Innab v. Reno, No. 98-9114

• Decision Date: 01 March 2000
• Docket Number: No. 98-9114
• Citation: 204 F.3d 1318
• Parties: (11th Cir. 2000) Nahro Sudqi INNAB, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States, Doris Meissner, Commissioner of the Immigration and Naturalization Service, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

204 F.3d 1318 (11th Cir. 2000)

Nahro Sudqi INNAB, Petitioner-Appellant, v. Janet RENO, Attorney General of the United States, Doris Meissner, Commissioner of the Immigration and Naturalization Service, et al., Respondents-Appellees.

No. 98-9114.

United States Court of Appeals, Eleventh Circuit.

March 1, 2000.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and BIRCH, Circuit Judges, and OWENS^*, Senior District Judge.

BIRCH, Circuit Judge:

Nahro Sudqi Innab appeals the district court order denying his petition for habeas corpus, in which he sought review of his claim that section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, codified at 8 U.S.C. 1182(c) (West 1997) ("AEDPA") should not be applied to his pending application for waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1182(c)( West 1995).¹

Innab, a native of Jordan, was lawfully admitted into the United States as a permanent resident on December 24, 1971. He is married to a United States citizen and has four children who are also citizens of the United States. On March 20, 1987, Innab pled guilty and was convicted of misdemeanor possession of stolen goods and carrying a concealed weapon (the "1987 conviction"). Innab was convicted of possession of cocaine on May 5, 1992 (the "1992 conviction"). On November 3, 1994, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Innab by ordering him to show cause why he should not be deported on the basis of the 1987 and 1992 convictions.² Innab conceded his deportability but filed an application for discretionary relief from deportation under sections 212(c) and (h) of the INA, one day prior to the enactment of the AEDPA. On October 29, 1996, the Immigration Judge denied Innab's plea for statutory relief under INA 212(c) and ordered that he be deported. See R1-1-Exh. 3. On appeal, the Board of Immigration Appeals ("BIA") found that Innab was "statutorily ineligible" for relief from deportation under INA 212(c) because AEDPA 440(d) pretermitted his application for relief.³ R1-1-Exh. 4. Innab filed a petition for review of the BIA's decision with this Court which was dismissed on July 16, 1998, for lack of jurisdiction according to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 309(c)(4)(E) and (G), 8 U.S.C.A. 1229(a). See R1-3-Exh.1.

Subsequently, Innab filed a petition for writ of habeas corpus requesting that the district court stay Innab's deportation and release him under reasonable conditions while the district court reviewed the BIA's decision. See R1-1-6. Further, Innab asserted that, because the BIA wrongly and retroactively applied AEDPA 440(d) to his case, the district court should vacate the BIA's order of deportation, order the INS to resume Innab's deportation proceedings, and adjudicate the applicability of INA 212(c) without regard to AEDPA 440(d) or IIRIRA 309. See id. at WW 16, 22. On October 28, 1998, the district court denied Innab's motion to stay his deportation and dismissed his petition for writ of habeas corpus, reasoning that it lacked jurisdiction over the matter according to the new INA 242(g), 8 U.S.C. 1252(g). See R1-6-2. Innab appeals this order.

We review de novo issues of subject matter jurisdiction. Tefel v. Reno, 180 F.3d 1286, 1295(11th Cir.1999), reh'g and reh'g en banc denied, 198 F.3d 265 (11th Cir.1999).

Recently, we were presented with a markedly similar set of circumstances in Mayers v. Reno, 175 F.3d 1289 (11th Cir.1999).⁴ In Mayers, we considered the habeas corpus petitions of two aliens, Efrain Gutierrez-Martinez and Trevor Mayers, claiming that section 440(d) of the AEDPA should not have been applied to their pending applications for waiver of deportation under INA 212(c). See 175 F.3d at 1291-92. As with the case at bar, the claims of both petitioners in Mayers were governed by the transitional rules of the IIRIRA. See 175 F.3d at 1297.⁵ There we applied the Supreme Court's decision in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (narrowing the application of the jurisdiction-excluding provision of new INA 242(g), 8 U.S.C.A. 1252(g), to "three discrete actions that the Attorney General may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or execute removal orders' ") and concluded that the new INA 242(g)'s exclusive jurisdiction provision does not apply to the review of final orders of deportation cases governed by the transitional rules of the IIRIRA and, therefore, does not eliminate the district court's subject matter jurisdiction. See Mayers, 175 F.3d at 1297. We further concluded that "habeas corpus jurisdiction under 28 U.S.C. 2241[had] survived the enactment of AEDPA." Mayers, 175 F.3d at 1299. As the appellee concedes, Mayers controls the question of whether the district court had jurisdiction under 28 U.S.C. 2241 to review Innab's final order of deportation. Accordingly, we find that the district court erroneously concluded that it lacked subject matter jurisdiction over Innab's petition for habeas corpus.

In Mayers, we also addressed the issue of whether AEDPA 440(d) should be applied retroactively and determined "that Congress intended that AEDPA's 440(d)'s amendment of INA 212(c) should not apply to pending cases." 175 F.3d at 1304. The government urges that we reconsider this holding in light of two recent Supreme Court decisions-Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (limiting the use of the "negative inference" when interpreting congressional intent regarding the retroactive application of a statute to the comparison of chapters within a statute that address similar issues), and INS v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (finding that Chevron deference should be given to the BIA's interpretation of a "serious nonpolitical crime" when applying that exception in order to deny an illegal immigrants application for withholding deportation under 8 U.S.C. 1253(h)). Having reviewed these intervening decisions, we find that the conclusion we reached in Mayers and its application here are consistent with the requirements and added guidance they provide.⁶

Accordingly, we REVERSE the district court's order denying Innab's petition for habeas corpus on the grounds that it lacked subject matter jurisdiction and we REMAND Innab's case to the district court for reconsideration of his petition for habeas corpus relief pursuant to 2241 in light of this opinion.

*. Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge for the Middle District of Georgia, sitting by designation.

1. INA 212(c) was subsequently repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") 304(b), "and replaced by new INA 240A, codified at 8 U.S.C.A. 1229b (West 1999). [New] INA 240A consolidates 'suspension of deportation' relief with provisions of the old INA 212(c) to create a new form of relief called 'cancellation of removal.' 'Cancellation of removal' relief is available for aliens whose criminal convictions do not qualify as 'aggravated felonies.' See IIRIRA 304(a), codified at 8 U.S.C.A. 1229(b) (West 1999). These permanent provisions of IIRIRA apply only to those aliens ordered deported after April 1, 1997, the effective date for IIRIRA, and are not applicable here." Mayers v. I.N.S., 175 F.3d 1289, 1293 n. 3 (11th Cir.1999).

2. The 1987 conviction was set aside by the Superior Court of Nash County, North Carolina, on July 8, 1999. That court found that because the conviction for carrying a concealed weapon did not necessitate deportation in 1987 and because "the law regarding the effect of the conviction for carrying a concealed weapon as it relates to deportation has changed," "the intent of the plea agreement ha[d] been undermined." The court therefore concluded that the effect of the change in the law as applied to Innab would be ex post facto and a bill of attainder in violation of the United States Constitution. R1-1-Exh. 2.

Similarly, Innab asserts that the 1992 conviction was set aside by the Superior Court of Nash County, North Carolina, on December 22, 1998, on the same basis as the 1987 conviction. See Appellant's Supplemental Brief at 7, Innab v. Reno (No. 98-09114). The government does not dispute the fact that this state court action occurred. See Brief for Respondents at 4, Innab v. Reno (No. 98-09114). However, the 1992 conviction was set aside after the district court entered its decision, and the record was not supplemented with the relevant court order or other evidence of the court's December 22, 1998, action. Innab argues in a supplemental brief that, because all criminal convictions supporting his deportation have been set aside, we should set aside and dismiss the order for his deportation. Innab further asserts that the INS is violating the Tenth Amendment to the United States Constitution by ignoring the state court's decision to set aside his convictions. The government has not addressed these claims, but suggested during oral argument that the reasoning used by the state court to set aside Innab's convictions could implicate the Supremacy Clause of the United States Constitution and that the INS might take the position that, because the purpose of the state court action was to frustrate federal immigration policy, the state court's setting aside of Innab's criminal convictions does not invalidate the basis for his deportation. Moreover, the government suggested that the issues surrounding the state court's decision to set aside Innab's convictions are not properly before this court because Innab has not filed a petition to reopen his deportation hearing and, therefore, not exhausted his administrative remedies. See 8 U.S.C. 1252(d)(1); ...