Alwan v. Ashcroft

• Decision Date: 18 October 2004
• Docket Number: No. 03-60451.,03-60451.
• Citation: 388 F.3d 507
• Parties: Shareef Ahmad ALWAN, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

388 F.3d 507

Shareef Ahmad ALWAN, Petitioner, v. John ASHCROFT, U.S. Attorney General, Respondent.

No. 03-60451.

United States Court of Appeals, Fifth Circuit.

October 18, 2004.

Stanley J. Horn, Azulay, Horn, Khalaf & Yoo, Chicago, IL, for Petitioner.

Douglas Ginsburg, Christopher Cyrus Fuller, U.S. Dept. of Justice, Civ. Div. Immigration Litigation, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Office of Immigration Litigation, John Ashcroft, U.S. Dept. of Justice, Washington, DC, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

Petition for Review from the Board of Immigration Appeals, Executive Office of Immigration Review.

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Shareef Alwan is a national of the Occupied Palestinian Territories who, until his deportation in 2003, resided in the United States. He was convicted of contempt of court in violation of 18 U.S.C. § 401(3) for failure to testify as ordered before a federal grand jury. As a result, in April 2002, the Immigration and Naturalization Service ("INS") charged Alwan as deportable under the Immigration and Nationality Act ("INA"), which permits deportation of any alien convicted of an "aggravated felony". 8 U.S.C. § 1227(a)(2)(A)(iii). An Immigration Judge held that Alwan's conviction of criminal contempt does constitute an "aggravated felony" and ordered him deported. Alwan appealed to the Board of Immigration Appeals ("BIA"), which affirmed the Immigration Judge's decision without opinion. Alwan now petitions this court, pursuant to its authority under 8 U.S.C. § 1252, to review the BIA's final order of removal. He contends, inter alia, that he is not an alien and that the crime of contempt of court is not an "aggravated felony". We do not agree and thus conclude that § 1252 expressly denies the appellate court jurisdiction to review the order. The petition for review is, therefore, DISMISSED.

I

Shareef Alwan was born in Jordan and is currently a national of the West Bank, one of the areas commonly known as the Occupied Palestinian Territories. His parents became United States citizens in 1980, while Alwan still resided in the West Bank. In 1989, at the age of 20, Alwan entered the United States as a legal permanent resident. Alwan claims that, since his entry, he has taken steps to affirm his allegiance to the United States, including registering with the Selective Service, taking an oath of allegiance, and applying for derivative citizenship on his parents' applications for naturalization.

In 1995, while in Israel seeking to meet and wed a Palestinian woman, Alwan was arrested by Israeli authorities. Alwan claims that, while in Israeli custody, he was tortured until he signed a confession admitting that he had been recruited in Chicago in 1990 by the terrorist organization HAMAS and subsequently trained in the use of firearms and explosives. After confessing, Alwan was charged with a lesser offense, pled guilty, and served approximately eighteen months before being released in June 1997. Before returning to the United States, Alwan met and married a Palestinian woman. She became pregnant soon after, and Alwan decided to remain in the West Bank until the child was born. In March 1998, Alwan returned to the United States alone.

Upon his return, Alwan was subpoenaed to testify before a special grand jury investigating criminal activities of HAMAS in the Chicago area. Though he answered background questions, he exercised his Fifth Amendment privilege and refused to answer questions about allegations of money laundering between the Middle East and the United States. In January 1999, Alwan returned to the West Bank to visit his family. He acknowledges that, during this visit, he "was not arrested or harmed by the Israeli military".

In July 1999, after his return to the United States, Alwan was again subpoenaed and appeared before a second special grand jury, also investigating HAMAS activities in Chicago. The district judge granted Alwan immunity from prosecution and informed him that he would be charged with contempt of court if he did not testify. Alwan nonetheless refused to do so, claiming that the immunity he had been granted would not protect him from retaliation during future visits to his family in Israel. As a result, Alwan was convicted of criminal contempt in violation of 18 U.S.C. § 401(3). This conviction, in turn, led the INS to begin deportation proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii), which permits deportation of any alien convicted of an aggravated felony. In August 2003, after an unsuccessful appeal to the BIA, Alwan was deported to the West Bank.

II

We review factual findings by the BIA to determine whether they are supported by substantial evidence. Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir.2002). A slightly more complex question is what standard we are to apply in reviewing legal conclusions of the BIA.

The BIA's determinations as to purely legal questions are reviewed de novo. Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir.2002). As to questions of statutory interpretation, however, we owe substantial deference to an agency's construction of a statute that it administers. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). An exception to the general rule of Chevron arises, however, where Congress, by the terms of the statute itself, instructs the courts to apply a less deferential standard of review as to a particular issue of statutory interpretation. In this case, Alwan challenges two discrete aspects of the BIA's interpretation of the INA: one to which this exception applies, and one to which we owe Chevron deference.

Alwan challenges the BIA's characterization of him as an "alien", claiming that he is instead a "national" of the United States. If he is a national, he is not deportable. In the context of an order of removal, the INA explicitly places the determination of nationality claims in the hands of the courts. See Hughes v. Ashcroft, 255 F.3d 752, 758 (9th Cir.2001). The INA provides, in pertinent part, that where "the petitioner claims to be a national of the United States and the court of appeals finds ... that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim."¹ 8 U.S.C. § 1252(b)(5)(A). The statute further provides that "the petitioner may have such nationality claim decided only as provided in this paragraph." 8 U.S.C. § 1252(b)(5)(C). Thus, based on the plain language of the INA, we conclude that Alwan's nationality claim is a purely legal question that Congress has not consigned to the discretion of the BIA. As such, we review it de novo.

Secondly, Alwan contends that, even if he is an alien, his crime of contempt of court does not constitute an "aggravated felony" within the meaning of § 1227(a)(2)(A)(iii). Unlike the question of national status, interpretation of the term "aggravated felony" has not been designated by Congress as a matter to be ultimately resolved by the courts. Thus, we are obliged to accord the BIA Chevron deference as it gives the term "concrete meaning through a process of case-by-case adjudication." I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (quoting I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Accordingly, we review the BIA's conclusion that Alwan's crime is an "aggravated felony" only to determine whether it represents a "permissible construction" of the language of the INA. Aguirre-Aguirre, 526 U.S. at 424, 119 S.Ct. 1439.

A

As a preliminary matter, the Government contends that this case is not properly before us because Alwan's deportation in August 2003 has rendered the matter moot. We do not agree.

Under Article III, § 2, of the Constitution, federal courts may adjudicate only "actual, ongoing cases or controversies". Deakins v. Monaghan, 484 U.S. 193, 199, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988). The case or controversy requirement "subsists through all stages of federal judicial proceedings" and requires that the parties "continue to have a personal stake in the outcome of the lawsuit". Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). In instances where a litigant's primary stake in the outcome becomes moot—typically in habeas cases where the petitioner is released while the case is still pending—federal courts will allow the suit to proceed only where some "collateral consequence" of the litigation's outcome persists. See, e.g., Spencer, 523 U.S. at 8, 118 S.Ct. 978.

It is true that Alwan lost his primary personal stake in this litigation when he was deported in August 2003. An important collateral consequence of our decision in this case, however, is whether Alwan will be permanently inadmissible to the United States under 8 U.S.C. § 1182(a)(9)(A)(i)-(ii), which bars re-entry of aliens removed for conviction of an aggravated felony.

The Government insists that this collateral consequence of our decision is not sufficient to prevent a finding of mootness. This argument runs contrary to our decision in Umanzor v. Lambert, where we held that a five-year period of inadmissibility following deportation represented a stake in the outcome of the case sufficient to avoid mootness under Article III. 782 F.2d 1299, 1301 (5th Cir.1986). The Government attempts to evade the implications of Umanzor by arguing that the Supreme Court, in Spencer, "eliminated any presumption" of collateral consequences, requiring instead that the litigant show "concrete disadvantages or disabilities" in order to satisfy the case or controversy requirement. See 523 U.S. at 13-14, 118 S.Ct. 978.

Even if the Government's reading of ...