215 F.3d 906 (9th Cir. 2000), 97-70473, Alberto-Gonzalez v. INS.

Docket Nº:97-70473
Citation:215 F.3d 906
Case Date:June 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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215 F.3d 906 (9th Cir. 2000)




No. 97-70473

United States Court of Appeals, Ninth Circuit

June 6, 2000

Submitted April 25, 20001

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Amos Lawrence, San Francisco, California, for the petitioner.

Loreto S. Geisse, Office of Immigration Litigation, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of a Decision of the Board of Immigration Appeals; INS No. A14-694-693

Before: Betty B. Fletcher, Michael Daly Hawkins, and Sidney R. Thomas, Circuit Judges.

HAWKINS, Circuit Judge:

We must decide whether we have jurisdiction over the merits of this petition for review. To do so, we must determine whether the underlying convictions amount to aggravated felonies or crimes of moral turpitude within the meaning of the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. 104-208, 110 Stat. 3009 (1996).


Jose Marcelo Alberto-Gonzalez ("Alberto-Gonzalez") entered the United States on about August 18, 1965 when he was four years old. He was convicted of burglary in June and October of 1986 and was placed in deportation proceedings. The Immigration Judge granted his request for waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. S 1182(c) (1987).

On June 18, 1991, he was convicted for receiving stolen property. The record does not make clear the length of his sentence for this conviction. On April 20, 1994, he was sentenced to 79 days in prison for felony burglary, for which he had previously pled guilty. On April 22, 1994, the INS issued an Order to Show Cause charging Alberto-Gonzalez with being deportable for having committed two crimes of moral turpitude in violation of section 241(a)(2)(A)(ii) of the INA, 8 U.S.C. S 1227(a)(2)(A)(ii). The two crimes listed in the Order to Show Cause were the 1991 conviction for receipt of stolen property and the 1994 conviction for felony burglary.

After a hearing before an Immigration Judge ("IJ"), Alberto-Gonzalez admitted the allegations contained in the Order to Show Cause and requested a waiver of deportation under section 212(c). On May 10, 1996, the IJ denied the waiver. Alberto-Gonzalez appealed to the BIA, claiming that the IJ abused her discretion in denying the waiver. During the pendency of this appeal, IIRIRA and the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (1996), were enacted. The BIA dismissed Alberto-Gonzalez's appeal on March 28, 1997, finding that he was statutorily ineligible for a section 212(c) waiver under section 440(d) of AEDPA.

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Alberto-Gonzalez appeals the BIA's decision. It is clear that the BIA erred in holding that section 212(c) relief was unavailable. In Magana-Pizano v. INS, 200 F.3d 603, 613-14 (9th Cir. 1999), we held that "AEDPA's S 440(d) bar of discretionary relief previously afforded by INA S 212(c) should not apply to aliens whose deportation proceedings were pending when AEDPA became law." Section 212(c) relief is available to Alberto-Gonzalez because AEDPA's effective date is April 24, 1996 and he was placed in deportation proceedings in 1994. Before we can reach the merits, however, we must determine whether we have jurisdiction2.


We have jurisdiction to determine whether we have jurisdiction over the merits of this petition for...

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