Biskupski v. Attorney General of U.S.

• Decision Date: 25 September 2007
• Docket Number: No. 06-1887.,06-1887.
• Citation: 503 F.3d 274
• Parties: Dariusz BISKUPSKI, Petitioner, v. ATTORNEY GENERAL of the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

503 F.3d 274

Dariusz BISKUPSKI, Petitioner, v. ATTORNEY GENERAL of the UNITED STATES, Respondent.

No. 06-1887.

United States Court of Appeals, Third Circuit.

Argued: June 19, 2007.

Filed: September 25, 2007.

Thomas E. Moseley, Esq., Argued, Newark, NJ, Attorney for Petitioner.

James E. Grimes, Esq., Argued, William C. Minick, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Attorney for Respondent.

Before: McKEE, FISHER, and CHAGARES, Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

This case presents an issue of first impression in this Circuit and requires us to interpret the meaning of "actions taken" in section 321(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-546. For the reasons expressed below, we hold that "actions taken" refers to orders and decisions of an immigration judge (IJ) or the Board of Immigration Appeals (BIA) which apply the "aggravated felony" definitions in 8 U.S.C. § 1101(a)(43) to determine the availability of hardship relief. Because the BIA's final order denied petitioner Dariusz Biskupski relief on this basis, we conclude that the order was an "action taken" within the contemplation of section 321(c). As such, the expanded definition in 8 U.S.C. § 1101(a)(43) for aggravated felonies applied to Biskupski. Accordingly, the petition for review will be denied.

I.

In December 1988, at age twenty nine, Biskupski left his native Poland and entered the United States. His visa allowed him to remain until June 20, 1989. However, Biskupski overstayed his visa. As of January 23, 1994, Biskupski worked as a taxi driver and dispatcher for a company in Clifton, New Jersey. During his off hours, he moonlighted as a chauffeur, making trips to the local airports and occasionally to points beyond such as Washington D.C., Philadelphia, and areas within New England. He advertised his services almost exclusively within the local Polish community.

After returning home from work on or about January 22, his then-girlfriend told Biskupski she had received a call to pick up several Polish people in upstate New York and bring them to New Jersey. Biskupski and his girlfriend departed, their destination being a gas-station/restaurant called the Bear's Den on Route 37, which is in the middle of the Akwesasne Indian Reservation bordering Canada in upstate New York. They arrived shortly after midnight on January 23 and met the intended passengers. Approximately eleven miles into the return trip, Biskupski encountered a routine Driving While Intoxicated roadblock. State police stopped Biskupski, and, after questioning him and his passengers, the police surmised that Biskupski was transporting illegal aliens. Although Biskupski maintained that he did not know his passengers had illegally entered the United States, Biskupski was arrested and charged with aiding and abetting alien smuggling, a misdemeanor violation of 8 U.S.C. § 1324(a)(2)(A). He pleaded guilty and, on January 31, 1994, he was sentenced to thirty days' imprisonment and a $250 fine.

On January 25, 1994, the Immigration and Naturalization Service (INS)¹ placed Biskupski in deportation proceedings by serving him with an Order to Show Cause (OTSC). In the OTSC, the government alleged that Biskupski was deportable under 8 U.S.C. § 1251(a)(1)(B) (remaining in the United States longer than permitted), 8 U.S.C. § 1251(a)(1)(C)(i) (failing to maintain or comply with the conditions of nonimmigrant status under which he was admitted), and 8 U.S.C. § 1251(a)(1)(E)(i) (knowingly assisting, aiding, or abetting another alien to enter illegally, within five years of his entry into the United States).² The government subsequently withdrew the allegation that Biskupski was deportable under 8 U.S.C. § 1251(a)(1)(E)(i), because the events supporting his conviction occurred more than five years after Biskupski's 1988 admission into the United States.

At an immigration hearing in Newark, New Jersey on December 19, 1996,³ the IJ found that the government had established Biskupski's prior conviction by clear and convincing evidence. The IJ accepted Biskupski's application for suspension of deportation, but queried, in light of the passage of IIRIRA, whether Biskupski's conviction for alien smuggling would render him statutorily ineligible for suspension of deportation. The IJ heard testimony from Biskupski and his witnesses in support of his application for relief. However, the hearing was continued to permit the parties to address the legal issue of eligibility for suspension. For reasons that are not clear, Biskupski's case was not reconvened until July 25, 2000. The proceedings were again continued until the final hearing on August 11, 2003.

On April 20, 2005, the IJ issued a written decision, superceding a prior oral decision. The IJ ruled that Biskupski's conviction for alien smuggling rendered him ineligible for suspension of deportation and denied that application. The IJ also denied Biskupski's applications for asylum, withholding of deportation and protection under the Convention Against Torture (CAT).⁴ Biskupski appealed the IJ's decision to the BIA.

On March 7, 2006, the BIA dismissed the appeal, ruling that Biskupski's prior conviction under 8 U.S.C. § 1324(a)(2)(A) barred eligibility for relief under former section 244 of the of the Immigration and Nationality Act (INA), 8 U.S.C. § 1254 (1993).⁵ Under former section 244, an alien qualifies for discretionary suspension of deportation by demonstrating both physical presence in the United States for a continuous period of not less than seven years immediately preceding the date of application for such relief and good moral character. 8 U.S.C. § 1254(a)(1) (1993). However, an alien "who at any time has been convicted of an aggravated felony (as defined in subsection (a)(43) of this section)" cannot demonstrate the requisite good moral character. 8 U.S.C. § 1101(f)(8). Here, the BIA found that Biskupski's conviction was for an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(N). Therefore, Biskupski could not show the good moral character necessary to be eligible for suspension of deportation. This petition for review followed.

II.

Biskupski pleaded guilty to 8 U.S.C. § 1324(a)(2), which states in pertinent part:

Any person who, knowing or in reckless disregard of the fact that an alien has not received prior official authorization to come to, enter, or reside in the United States, brings to or attempts to bring to the United States in any manner whatsoever, such alien, regardless of any official action which may later be taken with respect to such alien shall, for each alien in respect to whom a violation of this paragraph occurs —

(A) be fined in accordance with Title 18 or imprisoned not more than one year, or both[.]

This statute has been interpreted to include transporting illegal aliens from one place to another within the United States. See, e.g., Gavilan-Cuate v. Yetter, 276 F.3d 418, 419 n. 1 (8th Cir.2002) (citing Matter of Ruiz-Romero, 22 I & N Dec. 486 (BIA 1999)).

When Congress added the "aggravated felony" provision to the INA, Pub.L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101-1537) with the enactment of the Anti-Drug Abuse Act of 1988, Pub L. No. 100-690, § 7347, 102 Stat. 4181, 4471 (1988), the statutory definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43) did not include offenses under 8 U.S.C. § 1324(a)(1)(A) or (2). In 1994, when the INS commenced deportation proceedings against Biskupski, his crime of conviction was still not among those constituting an "aggravated felony" within the meaning of the INA.

It was not until 1996 that Congress enacted legislation making certain changes significant to Biskupski's situation. Specifically, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), in which it amended the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43)(N) to include "an offense described in paragraph (1)(A) or (2) of section 274(a) [codified at 8 U.S.C. § 1324(a)] (relating to alien smuggling) for which the term of imprisonment is at least 5 years." AEDPA, Pub.L. No. 104-132, § 440(e)(3), 110 Stat. 1214, 1278 (1996).

Shortly thereafter, Congress enacted IIRIRA, further amending § 1101(a)(43)(N) by striking the minimum five-year term of imprisonment requirement.⁶ IIRIRA, § 321(a)(8), 110 Stat. at 3009-628 (1996). Congress expressly mandated that the changes made to the term "aggravated felony" in 8 U.S.C. § 1101(a)(43) "applie [d] regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph." IIRIRA, § 321(b), 110 Stat. at 3009-628 (emphasis added). Congress dictated that "[t]he 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, § 321(c), 110 Stat. at 3009-628 (emphasis added).

The term "actions taken" is not defined anywhere in IIRIRA. Biskupski argues that the term relates to such "actions" as the initiation of deportation proceedings against him in 1994 or the submission of his application for suspension of deportation on August 16, 1996.⁷ Because these "actions" occurred pre-IIRIRA, Biskupski contends that the pre-IIRIRA definitions of aggravated felony should apply, which did not encompass the crime for which he was convicted. At the other end of the temporal spectrum, the government argues that "actions taken" means final orders and decisions of the IJ or the BIA in adjudicating Biskupski's case. The government asserts that because the BIA issued its final decision on March 7, 2006, the IIRIRA amendments to the definition of aggravated felony apply to render Biskupski ineligible for suspension relief.

III.

We lack jurisdiction to review final orders of removal against an...