petition for review with this court on February 28, 1996. At that time, 8 U.S.C. § 1105a(

a) provided for judicial review of final orders of deportation. Kolster argued that the BIA has erred in interpreting

section 212(e)’s requirement of seven years of “lawful unrelinquished domicile” to mean seven years of “lawful permanent residence.” Kolster points to a circuit split on this statutory issue, noting that some courts of appeals have rejected the BIA’s construction of

section 212(c). See, e.g, Lok v. INS, 548 F.2d 37 (2d Cir.1977). On April 24, 1996, while this petition was pending, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat.

Section 440(

a) of AED-PA, which amends

Section 106(a)(10) of the INA, 8 U.S.C. § 1105(a)(10), provides: Any final order of deportation against an alien who is deportable by reason of having committed [certain crimes, including aggravated felonies and controlled substance offenses] shall not be subject to- review by any court. On June 10, 1996, the INS moved to dismiss this petition for review, arguing that, in light of

section 440(a), this court lacked subject matter jurisdiction to hear this case. Kol-ster responds that AEDPA does not specify an effective date for

section 440(a), and that statutes are generally presumed not to have retroactive effect. Additionally, he contends that preclusion of judicial review violates the Due Process Clause and

Article III. II. A.

Section 110(a)’s Applicability to Pending Petitions The Supreme Court’s decision in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), provides a framework for determining whether a statute should be applied to cases pending at the time of enactment. This is initially a question of legislative intent, not a constitutional question. First, the court must look at the statutory text and determine whether it “manifests an intent” that the statute should be applied to pending cases. Id. at -, 114 S.Ct. at 1492.

If the court determines that Congress did not.“expressly prescribe[ ] the statute’s proper reach,” the court presumes that Congress acts consistently with a series of “judicial default rules.” Id. at -, 114 S.Ct. at 1505. In applying these rules, 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. Id.

For jurisdictional statutes, the presumption is in favor of immediate application, because “[ajpplieation of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case’” and because “jurisdictional statutes ‘speak to the power of the court rather than to the rights or obligations of the parties.’” Id. at -, 114 S.Ct. at 1502 (quoting Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct. 202, 203, 60 L.Ed. 409 (1916) and Republic Nat’l Bank v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 565, 121 L.Ed.2d 474 (1992) (Thomas, J., concurring)).

The first inquiry is thus whether Congress has expressed a clear intent as to whether

section 440(

a) applies to cases pending on the date of enactment. There is no explicit textual reference to an effective date for

section 440(a). Effective dates are provided for some other sections of the AEDPA, including

section 440(e), which adds offenses to the INA definition of “aggravated felony.” See 8 U.S.C. § 1101 note. However, those sections are “unrelated to jurisdiction, [and] are too far removed from judicial review under 8 U.S.C. § 1105a(

a) to impute an effective date for

section 440(a).” Duldulao v. INS, 90 F.3d 396, 398 n. 2 (9th Cir.1996). Accordingly, we find that Congress has not expressly addressed the issue of

section 440(a)’s applicability to pending cases. The next inquiry under the “judicial default rule” approach to determining congressional intent is whether 440(

a) has a retroactive effect upon petitioner’s substantive rights, duties, or obligations. Landgraf, 511 U.S. at -, 114 S.Ct. at 1505. If it does not, then we apply the rule that jurisdictional statutes apply to pending cases. Id. If the statute would have such retroactive effects, it will not be applied, “absent clear congressional intent favoring such a result.” Id.

Kolster argues that Landgraf assumes that jurisdictional statutes only effect a change in the tribunal that will hear the case, and that the presumption in favor of immediate application is therefore inapposite where the statute’s effect is to deprive a party of access to any judicial review at all. It is true that Landgraf speaks of jurisdictional statutes as usually “ ‘simply changing] the tribunal that is to hear the case.’ ” Landgraf, 511 U.S. at -, 114 S.Ct. at 1502 (quoting Hallowell, 239 U.S. at 508, 36 S.Ct. at 203).

However, as the INS points out, Land-graf’s explicit reliance on Hallowell is instructive here. In Hallowell, the Supreme Court approved the application to pending cases of a statute that deprived the federal district courts of jurisdiction over certain Indian probate disputes and vested “final and conclusive” authority in the Secretary of the Interior. 239 U.S. at 508, 36 S.Ct. at

Section 440(

a) similarly vests final authority in an administrative tribunal, the BIA. Landgraf’s citation to Hallowell makes us doubtful, absent more guidance from the Supreme Court, that a jurisdictional change from an

Article III court to an administrative decisionmaker, in itself, affects the retroac-tivity analysis, whatever its effect on the ultimate constitutional analysis. See Hincapie-Nieto v. INS, 92 F.3d 27, 29 (2nd Cir.1996). Our inquiry must' therefore focus on the facts concerning whether Kolster’s substantive rights or obligations or duties have been changed by the deprivation of judicial review. Kolster suggests that his guilty plea and concession of deportability were made with the expectation that he could apply for a

section 212(

c) waiver of deportation. The Seventh Circuit gave credence, on different facts, to a similar argument in Reyes-Hernandez v. INS, 89 F.3d 490, 492 (7th Cir.1996). There, the BIA had affirmed the denial of petitioner’s application for

section 212(

e) relief, and the petitioner sought judicial review.. The Seventh Circuit found that, when petitioner conceded deportability, he knew that, if the immigration judge and the BIA. turned down his request for

section 212(

c) relief, he “could have a go at” judicial review. Id. at 492. Had petitioner known that judicial review would be foreclosed, “he might have contested deportability.” Id. The immediate application of

section 440(

a) would thus “attach a new legal consequence to the concession” of deportability. Id. at 492-93. Accordingly, the Seventh Circuit held that

section 440(

a) did not apply to cases in which deportability was conceded prior to AEDPA’s enactment, “provided that the applicant for discretionary relief would have had at least a colorable defense to deportability.” Id. In contrast to the Seventh Circuit, it is unclear to us that deportability, which is a largely mechanical determination based on facts which may often be objectively ascertained, would realistically be conceded because of the availability of discretionary relief or of judicial review of the denial of such relief.

See Hincapie-Nieto, 92 F.3d at 30 (“It is far more likely that deportability is conceded because there is no conceivable defense available.”). . In any case, here the Immigration Judge explicitly based her finding of deportability on the documentary evidence of Kolster’s drug offense conviction, as well as on his concession. Tellingly, Kolster does not argue that he in fact had a colorable defense to deportability. As to his guilty plea, we have no reason to think it was induced by reliance on discretionary relief under

section 212(c). By Kol-ster’s own calculations, his “lawful domicile” for

section 212(

c) purposes only dates back to September 11, 1988. Thus, even under the

interpretation of

section 212(

c) that he urges, as of September 2, 1992, the date of his guilty plea, Kolster had only accrued four years of lawful domicile. He was, as a result, three years away from being eligible for

section 212(

c) relief, rendering it highly unlikely that his guilty plea was predicated on the availability of such relief. Moreover, this court and others have previously found that aliens do not have a cognizable reliance interest in the availábility of discretionary

section 212(

c) relief. See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir.1996); Campos v. INS, 16 F.3d 118 (6th Cir.1994); Barreiro v. INS, 989 F.2d 62 (1st Cir.1993). At issue in those cases was an amendment to

section 212(

c) which made aliens who had served at least five years’ imprisonment for an aggravated felony ineligible for discretionary relief. See, e.g, Barreiro, 989 F.2d at 62. In Barreiro, this court found that the amendment’s application to prisoners whose convictions and prison terms predated its enactment did not violate the presumption against retroactivity. Id. at 64. “The presumption against a retroactive

interpretation is to give fair warning so that a party may avoid consequences. This is scarcely a situation calling for any such warning.” Id. Similar logic applies here. As the Third Circuit said in Schiedemann, petitioner’s “conduct clearly subjected him to deportation as well as criminal sanctions, and ... [section] 212(c), as it then existed, offered relief from the former only at the unfettered discretion of the Attorney General....” Scheidemann, 83 F.3d at 1523.

The availability of purely discretionary relief does not create substantive rights in otherwise deport-able criminal aliens, nor does the availability of judicial review of denial of that discretionary relief. We find that Kolster’s substantive rights, liabilities, and duties are not retroactively impaired by the preclusion of judicial review. We note that five of the six other circuit courts to consider this question have found that

section 440(

a) applies upon enactment. See Salazar-Haro v. INS, 95 F.3d 309 (3d Cir.1996); Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir.1996); Qasguargis v. INS, 91 F.3d 788 (6th Cir.1996); Duldulao v. INS, 90 F.3d 396 (9th Cir.1996); Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir.1996). We hold, under the “judicial default rules” that are articulated in Landgraf and which provide a guide to legislative intent, that

section 440(a)’s deprivation of jurisdiction to this court is effective upon enactment. B. The Constitutional Challenge to

Section 110(

a) Kolster contends that

section 440(a)’s preclusion of judicial review of final orders of deportation based on commission of certain crimes violates both the Due Process Clause and the principles of separation of powers embodied in

Article III. Kolster argues that deportation deprives him of a constitutionally protected liberty interest, and that the Due Process Clause thus guarantees him certain procedural protections, including judicial review. Additionally, Kolster argues that

section 440(a), by giving “the Executive Branch the power to act as legal arbiter of its own conduct,” prevents the judiciary from fulfilling its

Article III “role as a ‘check’ on the actions of the two other branches.” The INS responds that

section 440(

a) is “clearly a constitutional exercise of Congress’ well-established power to provide or withhold jurisdiction from statutorily-created courts, as well as its plenary power over matters of immigration and naturalization.” Because we consider this to be a serious question, this court requested additional briefing on whether habeas corpus review remains available to aliens who are covered by

section 440(a)’s bar on judicial review. The question of

section 440(a)’s constitutionality is not wholly resolved by reference to Congress’ plenary power over matters concerning immigration. While it is true that “over no conceivable subject is the legislative power of Congress more complete,” Reno v. Flores, 507 U.S. 292, 305, 113 S.Ct. 1439, 1449, 123 L.Ed.2d 1 (1993) (citation omitted), the Supreme Court has also said that: once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.

Our cases have frequently suggested that a continuously present alien is entitled to a fair hearing when threatened with deportation, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation. Landon v. Plasencia, 459 U.S. 21, 32-33, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982) (internal citations omitted).

Given this recognition that continuously present aliens, like Kolster, do have some constitutional status, our analysis of whether judicial review is constitutionally required here cannot turn on the fact that

section 440(

a) only affects the rights of such aliens. See Salazar-Haro, 95 F.3d at 311. The constitutional question at the heart of Kolster’s claim may be stated as follows: Where the consequences of the decision are the deportation of a continuously present alien, may Congress, by precluding judicial review of final deportation orders, place final authority over a question of law — here, the meaning of

section 212(c)’s phrase “lawful unrelinquished domicile” — in the hands of an administrative body (i.e., the BIA), or does the Constitution require an independent judicial determination of questions of law, or at least of whether the agency’s determination was a reasonable construction of the statute? See Fallon et al., Hart & Wechsler’s The Federal Courts and The Federal System 397-98 (4th ed. 1996); Monaghan, Marbury and the Administrative State, 83 Co-lum.L.Rev. 1, 28-34 (1983); cf. Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).

Were no other avenues of judicial review available to aliens like petitioner, we would be required to resolve that thorny question here. However, the INS has agreed that, although AEDPA has repealed the previous statutory authorization for habeas review of final deportation orders contained in

section 106(a)(10) of the INA, any habeas review that is required by the Constitution remains available. Kolster contends that the repeal of the specific INA habeas provision does not impair the ability of the federal courts to grant writs of habeas corpus under the general habeas provision, 28 U.S.C. § 2241, and that such habeas review would encompass questions of law like the one Kolster raises here. Cf. Felker v. Turpin, — U.S. -, -, 116 S.Ct. 2383, 2339, 135 L.Ed.2d 827 (1996) (declining to find jurisdictional repeal by implication). Because the INS acknowledges that some avenue for judicial review remains available to address core constitutional and jurisdictional concerns, we find that

section 440(a)’s repeal of our jurisdiction to review final deportation orders does not raise a constitutional issue. As the nature and scope of habeas review available to aliens like Kolster is not properly before us at this time, we do not reach those questions. See Hincapie-Nieto, 92 F.3d at 31. Accordingly, the petition for review is dismissed for lack of jurisdiction. .

Section 212(

c) of the INA, 8 U.S.C. § 1182(c), prior to amendment by AEDPA, read in relevant part: Aliens lawfully admitted for permanent residence ... who are returning to a lawful unre-; linquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . 8 U.S.C. § 1105a(

a) provided that the procedures described therein “shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens within the United States.” . The INS originally also argued that this petition sought relief — a waiver of deportation under

section 212(c) — which petitioner was no longer eligible to receive.

Section 440(

d) of AEDPA amends

section 212(

c) so that it no longer applies to aliens who are deportable by reason of having committed certain crimes, including controlled substance offenses and aggravated felonies. The Attorney General is currently considering whether to apply

section 440(

d) to

section 212(

c) applications filed before April 24, 1996. See In re Soriano, Order of the Attorney General (Sept. 12, 1996), vacating Int. Dec. No. 3289 (BIA June 27, 1996, amended July 18, 1996). Because we find that the court does not have jurisdiction to hear this petition, we do hot reach the question of whether

section 440(

d) applies to pending applications. . The INS's precise position is that such constitutionally compelled habeas review, or its equivalent, remains, and that we need not here determine “whether the jurisdictional basis for ‘constitutional habeas’ review of a deportation order would be 28 U.S.C. § 2241,

section 1651, or a 'free standing' Constitutional authorization.” For present purposes, we describe the alternatives as "habeas review.”