Moore v. Ashcroft, No. 00-10068

Decision Date14 May 2001
Docket NumberNo. 00-10068
Citation251 F.3d 919
Parties(11th Cir. 2001) Lorna Karen Marcella MOORE, Petitioner, v. John ASHCROFT, Attorney General of the United States, Office of Immigration and Naturalization Service, Respondents.
CourtU.S. Court of Appeals — Eleventh Circuit

[Copyrighted Material Omitted] Petition for Review of an Order of the Board of Immigration Appeals.

Before EDMONDSON, FAY and NEWMAN*, Circuit Judges.

FAY, Circuit Judge:

I. Introduction

Lorna Karen Marcella Moore ("Petitioner") seeks review of a decision by the Board of Immigration Appeals ("BIA") that she is an aggravated felon subject to removal from the United States. Petitioner raises two issues. First, she argues that her conviction for misapplication of auction drafts by a bank employee in violation of 18 U.S.C. § 656 is not an aggravated felony as defined in § 101(a)(43)(M)(i) of the Immigration and Nationality Act ("INA") because it is not a crime inherently involving fraud or deceit. See 8 U.S.C. § 1101(a)(43)(M)(i). Second, she argues that INA § 212(h) violates the equal protection guarantee of the Due Process Clause of the Fifth Amendment by allowing discretionary relief from removal for illegal immigrants convicted of aggravated felonies while denying the same relief to lawful permanent resident aliens convicted of the same offenses. See 8 U.S.C. § 1182(h).

We review the BIA's statutory interpretation of the INA de novo, but will defer to the BIA's interpretation if it is reasonable. Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir.2000); Le v. U.S. Attorney General, 196 F.3d 1352, 1353-54 (11th Cir.1999). Because of Congress' plenary power over aliens, we review federal classifications such as the one at issue in § 212(h) under a rational basis standard of review. Yeung v. INS, 76 F.3d 337, 339 (11th Cir.1995). After reviewing the briefs and the record on appeal, we conclude that Petitioner's Petition for Review should be dismissed.

II. Factual and Procedural History

Petitioner, a native of Northern Ireland and citizen of the United Kingdom, was admitted to the United States in 1979 as a lawful permanent resident alien. On March 13, 1996, Petitioner was convicted of misapplication of auction drafts by a bank employee under 18 U.S.C. § 656.1 She was sentenced to five years of probation and ordered to pay $210,000 in restitution to Barnett Bank. Subsequently, the Immigration and Naturalization Service ("INS") served Petitioner with a notice to appear charging that she was subject to removal as an aggravated felon pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).2 The Immigration Judge found that Petitioner was removable as an aggravated felon and denied her application for withholding of removal. On December 13, 1999, the BIA affirmed the Immigration Judge's decision.

Petitioner subsequently filed a petition for review in this Court, and on March 9, 2000, she filed a Motion for Stay of Deportation. The Government opposed the Motion to Stay and filed a Motion to Dismiss Petition for Review. On March 20, 2000, we denied Petitioner's Motion for Stay of Deportation and ruled that the Government's Motion to Dismiss be carried with this case. Petitioner was removed to the United Kingdom on April 5, 2000.

III. Discussion

A. Mootness

As an initial matter, we conclude that Petitioner's removal from the United States does not render her case moot.3 Because Petitioner's removal proceedings commenced after the April 1, 1997 effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IRRIRA"), this case is governed by IIRIRA's permanent rules, INA § 242, codified at 8 U.S.C. § 1252 (Supp. II 1996).4 Galindo-Del Valle v. Attorney General, 213 F.3d 594, 596 (11th Cir.2000), petition for cert. filed, 69 U.S.L.W. 3175 (U.S. Aug. 23, 2000)(No. 00-362). Under the former provisions of the INA, as well as the transitional rules, judicial review was statutorily barred for aliens who had been deported from the United States or who voluntarily departed pending review of the removal order. Tapia Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir.2001); INA § 106(c), 8 U.S.C. § 1105a(c), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009. Noticeably absent from the permanent rules, however, is any similar language removing federal review jurisdiction in the event an alien departs or is removed. See INA § 242, 8 U.S.C. § 1252. Based on the clear change in the statutory language, one other circuit has held that an alien's deportation or departure from this country no longer forecloses judicial review of removal orders. Tapia Garcia, 237 F.3d at 1217-18.

We further conclude that there continues to exist a live case or controversy under Article III, section 2 of the United States Constitution. Under Article III, Petitioner must continue to have a personal stake in the outcome of the lawsuit. Lewis v. Continental Bank Corp., 494 U.S. 472, 478, 110 S.Ct. 1249, 1254, 108 L.Ed.2d 400 (1990). Specifically, she must have suffered or be threatened with actual injury traceable to the INS that would be redressed by a favorable judicial decision. Id. at 477, 110 S.Ct. at 1253. Under the INA's admissibility provisions, Petitioner's removal and status as an aggravated felon prevents her from being admitted to the United States for twenty years absent consent to apply for readmission from the Attorney General. See 8 U.S.C. § 1182(a)(9)(A)(ii)-(iii). We believe that this constitutes an injury traceable to the INS, and that such injury would be redressed by a favorable ruling from this Court to the effect that Petitioner was not an aggravated felon or that she was denied equal protection under the law.

B. Jurisdiction

Under INA § 242(a)(2)(C), our jurisdiction to review final orders of removal is very limited. See 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996).5 Section 242(a)(2)(C) provides in pertinent part:

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 [certain enumerated criminal offenses].

We have held that under the plain language of INA § 242(a)(2)(C), a court is permitted to review only the threshold issues of whether Petitioner is (1) an alien; (2) who is removable; (3) based on having committed a disqualifying offense. Galindo-Del Valle, 213 F.3d at 598; Lettman, 207 F.3d at 1370. If these three conditions are satisfied, our jurisdiction over the petition for review of the final order of removal disappears. Id.

Petitioner does not dispute that she is an alien or that she was convicted under 18 U.S.C. § 656 for misapplication of bank funds. Accordingly, the only question before us is whether Petitioner's conviction constitutes an aggravated felony.6 A conviction is an aggravated felony for immigration purposes if the offense involves "fraud or deceit in which the loss to the victim or victims exceeds $10,000." INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i). Petitioner does not dispute that the loss to the victim in her case exceeded $10,000.7 Rather, she argues that her conviction for misapplication of bank funds should not be considered an aggravated felony because it does not inherently involve fraud or deceit. We disagree.

We have previously held that to establish the offense of misapplication of bank funds under 18 U.S.C. § 656, the government must prove as an element of the offense that the accused "acted with intent to injure or defraud the bank." United States v. Morales, 978 F.2d 650,652-53 (11th Cir.1992)(citing United States v. Farrell, 609 F.2d 816, 818 (5th Cir.1980)). The "intent to injure or defraud" element of the offense is established by proof that the defendant knowingly participated in a deceptive or fraudulent transaction. Morales, 978 F.2d at 652-53; United States v. Blanco, 920 F.2d 844, 845 (11th Cir.1991)(stating that in order to convict a defendant under 18 U.S.C. § 656, jury must find that the defendant knowingly participated in a deceptive or fraudulent transaction). As such, we believe that the crime of misapplication of bank funds under 18 U.S.C. § 656 necessarily involves fraud or deceit and is appropriately considered an aggravated felony under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43) (M)(i).

Because we conclude that Petitioner is an alien removable by reason of having committed an aggravated felony, INA § 242(a)(2)(C) strips us of jurisdiction to review her final order of removal. Galindo-Del Valle, 213 F.3d at 598. This conclusion, however, does not necessarily mandate dismissal of the petition because we still have jurisdiction under INA § 242(a)(2)(B) & (C) to evaluate substantial constitutional challenges to the INA. Id. (citing Richardson v. Reno, 180 F.3d 1311, 1316, n. 5 (11th Cir.1999))(noting that INA § 242(a)(2)(C) does not deprive the court of jurisdiction to hear constitutional challenges to the statute itself and other substantial constitutional issues).

Petitioner contends that even if she is removable as an aggravated felon, INA § 212(h), 8 U.S.C. § 1182(h) is unconstitutional as applied to her because it violates the equal protection component of the Due Process Clause of the Fifth Amendment to the United States Constitution. INA § 212(h) provides that the Attorney General has the discretion to waive certain grounds of inadmissibility and therefore grant relief from deportation:

in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien ...

8 U.S.C. § 1182(h)(1)(B).

Petitioner contends that she should be eligible for the § 212(h) discretionary waiver...

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