Moosa v. I.N.S.

• Decision Date: 02 April 1999
• Docket Number: No. 96-60821,96-60821
• Citation: 171 F.3d 994
• Parties: Wazirali MOOSA, also known as Wazir Ali Haider Ali Moosa; Zebunisa Wazirali Moosa, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 994

171 F.3d 994

Wazirali MOOSA, also known as Wazir Ali Haider Ali Moosa;

Zebunisa Wazirali Moosa, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-60821.

United States Court of Appeals, Fifth Circuit.

April 2, 1999.

Simon M. Azar-Farr, Azar-Farr & Associates, A Professional Corporation, San Antonio, TX, for Petitioners.

Margaret J. Perry, Mark C. Walters, U.S. Department of Justice, Janet Reno, Civil Division, Appellate Staff, Robert L. Bombaugh, Director, Civil Division, Washington, DC, Kenneth L. Pasquarell, Acting District Director, Immigration and Naturalization Service, El Paso, TX, Lynne Underdown, Immigration and Naturalization Service, New Orleans, LA, for Respondent.

On Petition for Review from the Board of Immigration Appeals and Legalization Appeals Unit.

Before REYNALDO G. GARZA, POLITZ and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

A deferred adjudication of guilt for indecency with a child by contact having been entered against Wazirali Moosa in Texas state court in 1990, and, as a result, Moosa having been denied permanent residency and having been ordered deported, along with his wife, primarily at issue is, in the legalization decision, the retroactive application to that deferred adjudication of the new definition of "conviction" in § 322(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C. § 1101(a)(48)(A). At issue are whether the Legalization Appeals Unit erred in denying Moosa permanent resident status; whether we have jurisdiction to review the denial by the Board of Immigration Appeals of suspension of deportation as to the Moosas; and, if we do have jurisdiction, whether that denial was in error. We DENY the petition from the legalization decision. Because we lack jurisdiction over the deportation decision, we DISMISS that petition.

I.

Moosa, a native of Pakistan, entered the United States in 1979 as a nonimmigrant visitor. Four years later, his wife, Zebunisa Moosa, and their two young daughters joined him, also entering as nonimmigrant visitors. Eventually, the Moosas settled in Texas, where Moosa was employed, Mrs. Moosa tended to the needs of the household, and the two daughters enrolled in (and eventually graduated from) public school.

In September 1988, the INS approved Moosa's application for temporary resident status. In April 1989, he applied to the INS to adjust his status to permanent resident.

Later in 1989, Moosa was indicted in Texas for indecency with a child by contact (a second-degree felony), stemming from an incident occurring in early April of that year. The indictment charged Moosa with molesting a twelve-year-old girl. Moosa pleaded guilty in January 1990. The following month, a Texas court entered a deferred adjudication of guilt and placed Moosa on eight years probation. He also served 180 days in jail on a work release program and was ordered, among other things, to attend therapy sessions, avoid contact with children, and report monthly to a probation officer. ¹ (Moosa complied with these requirements, and was released from community supervision early, in 1993 or 1994. ² )

In February 1992, interpreting Moosa's deferred adjudication as a "conviction" that rendered him ineligible for legalization, the Legalization Director issued notice of intent to deny his permanent residency application. The application was formally denied on 20 April 1992.

Two weeks later, on 4 May, Moosa appealed the termination of his temporary resident status to the Legalization Appeals Unit (LAU). ³ His notice of appeal was returned for failure to include the filing fee. On 22 May, the notice was refiled with the fee. In July 1994, the LAU dismissed the appeal as untimely for having been filed more than 30 days after the Legalization Director's decision.

The INS commenced deportation proceedings in March 1995 against Mr. and Mrs. Moosa and their daughters (then in their early 20s), for overstaying an authorized period of stay, pursuant to 8 U.S.C. § 1251(a)(1)(B). The Moosas applied for suspension of deportation under 8 U.S.C. § 1254(a) (now repealed), and a deportation hearing was held in March 1996. The family claimed that deportation would impose extreme hardship, justifying a suspension.

The Immigration Judge (IJ) suspended the deportation of the Moosas' daughters; however, suspension was denied for Mr. and Mrs. Moosa. The IJ found the serious nature of Moosa's admitted child molestations outweighed any favorable factors and "den[ied] his application for suspension of deportation as a matter of discretion". The IJ denied suspension of Mrs. Moosa's deportation on the basis that she had not demonstrated "extreme hardship", particularly in view of the fact that her husband's application had been denied. The IJ did, however, grant the Moosas the privilege of voluntary departure in lieu of deportation, pursuant to 8 U.S.C. § 1254(e).

The Moosas appealed to the Board of Immigration Appeals; it affirmed in October 1996. The BIA agreed that Mrs. Moosa had not shown extreme hardship merely by alleging economic hardship, diabetes, and a bad back. The BIA denied relief to Moosa primarily because of his sexual contact with children and because it was not convinced he was rehabilitated. The BIA described his conduct as "serious" and "predatory" and found that "a favorable exercise of discretion is not warranted". The Moosas petitioned this court for review of the BIA's decision.

But, after the Moosas' opening brief was filed with our court, the INS discovered that the LAU had erred in July 1994 when it dismissed as untimely Moosa's appeal of the permanent resident status decision. Instead, the INS concluded that the appeal was timely. On joint motion, our court in May 1997 remanded the legalization question to the LAU. The following December, applying the new definition of "conviction" found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. Law 104-208, 110 Stat. 3009 (1996) (IIRIRA), the LAU upheld the decision of the Legalization Director.

Therefore, the petitions at hand are from the LAU's December 1997 decision affirming the denial of Moosa's permanent resident application and from the BIA's decision denying a suspension of deportation to Mr. and Mrs. Moosa. For the latter, the INS has moved to dismiss for lack of jurisdiction.

II.

A.

Moosa, who was given temporary resident status in 1988, applied for permanent residency in 1989 under 8 U.S.C. § 1255a, enacted as part of the "legalization" or "amnesty" provisions of the Immigration Reform and Control Act of 1986. See Hussein v. INS, 61 F.3d 377, 378 (5th Cir.1995). The regulations provide that temporary residence granted an alien will terminate if he does not apply for permanent residence within 43 months. 8 U.S.C. 1255a(b)(2)(C). The local Legalization Director is required to give the alien notice and an opportunity to respond before terminating the temporary residency. Luevano v. INS, 5 F.3d 546, 1993 WL 335750, * 1 (10th Cir.1993)(unpublished). Notification of, and reasons for, a final decision to terminate must also be provided to the alien. Id. "Once an alien's temporary resident status is terminated, he automatically returns to the unlawful status he held before he received the temporary resident status and is amenable to deportation or exclusion proceedings." Id. (citing 8 C.F.R. 245a.2(u)(4); 8 U.S.C. 1255a(b)(2)(C)) (Attorney General shall terminate temporary residence at end of 43rd month after alien was granted status unless application for adjustment has been filed and "has not been denied").

Permanent residence may not be granted aliens "convicted" of a felony. 8 U.S.C. § 1255a(b)(1)(C)(ii). Yet, prior to 1996, there was no statutory definition of "conviction". Beginning with the Supreme Court's brief decision in Pino v. Landon, 349 U.S. 901, 75 S.Ct. 576, 99 L.Ed. 1239 (1955) (per curiam), courts construed the term "conviction" in immigration laws to encompass some degree of finality of the judgment or disposition under state law. ⁴

In 1988, the BIA defined "conviction" in Matter of Ozkok, 19 I&N Dec. 546, 1988 WL 235459 (BIA 1988). In Ozkok, the BIA examined its previous decisions, which looked to the state law effect of the conviction in order to determine if the finality requirement had been met. Id. at 549-50. The BIA noted that "most states now employ some method of ameliorating the consequences of a conviction"; and that "the standard which [the BIA had] applied to the many variations in state procedure may permit anomalous and unfair results in determining which aliens are considered convicted for immigration purposes". Id. at 550. Therefore, the BIA revised the standard for determining whether a state conviction was to be considered a "conviction" for purposes of immigration law, eliminated the requirement that the state law effect of the conviction be examined, and created the following standard:

Where adjudication of guilt has been withheld, however, further examination of the specific procedure used and the state authority under which the court acted will be necessary. As a general rule, a conviction will be found for immigration purposes where all of the following elements are present:

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment, penalty, or restraint on the person's liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver's license, deprivation of nonessential activities or privileges, or community service); and

(3) a judgment or adjudication of guilt may be entered if the person violates the terms of...