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THANH v. MCELROY

May 6, 1997

VU TAM THANH, Plaintiff,
v.
EDWARD MCELROY, District Director, U.S. Immigration & Naturalization Service, Respondent.



The opinion of the court was delivered by: VAN ANTWERPEN

 Van Antwerpen, J.

 May 6, 1997

 I. BACKGROUND

 On August 12, 1996, proceeding pro se, Vu Tam Thanh ("Thanh") petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and the matter was referred to a magistrate judge. Thanh is presently incarcerated and awaiting deportation at the Berks County Prison in Leesport, Pennsylvania. On March 26, 1996 pursuant to Immigration and Naturalization Act ("INA") § 242(c), 8 U.S.C. § 1252(c), United States Magistrate Judge James R. Melinson recommended that Thanh's petition be granted and that this matter be remanded to the District Director of the United States Immigration and Naturalization Services ("INS") to set conditions of supervision as required by INA § 242(d), 8 U.S.C. § 1252(d). Magistrate Judge Melinson's recommendations were based on 8 U.S.C. § 1252(c) prior to its recent amendment by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996)("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009 (Sept.30, 1996)("IIRIRA") "because to do otherwise would give these amendments retroactive effect absent the clear intent of Congress to do so." Report of March 26, 1997 at 5 n.4 (citing United States v. Igbonwa, 1996 U.S. Dist. LEXIS 17905, Crim. A. No. 90-375-1, 1996 WL 694178 (E.D. Pa. Nov. 29, 1996) and Landgraf v. USI Film Prod., 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994)).

 The government has filed objections opposing Magistrate Judge Melinson's recommendation, claiming the current Transition Period Custody Rules, IIRIRA § 303(b)(2)-(3), rather than former INA § 242(c), 8 U.S.C. § 1252(c), govern this case and apply retroactively to Petitioner. *fn1" Because timing is essential to questions of retroactivity, we begin with a chronology of events that includes the relevant dates of the recent statutory amendments.

 II. CHRONOLOGY

 On February 26, 1985 Thanh entered the United States as a conditional refugee. He later became a legal permanent resident. Slightly more than five years after his entry, on March 29, 1990, Thanh pled guilty in a New York state court to two counts of first degree and one count of second degree robbery. On July 16, 1991 Thanh was served with an order to show cause for deportation proceedings. Thanh was notified by the INS that he was subject to deportation as an alien convicted of two or more crimes involving moral turpitude. See INA § 241(a)(2)(A)(ii), 8 U.S.C.A. § 1251(a)(2)(A)(ii) (1995). *fn2" Thanh was released on state parole on December 24, 1992, and was personally served with an order to show cause. On April 17, 1993, Thanh violated his state parole and was incarcerated. Thanh was turned over to INS custody in March 1997. Deportation proceedings were held from August through October 1995. On November 8, 1995, Thanh was ordered deported from the United States. While Thanh did file an appeal, he withdrew that appeal and the November 8, 1995 order became his final order of deportation. 8 C.F.R. § 3.4 (1996).

 At the time Thanh's deportation order became final, almost any alien under a final administrative order of deportation had the right to petition a district court for habeas corpus relief under INA § 242(c), 8 U.S.C. § 1252(c). To obtain relief with such a petition, an alien did not have to show that his present detention was illegal. *fn3" Matter of Ghalamsiah, 806 F.2d 68, 73 (3d. Cir. 1986). The alien petitioner did have to make a conclusive showing that the Attorney General had not acted with reasonable dispatch under the circumstances. Id. This required proof of no action within the six months provided by statute where no explanation for the delay was provided. Dalis v. Brady, 766 F. Supp. 901 (D. Colo. 1991)(citing 8 U.S.C. § 1252(d)). *fn4" The only aliens subject to a final order of deportation whose habeas corpus relief under this provision was constrained were aliens convicted of an aggravated felony. See 8 U.S.C.A. § 1252(a)(2) (1995). *fn5" Thanh's offenses did not constitute aggravated felonies. Thanh did not request habeas corpus relief during the time between the entry of his final order of deportation and the amendment of 8 U.S.C. § 1252 by AEDPA §§ 440(c),(h).

 On April 24, 1996, less than six months after Thanh's final order of deportation was entered, AEDPA §§ 440(c),(h) amended 8 U.S.C. §§ 1252(a)(2),(c) to eliminate for a broad group of criminal aliens both the Attorney General's discretion to release them and the district court's authority to grant them habeas corpus relief without a showing that their detention was illegal:

 
(a)(2) The Attorney General shall take into custody any alien convicted of any criminal offense covered by section 241(a)(2)(A)(iii), (B), (C), or (D) or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i). Notwithstanding paragraph (1) or subsections (c) and (d) of this section, the Attorney General shall not release such felon from custody....
 
(c)(1) Subject to paragraph (2), when a final order of deportation under administrative processes is made against any alien...any court of competent jurisdiction shall have authority to review or revise....
 
(2) When a final order of deportation under administrative process is made against any alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D) or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), the Attorney General shall have 30 days from the date of the order within which to effect the alien's departure from the United States. The Attorney General shall have sole and unreviewable discretion to waive the foregoing provision for aliens who are cooperating with law enforcement authorities for the purpose of national security. [emphasis added].

 AEDPA § 440 had only one express provision dealing with the section's effective date. While that provision provided that certain amendments would apply only to convictions entered on or after the date of the enactment of the AEDPA, this limitation on the effective date did not apply to the amendments made to 8 U.S.C. § 1252 by AEDPA §§ 440(c),(h). See AEDPA § 440(f). The Third Circuit has held that another subsection of 440 dealing with appellate jurisdiction of final orders of deportation (as opposed to bond and custody redeterminations) was effective upon it's enactment on April 24, 1996 and had the ...


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