Aragon Ayon v. INS

• Decision Date: 10 June 1999
• Docket Number: No. 98-70462,ARAGON-AYO,N,P,98-70462
• Citation: 206 F.3d 847
• Parties: (9th Cir. 2000) ALFONSOetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. JUAN TAFOLLA RAMIREZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. o. 98-70590
• Court: U.S. Court of Appeals — Ninth Circuit

Page 847

206 F.3d 847 (9th Cir. 2000)

ALFONSO ARAGON-AYON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

JUAN TAFOLLA RAMIREZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70462, No. 98-70590

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted June 10, 1999¹

Submission vacated and deferred June 14, 1999

Resubmitted March 6, 2000

Filed March 13, 2000

COUNSEL : Miles A. Yanick, Graham & James LLP/Riddell, Williams P.S., Seattle, Washington, for the petitioners.

John C. Cunningham, United States Department of Justice, Washington, D.C., for the respondent.

Petitions for Review of Decisions of the Immigration and Naturalization Service

Before: Donald P. Lay,² Alfred T. Goodwin and M. Margaret McKeown, Circuit Judges.

GOODWIN, Circuit Judge:

Two deportation orders affirmed by the BIA are challenged in these petitions. Because most of the questions raised were before the court in Magana-Pizano v. INS, 200F.3d 603 (9th Cir. 1999), our decision has been held until the decision in Magana-Pizano became final. We now turn to the questions presented in these petitions for review.

(1) Our Jurisdiction to Consider the Petitions

Magana-Pizano held that the Immigration and Nationality Act ("INA"), as revised by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") Pub. L. No. 104-132 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") did not repeal 28 U.S.C. S 2241. However, habeas relief was substantially limited by the repeal of INA S 106(a)(10), the primary avenue of habeas relief in immigration cases, and judicial review of BIA orders by petition was virtually eliminated. We continue to have jurisdiction to determine whether jurisdiction exists, but if the statute applies to the petitioner, then we have no jurisdiction to overrule the removal order. Review of Petitioner Ramirez's case is barred, however, by his failure to raise the issue of statutory interpretation before the immigration judge ("IJ") and the Board of Immigration Appeals ("BIA"). Accordingly, we sever the cases and dismiss Petitioner Ramirez's appeal for lack of jurisdiction.

(2) Retroactivity

Petitioner Aragon asserts that he is not deportable as an aggravated felon under INA S 237(a)(2)(A)(iii), codified at 8 U.S.C. S1227 (a)(2)(A)(iii), because he pled guilty to a criminal offense that was not within the definition of "aggravated felony" at the time of his plea, but afterward was redefined as such pursuant to IIRIRA, and that retroactive application of IIRIRA would violate his constitutional rights. See Lindh v. Murphy, 521 U.S. 320, 326 (1997); Landgraf v. U.S. Film Prods., 511 U.S. 244, 265 (1994).

Background Facts

Aragon, who entered the United States in 1965 with his parents, but who has not become a citizen, pled guilty in 1992 to assault with a deadly weapon in the State of California. He served one year in custody and three years of supervised release. He was arrested on July 10, 1997, as a person deportable under INA S 237(a)(2)(A)(iii) as an aggravated felon. The record before us does not reveal whether Aragon was advised in 1992 of the immigration consequences, if any, of his guilty plea, nor whether his plea was "bargained down" from a conviction that would have then made him clearly eligible for deportation. It is conceded that he was not categorically deportable in 1992, but that he is deportable at this time if the statute applies retrospectively to his conviction.

Statutory Construction

AEDPA and IIRIRA were adopted in 1996 by Congress as part of a sweeping program of immigration reform, and amended the INA in a variety of ways. Prior to these amendments, INA S 106, then codified at 8 U.S.C.S 1105, set forth the judicial review provisions applicable to appeals in immigration matters. AEDPA amended INA S 106 so as to preclude judicial review from final orders of deportation for aliens who were classified as aggravated felons. AEDPA S 440(a). Subsequently, IIRIRA substantially expanded the definition of aggravated felony to include crimes that had not been included earlier. IIRIRA S 321(a). In addition, IIRIRA repealed the judicial review provision, INA S 106, and adopted substantially similar provisions in a new section, INA S 242.³ See Valderrama-Fonseca v. INS, 116 F.3d 853, 855 (9th Cir. 1997).

As a result of the 1996 amendments, an alien who qualifies as an aggravated felon within the meaning of INA S 101(a)(43) is subject to deportation under INA S 237(a)(2)(A)(iii) and is denied judicial review from a final order of deportation under INA S 242(a)(2)(C). Petitioner challenges the retroactivity of these amendments, but argues only (1) that INA S 242(a)(2)(C) violates the Suspension Clause of the U.S. Constitution, and (2) that the aggravated felony definition contained in INA S 101(a)(43) does not apply retroactively.

The Suspension Clause of the Constitution

Petitioner argues that INA S 242(a)(2)(C),⁴ which eliminates judicial review of final orders of removal for aliens convicted of certain criminal offenses is unconstitutional because it violates the Suspension Clause⁵ when read in conjunction with INA S 242(g),⁶ which limits judicial review exclusively avenues provided by that section. However, Petitioner's argument relies entirely on two Ninth Circuit opinions that were vacated after the briefs in this case were submitted. Because the vacated opinions no longer support Petitioner's argument, and Magana-Pizano holds that the INA amendments did not violate the Suspension Clause, we turn to the question whether Aragon is a deportable alien.

Retroactivity of the Statute

Aragon raised the statutory interpretation issue during the hearing before the IJ, but asserted a different and unrelated issue of statutory interpretation on appeal to the BIA. The government asserts that Aragon's failure to argue to the BIA his current view of the statute precludes our taking jurisdiction of this case, despite the fact that the BIA's ruling interprets the statutory provision at issue here. We do not agree with the government on this jurisdictional point.

In the course of Aragon's proceedings, both the IJ and the BIA expressly considered whether discretionary relief from deportation under INA S 240A was precluded because Petitioner's offense constituted an aggravated felony. The IJ found that Petitioner was deportable and ineligible for discretionary relief from deportation under INA S 240A(a)(3)⁷ because of his status as an aggravated felon within the meaning of INA S101(a)(43). It appears that the BIA conducted a de novo review of Petitioner's case and, in affirming the decision of the IJ, also interpreted "aggravated felony" to include the crime committed by Petitioner. ("We find that the respondent's offense constitutes an aggravated felony.") Given that the BIA expressly interpreted and applied the term "aggravated felony" as defined by INA S 101(43), we have jurisdiction over Petitioner's appeal to consider whether the BIA was correct in its reading of the statute.

The BIA correctly applied the amended definition of aggravated felony. It is undisputed that assault with a deadly weapon is included in the amended definition of "aggravated felony" in INA S 101(a)(43)(F), but was not covered by the unamended version in effect at the time Petitioner entered his guilty plea.⁸ Petitioner contends that a retroactive application of the amended definition, which would render him deportable under INA S 237(a)(2)(A)(iii),⁹ is contrary to the longstanding judicial presumption against retroactivity of legislation. The government argues that this judicially-conceived presumption does not apply because Congress provided a clear directive that the revised definition was to be applied retroactively.¹⁰

In interpreting statutes, we begin with the language of the statute itself. See Shaar v. INS, 141 F.3d 953, 956 (9th Cir. 1998). Where the plain meaning of a provision is unambiguous, that meaning is controlling. Coronado-Durazo v. INS, 123 F.3d 1322, 1324 (9th Cir. 1997). However, where a statute is silent or ambiguous and an agency determination is concerned, this court must accept the agency's determination if it is reasonable. Chevron, U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984); CoronadoDurazo, 123 F.3d at 1324.

The Supreme Court has stated:

there is a presumption against retroactive legislation [that] is deeply rooted in our jurisprudence. The principle that the legal effect of conduct should ordi narily be assessed under the law that existed when the conduct took place has timeless and universal appeal.

Hughes Aircraft Co. v. United States, 520 U.S. 939, 946, 117 S. Ct. 1871, 1876 (1997) (internal citations omitted). However, this presumption is applied only if Congress has not "clearly manifested its intent to the contrary. " Id. The crucial question, is whether Congress has clearly manifested an intent for the amended definition of aggravated felony to apply retroactively. The answer is yes.

IIRIRA S 321(a)(3) reduced the sentencing requirement for an "aggravated felony" from "at least 5 years" to "at least one year." See INA S 101(a)(43)(F). This section goes on to provide an effective date for the amended definition by amending INA S 101 to read: "Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conviction was entered before, on, or after September 30, 1996."¹¹ Finally, the effective date of the entire provision is explained: "The amendments made by this section shall apply to actions taken on or after the date of the enactment of this Act, regardless of when the conviction occurred . . . ." IIRIRA S 321(c).

The government asserts that these provisions contain a clear and express directive from Congress that the amended definition of aggravated felony should be applied to any and all criminal violations...