322 F.3d 804 (5th Cir. 2002), 01-60364, Renteria-Gonzalez v. I.N.S.

Docket Nº:01-60364.
Citation:322 F.3d 804
Case Date:November 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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322 F.3d 804 (5th Cir. 2002)

Ricardo RENTERIA-GONZALEZ, Petitioner,



No. 01-60364.

United States Court of Appeals, Fifth Circuit

November 11, 2002

As Amended on Denial of Rehearing En Banc Feb. 27, 2003.

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John Wheat Gibson (argued), Dallas, TX, for Petitioner.

Andrew Cunningham MacLachlan, U.S. Dept. of Justice, Immigration Litigation, Washington, DC, John Ashcroft, U.S. Dept. of Justice, Civil Div.-Appellate Staff, Washington, DC, Anne M. Estrada, U.S. I.N.S., Dallas, TX, Thomas Ward Hussey, Director, Emily Anne Radford, Assistant Director, Brenda Elaine Ellison, Ernesto Horacio Molina, Joshua E. Braunstein (argued), U.S. Dept. of Justice, Civil Division Immigration Litigation, Washington, DC, Caryl G. Thompson, U.S. I.N.S., New Orleans, LA, for Respondents.

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

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Before SMITH and BENAVIDES, Circuit Judges, and FITZWATER, [*] District Judge.

JERRY E. SMITH, Circuit Judge:

The Immigration and Naturalization Service ("INS") and Ricardo Renteria-Gonzalez have wrangled for over a decade. Now that they finally have reached this court, their case provides yet another opportunity to interpret the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). 1 In particular, the case presents a complicated interpretive question involving the definition, criminal alien removal, and jurisdictional sections of IIRIRA.

Although Renteria-Gonzalez has an "aggravated felony" conviction under the IIRIRA definition, his conviction did not qualify as an "aggravated felony" under pre-IIRIRA immigration law. IIRIRA therefore does not deprive this court of jurisdiction over the petition for review. Exercising that jurisdiction, we deny the petition for review under the substantial evidence standard.


Renteria-Gonzalez, a citizen of Mexico, obtained temporary resident status in the United States in 1987. In 1989, he pleaded guilty of transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324(a) (1) and 18 U.S.C. § 2. The district court sentenced him to six months' confinement and three years' supervised release. The court also issued a "judicial recommendation against deportation" ("JRAD") under 8 U.S.C. § 1251(b) (1988) (repealed by the Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat. 4978, 5050 (1990)). 2

Notwithstanding the JRAD, the INS began deportation proceedings in August 1990 by issuing an order to show cause based on Renteria-Gonzalez's unlawful entry into the United States on the occasion when he transported the illegal aliens. The INS presumably used this allegation to avoid the JRAD on the transporting conviction. Yet, the INS had not terminated Renteria-Gonzalez's temporary resident status either when he entered the United States with the illegal aliens or when the agency issued the order to show cause.

Thus, the INS voluntarily dismissed the order to show cause in August 1991. But in September 1991, the agency sent Renteria-Gonzalez a notice of intent to terminate his temporary resident status, then terminated his status in November 1991.

Renteria-Gonzalez sought two avenues of relief from the attempts to deport him. First, he appealed the termination of his temporary resident status to the INS's Legalization Appeals Unit ("LAU"), which affirmed the termination of his temporary resident status in July 1992. Second, he petitioned the district court to vacate his conviction.

In February 1992, a magistrate judge recommended that the district court vacate Renteria-Gonzalez's conviction under the All Writs Act, 28 U.S.C. § 1651. The district court adopted the recommendation and vacated his conviction in October 1992 (the "Order to Vacate"). The government

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immediately moved the court to reconsider the Order to Vacate, but the court denied the motion. The government did not appeal the Order to Vacate.

The INS began deportation proceedings anew in January 1994 by issuing another order to show cause, this time basing the order not only on Renteria-Gonzalez's alleged unlawful entry and presence, but also on his alien smuggling activities. 3 The immigration judge ("IJ") held extensive hearings on the order at which Renteria-Gonzalez, INS Border Patrol Agent Lane Horger, and Antonio Bautista-Garcia, Renteria-Gonzalez's accomplice, testified.

The IJ's decision ultimately turned on one factual dispute: Horger testified that the illegal aliens had told him that Renteria-Gonzalez and Bautista-Garcia had picked them up in Mexico for $150 to $250 per alien, whereas Renteria-Gonzalez and Bautista-Garcia testified that they picked up the illegal aliens at a rest stop in the United States without knowledge of their alien status. Based on internal inconsistencies in the testimony of Renteria-Gonzalez and Bautista-Garcia and other circumstantial evidence, the IJ credited Horger's testimony and held that Renteria-Gonzalez was deportable.

Renteria-Gonzalez timely appealed to the Board of Immigration Appeals ("BIA"), arguing that he had not received a fair hearing because the INS had made no effort to obtain the presence of the illegal aliens he transported, and the IJ had not let him test Horger's knowledge of Spanish on cross-examination. Renteria-Gonzalez also argued that the IJ and BIA lacked jurisdiction because the INS had not properly terminated his temporary resident status before instituting deportation proceedings. After an inexplicable delay of nearly seven years, the BIA in April 2001 finally dismissed Renteria-Gonzalez's appeal and approved a final order of removal. Renteria-Gonzalez petitions for review of the BIA's decision.


IIRIRA is a difficult statute. It consumes over a quarter of a 750-page omnibus law. It amends the Immigration and Nationality Act ("INA") in dozens of important but technical ways. Most importantly for this case, IIRIRA dramatically restricts judicial review of final orders of removal.

Because IIRIRA is complicated, and its jurisdictional sections especially so, we first examine the relevant sections and the INS's seemingly well-crafted argument against jurisdiction. We then explain why Renteria-Gonzalez's conviction of transporting illegal aliens within the United States was not an "aggravated felony" conviction under pre-IIRIRA immigration law that, in the case of an "aggravated felony," would strip this court of jurisdiction to review a petition for review.


IIRIRA has a transitional rule and a permanent rule for judicial review of a final order of removal. The transitional rule appears only in IIRIRA § 309(c) (4) (G), not in the United States Code. The permanent rule appears as 8 U.S.C. § 1252(a) (2) (C). The transitional and permanent rules are nearly identical. The transitional rule states that

there shall be no appeal permitted in the case of an alien who is inadmissible or

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deportable by reason of having committed a criminal offense covered in section 212(a) (2) or section 241(a) (2) (A) (iii), (B), (C), or (D) of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act), or any offense covered by section 241(a) (2) (A) (ii) of such Act (as in effect on such date) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 241(a) (2) (A) (i) of such Act (as so in effect).

IIRIRA § 309(c) (4) (G).

Aside from syntactical differences, the permanent rule is identical, except that it omits the three parentheticals. See 8 U.S.C. § 1252(a) (2) (C). As we explain, infra part II.B.2, these parentheticals make all the difference in this case.

The transitional rule governs Renteria-Gonzalez's case. It applies to any alien "whose deportation proceedings commence before IIRIRA's general effective date of April 1, 1997, and conclude more than thirty days after its passage on September 30, 1996." Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1998); IIRIRA § 309(c) (1), (4). Renteria-Gonzalez's proceedings began in January 1994 and concluded in April 2001.

The transitional rule (like the permanent rule) withdraws jurisdiction from the federal courts to review a final order of removal against an alien who is removable by reason of having committed one of several criminal offenses, one of which is an "aggravated felony." 8 U.S.C. § 1227(a) (2) (A) (iii) (cross referenced in IIRIRA § 309(c) (4) (G)). The INA now defines (but once did not) the term "aggravated felony," and in great detail. 8 U.S.C. § 1101(a) (43). Among the crimes included is transporting an illegal alien in violation of § 1324(a) (1) (A) or (2), the crime of which Renteria-Gonzalez pleaded guilty. 8 U.S.C. § 1101(a) (43) (N); Ruiz-Romero v. Reno, 205 F.3d 837 (5th Cir. 2000).

Furthermore, the transitional rule (again, like the permanent rule) applies to a petition for review, even if the basis for the final order of removal is not the jurisdiction-stripping criminal offense. The transitional rule applies to aliens "deportable by reason of having committed" an aggravated felony. This language does not require that the alien in fact be deported for having committed an aggravated felony, but only that he could be deported, i.e., is deportable, by reason of having committed an aggravated felony. "What the INS originally charged is of no consequence; so long as the alien in fact is removable for committing an aggravated felony, this court has no jurisdiction, irrespective of whether the INS originally sought removal for that reason." Lopez-Elias...

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