AILA Letter on AEDPA Section 440(d)

April 15, 1999

Attorney General Janet Reno
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Room 4545
Washington, DC 20530-0001

Dear Attorney General Reno:

The American Immigration Lawyers Association urges you to take immediate action in light of the recent U.S. Supreme Court decision (on March 8, 1999) declining review of lower court decisions which diverged from your opinion in Matter of Soriano. We urge you to:

  1. immediately announce that you will apply nationwide the rulings and interpretations that the First and Second Circuit Courts set forth in Goncalves and Henderson,that the Supreme Court let stand;
  2. revisit your opinion in Soriano and hold that AEDPA section 440(d) may not reach back to pre-Act conduct and convictions.

As you know, the American Immigration Lawyers Association is a voluntary association of nearly 6,000 attorneys and law professors practicing and teaching in the field of immigration law. We are committed to the fair and humane interpretation and application of immigration law and policy. We believe that principles of fairness require you to revisit the Soriano decision at this moment.

The recent Supreme Court action declining review leaves vulnerable long-time lawful permanent residents in confusion and subjects them to disparate treatment, depending solely on the circumstance of their place of residence. This is an undesirable and unfair result that requires your immediate action.

Two years have passed since the Attorney General opinion in Matter of Soriano. Your decision in that case held, in contradiction to the position taken by the Board of Immigration Appeals, that Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) must be applied fully retroactively.

However, subsequent to your decision in Soriano, the Supreme Court decided Lindh v. Murphy, 117 S.Ct. 2059 (1997), a case involving the retroactive application of another section of AEDPA. This case provided important guidance in determining the scope and reach of new statutes such as AEDPA.

In Lindh, the Supreme Court held that adjudicators must first determine Congressional intent regarding the temporal reach of a new statute by using traditional rules of statutory construction. In Lindh specifically, the Court held that Congress did not intend for the provision to be applied to pre-Act events and therefore, the Court did not need to reach the question of whether the provision had genuine retroactive effect.

Three courts of appeals have followed Lindh and have rejected your conclusion as to the temporal scope of section 440(d). Sandoval v. Reno, -- F.3d --, 1999 WL 31489 (3d Cir. 1999); Henderson v. INS, 157 F.3d 106 (2d Cir. 1998); Goncalves v. INS, 144 F.3d 110 (1st Cir. 1998). Furthermore, several district courts in these and in other circuits have rejected the holding in Soriano, e.g., Machado v. INS, 1999 WL 44340 (D. Mass. 1999); Farquahurir v. INS, 1999 U.S. Dist. LEXIS 73 (D.N.J. 1999); Wallace v. Reno, 24 F. Supp. 3d 104, 114-15 (D. Mass. 1998); Perez v. Reno, 18 F. Supp. 2d 674 (W.D. Texas 1998); Lee v. Reno, 15 F. Supp. 2d 26 (D.D.C. 1998); Pak v. Reno, 8 F. Supp. 2d 1001 (N.D. Ohio 1998).

The Supreme Court action denying certiorari in Goncalves and Henderson means that different interpretations of the law are now being applied in different circuits. The hardship imposed by these circumstances on lawful permanent residents and their family members is harsh. Many are being held in detention while cases are pending. Many more live in fear that they will be detained and deported. Furthermore, Department of Justice personnel continue to argue the Soriano position and for full retroactive application of Section 440(d) of AEDPA in circuits that have not yet ruled on the matter. Clients, their families, their attorneys, and staff of the INS and EOIR are all operating in constant uncertainty about whether hearings will go forward or whether past hearing decisions will be honored.

It is clearly urgent that you act to end this uncertainty and adopt a uniform national rule that is consistent with Congress' intent not to apply retroactively section 440(d) of AEDPA.

AILA urges you to announce immediately that AEDPA section 440(d) should no longer be applied to deportation cases that were pending on April 24, 1996, the date of enactment of AEDPA. This is the holding of the Second Circuit in Henderson. This immediate action would not require a new analysis of the Soriano case. It would simply recognize that it is unfair and untenable for different interpretations to be applied in different circuits, where the result is that persons in certain circuits have access to potential relief, while those in other circuits in exactly the same circumstances do not.

Furthermore, the ability to seek relief before an immigration judge is no guarantee that relief will be granted. Individual case by case adjudications could and should go forward; the outcome will be determined by the equities in each individual case.

Once you have taken this immediate step, AILA further urges you to revisit your opinion in Soriano, apply the analysis in Lindh, and hold that AEDPA section 440(d) may not be applied to pre-Act conduct and convictions.

We are aware that the circuit courts have not reached this question. Several courts have, however, faced the question of whether section 440(d) can be applied in cases where the INS had not instituted proceedings prior to the enactment of Section 440(d). These courts have held against such retroactive reach of the statute. See Wallace v. Reno, 24 F. Supp. 3d 104, 114-15 (D. Mass. 1998); Mojica v. Reno, 970 F. Supp. 130 (E.D.N.Y. 1997).

We would be pleased to discuss these matters further in person, if you determine that would be helpful. We would also be more than willing to provide further detailed briefs on the issues we have raised. We look forward to your response and favorable action.


Jeanne A. Butterfield
Executive Director

cc: John Morton
James Castello
Paul Virtue

© 1999, American Immigration Lawyers Association

Cite as AILA Doc. No. 99042159.