Bell v. Reno

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-4138
• Citation: 218 F.3d 86
• Parties: (2nd Cir. 2000) ALFONSO BELL, Petitioner, v. JANET RENO, Respondent
• Court: U.S. Court of Appeals — Second Circuit

Page 86

218 F.3d 86 (2nd Cir. 2000)

ALFONSO BELL, Petitioner, v. JANET RENO, Respondent.

Docket No. 99-4138

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 14, 2000

Decided: June 02, 2000

Petition for review of Board of Immigration Appeals order finding petitioner deportable under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act as an alien convicted of an aggravated felony after entry into the United States.

Dismissed.

DAVID STERN, The Legal Aid Society, New York, NY (Scott A. Rosenberg, Helaine Barnett, Janet Sabel, of counsel), for Petitioner Alfonso Bell.

MEREDITH E. KOTLER, Assistant United States Attorney, Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York, Diogenes P. Kekatos, Gideon A. Schor, Assistant United States Attorneys, of counsel), for Respondent Janet Reno.

Before: MCLAUGHLIN, KATZMANN AND GIBSON,¹ Circuit Judges.

KATZMANN, Circuit Judge:

Alfonso Bell petitions for review of a Board of Immigration Appeals ("BIA") order dismissing his appeal from the decision of an Immigration Judge ("IJ") finding him deportable under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony after entry into the United States. For the reasons stated below, we dismiss the petition for lack of jurisdiction.

BACKGROUND

This petition requires us to interpret whether § 602 of the Immigration Act of 1990 ("IMMAct"), Pub. L. No. 101-649, 104 Stat. 4978, 5077-82 (Nov. 29, 1990), permits the deportation of an alien charged after March 1, 1991 with deportability under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii), for an aggravated felony conviction that occurred before the enactment of the Anti-Drug Abuse Act of 1988 ("ADAA"), Pub. L. No. 100-690, 102 Stat. 4181 (Nov. 18, 1988). The BIA answered this question in the affirmative, a conclusion that appellant Alfonso Bell now challenges. Although we disagree with the BIA's interpretation of IMMAct § 602(c), we conclude that Bell is deportable under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony after entry into the United States, based on IMMAct § 602(d). We therefore dismiss the petition for lack of jurisdiction.

1. Factual Background

Bell is a 41-year old native of Panama who was admitted to the United States as a lawful permanent resident in 1965 and has lived here since that time. In 1985, Bell pleaded guilty in the Supreme Court of New York, Kings County, to first-degree sodomy charges stemming from sexual acts he performed on three minors. His sentence of five to fifteen years imprisonment was affirmed by the Appellate Division. See People v. Bell, 133 A.D.2d 554 (2d Dep't), leave to appeal denied, 70 N.Y.2d 798 (1987) (table).

2. Statutory Background

A. The Anti-Drug Abuse Act of 1988

The term "aggravated felony" entered the immigration law lexicon with the enactment of the ADAA on November 18, 1988. ADAA § 7342 created a new provision, INA § 101(a)(43), 8 U.S.C. § 1101(a)(43) (1988), that defined "aggravated felony" to include murder, any drug trafficking crime as defined in 18 U.S.C. § 924(c)(2), any illicit trafficking in firearms or destructive devices as defined in 18 U.S.C. § 921, or any attempt or conspiracy to commit such acts. See 102 Stat. 4469-70. In addition, ADAA § 7344(a) created an aggravated felony deportation ground at INA § 241(a)(4)(B), 8 U.S.C. § 1251(a)(4)(B) (1988). ADAA § 7344(b) provided that the ground applied "to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony." 102 Stat. 4471 (1988). In other words, pursuant to the ADAA, an alien was subject under INA § 241(a)(4)(B) to deportation as an aggravated felon only if convicted after November 1, 1988.

B. The Immigration Act of 1990

In 1990, Congress enacted IMMAct. See 104 Stat. 4978. The House-Senate Conference Committee Report declared that IMMAct:

provide[d] for a comprehensive revision of all the existing grounds for exclusion and deportation, including the repeal of outmoded grounds, the expansion of waivers for certain grounds, the substantial revision of security and foreign policy grounds, and the consolidation of related grounds in order to make the law more rational and easy to understand.

H.R. Conf. Rep. No. 101-955 at 128 (1990) (emphasis added), reprinted in 1990 U.S.C.C.A.N. 6784, 6793. IMMAct § 501(a) broadened INA § 101(a)(43)'s definition of "aggravated felony," see 104 Stat. 5048 (1990), and IMMAct § 602, entitled "Revision of Grounds for Deportation," restructured INA § 241's deportation ground scheme by consolidating similar deportable offenses. See, e.g., IMMAct § 602(a)(2)(A) (general crimes including aggravated felonies); § 602(a)(2)(B) (controlled substances); § 602(a)(2)(C) (firearm offenses); See also 104 Stat. 5077-80 (1990). As part of this consolidation, the aggravated felony deportation ground formerly set forth in INA § 241(a)(4)(B) by the ADAA was redesignated by IMMAct § 602(a) as INA § 241(a)(2)(A)(iii). See 104 Stat. 5077, 5080 (1990). The redesignation did not change the text of the ground, which stated:

Any alien who is convicted of an aggravated felony at any time after entry is deportable.

See INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1990).

Section 602(d) of IMMAct set forth the effective date of § 602 as a whole:

EFFECTIVE DATE. - The amendments made by [§ 602] . . . shall not apply to deportation proceedings for which notice has been provided to the alien before March 1, 1991.

See 104 Stat. 5082 (1990).

Finally, § 602(c) provided:

SAVINGS PROVISION. - Notwithstanding the amendments made by this section, any alien who was deportable because of a conviction (before the date of the enactment of this Act) of an offense referred to in paragraph (15), (16), (17), or (18) of section 241(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act, shall be considered to remain so deportable. Except as otherwise specifically provided in such section and subsection (d), the provisions of such section, as amended by this section, shall apply to all aliens described in subsection (a) thereof notwithstanding that (1) any such alien entered the United States before the date of enactment of this Act, or (2) the facts, by reason of which an alien is described in such subsection, occurred before the date of the enactment of this Act.

See 104 Stat. 5081-82 (1990).

C. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, Title III-B, 110 Stat. 3009-546 (Sept. 30, 1996) ("IIRIRA") amended INA § 101(a)(43)'s definition of "aggravated felony" once again, broadening it to include, among other things, "sexual abuse of a minor." See IIRIRA § 321(a), 110 Stat. 3009-627 - 28 (1996). The terms of the expanded definition apply retroactively. See IIRIRA § 321(b), 110 Stat. 3009-628 (1996). In addition, IIRIRA § 305(a)(2) redesignated INA § 241 as INA § 237, see 110 Stat. 3009-597 - 98; accordingly, the aggravated felony deportation ground previously set forth at INA § 241(a)(2)(A)(iii) is now found at INA § 237(a)(2)(A)(iii). See 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996).

3. Procedural Background

The INS commenced removal proceedings against Bell in February 1998, charging that he was deportable under INA § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony after entry into the United States. At his removal hearing, Bell argued that he was not deportable because his conviction pre-dated the ADAA and Congress had never repealed ADAA § 7344(b)'s directive that the aggravated felony ground be applied prospectively. In an oral decision rendered October 15, 1998, the Immigration Judge ("IJ") rejected this argument, construing it as a constitutional challenge which he was not allowed to consider. The IJ also reasoned that, to the extent the argument was not a constitutional challenge, prior precedent foreclosed its acceptance.

Bell's appeal of the IJ's decision was dismissed by the Board of Immigration Appeals ("BIA") in a per curiam order dated August 6, 1999. The order relied upon the BIA's divided en banc decision in Matter of Lettman, Interim Decision 3370 at *1 (BIA Nov. 5, 1998), where the majority concluded that the prospective temporal limitation of ADAA § 7344(b) did not survive the enactment of IMMAct § 602. Thus, the BIA found that Bell was deportable under INA § 237(a)(2)(A)(iii) despite the fact that his sodomy conviction pre-dated the ADAA. This petition for review followed.

DISCUSSION

As an initial matter, we must determine whether we have jurisdiction to consider Bell's petition. In the wake of IIRIRA, INA § 242 does not allow us to review any final removal order against an alien who is deportable under, among other provisions, INA § 237(a)(2)(A)(iii). See 8 U.S.C. § 1252(a)(2)(C) (Supp. 1996). This jurisdictional bar is predicated, of course, upon two jurisdictional facts: (1) whether the petitioner is an alien; and (2) whether he or she is deportable under one of the enumerated offenses. See id. We have jurisdiction to determine whether this jurisdictional bar applies, and we may thus review whether Bell satisfies these jurisdictional facts. See Lewis v. INS, 194 F.3d 539, 542 (4th Cir. 1999) ("Because our jurisdiction turns on the presence, or lack thereof, of these two facts, we have jurisdiction to review them."); Lettman v. Reno, 168 F.3d 463, 464-65 (11th Cir. 1999), vacated in part on other grounds, Lettman v. Reno, 185 F.3d 1216 (11th Cir. 1999); Hall v. INS, 167 F.3d 852, 854-55 (4th Cir. 1999); Okoro v. INS, 125 F.3d 920, 925 n.10 (5th Cir. 1997); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.), cert. denied, 522 U.S. 1027 (1997).

Because Bell concedes that he is an alien, the only...