John Brian Attwood v. John Ashcroft

* Of the Northern District of California, sitting by
designation.
United States Court of Appeals
For the First Circuit
No. 00-2130
JOHN BRIAN ATTWOOD,
Petitioner, Appellant,
v.
JOHN ASHCROFT, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Schwarzer, Senior District Judge.*
Brenda M. O'Malley, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, with whom David W.
Ogden, Assistant Attorney General and Christopher C. Fuller, Senior
Litigation Counsel, were on brief, for appellant.
Robert D. Watt, Jr. for appellee.

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August 2, 2001

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LYNCH, Circuit Judge. This is an appeal from a
district court decision granting a petition for a writ of habeas
corpus in the context of a removal order issued by the Board of
Immigration Appeals. We affirm the district court, though on
alternate grounds.
John Brian Attwood is a native and citizen of Canada
who was admitted to the United States as a lawful permanent
resident on January 16, 1963. On May 24, 1995, Attwood pled
guilty to trafficking in cocaine, and was sentenced to a term of
imprisonment of five to seven years (ultimately he served only
four years and eleven months). On April 18, 1996, the
Immigration and Naturalization Service issued, signed, and dated
an Order to Show Cause charging Attwood with deportability under
sections 241(a)(2)(A)(iii) and 241(a)(2)(B)(i) of the
Immigration and Naturalization Act, 8 U.S.C. §§
1251(a)(2)(A)(iii) and 1251(a)(2)(B)(i) (1994), as an alien
convicted of both an aggravated felony and a controlled
substance violation. The OSC, however, was not served on
Attwood until June 6, 1996, and was filed with the immigration
court on July 8, 1996.

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1 Section 212(c) of the INA (as it existed before April
24, 1996, as codified at 8 U.S.C. § 1182(c) (1994)), "although
explicitly directed at certain excludable aliens not yet
admitted, had been read to give the Attorney General
discretionary authority to waive deportation for aliens already
within the United States who were deportable for having
committed aggravated felonies or controlled substance
violations." Wallace v. Reno, 194 F.3d 279, 281 (1st Cir.
1999). Such waiver was precluded for aggravated felons who had
served five years or more in jail. Id. (citing Immigration Act
of 1990, Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052).
2 Enacted on April 24, 1996, § 440(d) of AEDPA revised
§ 212(c) of the INA to eliminate the availability of waiver for
aliens convicted of most drug offenses, regardless of the amount
of time served. See Wallace, 194 F.3d at 281.
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Attwood conceded proper service of the OSC and
deportability before the immigration judge, but requested leave
to file for relief in the form of a discretionary waiver under
former § 212(c) of the INA.1 The immigration judge denied his
request for leave to file for § 212(c) relief, holding that his
consideration for such relief was precluded under § 440(d) of
the Antiterrorism and Effective Death Penalty Act,2 and on June
18, 1997, ordered Attwood deported. Attwood appealed this
decision to the Board of Immigration Appeals, and on May 19,
1998, the BIA denied Attwood's appeal.
Attwood then filed a petition for a writ of habeas
corpus in federal district court, challenging the denial of his

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request for consideration for § 212(c) relief on several
grounds. First, Attwood contended that since the INS had issued
(and signed) the OSC on April 18, 1996, he was in deportation
proceedings prior to the enactment of AEDPA § 440(d), and
therefore its limitations on waiver are inapplicable to his
case. See Wallace v. Reno, 194 F.3d 279, 286-87 (1st Cir. 1999)
(considering a case where the OSC was served but not filed prior
to AEPDA's enactment and finding that § 440(d) did not affect
the statutory entitlement to consideration for § 212(c) waiver
in such a case because deportation proceedings had already begun
prior to its enactment). Attwood also argued that retroactive
application of AEDPA § 440(d) in his case, where he pled guilty
to the crime before AEDPA's enactment, would violate principles
of providing fair notice and protecting reasonable expectations
and reliance interests. Finally, Attwood said that the refusal
to afford him consideration for § 212(c) relief violated equal
protection and due process.
The district court granted Attwood's petition.
Extending the reasoning of Wallace, the district court concluded
that deportation proceedings against Attwood fairly began on the
date the OSC was issued by the INS (April 18, 1996), not the

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3 Upon granting Attwood's petition, the district court
remanded the case to the INS to consider whether, assuming his
statutory eligibility for § 212(c) relief, Attwood merited that
relief in the exercise of discretion. While this appeal was
pending, immigration proceedings resumed under the district
court's order, and on July 21, 2000, the immigration judge
granted Attwood a discretionary waiver. The INS appealed to the
BIA, challenging only Attwood's statutory eligibility for the
waiver and not the immigration judge's favorable exercise of
discretion. On October 18, 2000, BIA dismissed the INS's
appeal, finding that it was compelled to do so in light of the
district court's determination of statutory eligibility. At
oral argument, it was suggested that these subsequent decisions
render the current appeal moot, as the subsequent order of the
immigration judge granting Attwood relief is not properly before
the court. While it is correct that this order is not before
us, and hence our holding does not have direct legal effect on
that order, this does not render the dispute between the parties
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date that he was served (June 6, 1996). This determination
placed the initiation of deportation proceedings against Attwood
prior to the enactment of AEDPA and therefore rendered his
application for § 212(c) relief outside of AEDPA's statutory
bar.
The INS appeals, contesting the district court's
determination that the deportation proceedings began on the date the
OSC was issued and not the date it was served. Attwood responds, both
defending the district court's determination that deportation proceeds
had fairly begun and again raising his arguments that even if they had
not, application of AEDPA § 440(d) in his case would violate other
fundamental principles of fairness, due process, and equal protection.3

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moot. Rather, the INS and Attwood both have a continued stake
in the outcome of this appeal -- the BIA explicitly relied on
the district court's remand order in affirming the immigration
judge, and a decision on appeal vacating that order would leave
the INS free to pursue a remedy before the Board.
4 Because Attwood is entitled to consideration for §
212(c) relief under St. Cyr, we do not address the district
court's conclusion that deportation proceedings had fairly begun
on the date of issuance of the OSC.
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At the time of Attwood's petition, a defendant in this
circuit who pled guilty prior to AEDPA's enactment was entitled to
consideration for § 212(c) relief only if he could demonstrate actual
reliance on the availability of such relief. See Mattis v. Reno, 212
F.3d 31, 33 (1st Cir. 2000). Subsequent to the district court's
decision, the Supreme Court addressed the availability of § 212(c)
relief to such defendants in INS v. St. Cyr, --- U.S. ---, 121 S. Ct.
2271 (2001). In St. Cyr, the Court held that "§ 212(c) relief remains
available for aliens . . . whose convictions were obtained through plea
agreements and who, notwithstanding those convictions, would have been
eligible for § 212(c) relief at the time of their plea under the law
then in effect." Id. at 2293. As the government has properly conceded
in supplemental briefing, this holding applies to Attwood. Therefore,
on the ground that he pled guilty prior to the enactment of AEDPA,
Attwood is, and was, entitled to a hearing on his request for a
discretionary waiver under § 212(c).4 We assume that, since Attwood was

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given such a hearing and awarded § 212(c) relief, our affirmance of the
district court's order will conclude this matter in Attwood's favor.
Affirmed.

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