Garcia v. Immigration & Naturalization

• Decision Date: 19 January 2001
• Docket Number: No. 99-9540,99-9540
• Parties: (10th Cir. 2001) JOSE G. TAPIA GARCIA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1216

237 F.3d 1216 (10th Cir. 2001)

JOSE G. TAPIA GARCIA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 99-9540

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

January 19, 2001

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS. (INS No. A41 117 848)

Michael A. Walker, Walker & Associates, P.C., Denver, Colorado, appearing for Petitioner.

Marion E. Guyton, Trial Attorney (Richard M. Evans, Assistant Director, with him on the brief), Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, appearing for Respondent.

Before TACHA, Chief Judge, ANDERSON, and BALDOCK, Circuit Judges.

TACHA, Chief Judge.

Petitioner Jose G. Tapia-Garcia appeals a Board of Immigration Appeals' decision affirming an immigration judge's ruling that Petitioner is removable as a result of his conviction for commission of an aggravated felony. After concluding Petitioner is an alien subject to removal for commission of an aggravated felony, we dismiss for lack of jurisdiction under section 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. 1252(a)(2)(C).

I. Factual Background

On August 4, 1998, Petitioner Jose G. Tapia-Garcia, a legal permanent resident of the United States and citizen of Mexico, was convicted in Idaho for driving under the influence (DUI) in violation of section 18-8004(5) of the Idaho Code. Although he received a sentence of five years, Mr. Tapia-Garcia served only two months in prison. The Immigration and Naturalization Service (INS) commenced removal proceedings on January 6, 1999, arguing Mr. Tapia-Garcia be removed pursuant to INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), which provides for removal of an "alien who is convicted of an aggravated felony at any time after admission." The INS alleged that Idaho's DUI offense constitutes a "crime of violence," one of the categories of aggravated felonies contained in the INA's aggravated felony definition. 8 U.S.C. 1101(a)(43)(F). The immigration judge concluded that Mr. Tapia-Garcia's DUI offense satisfies the statutory definition of crime of violence, 18 U.S.C. 16(b), and ordered Mr. Tapia-Garcia removed to Mexico. On October 6, 1999, the Board of Immigration Appeals (BIA) agreed with the immigration judge and dismissed the appeal. Mr. Tapia-Garcia currently resides in Mexico.

II. Justiciability

Under the former INA provisions, as well as the transitional rules, a petitioner had to request a stay of deportation in order to preserve judicial review. INA 106(c), 8 U.S.C. 1105a(c)(1994), as modified by IIRIRA 309(c), Pub. L. No. 104-208, 110 Stat. 3009. In 1996, as part of Congress's effort to expedite the removal process, amendments to the INA deleted the stay requirement, facilitating the prompt deportation of an alien after entry of a removal order. Under the new provisions, however, judicial review is barred only if a petitioner does not exhaust administrative remedies or another court has previously determined the deportation order's validity. 8 U.S.C. 1252(d). Hence, deportation no longer forecloses judicial review. Although current statutory provisions do not bar judicial review, we must nevertheless determine whether Mr. Tapia-Garcia's case continues to present a case or controversy under Article III, section 2, of the Constitution.

The Supreme Court has often described the doctrine of mootness as "'the doctrine of standing set in a time frame.'" Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120 S. Ct. 693, 709 (2000) (quoting Arizonans for Official English v. Ariz., 520 U.S. 43, 68 n.22 (1997)).¹ In order to satisfy Article III's case or controversy requirement, the "parties must continue to have a 'personal stake in the outcome' of the lawsuit." Lewis v. Cont'l. Bank Corp., 494 U.S. 472, 478 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)). Specifically, the party seeking relief "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. at 477. In addition, the Supreme Court has held that, after a petitioner's sentence expires, "some 'collateral consequence' of the conviction must exist if the suit is to be maintained." Spencer v. Kemna, 523 U.S. 1, 7 (1998). Because Mr. Tapia-Garcia is no longer subject to deportation and is not being detained by the INS, his situation is analogous to a prisoner whose sentence has expired. As such, his deportation must have "collateral consequences" in order to present a case or controversy cognizable on appeal.

Because the collateral consequences of Mr. Tapia-Garcia's deportation satisfy the narrowest historical standards, we need not engage in detailed analysis of Supreme Court precedent regarding this issue. See id. at 8-13 (reviewing the history of and rationale underlying the collateral consequences requirement). Historically, the narrowest approach to collateral consequences recognized only "concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses)." Id. at 8. Under the INA's admissibility provisions, Mr. Tapia-Garcia's removal and status as an aggravated felon render him permanently inadmissible unless the Attorney General consents to his reapplying for admission, 8 U.S.C. 1182(a)(9)(A)(ii)-(iii), which is unlikely. His inability to reenter and reside legally in the United States with his family is a collateral consequence of his deportation because it is clearly a concrete disadvantage imposed as a matter of law. See Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (holding inadmissibility is a penalty imposed as a matter of law).

Because he is inadmissible, Mr. Tapia-Garcia is therefore threatened with an actual injury traceable to the INS. Furthermore, a favorable judicial decision would undoubtedly redress the injury: Mr. Tapia-Garcia's status as a legal permanent resident would be restored and he could return to the United States. See Gao v. Jenifer, 185 F.3d 548, 557 (6th Cir. 1999) (holding case not moot because requested relief would allow alien to apply for adjustment of status to that of a legal permanent resident). We therefore hold that this appeal is not moot.

III. Jurisdiction under the INA

A. Statutory Background

The INA's new permanent provisions, enacted in 1996, undoubtedly apply to Mr. Tapia-Garcia's case, but a brief review of all the relevant amendments is necessary to understand our discussion of jurisdiction under the new provisions. On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and on September 30, 1996, enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, amended by the Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656. Through this legislation, Congress amended many provisions of the INA and significantly restricted judicial review of removal orders based on commission of certain crimes. As the Supreme Court has observed, the limitations on judicial review, designed to "protect[] the Executive's discretion from the courts . . . can fairly be said to be the theme of the legislation." Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999).

The two acts produced three provisions governing judicial review of final removal orders based on an alien's commission of certain criminal offenses. Two of these provisions, AEDPA 440(a) and IIRIRA 309(c)(4)(G), are temporary and do not apply to removal proceedings commenced after IIRIRA's effective date, April 1, 1997.² AEDPA 440(a), which applies to petitions for review pending on or after AEDPA's enactment, provides: "Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense [including an aggravated felony] . . . shall not be subject to review by any court."³ In addition, IIRIRA contains transitional rules, which apply to aliens in removal proceedings before IIRIRA's effective date, April 1, 1997, but whose final removal orders are entered more than thirty days after IIRIRA's enactment date, September 30, 1996. IIRIRA 309(c)(4)(G), reprinted in 8 U.S.C. 1101 note. Although the language differs from AEDPA 440(a), IIRIRA's transitional rule also restricts judicial review when an alien is found removable for committing certain criminal offenses. The transitional provision provides: "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 [including an aggravated felony]." IIRIRA 309(c)(4)(G), reprinted in 8 U.S.C. 1101 note.

In addition to the transitional rule, IIRIRA contains a permanent provision governing judicial review of removal orders resulting from removal proceedings commenced after April 1, 1997. 8 U.S.C. 1252(a)(2)(C). This provision provides: "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 committed a criminal offense [including an aggravated felony]." Id. Because Mr. Tapia-Garcia's removal proceedings began after April 1, 1997, the permanent provision clearly applies to his petition for review.

B. Interpreting 8 U.S.C. 1252(a)(2)(C)

The above discussion of the transitional rules is relevant because, although we have not decided the extent of our jurisdictional inquiry under the permanent provision, we have addressed this question under AEDPA 440(a) and IIRIRA 309(c)(4)(G). Berehe v. INS, 114 F.3d 159 (10th Cir. 1997). In Berehe, we held that these transitional provisions foreclose all judicial review, including review of the jurisdictional facts,...