Steele v. J. Scott Blackman

Citation236 F.3d 130
Parties(3rd Cir. 2001) GARY STEELE APPELLANT, V. J. SCOTT BLACKMAN, INS, DISTRICT DIRECTOR FOR PHILADELPHIA DISTRICT NO. 00-3116
Decision Date02 January 2001
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

On Appeal From the United States District Court For the Middle District of Pennsylvania District, (D.C. Civil Action No. 99-cv-01256), Judge: Honorable Thomas I. Vanaskie, Chief Judge

Attorney for Appellant: Sandra L. Greene (Argued) 140 Roosevelt Avenue, Suite 202 York, PA 17404

Attorneys for Appellee: J. Justin Blewitt Office of U.S. Attorney 235 North Washington Avenue William J. Nealon Federal Building Scranton, PA 18501 and Alison Marie Igoe (Argued) John D. Williams Terri J. Scadron U.S. Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, D.C. 20044

Before: McKEE, Rendell and Stapleton, Circuit Judges

OPINION OF THE COURT

Stapleton, Circuit Judge

Gary Steele is a former resident immigrant who has been denied admission into the United States under 8 U.S.C. SS 1182(a)(2)(A)(i)(II) and (a)(2)(C). The District Court found that Steele is not entitled to apply for any waiver of inadmissibility because he is an "aggravated felon." Instrumental to this conclusion was the District Court's determination that one of Steele's prior state misdemeanor convictions constituted a conviction of an aggravated felony under 8 U.S.C. S 1101(a)(43)(B). We will reverse.

I.

Gary Steele is a citizen of Grenada who has been a lawful permanent resident of the United States since 1981. He has resided in New York state and has worked there as an electrician and musician. Steele has two daughters, four sisters, and three brothers, all of whom are United States citizens.

The "rap sheet" submitted to the immigration judge as evidence of Steele's criminal record reflects that Steele has three New York state misdemeanor convictions.1 Steele's rap sheet indicates that in 1991, he was arrested for "Criminal Sale of Marihuana," a class A misdemeanor under New York's Penal Law § 221.40. We note that Penal Law § 220.40 defines "sale" to include "giv[ing] or dispos[ing] of to another" so that one may be convicted of "criminal sale" without evidence of a sale as commonly understood. Steele pled guilty to this offense and was sentenced to probation for three years. In 1993, Steele was again arrested for the same crime. Again, he pled guilty and paid a fine of five hundred dollars. In 1994, Steele was arrested for the "Criminal Possession of Marihuana," a class A misdemeanor under New York Penal Law S 221.05. Steele pled guilty and was sentenced to community service. Steele served no time in jail for any of these offenses.

On February 12, 1998, Steele traveled to Grenada to attend the funeral of his mother. He remained in Grenada for one week and then returned to the United States. Upon arrival, Steele was questioned by an Immigration and Naturalization Service ("INS") officer who asked if Steele was a Rastafarian2 and if he used marijuana. Steele denied currently using marijuana but admitted that he was arrested three times for marijuana-related misdemeanors. Following the interview, the INS took Steele into custody and served him with a formal charging document.

Steele was charged with inadmissibility into the United States under both 8 U.S.C. § 1182(a)(2)(A)(i)(II), which makes inadmissible any alien who has been convicted of "a violation of... any law... of a State... relating to a controlled substance," and 8 U.S.C. § 1182(a)(2)(C), which makes inadmissible any alien who "has been an illicit trafficker in any controlled substance." At a hearing held on April 16, 1998, an immigration judge sustained the charges against Steele and ordered Steele removed to Grenada. The immigration judge also concluded that because Steele had committed an aggravated felony, he was barred by statute from any discretionary relief from inadmissibility, despite the fact that all of Steele's convictions constituted misdemeanors under New York state law.

Steele appealed to the Board of Immigration Appeals ("BIA"), asserting that he had not committed an aggravated felony and had a right to apply for a waiver and relief from deportation under 8 U.S.C. S 1182(c), 8 U.S.C. § 1182(h), and 8 U.S.C. § 1229b(a). Over a year later, on May 7, 1999, Steele's appeal was dismissed by the BIA. The BIA affirmed the judgment of the immigration judge that Steele was inadmissible and barred from any discretionary relief because he had committed an aggravated felony as defined in 8 U.S.C. § 1101(a)(43).

On July 6, 1999, Steele filed a petition for habeas corpus with the United States District Court for the Middle District of Pennsylvania. Steele argued, inter alia, that the BIA erred in determining that his misdemeanor drug convictions amounted to an "aggravated felony." The District Court determined that Steele failed to establish any legal error.

Steele filed a timely notice of appeal to this Court and was then deported to Grenada, pursuant to 8 C.F.R. § 241.33 (2000) (authorizing the execution of a deportation order once it becomes final).

II.

The District Court correctly concluded that it had jurisdiction under 28 U.S.C. § 2241, despite the judicial review limiting provisions of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (collectively "the 1996 Amendments"). We held in Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), that the 1996 Amendments did not foreclose district courts from hearing petitions for habeas corpus following removal orders where the petitioner has been convicted of an aggravated felony. See Sandoval, 166 F.3d at 235 ("ADEPA § 440(a) and IIRIRA § 309(c)(4)(G) are most reasonably understood as foreclosing judicial review under the APA, and not as relating to habeas jurisdiction under 28 U.S.C. § 2241."). We based our decision in Sandoval on a line of Supreme Court precedent extending back to Ex parte McCardle, 74 U.S. 506 (1868), concluding that these cases "establish the propositions that courts should not lightly presume that a congressional enactment containing general language effects a repeal of a jurisdictional statute and, consequently, that only a plain statement of congressional intent to remove a particular statutory grant of jurisdiction will suffice." Sandoval, 166 F.3d at 232.

Steele's removal was administered under the permanent provisions of IIRIRA, which differ in some respects from the transitional provisions analyzed in Sandoval. Section 1252 of Title 8 of the United States Code, as amended by IIRIRA, might be construed to divest district courts of jurisdiction to hear habeas corpus petitions where a petitioner has been convicted of an aggravated felony offense. See 8 U.S.C. § 1252(a)(1), (a)(2)(C), (b)(9). We recently considered this possibility, however, and, in accordance with our reasoning in Sandoval, determined that IIRIRA's permanent provisions do not preclude district courts from exercising their jurisdiction to hear petitions for habeas corpus following removal orders where the petitioner has been convicted of an aggravated felony. Liang v. INS, 206 F.3d 308 (3d Cir. 2000). The District Court properly exercised jurisdiction in accordance with our decision in Liang.

We possess appellate jurisdiction over the District Court's denial of Steele's habeas corpus petition pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo the District Court's denial of habeas corpus relief and its interpretation of the applicable statutes. See Anker Energy Corp. v. Consol. Coal Co., 177 F.3d 161, 169 (3d Cir. 1999); DeSousa v. Reno, 190 F.3d 175, 180 (3d Cir. 1999); Yang v. Maugans, 68 F.3d 1540, 1546 (3d Cir. 1995). We review the BIA's interpretation of the statutes which it administers under a more deferential standard. On review, if a statute administered by the INS is ambiguous, and the BIA has provided a reasonable interpretation of its language, we must simply ask whether the BIA's construction is a permissible one. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Where the language of a statute is clear, however, the text of the statute is the end of the matter. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993).

III.

Before turning to the principal and dispositive issue in this appeal, we must address a threshold issue concerning the relevant sections of the Immigration Act. Steele seeks relief from removal under 8 U.S.C. § 1182(c), 8 U.S.C. § 1182(h), and 8 U.S.C. § 1229b(a). We conclude that relief under 8 U.S.C. § 1182(c) and 8 U.S.C. § 1182(h) is clearly foreclosed. Only relief under 8 U.S.C. § 1229b(a) is available.

Section 1182(c) of Title 8 provides that waivers of inadmissibility might be granted to certain immigrants who traveled abroad for brief periods of time. Section 1182(c) was repealed by section 309(c) of IIRIRA, effective April 1, 1997, but by its terms is still applicable to certain removal proceedings initiated before its effective date. IIRIRA § 309(a). Because Steele's removal was initiated after April 1, 1997, section 1182(c) is not an available avenue of relief for Steele.

Steele argues that section 1182(c) must remain available in his case because its unavailability would constitute a retroactive application of the permanent provisions of IIRIRA to a conviction that preceded the Act and this result was not intended by Congress. We find Steele's argument foreclosed by our opinion in DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999). In DeSousa, the petitioner was a citizen of Portugal who had been a lawful permanent resident of the United States since 1969. The petitioner had served four and one-half years in prison on an aggravated assault charge. DeSousa claimed that IIRIRA's amendm...

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