208 F.3d 528 (5th Cir. 2000), 98-60418, Nguyen v Immigration and Naturalization Serv.

Docket Nº:98-60418
Citation:208 F.3d 528
Party Name:TUAN ANH NGUYEN; JOSEPH ALFRED BOULAIS, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:April 01, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 528

208 F.3d 528 (5th Cir. 2000)

TUAN ANH NGUYEN; JOSEPH ALFRED BOULAIS, Petitioners,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-60418

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

April 1, 2000

Page 529

[Copyrighted Material Omitted]

Page 530

Petition For Review of an Order of the Board of Immigration Appeals

Before POLITZ and STEWART, Circuit Judges, and LITTLE [*], District Judge.

CARL E. STEWART, Circuit Judge:

Tuan Anh Nguyen ("Nguyen") and Joseph Alfred Boulais ("Boulais") appeal the Board of Immigration Appeals ("BIA") order of deportation entered against Nguyen. For the following reasons we grant the Immigration and Naturalization Service's motion to dismiss the appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Nguyen was born September 11, 1969 in Vietnam. His mother is a Vietnamese citizen. The co-petitioner, Boulais, is Nguyen's natural father. 1 Nguyen's mother abandoned him at birth. In June 1975, Nguyen was brought to the United States as a refugee becoming a lawful permanent resident pursuant to the Indochinese Refugee Act. Nguyen settled in Texas where he was raised by Boulais. Nguyen never had any subsequent contact with his natural mother.

On August 28, 1992, Nguyen plead guilty in Texas state court to two felony charges of sexual assault on a child. He was sentenced to eight years in prison for each crime. While confined in state prison in Huntsville, Texas, Nguyen was interviewed by an INS agent. He told the agent he was a native and citizen of Vietnam as well as the circumstances surrounding his entry in the United States. Based on this information, the INS began deportation proceedings against Nguyen on April 4, 1995. The INS argued that Nguyen was subject to deportation as an alien who had been convicted of two crimes involving moral turpitude and an aggravated felony under INA § 241(a)(2)(A)(ii)and (iii) (codified at 8 U.S.C. §§ 1251 (a)(2)(A)(ii)-(iii) (1994)).

While in state prison in Huntsville, Texas Nguyen appeared at two hearings before an immigration judge. At the first hearing, in November 1996, Nguyen indicated that he wished to challenge the show cause order on the ground that he was a United States citizen. The judge continued the hearing to allow Nguyen time to present proof of his citizenship. At the second hearing in January 1997, his attorney withdrew, and the immigration judge went forward and advised Nguyen of his procedural rights and conducted the hearing. During the colloquy conducted by the immigration judge, Nguyen testified under oath that he was not a citizen of the United States and that he was a citizen of Vietnam. He also admitted that he was convicted of the aforementioned crimes.

Page 531

On the basis of this testimony the immigration judge found that Nguyen was deportable. Nguyen timely appealed the immigration judge's order to the BIA.

While his appeal was pending, Mr. Boulais instituted a paternity proceeding in a Texas district court. In February 1998, based on DNA testing results Boulais obtained an "Order of Parentage" adjudging that he is the father of Nguyen. Since the BIA's briefing schedule called for submission of Nguyen's brief prior to the completion of DNA testing and the issuance of the paternity decree, Nguyen submitted an initial brief to the BIA outlining his United States' citizenship argument, but did not include the DNA evidence to support his claim. On April 15, 1998 he filed a supplemental brief which included the relevant evidence. On June 2, 1998, the BIA dismissed Nguyen's appeal.

On June 26, 1998 Nguyen filed a Motion to Reconsider with the BIA which has not to date been adjudicated. On July 2, 1998 Mr. Boulais and Nguyen filed a habeas petition in the United States District Court, challenging the BIA's deportation order and denial of relief from deportation. The petitioners also filed a request for declaratory judgment as to the citizenship issue. Because of the multi-layered requests in the district court action, the magistrate judge agreed to hold that matter in abeyance pending this court's decision. 2 The INS has filed a motion to dismiss this appeal for lack of jurisdiction, and this court ruled that the motion should be carried with the case.

DISCUSSION

The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996, Pub. L. No. 104-208, § 309(c)(4)(G), 110 Stat. 3009, 626-27, contains the standards for criminal deportees whose deportation proceedings commence before IIRIRA's general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996. Section 309(c)(4)(G) provides that

there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a)(2)(A)(ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a)(2)(A)(I) of such Act (as so in effect).

It has been established that this language "completely forecloses our jurisdiction to review decisions of the BIA." Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1999) (quoting Nguyen v. INS, 117 F.3d 206, 207 (5th Cir.1997)). The petitioners do not contest that Nguyen was convicted of a crime specified in INA § 241(a)(2)(A)(ii), namely crimes involving moral turpitude, and an aggravated felony.

If Nguyen is found to be an alien, this court will not have jurisdiction to review the BIA's decision. See Terrell v. INS, 157 F.3d 806, 809 (10th Cir. 1998) (concluding that...

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