246 F.3d 1267 (9th Cir. 2001), 99-70096, Aguilar v. Immigration & Naturalization Serv.

Docket Nº:99-70096
Citation:246 F.3d 1267
Case Date:April 23, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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246 F.3d 1267 (9th Cir. 2001)




No. 99-70096

United States Court of Appeals, Ninth Circuit

April 23, 2001

Argued and Submitted Oct. 11, 2000

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Victor D. Nieblas Pradis, Los Angeles, California, for the petitioner.

Steven J. Kim, United States Department of Justice, Washington, D.C., for the respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. I & NS No. A74-805-793.

Before: Betty B. Fletcher, Sidney R. Thomas and Kim McLane Wardlaw, Circuit Judges.

THOMAS, Circuit Judge:

We consider in this appeal the scope of our review of due process claims under section 309(c)(4)(E) of the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). In this case, because Torres-Aguilar has failed to allege a colorable due process claim, we dismiss his petition for review for lack of jurisdiction.


J. Jesus Torres-Aguilar is a native and citizen of Mexico who first entered the

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United States without inspection in 1980. He has a wife and four children who reside in Mexico. From 1980-1989, Torres-Aguilar was self-employed, tuning up cars and doing yard work. In 1989 he was refused amnesty, in part because he had no proof of past employment, so he began working as a data processor in order to create an employment history.

He worked and paid taxes for several years under an assumed name, "Vicente Garcia." While thus employed, he also sent his family about $ 500 each month. In 1995, he ceased all regular work, and since that time has been unable to send his family monthly support.

The Immigration and Naturalization Service served Torres-Aguilar with an Order to Show Cause why he was not deportable on January 24, 1996. In August of that year, before an immigration judge, Torres-Aguilar conceded deportability and requested suspension of deportation under § 244(a)(1) of the Immigration and Nationality Act ("INA"), and, in the alternative, voluntary departure. On January 31, 1997, after a hearing, the immigration judge denied Torres-Aguilar's request for suspension of deportation, finding that Torres-Aguilar had failed to make the requisite showing that deportation would cause him extreme hardship. INA § 244(a)(1), codified at 8 U.S.C. § 1254(a)(1) (now repealed). On December 31, 1998, the Board of Immigration Appeals ("BIA") affirmed the immigration judge's finding, after conducting a de novo review. Torres-Aguilar timely petitioned for review by this court.


This case is governed by IIRIRA's transitional rules. Among other changes, IIRIRA reduced the role and nature of judicial review in immigration proceedings. Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997) ("IIRIRA's replacement section for judicial review ... purports to vest the BIA with final appellate jurisdiction for most INS deportation proceedings."). As of April 1, 1997, § 306(b) of IIRIRA repealed § 106 of the INA, and replaced it with the judicial review provisions in amended INA § 242, now codified at 8 U.S.C. § 1252.

All cases initiated on or after April 1, 1997, are governed solely by INA's permanent, § 242, provisions. Kalaw, 133 F.3d at 1150; INA § 242. In general, for deportation proceedings initiated prior to April 1, 1997, old INA § 106 applies. However, for cases initiated prior to April 1, 1997 where the final order of deportation is filed after October 30, 1996 (thirty days after IIRIRA was signed into law), IIRIRA's "transitional rules of judicial review" apply. See Kalaw, 133 F.3d at 1150; § 309(c)(4). A deportation order becomes final, inter alia, as of the date the BIA renders a decision on appeal from an immigration judge. 8 C.F.R. § 241.31. Because deportation proceedings were initiated against Torres-Aguilar on January 24, 1996, and since a final order of deportation was issued on December 21, 1998, the transitional rules apply to Torres-Aguilar's case.

Torres-Aguilar contends that the transitional rules do not apply to his case because his petition was filed on January 24, 1996, thereby bringing him within the "transition window" described in Kalaw. Torres-Aguilar interprets the metaphor to mean that the transitional rules apply only to cases where the final order of deportation is filed between the two boundary dates. This is plainly incorrect: the transitional rules govern cases initiated prior to April 1, 1997 where the final order of deportation is filed after October 30, 1996. Thus, § 309(c)(4)(E) applies to this case.

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Although IIRIRA has imposed jurisdictional limits on judicial review, courts retain jurisdiction "to determine whether jurisdiction exists." Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000). Under pre-IIRIRA law, namely old INA § 106, courts of appeals reviewed BIA decisions not to suspend deportation for abuse of discretion. See, e.g., Ordonez v. INS, 137 F.3d 1120 (9th Cir. 1998). However, IIRIRA § 309(c)(4)(E) limited judicial review...

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