Catney v. I.N.S., 98-3154

• Citation: 178 F.3d 190,1999 WL 330421
• Decision Date: 25 May 1999
• Docket Number: No. 98-3154,98-3154
• Parties: Gerard James CATNEY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

178 F.3d 190

Gerard James CATNEY, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE

No. 98-3154.

United States Court of Appeals Third Circuit.

Argued March 26, 1999.

Decided May 25, 1999.

Thomas E. Moseley (Argued), Newark, NJ, for Petitioner.

Frank W. Hunger, Assistant Attorney General, David M. McConnell (Argued), Assistant Director, Office of Immigration Litigation, Civil Division, United States Justice Department, Washington, DC, for Respondent.

Before: BECKER, Chief Judge, LEWIS and WELLFORD, ^* Circuit Judges.

OPINION OF THE COURT

BECKER, Chief Judge.

This is one of the tidal wave of cases seeking relief from orders of deportation brought by permanent resident aliens who have committed certain enumerated crimes. While many of these individuals are long-time residents with deep roots in American communities, they face virtually automatic deportation under recent amendments to the Immigration and Nationality Act ("INA"), although in many cases the INS has only recently taken note of their long past criminal activities. ¹ While the Attorney General previously could exercise discretion to grant relief from such deportation orders, that discretion--as well as the right to judicial review of denials of such discretionary relief--has largely been eliminated by the recent amendments to the INA in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").

The Petitioner is Gerard James Catney, a permanent resident alien ("PRA") who was born in Northern Ireland, arrived in this country in 1962, at the age of three, and has lived here for thirty-seven years. He has been married for almost twenty years to a United States citizen and he has a five-year old daughter who is also a United States citizen. Catney credibly argues that the Board of Immigration Appeals ("BIA") incorrectly applied one provision of AEDPA to his case, and that one provision of AEDPA and another provision of IIRIRA violate the equal protection component of the Fifth Amendment's Due Process Clause. The government disputes each of these contentions, and further submits that Catney has waived his right to raise his constitutional claims before us because he did not file a brief with the BIA and did not raise one of the constitutional issues in his notice of appeal to the BIA from the Immigration Judge's decision.

We decline to reach any of these issues, however, because we read our recent decision in Sandoval v. Reno, 166 F.3d 225 (3d Cir.1999), as precluding our exercising jurisdiction over Catney's petition. ² Rather, we conclude that Catney must raise his claims of legal error--whether constitutional or otherwise--in a petition for habeas corpus if he is to obtain relief from the BIA's order.

I. AEDPA and IIRIRA

A. Judicial Review of Deportation Orders

In 1996, Congress enacted both AEDPA and IIRIRA, which dramatically restricted the scope of federal court review of certain deportation orders. See AEDPA, Pub.L. No. 104-132, § 440(a), 110 Stat. 1214, 1276-77 (1996); IIRIRA, Pub.L. No. 104-208, div. C, §§ 306(a)(2)(C), 309(c)(4)(G), 110 Stat. 3009-546, -607 to -608, -626 to -627 (1996). Prior to the enactment of these statutes, courts of appeals could review most orders of deportation. See 8 U.S.C. § 1105a (repealed by IIRIRA). However, section 440(a) of AEDPA provides that "[a]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in [various sections of the INA ³ shall not be subject to review by any court." Id. § 1105a(a)(10) (repealed by IIRIRA).

Section 309(c)(4)(G) of IIRIRA provides for transitional judicial-review rules that apply to cases commenced before April 1, 1997, in which a final order of deportation was filed after October 30, 1996, while IIRIRA section 306(a)(2)(C) (codified at 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996)) sets forth the appropriate judicial-review mechanism for cases commenced on or after April 1, 1997. The latter two provisions are, for our purposes, similar to AEDPA section 440(a). The INS commenced deportation proceedings against Catney in 1992. The BIA entered a final order of deportation against him on February 11, 1998. This case is therefore governed by the transitional rules of IIRIRA.

B. Relief from Deportation

Although "criminal aliens" such as Catney have long been subject to deportation, at least two provisions of the INA formerly provided these aliens with the opportunity to seek discretionary relief from deportation: section 212(c), and section 212(h), which we discuss infra.

1. Section 212(c)

Section 212(c) gave the Attorney General discretion to waive deportation of certain PRAs. See 8 U.S.C. § 1182(c) (repealed 1996). Prior to 1990, section 212(c) provided that, notwithstanding section 212(a)'s provisions for exclusion of certain aliens, "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General," with certain limited exceptions.

In a series of decisions, the BIA (which acts on behalf of the Attorney General) had interpreted section 212(c) to apply not only to PRAs who had temporarily left the country and were "returning to a lawful unrelinquished domicile," as the statute literally provides, but also to those PRAs who had left and returned, and then--at some later date--faced deportation. Therefore, PRAs who lived here for seven or more years and never left the country were not covered by section 212(c)'s waiver provision, but PRAs who lived here for seven or more years, and during that time happened to take a trip abroad (even a day-trip to Canada), would be eligible for the section 212(c) waiver if they ever faced deportation. In 1976, the Second Circuit extended the section 212(c) waiver to the final group of PRAs, i.e., those who had never left the country. See Francis v. INS, 532 F.2d 268, 273 (2d Cir.1976). The INS acquiesced in the holding in Francis, and most courts of appeals followed it as well. See, e.g., Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993). Therefore, by the 1990s, section 212(c) offered all PRAs who had lawfully resided in this country for seven consecutive years the possibility of relief from deportation.

In 1990, section 212(c) was amended to eliminate a new category of cases from the Attorney General's discretion: PRAs deportable by reason of having committed certain aggravated felonies for which the alien had been imprisoned for at least five years. See Immigration Act of 1990, Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052. In 1996, AEDPA section 440(d) extended the list of ineligible PRAs much further, eliminating the Attorney General's discretion to grant relief from deportation for the same group of deportees for whom judicial review was curtailed in section 440(a) (i.e., those convicted of aggravated felonies, controlled substance offenses, certain firearm offenses, miscellaneous national security or defense crimes, or multiple convictions for crimes involving moral turpitude). ⁴ Therefore, under section 440(d) of AEDPA, criminal aliens such as Catney are ineligible for section 212(c) discretionary relief from the Attorney General. While the BIA has held that this provision applies retrospectively to cases pending on the date that AEDPA was enacted, we disagreed in Sandoval, holding that the provision does not apply to pending deportation cases such as Catney's. See Sandoval, 166 F.3d at 242.

2. Section 212(h)

Section 212(h) of the INA, like former section 212(c), provides the Attorney General with discretion to waive certain deportation orders. Section 212(h) permits the Attorney General to do so for those persons subject to deportation due to their commission of certain crimes if the alien is:

the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien; and the Attorney General, in his discretion, ... has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status.

8 U.S.C. § 1182(h)(1)(B), (h)(2) (1994 & Supp. II 1996). This provision clearly applies to Catney, whose wife and daughter are United States citizens. He is also the primary breadwinner for his family, running his own house painting business, which has been successful enough for the Catneys to purchase their own home in New Jersey. While his underlying request for section 212(h) relief is not before us, he appears to have a colorable claim to such relief.

Section 348(a) of IIRIRA, however, added the following proviso to section 212(h):

No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

8 U.S.C. § 1182(h) (Supp. II 1996). ⁵ As a PRA who has committed an aggravated felony since his lawful admission to this country, Catney is covered by the proviso and is ineligible for relief by the terms of section 212(h).

C. Administrative Proceedings

Catney initially sought relief from deportation under both section 212(c) and section 212(h). The Immigration Judge denied this relief on December 18, 1996. Catney filed a notice...