Fernandez-Ruiz v. Gonzales, No. 03-74533.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Reinhardt
• Citation: 410 F.3d 585
• Parties: Jose Roberto FERNANDEZ-RUIZ, Petitioner, v. Alberto R. GONZALES<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent.
• Docket Number: No. 03-74533.
• Decision Date: 31 May 2005

410 F.3d 585 Jose Roberto FERNANDEZ-RUIZ, Petitioner,
v.
Alberto R. GONZALES^*, Attorney General, Respondent. No. 03-74533. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 10, 2005. Filed May 31, 2005.

Page 586

Erica K. Rocush, Tucson, AZ, for Petitioner.

Peter D. Keisler, Assistant Attorney General; David V. Bernal, Assistant Director; Deborah N. Misir and S. Nicole Nardone, Attorneys, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington DC, for Respondent.

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

Before REINHARDT, NOONAN, and FERNANDEZ, Circuit Judges.

REINHARDT, Circuit Judge.

Jose Roberto Fernandez-Ruiz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' order affirming an immigration judge's decision to rescind Fernandez-Ruiz's lawful permanent resident status, remove him from the country, and deny him any relief from removal. We deny the petition.

The government argues that we lack jurisdiction under 8 U.S.C. § 1252(a)(2)(C) for three separate reasons. Specifically, it argues that we lack jurisdiction because each of two crimes committed by Fernandez-Ruiz qualifies as an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) and each provides a separate basis for removal under that sub-section, and because Fernandez-Ruiz also committed two crimes of moral turpitude, the minimum number that serves as a basis for removal under 8 U.S.C. § 1227(a)(2)(A)(ii).

We have always retained jurisdiction to determine our jurisdiction, and so have always been free to evaluate whether

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Fernandez-Ruiz's convictions were qualifying offenses for the purpose of these jurisdictional bars. See, e.g., Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). Until recently, however, two subsections of 8 U.S.C. § 1252 routinely barred this court from exercising jurisdiction over the merits of certain petitions for review. Specifically, § 1252(a)(2)(B) barred review of many denials of discretionary relief under the Immigration and Naturalization Act ("INA") and, more pertinent to the case before us, § 1252(a)(2)(C) barred review of final orders of removal for aliens who had been convicted of certain kinds of criminal offenses. Then on May 11, 2005, the President signed the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, into law.

Section 106(a)(1)(A)(iii) of the REAL ID Act amends 8 U.S.C. § 1252 by adding a new provision, § 1252(a)(2)(D), as follows:

Judicial Review of Certain Legal Claims.—

Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.

By this amendment, Congress restored judicial review of constitutional claims and questions of law presented in petitions for review of final removal orders.¹ It did so by providing that nothing in 8 U.S.C. § 1252(a)(2)(B), (C), or any other provision of the INA shall preclude judicial review of such orders, unless such review is barred by some other provision of 8 U.S.C. § 1252. In short, Congress repealed all jurisdictional bars to our direct review of final removal orders other than those remaining in 8 U.S.C. § 1252 (in provisions other than (a)(2)(B) or (C)) following the amendment of that section by the REAL ID Act.

Furthermore, in the REAL ID Act, Congress explicitly made the amendments restoring our jurisdiction retroactive. Specifically, it stated that § 1252(a)(2)(D) "shall take effect upon the date of the enactment" and that it shall apply to any case "in...