Diakite v. I.N.S., 98-3907
| Decision Date | 02 June 1999 |
| Docket Number | No. 98-3907,98-3907 |
| Citation | 179 F.3d 553 |
| Parties | Abdoulaye DIAKITE, also known as Mike Forbes, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Petition for Review of an Order of the Board of Immigration Appeals.
Before Coffey, Easterbrook, and Rovner, Circuit Judges.
Abdoulaye Diakite, a citizen of Liberia who failed to leave the United States when his visa expired, has been ordered deported for that reason plus his convictions for theft, forgery, and robbery. The Board of Immigration Appeals concluded that these are "serious" crimes that disentitle Diakite to consideration of his application for withholding of deportation. Now the INS asks us to dismiss his petition for review, on the ground that the crimes activate sec.106(a)(10) of the Immigration and Nationality Act, 8 U.S.C. sec.1105a(a)(10):
Any final order of deportation against an 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, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i), shall not be subject to review by any court.
Diakite concedes that he is an alien and that he committed crimes "covered in section 241(a)(2)(A)(iii), (B), (C), or (D)" so that sec.106(a)(10) applies. (Technically, he concedes application of the equivalent transition rule in sec.309(c)(4)(G) of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, but this detail does not matter, and we refer to sec.106(a)(10) for simplicity.) Nonetheless, he contends, he is not "deportable" and therefore may obtain judicial review of his contention that he would be subject to torture if returned to Liberia. Yang v. INS, 109 F.3d 1185, 1196 (7th Cir.1997), holds that before dismissing a petition under sec.106(a)(10) "the court may (indeed, must) determine for itself whether the petitioner is (i) an alien (ii) deportable (iii) by reason of a criminal offense listed in the statute." According to Diakite, he is not "deportable" because Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985), precludes his return to Liberia.
Well after the President signed the Convention (1988), the Senate gave its consent (1990), and the United States filed the instrument of ratification (1994), Congress adopted implementing legislation. Section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. 105-277, 112 Stat. 2681 (Oct. 21, 1998). Regulations under sec.2242 entitle Diakite to administrative review of his claim based on the Convention. 8 C.F.R. sec.208.18(b), adopted by 64 Fed.Reg. 8478 (Feb. 19, 1999). But the Convention does not define who is "deportable" for the purpose of sec.106(a)(10). Our jurisdiction to determine jurisdiction extends no further than inquiring whether the criteria of the jurisdictional statute have been met--and neither the Convention nor sec.2242 is a grant of jurisdiction. Under sec.106(a)(10), an "alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D)" (emphasis added) cannot obtain judicial review of the final order of deportation (or removal). Diakite wants us to divorce the word "deportable" from the words "by reason of" a crime. Yet, as we emphasized in Yang, sec.106(a)(10) means that an alien who has committed a serious criminal offense forfeits his entitlement to judicial review of contentions that for some other statutory reason he is entitled to remain. Aliens retain a right to full administrative consideration of arguments based on other statutes and regulations, but with respect to these the BIA's decision is conclusive. Arguments based on the Convention are among those that now are finally resolved by the administrative process, just like the claims for asylum and withholding of deportation in Yang. Removing the word "deportable" from...
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