Rethinking retroactive deportation laws and the due process clause

New York University Law Review

Volumn 73, Issue 1, 1998, Pages 97-160

  Morawetz, Nancy ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b PRINCETON UNIVERSITY   (United States)

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EID: 0032364813     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (298)

1. 347 U.S. 483 (1954).
2. 347 U.S. 522 (1954).
3. U.S. Const, art. I, § 9, cl. 3.
4. Galvan, 347 U.S. at 530 (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)).
5. Id. at 530 (quoting Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)).
6. Id. at 531.
7. Id. (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)).
8. 163 U.S. 537 (1896).
9. As other commentators have noted, the landmark cases that have come to stand for the proposition that the Court should refrain from overseeing immigration policy for its constitutionality were issued within a few years of Plessy. The decision in Chae Chan Fing v. United States, 130 U.S. 581 (1889) (known as "The Chinese Exclusion Case"), which upheld Congress's exclusion of immigrants of Chinese descent, was issued seven years before Plessy. Fong Yue Ting v. United States, 149 U.S. 698 (1893), was issued just three years before Plessy. The immigration cases built on the idea that race could be determinative of a group's ability to assimilate as Americans. See, e.g., Chae Chan Ping, 130 U.S. at 606. Even one of the dissents in Fong Yue Ting, which protested the failure to review deportation policies, referred to the affected immigrants as "the obnoxious Chinese." Fong Yue Ting, 149 U.S. at 743 (Brewer, J., dissenting).
10. See Thurgood Marshall, An Evaluation of Recent Efforts to Achieve Racial Integration in Education Through Resort to the Courts, 21 J. Negro Educ. 316, 317 (1952) (discussing wholesale transfer of Plessy rule from context of interstate travel to education); infra note 130 (discussing ex post facto immigration cases).
11. Although immigration case law developed in the 1950s around McCarthy-era concerns about Communists, the origins of the case law are firmly rooted in the racist rhetoric surrounding Asian immigrants. For a history of this period, see Lucy E. Salyer, Laws as Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995); see also Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 288-89 (1984).
12. Although immigration case law developed in the 1950s around McCarthy-era concerns about Communists, the origins of the case law are firmly rooted in the racist rhetoric surrounding Asian immigrants. For a history of this period, see Lucy E. Salyer, Laws as Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995); see also Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 288-89 (1984).
13. Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of 8, 15, 18, 22, 28, 40, 42, 50 U.S.C.) [hereinafter AEDPA].
14. Pub. L. No. 104-208, Div. C, 1996 U.S.C.C.A.N. (110 Stat.) 3009-546 (codified in scattered sections of 8 U.S.C.) [hereinafter IIRIRA].
15. Under IIRIRA, deportation proceedings have been renamed as "removal proceedings." See IIRIRA § 304(a)(3), 8 U.S.C. § 1229-1229a (Supp. II 1996). Because this Article moves back and forth between pre-IIRIRA and post-IIRIRA law, it uses the traditional terminology of "deportation" to denote proceedings that determine whether a permanent resident must leave the country.
16. As is explained infra, see notes 75-80 and accompanying text, the statutes vary in the degree to which they specify whether a provision should be applied retroactively. AEDPA's bar to relief is being applied retroactively pursuant to the decision of the Attorney General in In re Soriano. See Op. Att'y Gen., In re Soriano, 1996 WL 426888, at *38-*54 (Feb. 21, 1997), rev'g In re Soriano, No. A39186067, 1996 WL 426888, at *1-*38 (B.I.A. June 27, 1996). This interpretation of the law is currently being challenged in a number of cases. See infra notes 29-38 and accompanying text and note 232. The bars to relief from deportation under the agency's interpretation of the new laws leave open a narrow form of relief for permanent residents who would face persecution in their home countries. IIRIRA restricts deportation where the Attorney General decides that "the alien's life or freedom would be threatened." IIRIRA § 305(a)(3), 8 U.S.C. § 1231(b)(3)(A) (Supp. II 1996). This relief is not available for those aliens who have committed a "particularly serious crime." See id. § 305(a)(3), 8 U.S.C. § 1231(b)(3)(B) (Supp. II 1996).
17. For a discussion of the role of statutory construction in the evolution of the Court's jurisprudence in immigration cases, see Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) [hereinafter Motomura, Phantom Norms]; see also Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703, 713 (1997) (noting that "tendency of the federal courts is to resolve many difficult issues [in immigration law] by statutory rather than constitutional interpretation"). The jurisdictional requirements will not foreclose the judiciary's other method for avoiding substantive constitutional issues - namely, the use of procedural sur" rogates. See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992) [hereinafter Motomura, Procedural Surrogates].
18. For a discussion of the role of statutory construction in the evolution of the Court's jurisprudence in immigration cases, see Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) [hereinafter Motomura, Phantom Norms]; see also Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703, 713 (1997) (noting that "tendency of the federal courts is to resolve many difficult issues [in immigration law] by statutory rather than constitutional interpretation"). The jurisdictional requirements will not foreclose the judiciary's other method for avoiding substantive constitutional issues - namely, the use of procedural sur" rogates. See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992) [hereinafter Motomura, Procedural Surrogates].
19. For a discussion of the role of statutory construction in the evolution of the Court's jurisprudence in immigration cases, see Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545 (1990) [hereinafter Motomura, Phantom Norms]; see also Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703, 713 (1997) (noting that "tendency of the federal courts is to resolve many difficult issues [in immigration law] by statutory rather than constitutional interpretation"). The jurisdictional requirements will not foreclose the judiciary's other method for avoiding substantive constitutional issues - namely, the use of procedural sur" rogates. See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 Colum. L. Rev. 1625 (1992) [hereinafter Motomura, Procedural Surrogates].
20. In litigation under both AEDPA and IIRIRA, the Justice Department has taken the position that jurisdiction-stripping provisions of the laws - AEDPA § 440(a), 110 Stat. at 1276-77 (repealed by IIRIRA 1996), and IIRIRA § 309(c)(4)(G), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-626 to -627 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)) - bar all judicial review except for review of "substantial constitutional questions." See, e.g., Respondents' Brief at 14-15, Henderson v. Reno (2d Cir. 1997) (Nos. 97-4050 & 97-4070) (on file with the author). The government reads the statutory provisions as bars to judicial review of both the agency's interpretation of the statute itself and the agency's determinations with regard to individual claimants. It takes the position, however, that these bars were not enacted with the necessary specific congressional intent to prevent review of substantial constitutional questions. See, e.g., id. at 15 ("There is nothing in the IIRIRA that demonstrates Congress's intent to preclude judicial review of colorable constitutional claims."). In contrast, immigrant advocates argue that the jurisdiction-stripping provisions preserve traditional district court habeas jurisdiction over any unlawful custody - including custody that is unlawful as a matter of statutory law. See, e.g., Petitioners' Brief at 14-31, Henderson (on file with author).
21. See, e.g., Gutierrez-Martinez v. Reno, No. Civ. A. 1:97CV3361TWT, 1998 WL 7459, at *3 (N.D. Ga. Jan. 8, 1998) (finding jurisdiction limited to "a grave constitutional error or a fundamental miscarriage of justice); Jurado-Gutierrez v. Greene, 977 F. Supp. 1089, 1091-94 (D. Colo. 1997) (finding jurisdiction over constitutional violations and upholding equal protection challenge to AEDPA, section 440(d)).
22. See, e.g., Costello v. INS, 376 U.S. 120, 128-29 (1964); Kessler v. Strecker, 307 U.S. 22, 30 (1939).
23. See, e.g., Lehman v. United States, 353 U.S. 685, 689 (1957) (construing Immigration and Nationality Act of 1952, in which Congress specified that the new law applied "'notwithstanding . . . that the facts, by reason of which any such allen [is made deportable], occurred prior to the date of enactment of this Act'" (alteration in original) (quoting Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 241(d), 66 Stat. 163, 208 (codified at 8 U.S.C. § 1251(d) (1988) (repealed 1991)) [hereinafter INA]); United States v. Yacoubian, 24 F.3d 1, 7 (9th Cir. 1994) (construing statute in which Congress specified that deportation law would apply "'notwithstanding that . . . the facts, by reason of which an alien is [made deportable], occurred before the date of the enactment of this Act'"(emphasis added) (quoting Immigration Act of 1990, Pub. L. No. 101-649, § 602(c), 104 Stat. 4978, 5081-82)).
24. For a discussion of the pressure placed on constitutional doctrine if the new jurisdictional rules limit statutory challenges to deportation, see Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 Conn. L. Rev. 1411, 1484-94 (1997). Pressure is also placed on constitutional issues by agency interpretations of statutes that find retroactivity in the absence of clear congressional intent. In this setting, the agency argues that its interpretation of the statute as requiring retroactivity should be given deference. Whether courts will conclude that such deference is due in this context depends on the clarity of congressional intent and the degree to which courts are willing to defer to agency interpretations that contradict the strong statutory interpretation doctrine disfavoring retroactivity. See, e.g., Mojica v. Reno, 970 F. Supp. 130, 180 (E.D.N.Y. 1997) (concluding that no deference is due to Attorney General's interpretation of AEDPA § 440(d)).
25. 349 U.S. 302 (1955).
26. See id. at 320-21 (Douglas, J., dissenting).
27. See, e.g., Galvan v. Press, 347 U.S. 522, 532-33 (1954) (Black, J., dissenting); Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (Douglas, J., dissenting); Fong Yue Ting v. United States, 149 U.S. 698, 740-41 (1893) (Brewer, J., dissenting).
28. See Scheidemann v. INS, 83 F.3d 1517 (3d Cir. 1996). The law at issue in Scheidemann was the Immigration Act of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (repealed by IIRIRA 1996), which barred aggravated felons who had served five years in prison from seeking relief from deportation.
29. Scheidemann, 83 F.3d at 1527, 1531 (3d Cir. 1996) (Sarokin, J., concurring).
30. See infra note 130; see also Peter Schuck, The Transformation of American Immigration Law, 84 Colum. L. Rev. 1, 25-27 (1984) (discussing the legal fiction that deportation is a "civil" penalty).
31. See infra notes 154-210 and accompanying text.
32. 970 F. Supp. 130 (E.D.N.Y. 1997) (consolidating Mojica v. Reno, No. CV97-1085(JBW) and Navas v. Reno, No. CV97-1869(JBW)).
33. See id. at 169-71. Judge Weinstein rejected the Attorney General's ruling that AEDPA applies retroactively to bar relief from deportation. See Op. Att'y Gen., In re Soriano, 1996 WL 426888, at *38-*54 (Feb. 21, 1997), rev'g In re Soriano, No. A39186067, 1996 WL 426888, at *1-*38 (B.I.A. June 27, 1996). The Attorney General ruled on the retroactivity of AEDPA § 440(d) in highly unusual proceedings. As a general matter, administrative decisions interpreting the Immigration and Nationality Act are issued by the Board of Immigration Appeals (BIA). With respect to the retroactivity of AEDPA § 440(d), the BIA issued a decision in In re Soriano, No. 39186067, 1996 WL 426888, at *1-*38 (B.I.A. June 27, 1996). It concluded that section 440(d) should not be applied retroactively to those who already had been placed in deportation proceedings and had applied for relief, but that it could be applied retroactively to those with past convictions who had not yet been put in proceedings and who had applied for relief. The governing regulations allow the Immigration and Naturalization Service (INS) to request that the Attorney General review a decision of the BIA. See 8 C.F.R. § 3.1(h)(1)(iii) (1996). The INS invoked this rule and asked the Attorney General to review this decision. On August 29, 1996, the matter was referred to the Office of Legal Counsel in a memorandum requesting advice on whether the Attorney General should review the matter. The memorandum noted that the INS had suggested soliciting the views of the parties and amici from the Soriano case. See Memorandum from Seth Waxman, Associate Deputy Attorney General, U.S. Dep't of Justice, to Christopher Schroeder, Acting Assistant Attorney General, Office of Legal Counsel 1 (Aug. 29, 1996) (received in response to Freedom of Information request) (on file with author). Meanwhile, the Solicitor General was before the Supreme Court in the case of INS v. Elramly, 73 F.3d 220 (9th Cir. 1995), cert, granted, 116 S. Ct. 1260, vacated, 117 S. Ct. 31 (1996) (remanding for consideration in light of AEDPA), which, among other issues, raised questions about the retroactivity of section 440(d). On September 5, 1996, the Supreme Court requested briefing on the question of section 440(d)'s retroactivity. On September 12, 1996, the very day briefs were due in the Supreme Court, the Attorney General issued a one-paragraph order vacating the BIA's decision in Soriano and stating that she would be considering the issue on the merits. See Petitioner's Supplemental Brief, 1996 WL 528331, at *1a, Elramly (No. 95-939). That same day, a copy of the Attorney General's order was attached to the Solicitor General's brief. See id. It was only after the vacate order that the Attorney General invited any briefing in the Soriano matter from parties other than the INS on the retroactivity of section 440(d). On February 21, 1997, the Attorney General issued her decision overturning the BIA decision and concluding that section 440(d) was fully retroactive. Interestingly, her opinion quoted language from the Solicitor General's brief in the Elramly case. See Op. Att'y Gen., In re Soriano, 1996 WL 426888, at *45-*46 (Feb. 21, 1997) (citing Petitioner's Supplemental Brief, 1996 WL 528331, at *35, Elramly (No. 95-939)). In the proceedings before the Attorney General, I played two roles. I wrote to the Attorney General following the vacate order requesting that she invite briefing from interested parties. When such briefing was invited, I co-authored a brief for the National Legal Aid and Defender's Association and the National Association of Criminal Defense Attorneys on the settled expectations affected by retroactive application of section 440(d).
34. See Mojica, 970 F. Supp. at 140.
35. The INS refrained from action despite the fact that Mojica had repeated contacts with the INS, including an application for U.S. citizenship. See id. at 140-41.
36. See id. at 141.
37. See id. at 139.
38. See id. at 139-40.
39. See infra notes 154-69 and accompanying text.
40. See Mojica, 970 F. Supp. at 170-71.
41. Id. at 171.
42. See id. at 172-73.
43. Immigration and Naturalization Service, State Population Estimates: Legal Permanent Residents and Aliens Eligible to Apply for Naturalization (Nov. 20, 1996) 〈http:// www.ins.usdoj.gov/hqopp/lprest.html〉.
44. Immigration and Naturalization Service, Statistics: Table 8: Immigrants Admitted by Sex and Age: Fiscal Years 1994-96 (last modified Oct. 24, 1997) 〈http://www.ins.usdoj.gov/ stats/annual/fy96/1011.html〉.
45. INA § 321, 8 U.S.C. § 1432 (1994).
46. T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 Const. Comm. 9, 23 (1990).
47. See generally Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1095-1101 (1994) (examining Supreme Court cases that recognize that aliens are entitled to criminal trials and other constitutional protections).
48. See INA § 241(a)(2)(A)(i), 8 U.S.C. § 1251(a)(2)(A)(i) (1994) (amended and redesignated as INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i) (Supp. II 1996)).
49. There is no ready definition of "crimes involving moral turpitude." Instead, the term has been defined through agency and circuit court case law, which in turn looks to the elements of a crime under state law. The case law holds that it is the nature of the crime, as described by the statute, not the facts and circumstances of the particular case, that determines whether an act is a crime of moral turpitude. See Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993). Furthermore, "neither the seriousness of the offense nor the severity of the sentence imposed is determinative." In re Serna, 20 I. & N. Dec. 579, 581 (B.I.A. 1992). What matters is whether there is an element of the crime that is "per se morally reprehensible and intrinsically wrong or malum in se." Id. at 582 (citing In re Flores, 17 I. & N. Dec. 225, 227 (B.I.A. 1980)); see also In re Phong Nguyen Tran, 1996 WL 170083 (B.I.A. Mar. 28, 1996) (interim decision) (conviction for crime involving moral turpitude where immigrant was convicted of a misdemeanor and sentenced to 30 days in jail). The reliance on the formal elements of the crime can lead to the anomalous treatment of crimes across state lines. For example, the case law establishes that any crime including fraud is a "crime involving moral turpitude." Jordan v. De George, 341 U.S. 223, 232 (1951). Applying this standard to state statutes, the case law provides that the classification of convictions for a variety of fraud-related crimes depends on whether the state treats intent to defraud as an element of the offense. Compare In re Bart, 20 I. & N. Dec. 436, 438 (B.I.A. 1992) (Georgia conviction for issuance of bad check is crime involving moral turpitude because guilty knowledge, indicating intent to defraud, is element of offense), with In re Balao, 20 I. & N. Dec. 440, 443-44 (B.I.A. 1992) (Pennsylvania conviction for issuance of bad check is not crime involving moral turpitude because intent to defraud is not element of offense). Given the identical criminal conduct, the person who pleads guilty to issuance of a bad check under Pennsylvania law will not be treated as having a conviction for a crime involving moral turpitude, while the one who enters a plea under Georgia law will.
50. See INA § 241(a)(2)(A)(ii), 8 U.S.C. § 1251(a)(2)(A)(ii) (1994) (amended and redesignated by IIRIRA as INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) (Supp. II 1996)).
51. See INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994) (amended and redesignated by IIRIRA as INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996)). The crimes treated as aggravated felonies prior to the 1996 changes in the law can be found at INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (1994) (amended by AEDPA and IIRIRA 1996). Prior to 1996, the aggravated felony ground for deportation was largely repetitious of the other grounds. For example, drug convictions that constituted aggravated felonies were also independently grounds for deportation under a provision for deporting persons convicted of drug crimes. See infra note 49. Similarly, any person who had two crimes involving moral turpitude was deportable so that it did not matter if the crimes were aggravated felonies. In some cases, however, the aggravated felony definition served to authorize deportation for a single crime, where the person would not otherwise have been deportable. For example, a person convicted of a murder committed more than five years after entering the country, who had no other criminal record, would have been deportable only as an aggravated felon. A noncitizen is only deportable by reason of an aggravated felony if the conviction post-dates 1988, the year in which this deportation ground was added. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7344(a), 102 Stat. 4181, 4470-71 (codified as amended at INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996)).
52. See INA § 241(a)(2)(B), 8 U.S.C. § 1251(a)(2)(B) (1994) (amended and redesignated by IIRIRA as INA § 237(a)(2)(B), 8 U.S.C. § 1227(a)(2)(B) (Supp. II 1996)).
53. See INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1994) (amended and redesignated as INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996)).
54. See INA § 241(a)(2)(D), 8 U.S.C. § 1251(a)(2)(D) (1994) (redesignated as INA § 237(a)(2)(D), 8 U.S.C. § 1227(a)(2)(D) (Supp. II 1996)). The section on miscellaneous crimes includes espionage, see 18 U.S.C. §§ 792-99 (1994), sabotage, see 18 U.S.C. §§ 251-56 (1994), threats against the President and successors to the presidency, see 18 U.S.C. § 871 (1994), expedition against a friendly nation, see 18 U.S.C. § 960 (1994), violation of the Military Selective Service Act, see 50 U.S.C. App. §§ 451-73 (1994), violation of the Trading with the Enemy Act, see 50 U.S.C. App. §§ 1-44 (1994), and violations of certain INA provisions, see 8 U.S.C. §§ 1185, 1328 (1994). 52 The circuits were divided as to the nature of the seven year requirement. Some held that permanent residence and seven years of domicile were independent conditions for section 212(c) eligibility. See, e.g., White v. INS, 75 F.3d 213, 215 (5th Cir. 1996); Lok v. INS, 548 F.2d 37, 40-41 (2d Cir. 1977). Others held that eligibility for section 212(c) waiver required seven consecutive years of domicile as a permanent resident. See, e.g., Chiravacharadhikul v. INS, 645 F.2d 248, 248-49 (4th Cir. 1981); Castillo-Felix v. INS, 601 F.2d 459, 467 (9th Cir. 1979). 53 Section 212(c) provided that [a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to [their excludability]. . . . The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years. INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed by IIRIRA 1996). Although section 212(c) by its terms applied to returning residents, courts and the BIA had interpreted the provision to apply to residents who had not left the country but faced deportation. See Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976); In re Silva, 16 I. & N. Dec. 26, 29-30 (B.I.A. 1976) (adopting Francis as nationwide policy). Prior to Francis, equitable relief was available to immigrants with domestic convictions who had traveled at some time in the past or who were eligible for adjustment of status. See Francis, 532 F.2d at 271 (describing evolution of BIA case law). 54 The BIA took the position that the period of lawful domicile continued up until the time of a final administrative order. See In re Lok, 18 I. & N. Dec. 101, 105 (B.I.A. 1981), aff'd, 681 F.2d 107 (2d Cir. 1982). Most circuits upheld this position. See Goncalves v. INS, 6 F.3d 830, 834 (1st Cir. 1993); Nwolise v. INS, 4 F.3d 306, 310-12 (4th Cir. 1993); Jaramillo v. INS, 1 F.3d 1149, 1155 (11th Cir. 1993); Katsis v. INS, 997 F.2d 1067, 1075 (3d Cir. 1993); Variamparambil v. INS, 831 F.2d 1362, 1366-67 (7th Cir. 1987); Rivera v. INS, 810 F.2d 540, 541-42 (5th Cir. 1987). The Ninth Circuit, however, held that lawful residence for the purpose of eligibility for section 212(c) relief continued through judicial review on the merits of a deportation order. See Wall v. INS, 722 F.2d 1442, 1444-45 (9th Cir. 1984). But see Foroughi v. INS, 60 F.3d 570, 575 (9th Cir. 1995) (stating that lawful permanent resident status of alien conceding deportability continues only until final administrative order of deportation).
55. The Attorney General's powers over deportation under the INA are divided between the INS and the Executive Office for Immigration Review (EOIR). See 8 C.F.R. §§ 2.1, 3.0-.41 (1997). In deportation proceedings, the INS acts as the prosecutor and the EOIR acts as the administrative court. Within EOIR, the immigration judge is the officer who initially hears cases, decides on motions, and issues decisions. See 8 C.F.R. § 3.12-.37 (1997). The decisions of an immigration judge may be appealed to the BIA, which is another branch of the EOIR. See 8 C.F.R. §§ 3.1, 3.38-39 (1997).
56. See In re Marin, 16 I. & N. Dec. 581, 584-85 (B.I.A. 1978) (listing considerations that support granting relief under section 212(c)).
57. The bar on relief for "aggravated felons" was introduced by the Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052 (amending INA § 212(c), 8 U.S.C. § 1182(c) (1994)) (repealed by IIRIRA 1996). Previously, the aggravated felony label had served primarily to invoke a set of procedural rules that expedited deportation. Although noncitizens are not deportable as aggravated felons if the conviction pre-dates 1988, see supra note 48, the bars to relief from deportation for aggravated felons apply when a person is deportable by reason of another category (e.g., drug crime) and the crime is also classified as an aggravated felony. Under the pre-1996 law, the bar to relief applied to persons who served five years in prison. Putting these provisions together, a person deportable by reason of a drug conviction, whether or not it pre-dated 1988, would have been barred from relief from deportation if she or he served five years in prison.
58. As a matter of practice, the INS did not seek to deport all immigrants convicted of crimes. Especially where a crime was treated leniently by the criminal process, there was no effort to track the immigrant and put the person in deportation proceedings. See Removal of Criminal and Illegal Aliens, 1995: Hearing Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. 4, 29 (1995) (statement of T. Alexander Aleinikoff, General Counsel, INS) (explaining that state sentencing was used as a "mark of the seriousness of the offense"). Depending on INS enforcement priorities, a person could be in the community for years, either after serving the criminal sentence or not having received a prison sentence, without ever being faced with a deportation proceeding. Years later, a trip outside the country, an application for a replacement permanent resident card, or an application for citizenship could bring the person to the attention of the INS and lead to the institution of deportation proceedings. The waiver process meant that all that had happened in the person's life in the intervening years would be relevant to the decision whether to terminate permanent residency status and deport the individual.
59. See Mojica v. Reno, 970 F. Supp. 130, 178 (E.D.N.Y. 1997) (citing U.S. Department of Justice Executive Office for Immigration Review Statistical Sheet 1, Jan. 19, 1995).
60. It is unclear whether the new detainer provisions will apply to persons who are never sentenced to any prison time. The detention provisions of IIRIRA state that the Attorney General shall take into custody persons who are deportable due to criminal convictions "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense." IIRIRA, Pub. L. No. 104-208, § 303(a), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-585 (codified at INA § 236(c)(1), 8 U.S.C. § 1226(c)(1) (Supp. II 1996)). The terminology of release suggests that the person must have been in custody. But arguably, anyone sentenced to time served or probation is being "released."
61. The INA provides for commencing deportation proceedings during incarceration for certain categories of noncitizens. Currently, those categories include noncitizens who are deportable due to two convictions for crimes involving moral turpitude or any conviction for a drug crime. See INA § 238(a)(1), 8 U.S.C. § 1228(a)(1) (Supp. II 1996). Prior to 1996, the law provided for expedited deportation proceedings in prison only for persons convicted of aggravated felonies. See INA § 242A(a), 8 U.S.C. § 1252a(a) (1994) (amended and transferred to 8 U.S.C. § 1228 (1996)), originally enacted as the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7347(a), 102 Stat. 4181, 4471-72 (1988).
62. See INA § 236(c), 8 U.S.C. § 1226(c) (Supp. II 1996) (criminal aliens are taken into custody by the INS when released from incarceration, and may be released on bond only if such release will provide protection for a witness). This aspect of the legislative scheme is not fully in effect, because the agency exercised the statutory option to certify that crowding in detention facilities precluded immediate implementation of mandatory detention. See 62 Fed. Reg. 48,183 (Sept. 22, 1997) (describing certification by INS on October 9, 1996).
63. The new law uses the term "admission" rather than "entry." The law defines "admission" as lawful entry into the United States after inspection and authorization by an immigration officer. See 8 U.S.C. § 1101(a)(13)(A) (Supp. II 1996).
64. Under IIRIRA, relief from deportation is called "cancellation of removal." IIRIRA § 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-594 (codified at 8 U.S.C. § 1229b (Supp. II 1996)).
65. See 8 U.S.C. § 1227(a)(2)(A)(i)(II) (Supp. II 1996) (enacted by AEDPA, Pub. L. No. 104-132, § 435(a), 110 Stat. 1214, 1274 (1996)).
66. In New York, petty theft is punishable as a class A misdemeanor with a maximum sentence of one year. See N.Y. Penal Law § 155.25 (McKinney 1988) .
67. See IIRIRA § 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-595 (codified at INA § 240A(d)(1), 8 U.S.C. § 1229b(d)(1) (Supp. II 1996)). This section resolves the dispute over the nature of the residency that is required for eligibility for relief from deportation. It requires that the permanent resident be a permanent resident for five years and that she or he reside in the United States continuously for seven years after having been lawfully admitted under any status. See id. § 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-594 (codified at 8 U.S.C. § 1229b(a) (Supp. II 1996)). The second of these requirements is subject to the clock-stopping rule.
68. The precise scope of the clock-stopping bar is somewhat unclear. As with many other provisions of IIRIRA, it has not yet been the subject of litigation, and there are no BIA decisions stating the agency's interpretation of its reach. The text of the rule states: [A]ny period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear under section 239(a) [8 U.S.C. § 1229(a)] or when the alien has committed an offense referred to in section 212(a)(2) [8 U.S.C. § 1182(a)(2)] that renders the alien inadmissible to the United States under section 212(a)(2) [8 U.S.C. § 1182(a)(2)] or removable from the United States under section 237(a)(2) [8 U.S.C. § 1227(a)(2)] or 237(a)(4) [8 U.S.C. § 1227(a)(4)], whichever is earliest. IIRIRA § 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) 3009-595 (codified at 8 U.S.C. § 1229b(d)(1) (Supp. II 1996)). By requiring that the crime be one "referred to in section 212(a)(2) [8 U.S.C. § 1182(a)(2)]," the text appears to limit the clock-stopping provision to those crimes that are grounds for inadmissibility. Arguably, this limitation means that a crime involving moral turpitude that fits within the exceptions to inadmissibility would not act to stop the clock. If read this way, the bar to relief from deportation for persons being deported for a single crime of moral turpitude would only apply to those who are sentenced to a term of more than six months or who are convicted of an offense that carries a possible sentence of more than one year. See INA § 212(a)(2)(A)(ii), 8 U.S.C. § 1182(a)(2)(A)(ii) (1994 & Supp. II 1996).
69. See IIRIRA § 321(a), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-627 to -628, and AEDPA § 440(e), 110 Stat. at 1277-78 (codified at INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (Supp. II 1996)).
70. See IIRIRA § 321(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-627 (codified at INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (Supp. II 1996)).
71. See INA § 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G) (1994) (amended 1996).
72. See 8 U.S.C. § 1229b(a)(3) (Supp. II 1996).
73. See infra note 263.
74. See AEDPA, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (repealed by IIRIRA 1996). For those whose proceedings started prior to AEDPA's effective date, the bar to relief applies if the crimes involving moral turpitude led to a sentence of a year or more. For those whose proceedings post-date AEDPA's effective date, the bar to relief applies if the crimes were punishable by a year in prison, regardless of whether they led to any sentence. See AEDPA § 435(b), 110 Stat. at 1275 (codified at 8 U.S.C. § 1227 note (Supp. II 1996)).
75. IIRIRA § 309(c) provides transition rules for persons in deportation proceedings at the time of the "effective date" of IIRIRA, which was April 1, 1997. See IIRIRA § 309(a), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-625 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)). Under the transition provisions, the general rule is that the IIRIRA amendments will not apply. See id. § 309(c)(1), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-625 (codified at S U.S.C. § 1101 note (Supp. II 1996)). In cases where a hearing has not yet been held, the Attorney General has an "option" to apply the new procedures. See id. § 309(c)(2), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-626 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)). The Attorney General also has the "option" to terminate and reinitiate proceedings for persons who were in proceedings as of April 1, 1997. See id. § 309(c)(3), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-626 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)). Although these transition rules appear to hold out some hope for immigrants who are ineligible for relief under AEDPA, but are eligible for relief under IIRIRA, this hope has not been realized. The Attorney General's regulations state that she will issue a notice in the Federal Register of any decision to apply the option to terminate and reinitiate proceedings. See 62 Fed. Reg. 10,312, 10,371 (Mar. 6, 1997) (creating new 8 C.F.R. § 240.16). No such notice has been issued. Immigration practitioners confirm that they are unaware of any cases in which the Attorney General has permitted a pre-IIRIRA case to proceed under IIRIRA's standards. See Telephone Interview with Yvonne Floyd-Mayers, Staff Attorney, The Legal Aid Society (Dec. 12, 1997).
76. See AEDPA § 440(f), 110 Stat. at 1278 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)) (limiting application of the new definition of aggravated felonies to offenses committed on or after the date of enactment).
77. See, e.g., IIRIRA § 321(b), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-628 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)) (changing INA definition of aggravated felony to apply to convictions entered before, on, or after the date of enactment of IIRIRA).
78. See, e.g., AEDPA § 435(b), 110 Stat. at 1275 (codified at 8 U.S.C. § 1227 note (Supp. II 1997)) (limiting application of new definition of moral turpitude prospectively to persons not yet under deportation proceedings).
79. See IIRIRA § 309(a), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-625 (codified at 8 U.S.C. § 1101 note (Supp. II 1997)) (setting forth the general effective date of IIRIRA).
80. See, e.g., AEDPA § 440(d), 110 Stat. at 1277 (repealed by IIRIRA 1996). In Mojica and Yesil, the district courts found that section 440(d) was best interpreted as prospective. See Mojica v. Reno, 970 F. Supp. 130, 168-82 (E.D.N.Y. 1997); Yesil v. Reno, 973 F. Supp. 372, 374 (S.D.N.Y. 1997). The courts noted that other provisions of AEDPA were explicitly retroactive, leading to the negative implication that section 440(d) is prospective. See also Lindh v. Murphy, 117 S. Ct. 2059, 2063 (1997) (finding, by negative implication, that habeas provisions of AEDPA could not be applied retroactively.)
81. See Mirta Ojito, U.S. Frees Immigrant Jailed for 1974 Misdemeanor, N.Y. Times, Oct. 25, 1997, at B1.
82. See In re Jesus Collado-Munoz, No. A31-021-716, at 2 (B.I.A. Dec. 18, 1997) (on file with the New York University Law Review).
83. See Ojito, supra note 81.
84. See Mirta Ojito, Old Crime Returns to Haunt an Immigrant, N.Y. Times, Oct. 15, 1997, at B1.
85. See id.
86. See Ojito, supra note 81.
87. Mr. Collado can argue that under the text of the rule, he should be spared this fate because he did not serve more than six months in prison. See supra note 68. Mr. Collado could also argue that the new clock-stopping rule should not be applied retroactively. Under the general effective date provisions of IIRIRA, the statute became "effective" on April 1, 1997. See IIRIRA, Pub. L. No. 104-208, § 309(a), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-625 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)). But as the Supreme Court recognized in Landgraf v. USI Film Prods., 511 U.S. 244, 257-58 (1994), a statement that a statute becomes "effective" on a particular date does not even arguably suggest that it has any application to conduct that occurred at an earlier date. In the case of the clock-stopping rule, becoming "effective" could mean that the new statute stops the clock for persons committing crimes after that date. Given the substantive implications of the clock-stopping provisions in determining the availability of relief, this would be the preferred reading of the statute under Landgraf principles. In addition, the existence of a specific provision on the retroactivity of the clock-stopping rule for notices to appear, see IIRIRA § 309(c)(5), 110 Stat. at 3009-627 (codified as amended at 8 U.S.C. § 1101 note (Supp. II 1997)), combined with Congress's failure to include any such specific provision with respect to retroactive application of the clock-stopping rule based on the date that a crime was committed, suggests that Congress chose not to make the clock stop retroactively based on the commission of the crime. Of course, all of these arguments depend on the existence of a forum that will hear statutory claims.
88. Mr. Collado could argue that the definition should not apply to misdemeanor convictions. See infra note 263. But if he loses this statutory argument, the government would probably argue that he has no route for judicial review.
89. See supra note 75.
90. See Op. Att'y Gen., In re Soriano, 1996 WL 426888, at *38-*54 (Feb. 21, 1997).
91. See supra note 75.
92. As a matter of practice, the INS did not seek out and institute deportation proceedings against persons who were not given prison sentences. See supra note 58. Had the INS nonetheless initiated proceedings, Ms. H. would have been deportable as a person who was convicted of an offense relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana. See 8 U.S.C. § 1251(a)(2)(B) (1994) (amended and transferred in 1996 to 8 U.S.C. § 1227(a)(2)(B)). But prior to AEDPA, she would have been eligible for relief from deportation. If the possession charge were her sole conviction, she would have had an excellent chance of receiving a waiver.
93. This corresponds to the date of the enactment of AEDPA.
94. Under section 309(a) of IIRIRA, this is the effective date on which section 304(b) of IIRIRA repealed section 212(c) of the old INA. See IIRIRA, Pub. L. No. 104-208, § 304(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-597 (codifled at 8 U.S.C. § 1182(c) note (Supp. II 1996)); id. § 309(a), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-625 (codified at 8 U.S.C. § 1101 note (Supp. II 1996)).
95. Under pre-AEDPA law, she clearly was entitled to apply for relief, because she was a permanent resident with seven years of continuous residence. Under IIRIRA, Ms. H. would not be barred from relief because a single conviction for possession of marijuana does not meet the definition of an "aggravated felony." See infra note 263 (discussing scope of aggravated felony definition for drug crimes).
96. See supra note 75.
97. This consequence flows from the fact that all "drug trafficking" crimes, which would include such a sale, are classified as "aggravated felonies," irrespective of whether they are a first offense or are treated as misdemeanors by the state. See 8 U.S.C. § 1101(a)(43)(B) (1994) (incorporating definitions in 18 U.S.C. § 924(c)(2) (1994)). As aggravated felonies, they serve as a bar to any relief from deportation under both AEDPA § 440(d) and IIRIRA § 304(a)(3). See AEDPA, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (repealed by IIRIRA 1996); IIRIRA § 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-594 (codified as amended at 8 U.S.C. § 1229b(a)(3) (Supp. II 1996)).
98. See The Legal Aid Society, Testimony on the Need for Legislation Requiring a Criminal Defendant to be Notified of the Possible Immigration Ramifications of a Guilty Plea 8 (May 6, 1997) (on file with author).
99. For example, in Yesil v. Reno, 973 F, Supp. 372, 384 (S.D.N.Y. 1997), the permanent resident facing deportation had cooperated with prosecutors by infiltrating a drug organization. The court found that he had done so at great risk to his life.
100. Both of these crimes are class A misdemeanors in New York and are subject to a potential sentence of one year. Stealing an orange is petty larceny, see N.Y. Penal Law § 155.25 (McKinney 1988), while jumping a turnstile can be charged as theft of services, see N.Y. Penal Law § 165.15(3) (McKinney 1988). As theft crimes, both of these examples fit within the accepted definition of a crime involving moral turpitude.
101. See supra notes 65-68 and accompanying text.
102. See Gerald L. Neuman, Strangers to the Constitution 132 (1996) ("To lead more fulfilling lives, immigrants develop knowledge, skills, and relationships - they 'invest in human capital' - that would be wasted if they had to return to their country of origin.").
103. See Celia W. Dugger, After Crime She Made a New Life, but Now Faces Deportation, N.Y. Times, Aug. 11, 1997, at A8 (describing effect of mandatory deportation law on Vietnamese immigrant who immigrated at age of four, does not speak Vietnamese, and has three children who do not speak Vietnamese).
104. See, e.g., Respondents' Brief at 44-62, Henderson v. Reno (2d Cir. 1997) (Nos. 97-4050 & 97-4070) (on file with author); Appellees' Brief at 37-41, Goncalves v. INS (1st Cir. 1997) (No. 97-1953) (on file with author).
105. See Lindsey v. Washington, 301 U.S. 397, 401 (1937) (finding retroactive changing of maximum sentence into mandatory sentence violates Ex Post Facto Clause). Although Lindsey is an ex post facto case, and therefore cannot be applied directly to the immigration context, it sets forth principles for understanding when a change affecting a criminal conviction is retrospective. The courts consistently have recognized the relevance of ex post facto jurisprudence to the general question of when a noncriminal law should be seen as having retroactive effect. See, e.g., Hughes Aircraft Co. v. United States, 117 S. Ct. 1871, 1876 (1997) (citing ex post facto cases); Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994) (same).
106. See Weaver v. Graham, 450 U.S. 24, 33-34 (1981).
107. Some courts have concluded that changes in eligibility for relief from deportation are not "retroactive" because they merely change the availability of a discretionary form of relief that the immigrant could not have counted on obtaining. See, e.g., Scheidemann v. INS, 83 F.3d 1517, 1523 (3d Cir. 1996); De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir. 1993). But, while the award of section 212(c) relief is discretionary, there is an undisputed right to apply for such relief and have the application considered under criteria that constrain the immigration judge's discretion. See supra text accompanying note 56. The elimination of eligibility for this relief therefore takes away a right that the person previously possessed. See Yesil v. Reno, 973 F. Supp. 372, 382 (S.D.N.Y. 1997) ("A right to discretionary relief is still a substantive right, and the elimination of even the possibility of obtaining relief thus has a retroactive effect."); see also Scheidemann, 83 F.3d at 1528 (Sarokin, J., concurring); Mojica v. Reno, 970 F. Supp. 130, 179-80 (E.D.N.Y. 1997). For an analysis of these arguments, see Anjali Parekh Prakesh, Note, Changing the Rules: Arguing Against Retroactive Application of Deportation Statutes, 72 N.Y.U. L. Rev. 1420, 1449-57 (1997) (concluding that deportation for past crimes is retroactive for purposes of Landgraf analysis).
108. Galvan v. Press, 347 U.S. 522, 531 (1953) (quoting New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)).
109. See infra notes 124-29 and accompanying text.
110. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
111. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
112. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
113. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
114. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
115. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
116. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom
117. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
118. See Stephen H. Legomsky, Immigration and the Judiciary: Law and Politics in Britain and America 195-205 (1987); Neuman, supra note 102, at 118-38; Aleinikoff, supra note 43 at 10-20; Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 858-63 (1987); Stephen H. Legomsky, supra note 11, at 260-78 (1984); Motomura, Procedural Surrogates, supra note 16, at 1627; Motomura, Phantom Norms, supra note 16, at 606-07; Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 34-53 (1984); Charles D. Weisselberg, The Exclusion and Detention of Aliens: Lessons from the Lives of Ellen Knauff and Ignatz Mezei, 143 U. Pa. L. Rev. 933, 1004-19 (1995).
119. See Wong Wing v. United States, 163 U.S. 228, 238 (1896) (holding due process applies to "all persons," not just citizens).
120. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971). But see Mathews v. Diaz, 426 U.S. 67, 81-84 (1976) (invoking the plenary power doctrine to justify weaker scrutiny of federal discrimination against aliens).
121. See Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886).
122. See Aleinikoff, supra note 43, at 18.
123. See generally Salyer, supra note 11, at 2-23.
124. See Neuman, supra note 102, at 123.
125. See id. at 136-38; Aleinikoff, supra note 43, at 12; Legomsky, supra note 11, at 261-69; Weisselberg, supra note 110, at 1019 .
126. See id. at 136-38; Aleinikoff, supra note 43, at 12; Legomsky, supra note 11, at 261-69; Weisselberg, supra note 110, at 1019 .
127. See id. at 136-38; Aleinikoff, supra note 43, at 12; Legomsky, supra note 11, at 261-69; Weisselberg, supra note 110, at 1019 .
128. See id. at 136-38; Aleinikoff, supra note 43, at 12; Legomsky, supra note 11, at 261-69; Weisselberg, supra note 110, at 1019 .
129. See Neuman, supra note 102, at 121; Motomura, Procedural Surrogates, supra note 16, at 1692; see also Mojica v. Reno, 970 F. Supp. 130, 146-52 (E.D.N.Y. 1997).
130. See Neuman, supra note 102, at 121; Motomura, Procedural Surrogates, supra note 16, at 1692; see also Mojica v. Reno, 970 F. Supp. 130, 146-52 (E.D.N.Y. 1997).
131. See Neuman, supra note 102, at 121; Motomura, Procedural Surrogates, supra note 16, at 1692; see also Mojica v. Reno, 970 F. Supp. 130, 146-52 (E.D.N.Y. 1997).
132. See Motomura, Procedural Surrogates, supra note 16, at 1656-1703 (describing distortion of doctrine due to pressure to rely on procedural grounds instead of substantive constitutional norms); Motomura, Phantom Norms, supra note 16, at 560-80 (describing impact of use of statutory interpretation to implement phantom constitutional norms).
133. See Motomura, Procedural Surrogates, supra note 16, at 1656-1703 (describing distortion of doctrine due to pressure to rely on procedural grounds instead of substantive constitutional norms); Motomura, Phantom Norms, supra note 16, at 560-80 (describing impact of use of statutory interpretation to implement phantom constitutional norms).
134. See Legomsky, supra note 11, at 269-70; Schuck, supra note 110, at 48.
135. See Legomsky, supra note 11, at 269-70; Schuck, supra note 110, at 48.
136. See Neuman, supra note 102, at 119-25.
137. In Landon v. Plascencia, 459 U.S. 21 (1982), the Court ruled that, despite the plenary power doctrine, a returning resident with substantial ties to the United States was entitled to greater procedural protections than a new entrant. The Court stated: "Once an alien gains admission to our country and begins to develop ties that go with permanent residence, his constitutional status changes accordingly." Id. at 32; see also Mathews v. Diaz, 426 U.S. 67 (1976) (upholding limitations on Medicare benefits for permanent residents of less than five years, noting that they had less substantial ties to country). In general, the terminology of "plenary power" has rarely arisen in cases involving long term permanent residents. In a search of the terms "plenary" with variation of the words "aliens" and "immigration," the terms arise in nineteen Supreme Court cases that refer to governmental regulation of noncitizens. Four are cases involving the conditions for entry as an immigrant or as an applicant for a temporary visa - a situation that is arguably far different from that of long time permanent residents. See Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) (upholding Attorney General's denial of temporary visa and noting that Congress exercised plenary power to "'make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden'" (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967))); Boutilier v. INS, 387 U.S. 118, 123 (1967) (relying on Congress's "plenary power to make rules for the admission of aliens" to uphold law excluding homosexuals); Lloyd Sabaudo Societa Anonima per Azioni v. Elting, 287 U.S. 329, 335 (1932) (upholding levy of fines imposed without trial on those who bring in aliens suffering from specified diseases as "incident to the exercise by Congress of its plenary power to control the admission of aliens"); Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 334-35 (1909) (finding Congress may choose administrative imposition of fines without involvement of judiciary, pursuant to its plenary power). One involved a returning resident, who at the time was understood to stand in the same constitutional shoes as a first-time immigrant. See Lapina v. Williams, 232 U.S. 78, 91 (1914). Five are references to the power of Congress over undocumented aliens. See INS v. Chadha, 462 U.S. 919, 959 (1983) (striking down legislative veto for undocumented persons gaining lawful permanent resident status through suspension of deportation); United States v. Valenzuela-Bernal, 458 U.S. 858, 864-66 (1982) (upholding conviction for transportation of illegal immigrants despite deportation of illegal alien witnesses on basis of Congress's plenary power to regulate admission of aliens); Nyquist v. Mauclet, 432 U.S. 1, 20 n.3 (1977) (Rehnquist, J., dissenting) (referring to federal government's plenary power over undocumented aliens); Lloyd Sabaudo, 287 U.S. at 335; Oceanic Steam, 214 U.S. at 334-35. Three concern the relative power of the federal and state governments. See Toll v. Moreno, 458 U.S. 1, 26 (1982) (Rehnquist, J., dissenting) (contending that federal power over immigration and naturalization, while plenary, does not preempt field of regulations once federal authorities have admitted aliens into country); Plyler v. Doe, 457 U.S. 202, 226 (1982) (referring to federal plenary authority as basis for regulations governing admissions and status in case regarding state policies towards undocumented children); Foley v. Connelie, 435 U.S. 291, 303 (1978) (Marshall, J., dissenting) (contending that federal control over aliens is plenary so that state has no power to limit employment of police officers to citizens). Three contain qualifiers that suggest that plenary power does not preclude judicial review. See Chadha, 462 U.S. at 940-41 (noting that "plenary" power over immigration must be implemented by "constitutionally permissible means"); Hampton v. Mow Sun Wong, 426 U.S. 88, 101 (1976) ("We do not agree . . . that the federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens." (emphasis added)); Scales v. United States, 367 U.S. 203, 222 (1961) (reference to Congress's "far more plenary power over aliens" (emphasis added)). One refers to the "plenary power" over immigrants to explain that deportation is not punishment. See Fleming v. Nestor, 363 U.S. 603 (1960) (upholding denial of Social Security benefits to person deported for membership in Communist Party). In seven cases, the terms only arise in dissents or concurring opinions. See Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993); Toll v. Moreno, 458 U.S. 1 (1982); Foley v. Connelie, 435 U.S. 291 (1978);
138. See Legomsky, supra note 11, at 299-303; Schuck, supra note 110, at 54-72.
139. See Legomsky, supra note 11, at 299-303; Schuck, supra note 110, at 54-72.
140. See Legomsky, supra note 110, at 180-211; see also Salyer, supra note 11, at 94-116 (describing the litigation strategy and political context in which plenary power doctrine developed).
141. See Legomsky, supra note 110, at 180-211; see also Salyer, supra note 11, at 94-116 (describing the litigation strategy and political context in which plenary power doctrine developed).
142. 130 U.S. 581 (1889).
143. See Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893) (stating that "right of a nation to expel or deport foreigners . . . is as absolute and unqualified as the right to prohibit and prevent their entrance into the country").
144. See Ekia v. United States, 142 U.S. 651, 660 (1892) ("As to such persons, the deci sions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.").
145. See, e.g., Yamataya v. Fisher, 189 U.S. 86, 101 (1903) (known as "The Japanese Immigrant Case") (deciding that Japanese immigrant has right to "an opportunity to be heard upon the questions involving his right to be and remain in the United States"). See generally Motomura, Procedural Surrogates, supra note 16, at 1637-45 (discussing development of procedural rights in deportation proceedings).
146. See, e.g., Galvan v. Press, 347 U.S. 522, 531 (1954).
147. See, e.g., Marcello v. Bonds, 349 U.S. 302, 314 (1955) (holding that Ex Post Facto Clause does not apply to deportation under Immigration and Nationality Act of 1952 for past conviction under Marihuana Tax Act); Mahler v. Eby, 264 U.S. 32, 37 (1924) (finding deportation for past convictions under Espionage Act and Selective Draft Act appropriate); Bugajewitz v. Adams, 228 U.S. 585, 591 (1913) (stating in dicta that Ex Post Facto Clause does not apply to deportation). This is not to say that there is not much to criticize about the ex post facto cases. The rule that deportation falls outside the reach of the Ex Post Facto Clause was announced in Bugajewitz, a case that did not even present the question of retroactivity. See id. (accepting Government's argument that Bugajewitz was deportable for conduct that post-dated the enactment of the new statutory deportation grounds). Bugajewitz cited a prior case, Johannessen v. United States, 225 U.S. 227 (1912), in which the Court had held that an alien who had fraudulently obtained citizenship could be stripped of citizenship. Unlike retroactive deportation laws that are applied to lawful permanent residents, the statute at issue in Johannessen involved removal of a certificate that Johannessen never rightfully deserved. Nothing in the case suggests that Johannessen could suffer a new penalty beyond the taking away of his improper gain. Indeed, the Court went out of its way to make clear that there was no additional penalty. See Johannessen, 225 U.S. at 241. When the Court was presented with a retroactive statute in Mahler, it treated the question of the applicability of the Ex Post Facto Clause as settled by prior precedent. See Mahler, 264 U.S. at 37. A central weakness of the ex post facto cases is that they proceed on a simplistic form of syllogistic reasoning. They announce that the Ex Post Facto Clause only applies to criminal cases, that deportation is civil, and that the Ex Post Facto Clause therefore cannot apply to deportation. But the question should be whether deportation is operating as a criminal sanction in the circumstances presented. Unlike Bugajewitz, where deportation followed an act deemed unacceptable, and "[t]he coincidence of the local penal law with the policy of Congress [was] an accident," Bugajewitz, 228 U.S. at 591, subsequent deportation statutes have made deportation the necessary consequence of a conviction. Indeed, the current deportation statutes depend on the fortuity of how each state chooses to run its criminal justice system and make a person more likely to be deported in a state that has higher maximum sentences for a given crime, even if that state actually sentences people to lesser sentences. They have also created the following anomaly. The immigrant is processed through a criminal proceeding, with all of the rights of such a proceeding, including protection from ex post facto laws that would alter any sentence. This system has its own set of rules and conventions, including an extensive system of plea bargaining; but the results of that system with respect to deportation can be changed unilaterally by the government in ways that are far more detrimental to the immigrant than a change in the rules governing probation or the treatment of good-time credits. The legislative history of IIRIRA also shows the sophistry of treating deportation as something other than punishment. Senator Roth, for example, described the new law's provisions on "aggravated felons" as follows: "[T]he bill broadens the definition of aggravated felon to include more crimes punishable by deportation." 142 Cong. Rec. S4600 (daily ed. May 2, 1996) (statement of Senator Roth) (emphasis added).
148. 342 U.S. 580 (1952).
149. See id. at 584-88.
150. id. at 591.
151. See id. at 590.
152. 323 U.S. 214 (1944).
153. See Harisiades, 342 U.S. at 591.
154. See id. at 589-91. For the influence of the Cold War, see Weisselberg, supra note 110, at 1002-03.
155. 347 U.S. 522 (1954).
156. See id. at 531.
157. Id. at 529.
158. 341 U.S. 223 (1951).
159. Id. at 225.
160. See id. at 231.
161. See id. at 232.
162. 387 U.S. 118 (1967).
163. In Boutilier, the Court considered a vagueness challenge to a statute that provided for the exclusion of persons "afflicted with psychopathic personality." Id. at 118. The Court again found that deportation statutes must withstand vagueness review. But because the statute in question was an exclusion statute that governed who could be admitted into the country, the Court concluded that the facts of the case could not raise vagueness issues. See id. at 123-24.
164. The vagueness doctrine is in part concerned with people having fair notice of the law that will govern their conduct. See Jordan v. De George, 341 U.S. 223, 230 (1951). It is also about having fair notice of the standards that will be applied in any adjudicative proceeding and about curbing arbitrary decisions in such proceedings. See id. at 238-39 (Jackson, J., dissenting). These latter concerns about adjudicative proceedings are closely tied to contemporary notions of procedural due process. Although the former could be seen as a procedural right, the underlying interest in knowing what the law is for purposes of structuring one's behavior is a core concern of the substantive due process retroactivity cases and traditionally has been viewed as a substantive right.
165. Jordan, 341 U.S. at 230.
166. See id. at 231 (citing Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948)).
167. See id. at 232.
168. See Boutilier, 387 U.S. at 123-24.
169. 430 U.S. 787 (1977).
170. Id. at 793 n.5. Several commentators have noted that Fiallo creates a chink in the doctrine of plenary power. See Neuman, supra note 102, at 15; Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925, 934-37 (1995). Limitations on the plenary power doctrine can be found in other cases as well. In Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972), the Court upheld a decision to deny a temporary visa to a Marxist speaker. The Court noted that there was a "facially legitimate and bona fide reason" for the government's decision. Id. at 770. It expressly reserved the question of what course it would take if faced with a decision that did not meet that test. See id. at 769-70. Most recently, in INS v. Chadha, 462 U.S. 919, 956-59 (1983), the Court stated that the plenary power of Congress over immigration must be implemented by constitutionally permissible means. See also Reno v. Flores, 507 U.S. 292, 306 (1993) (recognizing that INS regulation must rationally advance some legitimate governmental purpose).
171. Id. at 793 n.5. Several commentators have noted that Fiallo creates a chink in the doctrine of plenary power. See Neuman, supra note 102, at 15; Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 Hastings Const. L.Q. 925, 934-37 (1995). Limitations on the plenary power doctrine can be found in other cases as well. In Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972), the Court upheld a decision to deny a temporary visa to a Marxist speaker. The Court noted that there was a "facially legitimate and bona fide reason" for the government's decision. Id. at 770. It expressly reserved the question of what course it would take if faced with a decision that did not meet that test. See id. at 769-70. Most recently, in INS v. Chadha, 462 U.S. 919, 956-59 (1983), the Court stated that the plenary power of Congress over immigration must be implemented by constitutionally permissible means. See also Reno v. Flores, 507 U.S. 292, 306 (1993) (recognizing that INS regulation must rationally advance some legitimate governmental purpose).
172. See, e.g., United States v. Carlton, 512 U.S. 26 (1994) (allowing limited retroactivity for Congress to close inadvertent tax loophole); Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717 (1984) (permitting limited retroactivity to reduce incentive for employer withdrawal from multiemployer pension plans prior to effective date of statute); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (upholding constitutionality of retroactive imposition of liability on coal mining companies for workers developing black lung disease); see also Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (construing amendment of Civil Rights Act allowing imposition of damages so as not to impose retroactive liability).
173. See, e.g., Carlton, 512 U.S. at 30-31; Pension Benefit, 467 U.S. at 729-30.
174. 428 U.S. 1 (1976).
175. See id. at 17.
176. See id. at 17-18.
177. See id. at 18-19.
178. 467 U.S. 717 (1984).
179. See id. at 730-31.
180. Id. at 731 (quoting United States v. Darusmont, 449 U.S. 292, 296-97 (1981)). Similar reasoning appears in a number of cases challenging retroactive tax laws. See Darusmont, 449 U.S. at 297 (per curiam) (upholding application of 1976 tax change to federal minimum tax to transactions occurring in 1976 but prior to enactment); see also United States v. Hemme, 476 U.S. 558, 571 (1986) (upholding retroactive application of phase-in rule which prevented taxpayers who already had taken advantage of lifetime exemption under prior law from taking advantage of credit under new scheme).
181. 503 U.S. 181 (1992).
182. Id. at 191.
183. 512 U.S. 26 (1994).
184. See id. at 31.
185. See id. at 32-33.
186. Id. at 37-38 (O'Connor, J., concurring).
187. Id. at 38 (O'Connor, J., concurring).
188. General Motors Corp. v. Romein, 503 U.S. 181, 191 (1992).
189. See Hughes Aircraft Co. v. United States, 117 S. Ct. 1871 (1997); Landgraf v. USI Film Prods., 511 U.S. 244 (1994); Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990). Although these cases are concerned with statutory interpretation, they note the interconnectedness of statutory and constitutional analyses of retroactivity. See supra note 105.
190. Kaiser Aluminum, 494 U.S. at 855 (Scalia, J., concurring).
191. Landgraf, 511 U.S. at 265; see also General Motors, 503 U.S. at 191 (stating that unfairness of retroactive legislation results from depriving citizens of legitimate expectations and upsetting settled transactions).
192. See Landgraf, 511 U.S. at 283-84 ("The extent of a party's liability, in the civil context as well as the criminal, is an important legal consequence that cannot be ignored."); Weaver v. Graham, 450 U.S. 24, 28-30 (1981) (finding important for Ex Post Facto Clause purposes whether sanction imposed is greater than that in effect at time that crime was committed); cf. supra text accompanying notes 149-51 (discussing right under vagueness doctrine to fair notice of immigration consequences of criminal conduct).
193. See, e.g., Michael J. Graetz, Retroactivity Revisited, 98 Harv. L. Rev. 1820, 1822-25 (1985); Stephen R. Munzer, A Theory of Retroactive Legislation, 61 Tex. L. Rev. 425, 427-36 (1982).
194. See, e.g., Michael J. Graetz, Retroactivity Revisited, 98 Harv. L. Rev. 1820, 1822-25 (1985); Stephen R. Munzer, A Theory of Retroactive Legislation, 61 Tex. L. Rev. 425, 427-36 (1982).
195. See Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 Harv. L. Rev. 1055, 1105-06 (1997) (arguing that stable equilibrium of legal rules "enhances the ability of legal rules to affect primary conduct").
196. See id. at 1106 ("[T]he government engenders greater respect for its laws and its lawmaking institutions if it can commit to the stability of its laws.").
197. Lynce v. Mathis, 117 S. Ct. 891, 895 (1997).
198. See United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring); see also Landgraf, 511 U.S. at 266 (noting that Due Process Clause protects interest in repose).
199. See Fisch, supra note 176, at 1102. As Jill Fisch describes the issue, there are real costs to disrupting a stable legal equilibrium in which people have well established expectations of what the law is and how it might change. In contrast, in an unstable equilibrium, where the legal rules are in flux, there is less reason to preserve the force of any particular set of rules that were in place at any one time.
200. Landgraf, 511 U.S. at 266.
201. Id. at 267 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)).
202. See, e.g., Harold J. Krent, The Puzzling Boundary Between Criminal and Civil Retroactive Lawmaking, 84 Geo. L.J. 2143, 2168-73 (1996).
203. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17-18 (1976).
204. See Landgraf, 511 U.S. at 263 (noting that damage remedies will affect before-the-fact private planning).
205. See United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring).
206. 305 U.S. 134 (1938).
207. See id. at 147.
208. See Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984) ("[Although we have noted that retrospective civil legislation may offend due process if it is 'particularly "harsh and oppressive,"' that standard does not differ from the prohibition against arbitrary and irrational legislation that we clearly enunciated in Turner Elkhorn." (citation omitted) (quoting United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n.13 (1977) (quoting Welch v. Henry, 305 U.S. 134, 147 (1938)))).
209. 116 S. Ct. 1589 (1996).
210. See id. at 1598.
211. See id.
212. Landgraf v. USI Film Prods., 511 U.S. 244, 272-73 (1994).
213. See United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring). In Blodgett v. Holden, 275 U.S. 142, 147 (1927), a plurality found application of the first federal gift tax to a transaction occurring before the legislation was proposed violative of the Due Process Clause. Later in Untermyer v. Anderson, 276 U.S. 440, 445-46 (1928), the Court again struck down application of the tax, although the transaction had occurred while the legislation was pending. See also Nichols v. Coolidge, 274 U.S. 531, 542-43 (1927) (striking down retroactive application of first federal estate tax).
214. In 1935, the Court struck down a pension scheme which, inter alia, required railroads to pay pension benefits to all persons employed within one year of the statute, a category which included persons discharged for cause as well as those who retired or resigned to take other employment. The Court found such a category arbitrary and not tailored to Congress's intent to include persons on furlough or temporarily relieved of duty. See Railroad Retirement Bd. v. Alton R.R. Co., 295 U.S. 330, 349-54 (1935). In Pension Benefit the Court declined to overrule Alton "despite the changes in judicial review of economic legislation," Pension Benefit, 467 U.S. at 733, because the plan in Alton required further compensation for persons already fully compensated by the employer (not persons, as in Pension Benefit, whose rights had already vested in a pension plan), see id.
215. See, e.g., Andrew C. Weiler, Has Due Process Struck Out? The Judicial Rubber stamping of Retroactive Economic Laws, 42 Duke L.J. 1069 (1993).
216. See Bowen v. Georgetown, 488 U.S. 204, 223-24 (1988) (Scalia, J., concurring).
217. See Graetz, supra note 175, at 1823 (describing grandfathering and similar provision; as typical in tax law).
218. See Carlton, 512 U.S. at 38 (O'Connor, J., concurring) (collecting cases).
219. See Krent, supra note 183, at 2174-79 (citing example of mining interests and mininj legislation).
220. See id. at 2179.
221. See id.
222. See Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 724 (1984).
223. 126 Cong. Rec. 20,177, 20,179 (1980) (statement of Sen. Javits).
224. See Long Island Oil Prods. Co. v. Local 553 Pension Fund, 775 F.2d 24 (2d Cir. 1985) (upholding legislation that reversed retroactive effects of prior law).
225. See Usery v. Turner Elkhorn, 428 U.S. 1, 5 (1976).
226. See General Motors v. Romein, 503 U.S. 181, 183 (1992); Pension Benefit, 467 U.S. at 725.
227. See United States v. Sperry, 493 U.S. 52, 54-55 (1989).
228. See United States v. Carlton, 512 U.S. 26, 28 (1994) (estate tax); United States v. Darusmont, 449 U.S. 292, 293 (1981) (alternative minimum tax).
229. Such deliberateness can also be seen in more recent legislation regarding compensation for persons who have worked in the coal industry. In the Coal Industry Retiree Health Benefit Act of 1992, Pub. L. No. 102-486, § 19143(a), 106 Stat. 3036, 3036-56 (codified as amended at 26 U.S.C. §§ 9701-22 (1994)), Congress created a scheme for ensuring ongoing health care for coal miners. In rejecting due process challenges to this legislation, the courts have noted that Congress was concerned that the coal operators had created legitimate expectations of lifetime benefits, but had then circumvented their resulting obligations through contractual arrangements. Retroactivity of the new benefit scheme was therefore necessary to protect the legitimate expectations of the miners. See Davon, Inc. v. Shalala, 75 F.3d 1114, 1118 (7th Cir. 1996) (recounting developments in industry leading to Coal Commission's determination that retired miners were "entitled to health care benefits that were promised them"); LTV Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 483-86 (2d Cir. 1995) (describing crisis leading to legislation, Coal Commission's recommendation for retroactive financing scheme, and need for scheme to protect legitimate expectations fostered by coal operators).
230. AEDPA § 440(a) eliminated the INA's statutory provisions for review of final orders of deportation for aliens who committed any of the crimes that render an alien mandatorily deportable. See AEDPA, Pub. L. No. 104-132, § 440(a), 110 Stat. 1214, 1276-77 (1996) (repealed by IIRIRA 1996). Also, AEDPA § 401 (e) deleted the old INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10) (1994), which, as an exception to the general rule granting exclusive jurisdiction in deportation matters to the United States Courts of Appeals, entitled aliens in detention pursuant to a deportation order to habeas corpus review in the district courts. See AEDPA § 401(e), 110 Stat. at 1268 (repealed by IIRIRA 1996). IIRIRA § 306(a)(2) eliminated INA § 106, 8 U.S.C. § 1105a, and amended INA § 242(g), 8 U.S.C. § 1252(g), to provide that, "[e]xcept 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 Act." See IIRIRA § 306(a)(2), 1996 U.S.C.C.A.N. (110 Stat.) at 3009-612 (codified at 8 U.S.C. § 1252(g) (Supp. II 1997)). By revising INA § 242(a)(2)(C), IIRIRA § 306(a)(2) maintained AEDPA's elimination of judicial review of deportation orders for certain criminal aliens, see IIRIRA § 306(a)(2), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-607 to -608 (codified at INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996)), including those who become deportable under the newly expanded definition of "aggravated felony."
231. See Respondents' Brief at 12-18, Henderson v. Reno (2d Cir. 1997) (Nos. 97-4050 & 97-4070) (on file with author); Appellees' Brief at 16-22, Goncalves v. INS (1st Cir. 1997) (No. 97-1953) (on file with author); see also supra note 17.
232. See Benson, supra note 21, at 1484-94.
233. This was not always the case. See Neuman, supra note 102, at 63-71.
234. In the months preceding the enactment of AEDPA and IIRIRA, for example, Congress considered a number of laws that implicated a wide range of immigrant interests. See Immigration Control and Financial Responsibility Act of 1996, S. 1664, 104th Cong. (1996) (including provisions to improve verification systems for public benefits and employment, establish summary asylum procedures, and mandate deportation of certain aliens receiving public benefit, as well as, in its original form, reduce number of visas issued to legal immigrants); Immigration in the National Interest Act of 1995, H.R. 2202, 104th Cong. (1995) (including provisions to change legal immigration system, cap number of refugees, establish summary asylum proceedings, and make sponsors of legal immigrants strictly liable for any public benefits a sponsored immigrant might receive); see also Message from the President of the United States Transmitting a Draft of Proposed Legislation Entitled, "Immigration Enforcement Improvements Act of 1995," H.R. Doc. No. 104-68 (1995) (detailing Clinton Administration's proposed legislation for altering immigration law enforcement). Many of the issues addressed in these bills came out of the U.S. Commission on Immigration Reform (the Barbara Jordan Commission), which issued the following two reports: U.S. Immigration Policy: Restoring Credibility (1994) and Legal Immigration: Setting Priorities (1995). In addition, there were numerous hearings on issues of interest to immigrant advocates. See Verification of Eligibility for Employment and Benefits: Hearing before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. (1995) (employment verification and its discriminatory impact on documented aliens); Worksite Enforcement of Employer Sanctions: Hearing before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. (1995) (same); Impact of Illegal Immigration on Public Benefit Programs and the American Labor Force: Hearing before the Subcomm. on Immigration and Claims of the House Comm. of the Judiciary, 104th Cong. (1995) (economic impact of immigration); The Impact of Federal Immigration Policy and INS Activities on Communities: Hearings before the Subcomm. on Information, Justice, Transportation, and Agriculture of the House Comm. on Government Operations, 103d Cong. (1993, 1994) (same); Concurrent Resolution on the Budget for Fiscal Year 1997: Hearings before the Senate Comm. on the Budget, 104th Cong. (1996) (enforceability of sponsor affidavits). Immigrant advocates were also busy with proposals to deny federal and state need-based benefits to permanent residents and to prohibit states from supplying aid to undocumented immigrants. Many of these provisions were enacted by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 1996 U.S.C.C.A.N. (110 Stat.) 2105, 2260-2275 (codified as amended in scattered sections of 8, 42 U.S.C.).
235. The task of these groups was particularly problematic given the sweeping changes in the immigration laws that Congress considered over the past two years. One of the Senators who was most active in protecting immigrant rights was also the most outspoken in putting through restrictive provisions affecting immigrants with criminal convictions. See Eric Schmitt, Playing by Senate Rules Wins the Day, N.Y. Times, Mar. 3, 1996, § 1, at 24 (describing efforts by Senator Abraham to remove provisions concerning quotas on legal immigration from immigration legislation); Lisa Zagaroli, Senators Use Rank to Set Pet Priorities: Achievements of Immigrants Get Hearing From Senator Abraham, Detroit News, Mar. 23, 1997, at B5 (quoting Senator Abraham as saying, "You don't shut down the borders. What you do is you say we're going to apply the criminal laws more harshly.").
236. The task of these groups was particularly problematic given the sweeping changes in the immigration laws that Congress considered over the past two years. One of the Senators who was most active in protecting immigrant rights was also the most outspoken in putting through restrictive provisions affecting immigrants with criminal convictions. See Eric Schmitt, Playing by Senate Rules Wins the Day, N.Y. Times, Mar. 3, 1996, § 1, at 24 (describing efforts by Senator Abraham to remove provisions concerning quotas on legal immigration from immigration legislation); Lisa Zagaroli, Senators Use Rank to Set Pet Priorities: Achievements of Immigrants Get Hearing From Senator Abraham, Detroit News, Mar. 23, 1997, at B5 (quoting Senator Abraham as saying, "You don't shut down the borders. What you do is you say we're going to apply the criminal laws more harshly.").
237. See Plyler v. Doe, 457 U.S. 202 (1982) (invalidating Texas denial of state funds for schooling of undocumented alien children); Sugarman v. Dougall, 413 U.S. 634 (1973) (invalidating bar to employment of noncitizens in competitive state civil service); Graham v. Richardson, 403 U.S. 365 (1971) (using strict scrutiny to strike down state welfare laws discriminating against aliens); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (striking down ban on issuance of commercial fishing licenses to noncitizens); Oyama v. California, 332 U.S. 633 (1948) (striking down state's Alien Land Law which forbade aliens ineligible for citizenship, i.e., Asians, from owning or transferring land); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (striking down law used by municipal authorities to deny Chinese immigrants permission to conduct laundry business). But cf. Foley v. Connelie, 435 U.S. 291 (1978) (upholding state law barring noncitizens from certain police jobs and limiting strict scrutiny to statutes affecting aliens' right to exist in community).
238. See United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring).
239. See supra notes 76-96 and accompanying text. Legislation designed to spread the costs of health care has also tended to have a longer retroactive reach. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-15 (1976) (statute provided for liability to former employees). In these settings, however, the level of retroactivity is related to the core congressional purpose of cost-sharing among those fairly responsible for a problem. Longer retrospective reach may be necessary to include those employers who share responsibility for the problem, where a far greater burden might otherwise be borne by a smaller group of existing employers. But, at the very least, courts have insisted that the degree of retroactive reach be supported by a legitimate rationale. See, e.g., LTV Steel Co. v. Shalala (In re Chateaugay Corp.), 53 F.3d 478, 491 (2d Cir. 1995) (finding that degree of retrospective reach of Coal Industry Retiree Benefit Act of 1992 was "commensurate with [company's] share of responsibility for the coal miner retiree health benefit crisis").
240. See Trop v. Dulles, 356 U.S. 86, 98 (1958) (recognizing that "deportation is undoubtedly a harsh sanction that has a severe penal effect"); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (stating that "deportation is a drastic measure and at times the equivalent of banishment or exile").
241. See supra note 130.
242. See, e.g., Galvan v. Press, 347 U.S. 522, 531 (1954); Bugajewitz v. Adams, 228 U.S. 585, 591 (1913).
243. The courts' role in protecting unpopular groups from arbitrary legislation is well recognized in the equal protection context. Even in cases where the Court is applying the rational basis test, it has rejected arbitrary legislative rationales that are rooted in animosity towards such groups. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (striking down law discriminating against homosexuals); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (striking down law discriminating against mentally retarded).
244. Stephen Munzer argues that retroactive statutes "carry some special burden of justification, particularly when personal liberties are at stake." Munzer, supra note 175, at 438. By wresting a person from family, friends, and employment, deportation surely implicates liberty, whether or not it is imposed as "punishment."
245. United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring).
246. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
247. See Aleinikoff, supra note 43, at 25-27.
248. See supra notes 75-80 and accompanying text.
249. See AEDPA, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 (1996) (repealed by IIRIRA 1996); see also supra note 74.
250. See IIRIRA § 304(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-597 (repealing INA § 212(c), 8 U.S.C. § 1182(c) (1994)). IIRIRA retains the bar for those drug convictions treated as aggravated felonies. Although the terminology of the aggravated felony provision, see 8 U.S.C. § 1101(43)(B) (Supp. II 1996), appears to include only trafficking crimes, the interrelationship of state and federal definitions can mean that some possession convictions would serve as aggravated felonies. See infra note 263.
251. See supra note 75.
252. See Yesil v. Reno, 973 F. Supp. 342, 379-83 (S.D.N.Y. 1997); Mojica v. Reno, 970 F. Supp. 130, 172-74 (E.D.N.Y. 1997). But see Vargas v. Reno, 966 F. Supp. 1537, 1544 (S.D. Cal. 1997) (concluding that AEDPA's bars to relief did not have "retroactive effect" upon plaintiff previously convicted for possession of marijuana). In Yesil and Mojica, the district courts found that they had habeas jurisdiction to hear the statutory claims. Both courts found that AEDPA's other retroactive provisions created a negative implication that the bars to relief under section 440(d) were not meant to be retroactive. See Yesil, 973 F. Supp. at 379-80; Mojica, 970 F. Supp. at 172-73. In Yesil, the court further found that this reading was supported by the legislative history of AEDPA, which showed that explicit retroactivity provisions had been removed in the final version of the bill. See Yesil, 973 F. Supp. at 380-81. In addition, both courts found that, in light of the presumption against reading statutes retroactively and the absence of clear congressional intent to make bars to relief retroactive, those bars should not be given retroactive effect. See Yesil, 973 F. Supp. at 379-83; Mojica, 970 F. Supp. at 172-82.
253. Under ordinary rational basis review, the Court often has stated that a legitimate purpose for a statute need not be evident in the statute's legislative history. See, e.g., United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) (the Court itself finding "plausible" justification for legislative scheme in order to satisfy rationality standard of equal protection challenge because it is "'constitutionally irrelevant whether this reasoning in fact underlay the legislative decision'" (quoting Flemming v. Nestor, 363 U.S. 603, 612 (1960))). But at the same time, it has stricken discriminatory practices where the Court was called upon to search for a legislative purpose and there was no indication that the responsible policy actors intended to cause the discriminatory state practice. See Allegheny Pittsburgh Coal Co. v. County Comm'n, 488 U.S. 336 (1989).
254. See, e.g., Hughes Aircraft Co. v. United States, 117 S. Ct. 1871, 1876 (1997); Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994).
255. Landgraf, 511 U.S. at 268.
256. See Mojica, 970 F. Supp. 130.
257. See id. at 177-80.
258. See id. at 179.
259. It is possible that some immigrants committed their crimes and were convicted after April, 1996, and entered deportation proceedings before April, 1997. For these people, the AEDPA bars would be prospective. But the timing of commencement of proceedings means that the vast majority of cases affected by the AEDPA bar to relief would be ones in which the person would have been convicted of his or her crime before the new rules went into effect.
260. Of course, the fact that some people are made better off by a subsequent statutory scheme is not ordinarily cause for finding distinctions irrational as a matter of equal protection analysis. But given the Attorney General's concession that AEDPA's bars on relief are at best ambiguous, see Op. Att'y Gen., In re Soriano, 1996 WL 426888, at *38, *41 (Feb. 21, 1997) (asserting that Congress did not speak to retroactivity of AEDPA's bar to relief from deportation), the question becomes whether it is a rational reading of the congressional scheme to impose bars to relief that operate on a one-time-only basis and operate primarily as retroactive restrictions.
261. See supra note 87 (discussing statutory arguments for limiting new rule that clock stops with commission of crime to crimes committed after effective date of IIRIRA).
262. Under IIRIRA, section 212(c) relief has been replaced by "cancellation of removal." See IIRIRA, Pub. L. No. 104-208, § 304(a)(3), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-594 (codified at 8 U.S.C. § 1229b (Supp. II 1996)). The interim regulations implementing IIRIRA reserved 8 C.F.R. § 240.21-.24 for provisions on cancellation of removal. See 62 Fed. Reg. 10,312, 10,367 (Mar. 6, 1997). 8 C.F.R. § 240.21 has since been devoted to issues regarding conditional grants of suspension and cancellation of removal for nonpermanent residents. See 62 Fed. Reg. 51,762 (Oct. 3, 1997). No regulations have been published that speak directly to the issue of retroactivity.
263. The only reference to cancellation of removal in the new regulations implementing IIRIRA is in a section on procedures for reopening cases. These regulations require that a permanent resident moving to reopen proceedings show that she or he meets the eligibility requirements of the new clock-stopping provisions. The regulations merely repeat the text of the new statutory rule without addressing the possibility that the rule does not apply if the offense was committed prior to the general effective date of IIRIRA. See 8 C.F.R. § 3.23(b)(3), as amended, 62 Fed. Reg. 10,312, 10,333 (Mar. 6, 1997).
264. See Removal of Criminal and Illegal Aliens, 1995: Hearing Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. 1 (1995) (statement of Rep. Lamar Smith); H.R. Rep. No. 104-469, pt. 1 (1996) (discussing background and need for the legislation); 141 Cong. Rec. S7822 (daily ed. June 7, 1995) (statement of Sen. Abraham).
265. See Removal of Criminal and Illegal Aliens, 1995: Hearing Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. 2 (1995) (statement of Rep. Lamar Smith).
266. See 142 Cong. Rec. S4599 (daily ed. May 2, 1996) (statement of Sen. Abraham).
267. In the House version of the bill that eventually became IIRIRA, continuous residency for the purpose of determining eligibility for cancellation of removal would terminate when the INS issued a notice to appear for removal proceedings. See H.R. 2202, 104th Cong. § 240A(d)(1) (1996) (printed in H.R. Rep. No. 469, pt. 1, at 24 (1996)). The Senate's version tolled residency at the issuance of an order to show cause. See S. 1664, 104th Cong. § 244(a)(2)(A) (1996) (printed in S. Rep. No. 249, at 125-26 (1996)).
268. See H.R. 2202, 104th Cong. § 309 (c)(5), at 169 (1996).
269. See H.R. Conf. Rep. No. 104-828, at 213 (1996) (referring to changes to INA § 240A, the report states that "Senate amendment Section 150 recedes to these House provisions, with modifications"); cf. id. at 224 (describing changes to the definition of "conviction" that specify the legislation's purpose of broadening the scope of a specific BIA decision).
270. See id. at 50 (discussing statutory arguments for limiting the scope of section 240A(d)).
271. See H.R. Conf. Rep. No. 104-828, at 214 (describing, but not explaining, change in INA § 240A(d)).
272. See supra note 87 for statutory arguments to limit the clock-stopping rule to prospective application.
273. See supra text accompanying notes 233-35.
274. See supra note 75.
275. See Welch v. Henry, 305 U.S. 134, 147 (1938); see also supra notes 187-92 and accompanying text.
276. See supra notes 65-68 and accompanying text.
277. See Harisiades v. Shaughnessy, 342 U.S. 580, 593 (1952). The statute at issue in Harisiades made noncitizens deportable for any past membership in the Communist Party. As the Court explained in Harisiades, prior law had made noncitizens deportable for membership in any organization that advocated the overthrow of the United States government, a category that included the Communist Party. The Court concluded that "[t]here can be no contention that [these noncitizens] were not adequately forewarned both that their conduct was prohibited and of its consequences." Id. at 593.
278. See id. at 590-91. The Court also suggested that Congress had no option but to pass a law that applied to past members of the Communist Party, because the Party had expelled its alien members. See id. at 593 (implying that new legislation authorizing deportation of persons who had been but were no longer Communist Party members was justified as response to Court's holding in Kessler v. Strecker, 307 U.S. 22, 29-30 (1939), that only current members were within scope of legislation).
279. Previous amendments to the INA definition of aggravated felony applied only to convictions entered "on or after the date" of the enactment. See AEDPA, Pub. L. No. 104-132, § 440(f), 110 Stat. 1214, 1278 (1996) (codified at 8 U.S.C. § 1101 note (Supp. II 1996)); Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No. 103-416, § 222(b), 108 Stat. 4305, 4322 (codified at 8 U.S.C. § 1101 note (1994)); Immigration Act of 1990, Pub. L. No. 101-649, § 501(b), 104 Stat. 4978, 5048 (codified at 8 U.S.C § 1101 note (1994)).
280. In addition, IIRIRA eliminated all prior prospectivity provisions. IIRIRA amended the INA to provide that "[notwithstanding any other provision of law (including any effective date), the [new definition of aggravated felony] applies regardless of whether the conviction was entered before, on, or after September 30, 1996." INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (Supp. II 1996) (enacted by IIRIRA, Pub. L. No. 104-208, § 321(b), 1996 U.S.C.C.A.N. (110 Stat.) 3009-546, 3009-628).
281. In addition, a permanent resident convicted of an "aggravated felony" who leaves the United States under an order of removal is permanently barred from admission to the country. See INA § 212(a)(9)(A), 8 U.S.C. § 182(a)(9)(A) (Supp. II 1996). IIRIRA did not, however, change the rule that the conviction must be after 1988 for a person to be deportable by reason of being an aggravated felon. Nevertheless, most aggravated felons are subject to deportation on other grounds, and then subject to IIRIRA's bar on relief for aggravated felons. See supra note 48.
282. See S. 1664, 104th Cong. §§ 101(a)(43), 244(a)(1)(A), 244(a)(2)(E) (1996) (printed in S. Rep. No. 104-249, at 88-90, 125-26 (1996)).
283. It is settled that the aggravated felony definition includes some drug crimes that are punished as misdemeanors under state law. In several cases, the BIA has ruled that regardless of whether a state treats a drug crime as a misdemeanor, it will be treated as an "aggravated felony" for immigration purposes if it is analogous to a federal felony under the federal statutes enumerated in the aggravated felony definition, or if it is punished as a felony under state law and has a nexus to drug trafficking. See In re L-G-, No. 3254, 1995 WL 582051 (B.I.A. Sept. 27, 1995) (interim decision); In re Davis, 20 I. & N. Dec. 536 (B.I.A. 1992). This interpretation has important consequences for the sweep of the aggravated felony bar. By analogy to the federal criminal law, any drug sale conviction or any second possession charge is classified as an "aggravated felony." See 8 U.S.C. § 1101(43)(B) (1994) (incorporating definitions in 18 U.S.C. § 924(c)(2)). In New York, sale of marijuana in the fourth degree is punished as a class A misdemeanor. See N.Y. Penal Law § 221.40 (McKinney 1989). Many drug possession charges are also classified as misdemeanors. See, e.g., N.Y. Penal Law § 221.15 (McKinney 1989 & Supp. 1997-98) (classifying criminal possession of marijuana in fourth degree as class A misdemeanor); N.Y. Penal Law § 220.03 (McKinney 1989) (classifying criminal possession of controlled substance in seventh degree as class A misdemeanor). Two such misdemeanor convictions constitute an aggravated felony under federal immigration law. Unlike the aggravated felony definition for drug offenses, which refers to specific sections of the federal code that can serve as a benchmark for what constitutes a felony, some of the new aggravated felony definitions have no such reference. There is therefore a question whether state misdemeanor convictions in non-drug cases should be treated as meeting the federal definition of an aggravated felony. For example, under IIRIRA, a crime of sexual abuse of a minor is an aggravated felony. See 8 U.S.C. § 1101(43)(A) (Supp. II 1996). In New York, sexual abuse in the third degree, which includes crimes committed against minors, is a class B misdemeanor. See N.Y. Penal Law § 130.55 (McKinney 1987). The federal law further defines all theft crimes carrying a term of imprisonment of one year as aggravated felonies. See 8 U.S.C. § 1101(43)(G) (Supp. II 1996). In New York, petit larceny is a misdemeanor that can lead to a sentence of one year. See N.Y. Penal Law § 155.25 (McKinney 1988). With respect to drug charges, the language of the federal definition, which refers to specific sections of the federal code, leaves little room for interpretation. But for some of the new aggravated felony categories, such as sexual abuse of a minor, it is possible that the agency will interpret the new definitions so as not to include crimes punished as misdemeanors under state law. Of course, the government would probably argue that any contrary interpretation would not be reviewable by any court.
284. See, e.g., 142 Cong. Rec. S4598 (daily ed. May 2, 1996) (statement of Sen. Abraham) (stating, in reference to problem of criminal aliens who are deportable and should be deported, "These are not suspected criminals: These are convicted felons."). The broad scope of the new law, and its harshness as applied retroactively, appears to have come as a surprise to one of the most ardent supporters of the legislation. Discussing the case of Jesus Collado, see supra text accompanying notes 81-88, Senator Abraham accused the INS of failing to establish its priorities properly and of otherwise misunderstanding the new law. See Mirta Ojito, U.S. Frees Immigrant Jailed for 1974 Misdemeanor, N.Y. Times, Oct. 25, 1997, at B1. It is difficult to see, however, what discretion is left under the new law. Under IIRIRA, a permanent resident, like Jesus Collado, who traveled outside the country, is "inadmissible" if she or he falls under the grounds of criminal inadmissibility and therefore must be placed in removal proceedings. See INA § 212(a)(2), 8 U.S.C. § 1182(a)(2) (Supp. II 1996). Once a permanent resident is placed in removal proceedings, IIRIRA prevents the exercise of discretion. It eliminates the discretion to recognize that some "aggravated felonies" are not as serious as the label makes them sound, or that the
285. See 8 U.S.C. § 1227(a)(2)(B)(i) (Supp. II 1996).
286. 341 U.S. 223 (1951).
287. See supra notes 141-51 and accompanying text.
288. See supra text accompanying notes 60-62.
289. Cf. Usery v. Turner Elkhorn, 428 U.S. 1, 17 (1976) (holding that retroactive application must account for employers with no knowledge of dangers of black lung).
290. See 142 Cong. Rec. S12,295 (daily ed. Sept. 30, 1996); see also Removal of Criminal and Illegal Aliens: Hearing Before the Subcomm. on Immigration and Claims of the House Comm. on the Judiciary, 104th Cong. 3 (1996) (statement of Rep. Lamar Smith) ("[B]ased on ... recent Board of Immigration Appeals decisions, there is legitimate concern that even a narrowly tailored form of relief would soon be broadened to include a wide range of cases never intended by Congress.").
291. The basic law regarding standards for section 212(c) relief from deportation has remained unchanged since In re Marin, 16 I. & N. Dec. 581 (B.I.A. 1978).
292. See, e.g., United States v. Carlton, 512 U.S. 26, 31-32 (1994) (noting unexpected revenue losses from mistake in tax provision); General Motors Corp. v. Romein, 503 U.S. 181, 185 (1992) (describing unforeseen judicial interpretation of workers' compensation benefits statute).
293. See Carlton, 512 U.S. at 37-38 (O'Connor, J., concurring). Arguably, permanent residents can achieve repose by becoming citizens. Under the new laws, this may be a valid argument for expecting permanent residents to become citizens. Both the provisions on permanent residents accused of crimes and the new laws on benefits have given permanent residents reason to fear for the stability of their position and, not surprisingly, have led to a vast increase in applications for citizenship. But in earlier years, permanent residents had good cause to see their position in this country as fairly secure. Despite Supreme Court decisions declaring the tenuous nature of their status, see supra notes 108-29 and accompanying text, the day-to-day reality of life for permanent residents was that they had most of the privileges of citizenship. These immigrants can hardly be faulted for not being aware of the instances in our history where the fundamental norms against retroactive application of statutes were cast aside to support the retroactive deportation of long term permanent residents. For an interesting discussion of the divergence between popular conceptions of fairness and the immigration laws, see Weisselberg, supra note 110, at 1004-11. 274 See 142 Cong. Rec. H11,085 (daily ed. Sept. 25, 1996) (statement of Rep. Gilman) ("We have a strong obligation in protecting our citizens from illegal criminal aliens, who prey on them with drugs, and other crime-related activity."); 142 Cong. Rec. S3328 (daily ed. Apr. 15, 1996) (statement of Sen. Abraham) ("[M]any of these noncitizen lawbreakers end up back on our streets to prey on law-abiding American citizens.").
294. Two courts have treated substantive due process review of deportation statutes as requiring no more than a cursory analysis. See Hamania v. INS, 78 F.3d 233, 236 (6th Cir. 1996) (assuming that interest in protecting society from illegal use of dangerous weapons would extend to any past use of such weapons); United States v. Yacoubian, 24 F.3d 1, 7-8 (9th Cir. 1994) (assuming that treatment of current and past offenses equally meets Pension Benefit test, even though adoption of such standard obliterates separate justification requirement of Pension Benefit itself).
295. 305 U.S. 134, 147 (1938).
296. See Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984) (applying rational review test).
297. The very first glimmers of the possibility for political action appeared after this Article was written. A year after the passage of IIRIRA and a year-and-a-half after AEDPA's enactment, Senator Abraham's staff indicated an interest in modifying the law to the extent that INS saw itself as having no discretion whether to place persons with old convic-tions into proceedings. See Mirta Ojito, Old Crime Returns to Haunt an Immigrant, N.Y. Times, Oct. 15, 1997, at B1. This glimmer of hope is far too late for the permanent residents who already have been deported under the new laws, and offers little hope of restoration of the preexisting right to apply for relief and have that application considered by a judicial officer. But most disturbingly, such after-the-fact consideration of the consequences of retroactivity turns retroactivity jurisprudence on its head. The purpose of judicial scrutiny of retroactivity is to ensure that Congress carefully considers the implications of retroactivity before, not after, the retroactive laws work their harsh effects.
298. See Krent, supra note 183, at 2168-73.