Balogun v. U.S. Attorney General

• Decision Date: 10 September 2002
• Docket Number: No. 00-12442.,00-12442.
• Parties: Sikiru BALOGUN, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

304 F.3d 1303

Sikiru BALOGUN, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents.

No. 00-12442.

United States Court of Appeals, Eleventh Circuit.

September 10, 2002.

Teresa Wynn Roseborough, Deborah M. Danzig (Court-Appointed), Sutherland, Asbill & Brennan, LLP, Atlanta, GA, for Petitioner.

Brenda E. Ellison, David V. Bernal, Anthony Cardozo Payne, Shelley R. Goad, Linda S. Wendtland, U.S. Dept. of Justice, OIL, Washington, DC, for Respondents.

Before BIRCH, MARCUS and CUDAHY^*, Circuit Judges.

CUDAHY, Circuit Judge:

Sikiru Balogun is a 50 year-old Nigerian male who lived in this country approximately 20 years before he was deported in December of 2000. Prior to his deportation (or "removal" in the terminology of the current law), proceedings were underway at the Immigration and Naturalization Service (INS) to designate Balogun as a legal resident. In 1998, Balogun obtained an INS clearance, known as an "advance parole," to travel to Nigeria for his mother's funeral. Balogun believed that the advance parole document would guarantee his reentry into the U.S. However, upon his return, Balogun was apprehended by the INS. The agency claimed that Balogun's criminal record made him ineligible for the immigration status he was requesting. In subsequent proceedings, an immigration judge ruled that Balogun was an inadmissible alien subject to immediate removal. This decision was then affirmed by the Board of Immigration Appeals (BIA). Shortly after he filed his appeal in this court, Balogun's removal order was carried out and he was returned to Nigeria. Appointed counsel is now litigating this matter on behalf of Balogun.

A provision of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), codified at 8 U.S.C. § 1252(a)(2)(C), precludes judicial review of removal orders entered against certain aliens like Balogun who have committed a crime of moral turpitude. The first issue in this case is therefore whether § 1252(a)(2)(C) applies to Balogun's removal order, thereby depriving this court of jurisdiction to hear his appeal. However, even if § 1252(a)(2)(C) applies, appellate review of Balogun's order may still be appropriate if he raises a "substantial constitutional" challenge to his removal. Brooks v. Ashcroft, 283 F.3d 1268, 1273 (11th Cir.2002) (citing Calcano-Martinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001)); accord Oguejiofor v. Attorney General, 277 F.3d 1305, 1308-09 (11th Cir.2002) (per curiam). Since Balogun can clear neither of these hurdles, we dismiss his appeal for lack of jurisdiction.

I.

At first glance, this case presents us with a relatively straightforward jurisdictional question. However, in order to obtain our review of his removal order, Balogun argues that the events leading to his removal raise substantial issues of constitutional law: specifically, whether he received constitutionally adequate notice from the INS officials regarding the legal implications of his advance parole. An important subsidiary issue is whether certain changes in U.S. immigrant law brought about by the IIRIRA are impermissibly retroactive. Therefore, our background discussion necessarily refers to some of the relevant legal authorities that Balogun must invoke, or distinguish, to make his constitutional challenge.

A.

Sikiru Balogun was born in Nigeria in 1952. He entered this country for the first time in 1981 as a legal, non-immigrant visitor. Balogun subsequently settled in Staten Island, New York, where he resided for the next 18 years. While overstaying his visitor status, Balogun eventually ran afoul of the law. In March 1987, he was arrested on a state criminal charge of sale of a controlled substance; he pleaded guilty in February 1988 and received a sentence of one to three years. In August 1990, Balogun was arrested for petit larceny; in April 1991, he pleaded guilty and was sentenced to conditional discharge. He served no time in prison for the larceny offense.

Although Balogun may not have been aware of this fact at the time, these two offenses drastically altered his immigration status. Under the version of the Immigration and Nationality Act (INA) then in effect, any alien convicted of certain controlled substance violations was subject to immediate deportation. See 8 U.S.C § 1251(a)(11) (1988). Similarly, under the version of the INA in effect in 1991, "Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor ... is deportable." 8 U.S.C. § 1251(a)(2)(A)(ii) (Supp. III 1991), now recodified at 8 U.S.C. § 1227(a)(2)(A)(ii). Therefore, after 1988, if the INS commenced deportation proceedings against Balogun, his only hope of staying in this country was to obtain a form of discretionary relief, commonly known as § 244(a)(2) of the INA, which was then available under U.S. immigration law.¹ Section 244(a)(2), which has since been repealed by the IIRIRA, reads in relevant part:

[T]he Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien ... who ... has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act ... constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

8 U.S.C. § 1254(a)(2) (1988) (repealed by Pub.L. 104-208, § 304(b), 100 Stat. 3009-597 (1996)).

After his brush with the law in 1991, Balogun appeared to turn his life around. In 1994, Balogun married his present wife, Victoria Balogun, who became a U.S. citizen in 1996. The couple are now the parents of three children. Prior to his removal, Balogun was active in his church and volunteered in an organization that benefits mentally retarded children.

B.

On September 30, 1996, Congress passed the IIRIRA. This legislation contained at least three major changes in U.S. immigration law that ultimately affect Balogun's case. The first change was the adoption of the term "removal," which essentially eliminated a distinction that formerly existed between "deportation" proceedings and "exclusion" proceedings. See Calcano-Martinez v. INS, 533 U.S. 348 350 n. 1, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001) (noting "statute-wide change in terminology"). Thus, a determination whether an alien is "inadmissible" (i.e., cannot, or did not, enter the country lawfully), see 8 U.S.C. § 1101(a)(13), or "deportable" (i.e., entered the country lawfully but is no longer entitled to stay), see 8 U.S.C. § 1227(a), would be determined through "removal" proceedings, see 8 U.S.C. § 1229a(a) (defining removal proceeding as the "exclusive procedure" for determining the "inadmissibility or deportability of an alien").

A second change was an amendment to 8 U.S.C. § 1252, which defines our authority to review removal orders issued by the Board of Immigration Appeals (BIA). Although under the new version of the law we retain our ability "to consider petitions challenging `final orders' commanding the `removal' of aliens from the United States," the new law also eliminated our jurisdiction "to review any final order of removal against any alien who is removable by reason of a conviction for certain criminal offenses," including any offense encompassed by 8 U.S.C. § 1182(a)(2). Calcano-Martinez, 533 U.S. at 350. Since both of Balogun's prior offenses fall within the purview of § 1182(a)(2),² there is little doubt that 8 U.S.C. § 1252 applies to this case.

The third, and perhaps most significant change, was the repeal of § 244(a)(2), formerly codified at 8 U.S.C. § 1254(a)(2), providing for certain discretionary relief from deportation (or removal, under the terminology of the current law). Although Balogun had not yet satisfied the requirement of ten years of continuous physical presence in this country following the commission of his last criminal offense in 1991 (as required by § 244(a)(2)), the discretionary relief available under § 244 represented Balogun's only hope of remaining in this country in the event the INS commenced removal proceedings against him.

C.

During the same period that Congress was revising U.S. immigration law, Balogun was pursuing conventional avenues of immigration relief. In 1997, the INS issued Balogun an approved I-130 Immediate Relatives Immigrant Visa, which permitted Balogun to apply for permanent resident status. A meeting regarding Balogun's adjustment of status application was scheduled to take place on August 24, 1999.

However, it is important to note that adjustment of Balogun's immigration status was not possible for Balogun unless he could demonstrate that he was "admissible" to the United States as a permanent resident. 8 U.S.C. § 1255(a)(2). As noted, Balogun was plainly inadmissible under the terms of § 1182(a)(2), and the only form of discretionary relief, § 244(a)(2) of the INA, had been repealed.³ Therefore prior to his departure for Nigeria in 1998, Balogun had only one plausible route to obtain permanent resident status. Balogun committed his petit larceny offense some time before August 1990.⁴ Therefore, assuming that (a) the continuous presence requirement of former § 244(a)(2) was not interrupted by the trip to Nigeria, and (b) discretionary relief under former § 244(a)(2) would still be available to him because he had entered into a plea agreement prior to the enactment of the IIRIRA, it is not implausible that Balogun...