Elia v. Gonzales

• Decision Date: 24 October 2005
• Docket Number: No. 03-3446.,03-3446.
• Citation: 431 F.3d 268
• Parties: Jawdat ELIA, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

431 F.3d 268

Jawdat ELIA, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-3446.

United States Court of Appeals, Sixth Circuit.

Argued: May 11, 2005.

Decided and Filed: October 24, 2005.

ARGUED: Marisa C. Petrella, Petrella & Associates, P.C., Southfield, Michigan, for Petitioner. James A. Hunolt, United

States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Marisa C. Petrella, Petrella & Associates, P.C., Southfield, Michigan, for Petitioner. Margaret J. Perry, Jennifer L. Lightbody, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: SILER and ROGERS, Circuit Judges; REEVES, District Judge.^*

AMENDED OPINION

ROGERS, Circuit Judge.

Jawdat Elia petitions for review of an order of the Board of Immigration Appeals ordering Elia deported to Iraq. In 1991, while a lawful permanent resident of the United States, Elia was convicted in Michigan of a drug-related offense. After the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Elia on the basis of this conviction, Elia petitioned for a waiver of deportability under the former § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). Ultimately, an Immigration Judge ("IJ") found that Elia was statutorily ineligible for the waiver because he had served a sentence of at least five years for the commission of an aggravated felony. The Board of Immigration Appeals ("BIA") summarily affirmed. In petitioning for review, Elia does not dispute that he was convicted of an aggravated felony. Further, he conceded at oral argument that he in fact served a five-year term of imprisonment. Instead, Elia challenges his order of removal by arguing on constitutional and equitable grounds that the IJ improperly found him ineligible for § 212(c) relief. These challenges lack merit; therefore, we deny the petition for review.

On April 2, 1991, Elia pled guilty to possessing a controlled substance, in violation of Michigan Compiled Laws § 333.7403(2)(a)(iii).¹ Although that offense carried a minimum sentence of five years, the trial court sentenced Elia to a term of two to twenty years in prison. Sentencing occurred on June 28, 1991. The trial court gave Elia two days' jail credit toward his sentence. An information sheet from the Michigan Department of Corrections ("MDOC") indicates that Elia's "corrected date" of sentence is therefore June 26, 1991.

In November 1991, while Elia was serving his sentence, the INS issued a detainer requesting that the MDOC notify the INS thirty days before Elia's release from prison in order for Elia to be transferred to INS custody. On December 26, 1991, the INS served Elia with an Order to Show Cause and Notice of Hearing ("OSC"). The OSC charged Elia with deportability under Immigration and Nationality Act ("INA") §§ 241(a)(2)(A)(iii) (an aggravated felony) and 241(a)(2)(B)(i) (controlled substance violation). Elia was deportable based on his April 1991 drug conviction. Elia alleges that he orally requested § 212(c) relief when he met with an INS officer earlier in December 1991; however, nothing in the record supports this claim. Petitioner's Br. at 7.

The prosecutor appealed the sentence in Elia's case; on September 30, 1992, the Michigan Court of Appeals held that the trial court did not have discretion to deviate downward from the statutory minimum sentence of five years. Therefore, on March 9, 1993, Elia was resentenced to a term of five to twenty years' imprisonment, rather than two to twenty years. An MDOC document entitled "Custody Release" confirms that Elia completed his prison term and was released on parole, and entered INS custody, on October 1, 1996.²

Elia sought to have his two-to-twenty-year sentence reinstated; he succeeded in this effort only after his prison term was finished. The Michigan Supreme Court held in People v. Fields, 448 Mich. 58, 528 N.W.2d 176 (1995), that discretionary sentencing below the statutory minimum is permissible in some circumstances. The Government notes that based on Fields, Elia petitioned a Michigan trial court to reinstate his original sentence. Respondent's Br. at 4. (The Joint Appendix contains the document reflecting Elia's restored sentence, but it does not contain his petition.) The trial court reinstated the sentence on April 18, 1997, after the completion of Elia's prison term.

On October 25, 1996, Elia appeared before an IJ and formally requested § 212(c) relief. The IJ found that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") eliminated § 212(c) relief for any alien convicted of an aggravated felony; further, the IJ found, this provision applied retroactively to convictions before AEDPA's effective date. The BIA affirmed on July 23, 1997.

Subsequently, Elia moved to reopen his case, arguing in part that AEDPA should not apply retroactively to bar § 212(c) relief for aggravated felons. The BIA reopened the case, because this court's decision in Pak v. Reno, 196 F.3d 666 (6th Cir.1999), prohibited retroactive application of this AEDPA provision. On October 17, 2001, the IJ, on remand, determined that Elia was nonetheless ineligible for § 212(c) relief, because he had served a term of at least five years in prison. The IJ found that Elia "was, in fact, paroled from [MDOC] custody on October 1, 1996 and was released on that date ...." Noting Elia's argument that he actually was released from custody on his projected parole date — June 25, 1996 — the IJ found that even accepting this version of the facts, Elia had still served five years in prison, because Elia had received two days' jail credit when he was sentenced on June 26, 1991. The BIA affirmed without an opinion on February 25, 2003. This petition for review followed.

Because Elia is deportable by reason of his conviction for an aggravated felony, this court has jurisdiction to review only questions of law Elia raises in petitioning for review of his order of deportation. See 8 U.S.C. § 1252(a)(2)(D) (2001), amended by REAL ID Act § 106(a)(1)(A)(iii), Pub.L. No. 109-13, Div. B, 119 Stat. 231, 310 (2005). Recent changes in the law benefit Elia: the REAL ID Act both places Elia's petition for review of his deportation order under the set of judicial review rules applicable to removal cases, and also expands this court's direct review of removal orders. Nonetheless, because Elia argues no persuasive legal ground for vacating his deportation order, we deny the petition for review.

Where, as here, the BIA summarily affirms an IJ's order of deportation, this court directly reviews the IJ's decision. See Denko v. INS, 351 F.3d 717, 730 (6th Cir.2003). This court reviews de novo Elia's constitutional challenges to the IJ's denial of § 212(c) relief. Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir.1998).

INA § 106, 8 U.S.C. § 1105a (1994), originally provided the procedure allowing aliens to petition for judicial review of a final order of deportation.³ See Pak v. Reno, 196 F.3d 666, 670 n. 4 (6th Cir.1999). The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") repealed INA § 106. IIRIRA § 306(b), Pub.L. No. 104-208, Div. C, tit. III, 110 Stat. 3009 (1996) (codified at Historical and Statutory Notes, 8 U.S.C. § 1101 (2001)). IIRIRA created "transitional rules" narrowing court jurisdiction to review deportation orders entered after October 30, 1996, in proceedings commenced before the effective date of the permanent amendments, April 1, 1997. See IIRIRA § 309(c)(4) (transitional rules); id. § 309(a) and (c)(1) (transitional rules apply to deportation proceedings pending on [April 1, 1997]); id. § 309(c)(4) (transitional rules apply to cases in which final order of deportation is entered [after October 30, 1996]); see also Pilica v. Ashcroft, 388 F.3d 941, 947 n. 4 (6th Cir.2004) (defining "transitional rules" cases). At the same time, IIRIRA created the "removal" proceeding.⁴ IIRIRA also amended INA § 242, 8 U.S.C. § 1252, to impose new permanent rules restricting review of final orders of removal. See 8 U.S.C. § 1252(a) (2001). Like the transitional rules, these new rules are more restrictive of judicial review than the former INA § 106. On May 11, 2005, Congress enacted the REAL ID Act, which provides:

A petition for review filed under former section 106(a) of the Immigration and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ...) shall be treated as if it had been filed as a petition for review under section 242 of the Immigration and Nationality Act (8 U.S.C. § 1252), as amended by this section.

REAL ID Act § 106(d), 119 Stat. 310-311 (effective on date of enactment). Petitions for review in "transitional rules" cases are filed under the procedure created by the former section 106(a). See Pak, 196 F.3d at 670 n. 4. Therefore, the REAL ID Act effectively subjects orders of deportation in "transitional rules" cases to the same rules of judicial review, 8 U.S.C. § 1252(a), as apply to removal orders.

Since deportation proceedings against Elia were commenced before April 1, 1997, and the final order of deportation was entered after October 30, 1996, his is a "transitional rules" case. Because of the REAL ID Act amendments, 8 U.S.C. § 1252 now determines whether this court has jurisdiction to review the final order of deportation in Elia's case.

Further, the REAL ID Act's amendments to 8 U.S.C. § 1252 give us jurisdiction to review Elia's claims. INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), bars courts from reviewing any final order of removal against an alien who is removable by virtue of, inter alia, having been convicted of an aggravated felony. Elia was found deportable on this basis. However, 8 U.S.C. § 1252(a)(2)(D), as amended by REAL ID Act § 106(a)(1)(A)(iii), 119 Stat. 310, provides that §...