Chow v. I.N.S.

• Decision Date: 30 June 1997
• Docket Number: Nos. 94-1939,95-1552,s. 94-1939
• Citation: 113 F.3d 659
• Parties: King Sang CHOW, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 659

113 F.3d 659

King Sang CHOW, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 94-1939, 95-1552.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1995.

Decided May 1, 1997.

Rehearing Denied June 30, 1997.

Royal F. Berg, argued, Chicago, IL, for King Sang Chow.

Janet Reno, U.S. Atty. Gen., Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, James B. Burns, Office of the U.S. Atty., Chicago, IL, William J. Howard, Thomas W. Hussey, Dept. of Justice, Civil Div., Immigration Litigation, Washington, DC, David J. Kline, Alison R. Drucker, argued, Dept. of Justice, Office of Immigration Litigation, Washington, DC, for I.N.S.

Before WOOD, Jr., FLAUM and MANION, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Pursuant to section 106(a) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1105a(a), King Sang Chow or David Chow ("Chow") petitioned this court for review of two decisions by the Board of Immigration Appeals ("BIA") issued in connection with deportation proceedings instituted against him. While Chow's petitions were still pending before us, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Amongst other changes, the AEDPA amended section 106 of the INA to preclude judicial review of final orders of deportation issued against aliens deportable under any of several enumerated statutory provisions. § 440(a), 110 Stat. at 1276-77. The BIA had ordered Chow deportable under two of these selected provisions. Consequently, the Immigration and Naturalization Service ("INS") filed the instant motion to dismiss Chow's consolidated petition, contending that section 440(a) divested us of jurisdiction over Chow's petition. We agree and, accordingly, dismiss Chow's petition.

I.

Chow is a native of Hong Kong and a citizen of the United Kingdom. He entered the United States as a permanent resident alien in 1971 and has remained here since. He is married to a United States citizen, and the couple have one child who is also a United States citizen. In 1977, Chow was convicted of unlawful possession of an automatic pistol in New Jersey state court, and in 1991, he was convicted of using a telephone to facilitate the crimes of distribution of and possession with intent to distribute heroin in the United States District Court for the Eastern District of New York. In 1992, the INS instituted deportation proceedings based on these charges, and an Immigration Judge ("IJ") found that Chow was deportable under two provisions of the INA. The IJ found Chow deportable under section 241(a)(2)(B)(i) as an alien convicted of a controlled substance violation and under section 241(a)(2)(C) as an alien convicted of a firearm violation. ¹ The IJ also denied Chow's request for discretionary relief from deportation under section 212(c) of the INA.

Both the BIA and the Fifth Circuit affirmed the IJ's decision. Chow moved the BIA to reopen the proceedings contending that a subsequent BIA decision entitled him to apply concurrently for an adjustment of status under section 245 of the INA and a waiver of inadmissibility under section 212(c) of the INA and that accordingly, he now was entitled to relief from deportation. The BIA denied his motion, and Chow filed a petition for review of that order in this court. He also filed a second motion to reconsider/reopen deportation proceedings, contending that new facts made him eligible for concurrent section 212(c) and section 245 relief. The BIA again denied his motion, and he petitioned this court for review of that order as well. We consolidated the petitions and heard oral argument. However, at Chow's request, we stayed proceedings in the matter because several proposed regulations would have resolved Chow's claims if enacted. While these proceedings were stayed, President Clinton signed the AEDPA, making it effective. The INS then moved to dismiss Chow's appeal contending that pursuant to section 440(a) of the AEDPA, we no longer had jurisdiction over the action.

II.

Before the AEDPA became law, section 106(a) of the INA vested us with exclusive jurisdiction to hear petitions for review of all final deportation orders. 8 U.S.C. § 1105a(a) (Supp.1996). However, section 440(a) of the AEDPA amended section 106(a) to provide that:

(10) Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in [section 241(a)(2)(A)(iii), (B), (C), or (D) of the INA], or any offense covered by [section 241(a)(2)(A)(i) of the INA], shall not be subject to review by any court.

Sec. 440(a), 110 Stat. at 1276-77. Here, the IJ and the BIA found Chow deportable under sections 241(a)(2)(B)(i) and 241(a)(2)(C), and the record clearly supports these findings. Chow does not contest that he is an alien, and the record contains two records of conviction: a 1977 state conviction for carrying a .32 caliber revolver and a 1991 conviction for use of a telephone to facilitate distribution of heroin in violation of 21 U.S.C. § 843(b). A .32 caliber revolver is a firearm as defined in 18 U.S.C. § 921(a). Likewise, heroin is a controlled substance within the meaning of 21 U.S.C. § 802, and 21 U.S.C. § 843(b), prohibiting use of a communication facility to facilitate certain felony controlled substance offenses, is a law relating to a controlled substance. Thus, Chow would seem to be deportable under section 241(a)(2)(C) as alien convicted of possessing or carrying a firearm and under section 241(a)(2)(B) as an alien convicted of violating a law relating to controlled substances. Moreover, Chow does not contest the factual allegations of these convictions. Rather, he maintains that he is not deportable as an alien convicted of possessing a firearm because his conviction predates amendments to the INA making his conduct a ground for deportation. However, the text of section 241(a)(2)(C) and the legislative history surrounding it indicate that Congress intended it to apply to aliens who have committed the prohibited firearms offenses at any time after their entry into the United States as long as the aliens receive notice of the deportation proceedings after March 1, 1990. Lopez-Amaro v. INS, 25 F.3d 986, 988-89 (11th Cir.1994). Chow received notice of the deportation proceedings instituted against him after March 1, 1990. Therefore, on its face, section 440(a) would seem to deprive us of jurisdiction over Chow's petition.

A.

However, Chow argues that section 440(a) does not apply to his petition because he does not seek review of a final "order of deportation" as defined in section 440 of the AEDPA. He notes that section 440(b) defines an order of deportation as:

the order of the special inquiry officer, or other such administration officer ... concluding that the alien is deportable, or ordering deportation.

Sec. 440(b), 110 Stat. at 1277. He reasons that section 440(b) defines "order of deportation" as used in section 440(a), thereby limiting those orders for which section 440(a) precludes judicial review. He notes that he seeks review of two BIA orders denying his motions to reconsider and to reopen deportation proceedings and that neither of these types of orders is listed in section 440(b). As such, he reasons that he does not seek review of a final order of deportation as defined in section 440(b), and that, therefore, section 440(a) does not apply to his petition.

Unfortunately for Chow, section 440(b) does not purport to define "order of deportation" only as used in section 440(a). Rather, section 440(b) amends section 101(a) of the INA to add a definition of "order of deportation," governing its meaning throughout the entire act. § 440(b), 110 Stat. at 1277. Therefore, if Chow correctly interprets section 440(b) as excluding BIA orders such as orders denying motions for reconsideration and motions to reopen from the meaning of "order of deportation," section 440(b) must preclude those orders from the meaning of "order of deportation" as used throughout the INA.

Such a reading would deprive us of jurisdiction to review any BIA orders denying motions to reconsider or reopen deportation proceedings because no provision in the INA expressly authorizes judicial review of such orders. Instead, courts have construed "order of deportation" as used in section 106(a)'s general grant of jurisdiction over petitions for review to include BIA orders, such as the instant orders, and have extended our jurisdiction to review final orders of deportation under section 106(a) to include jurisdiction over petitions for review from such orders. Johnson v. INS, 962 F.2d 574, 576 (7th Cir.1992); Oviawe v. INS, 853 F.2d 1428, 1430 (7th Cir.1988); see Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964).

However, we do not read section 440(b) as eliminating our jurisdiction to review BIA orders such as those at issue in this petition because other provisions in the amended INA indicate that Congress did not intend to remove the courts' jurisdiction over petitions for review of such orders. Before Congress enacted the AEDPA, section 106 provided that "whenever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U.S.C. § 1105a(a)(6) (Supp.1996). The AEDPA did not alter this provision. After Congress enacted the AEDPA, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"). Pub.L. No. 104-208, division C, 110 Stat. 3009 (1996). The IIRIRA repeals section 106 of the INA and replaces it with another judicial review provision. IIRIRA § 306(a) & (b). ² This new judicial review provision adopts a consolidation section that is substantially similar to the provision contained in the old section 106. IIRIRA § 306(a). If Congress intended to...