Brooks v. Ashcroft, 99-2415.

• Decision Date: 01 March 2002
• Docket Number: No. 99-2415.,99-2415.
• Citation: 283 F.3d 1268
• Parties: James R. BROOKS, Petitioner, v. John ASHCROFT, Attorney General of the United States, Immigration and Naturalization Service, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

283 F.3d 1268

James R. BROOKS, Petitioner, v. John ASHCROFT, Attorney General of the United States, Immigration and Naturalization Service, Respondents.

No. 99-2415.

United States Court of Appeals, Eleventh Circuit.

March 1, 2002.

COPYRIGHT MATERIAL OMITTED

Rima Y. Mullins, Faith E. Gay (Court-Appointed), Robert Brener (Court-Appointed), White & Case, LLP, Miami, FL, for Petitioner.

Nelda C. Reyna, Mary Jane Candaux, David Bernal, Dept. of Justice, Office of Immigration Lit., Civil Div., Washington, DC, for Respondents.

Petition for Review of an Order of the Board of Immigration Appeals.

Before BLACK and FAY, Circuit Judges, and RESTANI,^* Judge.

FAY, Circuit Judge:

I. Introduction

Petitioner, James R. Brooks, seeks review of a final order of removal issued pursuant to a charge of deportability as an alien convicted of an aggravated felony. Petitioner brings his cause to the attention of this Court under direct review from a decision by the Board of Immigration Appeals. We find that we are without jurisdiction, and accordingly dismiss Brooks' petition.

II. Factual and Procedural Background

James R. Brooks, ("Petitioner" or "Brooks") a citizen of Honduras, entered the United States as a lawful permanent resident on February 1, 1973. On July 25, 1995, Brooks was convicted in Dade County, Florida, of battery and the lesser included offenses of battery and false imprisonment. He was sentenced to a 44-month term of incarceration for the false imprisonment charge, and two concurrent terms of 364 days for the battery charges. Based on that conviction, on April 9, 1998, the Immigration and Naturalization Service ("INS") initiated removal proceedings against him, alleging that he was an alien who had been convicted of an aggravated felony and was thus deportable pursuant to the Immigration and Naturalization Act ("INA") §§ 237(a)(2)(A)(iii) & 101(a)(43)(F), 8 U.S.C. §§ 1227(a)(2)(A)(iii) & 1101(a)(43)(F). An immigration judge found Brooks removable as charged on June 4, 1998. Brooks appealed that decision to the Board of Immigration Appeals, ("BIA") which on February 22, 1999, affirmed the immigration judge's decision in all respects and dismissed the appeal. On March 4, 1999, Brooks petitioned this Court for review of the BIA's final removal order.¹

III. Statutory Background

The INA provides that any alien who has been convicted of an aggravated felony is subject to deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii). Prior to 1996, aliens who had accrued seven years of lawful permanent residence in the United States could request discretionary relief from deportation pursuant to INA § 212(c), by arguing the equities weighed in favor of their remaining in the United States. See 8 U.S.C. § 1182(c) (repealed 1996). Under this law, an alien convicted of an aggravated felony was eligible for such discretionary relief if he served a term of imprisonment less than five years. See id.² However, in an effort to increase the number of criminal aliens deported, Congress, in April 1996, decided to change the immigration statutory scheme by enacting the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (codified in relevant part at 8 U.S.C. § 1182 (1996)). Section 440(d) of AEDPA rendered aliens convicted of aggravated felonies, regardless of the length of their sentence, ineligible for discretionary relief from deportation under § 212(c) of the INA. Subsequently, in September of 1996, Congress, passed the Illegal Immigration and Reform Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (codified in relevant part at 8 U.S.C. §§ 1101, 1182, 1224, 1229, 1230, and 1252 (1996)). Section 304 of IIRIRA repealed § 212(c) relief entirely, replacing it with a procedure called "cancellation of removal." See 8 U.S.C. § 1229b (1996). Consistent with AEDPA, § 304 of IIRIRA provided that cancellation of removal was not available to an alien convicted of any aggravated felony.³

IV. Issue Presented to this Court

In this case, we are faced with a delicate interplay between the date of the criminal conviction of Petitioner, and the revamping of the statutory immigration scheme of Congress through the passage of the AEDPA and the IIRIRA. Petitioner was convicted of an aggravated felony on July 25, 1995, with a term of imprisonment of less than five years. Thus, at this time, discretionary relief from deportation under § 212(c) was available. However, when deportation proceedings began on April 9, 1998, the status of the law had changed. Thus, neither § 212(c) relief was available to Petitioner, nor was the newly fashioned "cancellation of removal".⁴ Hence, the question the parties present to us is whether the repeal of § 212(c) relief has an impermissible retroactive effect when applied to an individual convicted prior to the enactment of AEDPA § 440(d) and IIRIRA § 304(b). Embodied within this question is whether Petitioner's substantial constitutional Sixth Amendment and Equal Protection rights are violated by such a retroactive effect. However, before addressing the merits of Brooks' appeal, we must first decide whether we have jurisdiction to hear his petition. Because we find we are divested from jurisdiction by 8 U.S.C. § 1252(a)(2)(C), and find no merit in the constitutional questions Petitioner raises, we do not reach a decision here today on the propriety of the retroactivity of AEDPA and IIRIRA to Mr. Brooks.

V. Discussion

A. Jurisdictional Parameters

We review questions of subject matter jurisdiction de novo. Jairath v. Dyer, 154 F.3d 1280, 1281-82 (11th Cir.1998). On petition for review of a final order of removal, we review the BIA's statutory interpretation de novo, and will defer to the BIA's interpretation if it is reasonable. See Le v. United States Attorney General, 196 F.3d 1352, 1353-54 (11th Cir.1999). INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(1), vest the courts of appeals with the authority to consider petitions challenging final orders commanding the removal of aliens from the United States. Yet, under 8 U.S.C. § 1252(a)(2)(C), our jurisdiction to review final orders of removal is very limited. Moore v. Ashcroft, 251 F.3d 919, 922-23 (11th Cir.2001). Section 1252(a)(2)(C) provides in pertinent part:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [certain enumerated criminal offenses].

8 U.S.C. § 1252(a)(2)(C).

Thus, because judicial review is limited by statutory conditions, we retain jurisdiction to determine only whether these conditions exist. See Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th Cir.2001). We have held that under the plain language of § 1252(a)(2)(C), a court is permitted to review only the threshold issues of whether Petitioner is (1) an alien; (2) who is removable; (3) based on having committed a disqualifying offense. Galindo-Del Valle v. Attorney General, 213 F.3d 594, 597 (11th Cir.2000). There is no dispute that Petitioner satisfies each of these three requirements. Petitioner is a citizen of Honduras who entered the United States as a lawful permanent resident. He was convicted of an aggravated felony and sentenced to a term of imprisonment in excess of one year, and was found to be removable by evidence which was clear and convincing. See Oral Decision of the Immigration Judge, Jule 4, 1998.⁵ Thus, because we conclude that Petitioner is an alien removable by reason of having committed an aggravated felony, § 1252(a)(2)(C) strips us of jurisdiction to review his final order of removal. See Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir.2000). In effect, our jurisdiction for review of Brooks' petition has disappeared. See id; see also Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268, 2269-70, 150 L.Ed.2d 392 (2001) (stating court of appeals lacks jurisdiction to review criminal aliens' direct appeals from BIA decisions applying repeal of § 212(c) relief retroactively). However, we are not foreclosed from consideration of Brooks' Petition if he has raised substantial constitutional issues. See Calcano-Martinez, 121 S.Ct. at 2270 n. 2 (2001) (stating, "courts of appeals retain jurisdiction to review `substantial constitutional challenges' raised by aliens who come within the strictures of § 1252(a)(2)(C)"); Oguejiofor v. Attorney General, 277 F.3d 1305, 1308-1309 (11th Cir.2002) (citing Richardson v. Reno, 180 F.3d 1311, 1316 n. 5 (11th Cir.1999)). However, because we find no merit in Petitioner's Sixth Amendment claim, nor his Equal Protection claim, we therefore conclude we do not have jurisdiction to review Brooks' petition. See e.g. Oguejiofor, 277 F.3d at 1309 (finding that lack of merit in Petitioner's constitutional challenges divested Court of jurisdiction from direct appeal of BIA).

B. Constitutional Challenges

1. The Sixth Amendment

Petitioner contends that a retroactive application of IIRIRA § 304(b) would impermissibly penalize him for exercising his Sixth Amendment rights. We find this claim completely void of any legal foundation. Petitioner bases his argument on the Supreme Court's holding in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), in which the Court held that § 212(c) relief must be afforded to an alien who pled guilty before the AEDPA and IIRIRA changes were instituted. The Court, after applying the two-part test it fashioned in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), concluded that the 1997 repeal of § 212(c) relief had an impermissible retroactive effect on aliens who pled guilty in reliance on the availability of the § 212(c) waiver. See St. Cyr, 121 S.Ct. at 2293. Hence, Petitioner argues that solely because he chose to exercise his rights to go to trial, instead of pleading guilty, he is being penalized for exercising his Sixth Amendment rights.

Petitioner's argument misses the mark...