194 F.3d 539 (4th Cir. 1999), 99-1116, Lewis v United States INS

Docket Nº:99-1116.
Citation:194 F.3d 539
Party Name:ELVIS DAVID LEWIS, PETITIONER, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.
Case Date:October 14, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 539

194 F.3d 539 (4th Cir. 1999)

ELVIS DAVID LEWIS, PETITIONER,

v.

U.S. IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.

No. 99-1116.

United States Court of Appeals, Fourth Circuit

October 14, 1999

Argued: June 10, 1999.

On Petition for Review of an Order of the Board of Immigration Appeals. (A76-594-192)

Page 540

ARGUED: Lee P. Gelernt, American Civil Liberties Union, New York, New York; Randall Lee Johnson, Johnson & Associates, Arlington, Virginia, for Petitioner. Michelle Elizabeth Gorden, Office of Immigration Litigation, Civil Division, United States Department OF Justice, Washington, D.C., for Respondent. ON BRIEF: David W. Ogden, Acting Assistant Attorney General, David M. McConnell, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department OF Justice, Washington, D.C., for Respondent.

Before Widener, Niemeyer, and Traxler, Circuit Judges.

Dismissed by published opinion. Judge Traxler wrote the opinion, in which Judge Widener and Judge Niemeyer joined.

OPINION

Traxler, Circuit Judge

Elvis Lewis ("Lewis"), a citizen of Grenada, petitions for review of a final order of removal based on a 1984 conviction for conspiracy to distribute marijuana in violation of Maryland's controlled substance laws. Because we lack subject matter jurisdiction to review the order of deportation, we dismiss the petition.

I.

Lewis entered the United States in 1981 on a nonimmigrant business permit, which allowed him to stay for one month. After the one-month period expired, Lewis simply remained here. He has never been admitted to the United States as a lawful permanent resident.

In 1984, Lewis pled guilty in the Maryland Circuit Court for Anne Arundel County to conspiracy to possess marijuana with the intent to distribute. Lewis received a suspended three-year sentence, was ordered to pay a $1000 fine, and was placed on probation. Lewis completed probation and continued to remain in the United States. In September 1998, he was convicted in Maryland circuit court of embezzlement resulting in a 180-day sentence, 175 days of which were suspended. Although Lewis's embezzlement conviction did not serve as the basis for his order of removal, it was apparently this event that triggered an investigation of Lewis by the Immigration and Naturalization Service (the Service), culminating in the removal order.

In December 1998, the Service took Lewis into custody and placed him in expedited administrative removal proceedings under section 238(b) of the Immigration and Nationality Act (INA). See 8 U.S.C.A. § 1228(b) (West 1999). Lewis was served with a notice of intent to issue a final administrative removal order, which informed him that he was deportable under section 237(a)(2)(A)(iii) of the INA, see 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999), as an alien convicted of an aggravated felony. The notice also informed Lewis that he was required within 10 days to rebut the charges or request an opportunity

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to review the Service's evidence.1 According to Lewis, he requested that he be permitted to review his administrative file, but the Service did not provide it to him. It is not clear from the administrative record that Lewis ever made such a request. It does appear, however, that Lewis submitted documents in rebuttal.

On January 4, 1999, the Service issued a one-paragraph final administrative order of removal, which directed that Lewis be removed from the United States based on the allegations contained in the notice and the evidence contained in the administrative record. The final order of removal rested on three factual determinations: (1) that Lewis was not a citizen of the United States, (2) that Lewis was not lawfully admitted to the United States for permanent residence, and (3) that Lewis had a conviction qualifying as an aggravated felony under section 101(a)(43)(B) of the INA. See 8 U.S.C.A. § 1101(a)(43)(B) (West 1999).2

Subsequently, Lewis filed this petition for review. He concedes that he is an alien and that his conviction under Maryland law qualifies as an "aggravated felony" within the meaning of the INA. He contends, however, that he is not deportable as a matter of law because Congress intended only to deport aliens whose date of conviction for an aggravated felony was on or after the effective date of the legislation which first made an aggravated felony a deportable offense -- November 18, 1988.3

II.

Before we can reach the heart of this appeal, we must determine whether we have jurisdiction to consider Lewis's argument. Under section 237(a)(2)(A)(iii) of the INA, "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." See 8 U.S.C.A. § 1227(a)(2)(A)(iii). In its final administrative order, the Service determined that Lewis was an alien and was deportable based on his conviction of an aggravated felony. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, substantially restricted our ability to review precisely this kind of removal order:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having com mitted a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C.A. § 1252(a)(2)(C) (West 1999). Thus, under this section there is plainly no appellate recourse from a final order of removal for an alien who is removable because he has committed an offense encompassed by section 1227(a)(2)(A)(iii), that is, because he has committed an aggravated felony.

The language of this provision is expansive; indeed, similar language used in IIRIRA's transitional rules has been interpreted

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to prohibit altogether the filing of an appeal by an alien. See Berehe v. INS, 114 F.3d 159, 161 (10th Cir. 1997). Such an interpretation, however, raises various difficulties, among them the disquieting possibility that, under the auspices of this section, the Attorney General could summarily remove a law-abiding alien with no criminal record, and we would be powerless to directly review the removal. We do not believe that Congress intended such a result.

In fact, we recently rejected such a narrow reading of our role in reviewing final orders of removal under IIRIRA's transitional rules.4 In Hall v. INS, 167 F.3d 852 (4th Cir. 1999), this court examined the parameters of our jurisdiction under an identical provision contained in the transitional rules. We concluded that the jurisdictional limitation under the transitional rules was triggered by two jurisdictional facts -- whether the deportee was an alien and whether he had been convicted of an offense...

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