Mohammed v. Ashcroft, No. 99-10045

• Decision Date: 16 August 2001
• Docket Number: No. 99-10045
• Parties: (11th Cir. 2001) HAMID B. MOHAMMED, Petitioner, v. JOHN ASHCROFT, U.S. Attorney General, IMMIGRATION AND NATURALIZATION SERVICE, Respondents
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1244

261 F.3d 1244 (11th Cir. 2001)

HAMID B. MOHAMMED, Petitioner, v. JOHN ASHCROFT, U.S. Attorney General, IMMIGRATION AND NATURALIZATION SERVICE, Respondents.

No. 99-10045

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

August 16, 2001

Petition for Review of an order of the Board of Immigration Appeals.

Before ANDERSON, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.

MARCUS, Circuit Judge:

Petitioner Hamid Mohammed seeks review of a decision by the Board of Immigration Appeals ("BIA") of the Immigration and Naturalization Service ("INS") ordering him removed to his native Trinidad. The BIA found in pertinent part that Mohammed, as an "aggravated felon," was not eligible for any discretionary relief from deportation. Mohammed pled guilty in Florida state court in 1996 to two counts of dealing in stolen property. Under a subsequent amendment to the Immigration and Naturalization Act ("INA"), these offenses were classified as aggravated felonies; prior to that amendment, these offenses were not deemed aggravated felonies. Mohammed argues that the Due Process Clause forbids applying the amended definition of aggravated felony in order to deny him an opportunity to seek discretionary relief from removal, because he could have sought such relief at the time of his guilty plea. Having reviewed the record and carefully considered the parties' arguments, we find no Due Process violation, and therefore affirm.

I.

This case arises out of removal (formerly called deportation) proceedings against Mohammed, a Trinidad native who arrived in the United States in 1982 and became a permanent resident alien in 1989. On July 9, 1996, Mohammed pled guilty before a Florida state court to two counts of dealing in stolen property. The two counts related to two separate incidents where Mohammed attempted to pawn stolen goods (two video camcorders and some tools). Both incidents occurred in or about July 1995. Mohammed was sentenced to 18 months imprisonment on each of the two counts against him, with the sentences running concurrently.

On July 29, 1998, the INS began removal proceedings based on Mohammed's convictions. The INS alleged that Mohammed was removable under the terms of the INA for having committed two crimes involving moral turpitude and for having been convicted of an aggravated felony within the meaning of 8 U.S.C. § 1101(43), as amended.¹ On September 16, 1998, Mohammed -- still in prison for the stolen property offenses -- appeared pro se (having waived counsel) at the removal hearing before an Immigration Judge ("IJ"). Mohammed argued that removing him to Trinidad would cause great hardship; among other things, Mohammed pointed out that he had a wife and children in this country, no longer had any family in Trinidad, and had a job as a plumber waiting for him once he was released. It is unclear whether Mohammed actually sought relief under, or even identified, any particular provision of the INA. The IJ ultimately expressed some sympathy for Mohammed's plight. He concluded, however, that because Mohammed had been convicted for an aggravated felony (as defined in the amended INA), the Attorney General was not empowered to grant any relief. The IJ therefore ordered Mohammed removed to Trinidad.

Mohammed appealed that order to the BIA. In a submission dated on or about December 30, 1998, Mohammed reiterated his hardship arguments, and also stated an objection to applying the amended definition of aggravated felony to his case. On or about February 18, 1999, Mohammed submitted a second brief in which he repeated his prior arguments and asserted that he was entitled to a suspension of deportation. Mohammed also asserted that he had been denied Due Process, because he did not fit the statutory definition of aggravated felon either at the time of his misconduct or at the time he entered his guilty plea.

On March 16, 1999, the BIA denied Mohammed's appeal. The Board explained that "[n]otwithstanding the contentions presented on appeal, [Mohammed], as an aggravated felon, is ineligible for any form of relief that is within the power of the Immigration Judge or this Board to grant." The Board also observed that although Mohammed asserted that his plea bargain should not be used against him in these proceedings, "that matter is beyond our jurisdiction to review. The conviction records confirm that [he] has been convicted of an aggravated felony, regardless of the date of conviction."

The sequence of events after that becomes a bit more obscure. On April 1, 1999, Mohammed, still pro se, filed a Petition for Review with this Court. It appears, however, that on or about April 9, 1999, he also filed a motion to reopen or reconsider with the BIA. The BIA denied that motion in an order dated May 10, 1999. The BIA first construed the motion as one to reconsider rather than reopen, because no previously-unavailable evidence had been submitted with it. The Board then said that it saw no error in its earlier decision. The Board also addressed and rejected Mohammed's contention (apparently raised for the first time in the reconsideration motion) that he was entitled to a waiver of deportation under former INA § 212(c). The Board explained that § 212(c) had been repealed and was thus inapplicable to Mohammed, whose "relief, if any, is limited to cancellation of removal under section 240A of the Act." The Board also rejected Mohammed's argument that his convictions were not final for immigration purposes because he had moved in state court to vacate his convictions. Mohammed did not separately Petition for Review of that order.

Meanwhile, this Court, acting upon Mohammed's April 1, 1999 Petition, issued a lengthy set of jurisdictional questions. In orders dated December 1, 1999, we (1) carried the jurisdictional questions with the case and directed the parties to address them in their briefs; (2) granted Mohammed's in forma pauperis request, and (3) appointed counsel for Mohammed for purposes of this appeal. During oral argument, counsel for Mohammed indicated that the Florida courts have denied Mohammed's motion to vacate his convictions, finding that Mohammed was properly advised of the deportation consequences of his guilty plea. Also during oral argument, counsel indicated that Mohammed has now been removed to Trinidad.

II.

Notwithstanding the wide variety of issues mentioned by Mohammed in the course of his pro se Petition for Review, he develops only a single issue in his counseled briefs: "Whether Mohammed was denied due process under the U.S. Constitution by the retroactive application of a revised definition of 'aggravated felony' under immigration law, which attached new legal consequences to his guilty plea by retroactively foreclosing his right to a waiver or cancellation." Pet. at 2. The thrust of Mohammed's argument is that the expanded definition of aggravated felony added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub. L. 104-208, cannot -- consistent with Due Process -- be applied to make him ineligible to pursue discretionary relief from removal. We review de novo this legal challenge to the BIA's decision. See, e.g., Le v. United States Attorney General, 196 F.3d 1352, 1353 (11th Cir. 1999).²

At the time Mohammed pled guilty in July 1996 to the two charges of receiving stolen property in violation of Florida law, the INA's definition of aggravated felony did not encompass that offense. Less than two months later on September 30, 1996, however, Congress in IIRIRA expanded the definition to include "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year." IIRIRA § 321(a)(3), amending 8 U.S.C. § 1101(a)(43)(G). IIRIRA took effect on April 1, 1997. There is no dispute that the crime to which Mohammed pled guilty comes within the amended definition of aggravated felony, but does not come within the pre-IIRIRA definition. There is also no dispute that, under any version of the INA applicable to his case, Mohammed would not be eligible for discretionary relief from deportation if he had been convicted of an aggravated felony.³

Mohammed contends that applying the amended definition of aggravated felony to a conviction that pre-dates IIRIRA's effective date, thereby making him ineligible to seek discretionary relief from removal, violates his rights under the Due Process Clause of the Fifth Amendment. In making this argument, Mohammed relies extensively on the Supreme Court's opinion in Landgraf v. USI Film Products, 511 U.S. 244, 114 S. Ct. 1483 (1994). Technically speaking, however, Landgraf does not purport to lay down rules for deciding when retroactive application of a statute would violate Due Process. Rather, the Supreme Court in that case established principles to be used by courts in evaluating whether, as a matter of statutory analysis, an Act of Congress may be applied retroactively. Although the Court did discuss potential Due Process considerations as one reason to adhere to the general presumption against a statute's retroactivity in the absence of clear Congressional intent to the contrary, see id. at 266, 114 S.Ct. at 1497, the Court did not attempt to define precisely when retroactive application of a statute would violate Due Process. Cf. Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 716-17, 94 S. Ct. 2006, 2019 (1974) (suggesting that applying a law retroactively violates Due Process when it causes manifest injustice). Landgraf, therefore, does not fully address the constitutional objection raised by Mohammed. Nevertheless, in an abundance of caution, we will consider Mohammed's argument under both the statutory analysis set forth in Landgraf as well as under this Court's existing Due Process jurisprudence.

Turning first to the statutory retroactivity analysis, the Supreme Court recently reaffirmed that "[d]espite the dangers inherent in...