Jideonwo v. Immigration & Naturalization Service

• Decision Date: 23 August 2000
• Docket Number: No. 99-3243,99-3243
• Parties: (7th Cir. 2000) Charles Jideonwo, Petitioner, v. Immigration and Naturalization Service, Respondent
• Court: U.S. Court of Appeals — Seventh Circuit

Page 692

224 F.3d 692 (7th Cir. 2000)

Charles Jideonwo, Petitioner, v. Immigration and Naturalization Service, Respondent.

No. 99-3243

In the United States Court of Appeals For the Seventh Circuit

Argued May 19, 2000

Decided August 23, 2000

Petition for Review of an Order of the Board of Immigration Appeals. No. A23-147-139. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Manion and Williams, Circuit Judges.

Flaum, Chief Judge.

Charles Jideonwo appeals the Board of Immigration Appeals' ("BIA") affirmance of an Immigration Judge's ("IJ") determination that Jideonwo is ineligible to receive discretionary relief under former sec. 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. sec. 1182(c) (1994). For the reasons stated herein, we reverse the BIA's decision and remand this case to the IJ for further proceedings.

I. BACKGROUND

In 1980, Charles Jideonwo, a native and citizen of Nigeria, was admitted to the United States on a non-immigrant student visa. On November 18, 1981, he became a lawful permanent resident of the United States based on his marriage to a United States citizen, to whom he is still married and with whom he has a daughter.

On December 16, 1994, Jideonwo pled guilty to one count of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. sec. 846. Jideonwo's sentence was the subject of considerable negotiation between the government and Jideonwo's attorney. During the negotiations, Jideonwo expressed his concern that he receive a sentence of less than five years in prison so that he would remain eligible for a discretionary waiver of deportation under sec. 212(c) of the INA. In the end, Jideonwo received a sentence of four years and eleven months, which is a considerable downward departure from the sentencing range for the crime to which he pled guilty. To fulfill the terms of his plea agreement, Jideonwo provided his assistance and that of his family in a federal drug investigation.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA" or the "Act"), Pub. L. No. 104-132, 110 Stat. 1214, went into effect. Section 440(d) of that Act precludes eligibility for sec. 212(c) waivers to individuals who have been convicted of aggravated felonies. The drug charge to which Jideonwo pled guilty is defined as an aggravated felony for purposes of this provision. See 8 U.S.C. sec. 1101(a)(43)(B) (1994); Turkhan v. Perryman, 188 F.3d 814, 817-18 (7th Cir. 1999).¹

On August 6, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause ("OSC") against Jideonwo, requesting that he provide a reason why he should not be deported under sec. 241(a)(2)(A)(iii) of the INA, 8 U.S.C. sec. 1252(a)(2)(A) (1996), which requires the deportation of persons convicted of crimes such as Jideonwo's drug conviction. Pursuant to the OSC, Jideonwo was brought before an IJ, where he conceded deportability but argued that he should receive a waiver of deportation under sec. 212(c) of the INA. The IJ concluded that AEDPA's sec. 440(d) applied retroactively to Jideonwo so that his drug conviction rendered him ineligible to receive a sec. 212(c) waiver. On October 7, 1998, the IJ ordered Jideonwo deported, and on August 5, 1999, the BIA summarily affirmed the IJ's decision. Jideonwo now appeals.

II. DISCUSSION

At the time of Jideonwo's guilty plea in 1994, sec. 212(c) of the INA conferred upon the Attorney General the authority to grant discretionary waivers of deportation for equitable reasons to resident aliens who had lawfully resided in the United States for at least seven years. See 8 U.S.C. sec. 1182(c) (1994); Reyes-Hernandez v. INS, 89 F.3d 490, 491 (7th Cir. 1996). In 1996, Congress passed AEDPA, and sec. 440(d) of that Act amended sec. 212(c) of the INA to make criminal aliens who had been convicted of aggravated felonies, such as the drug felony to which Jideonwo pled guilty, ineligible to receive a discretionary waiver. See Turkhan, 188 F.3d at 824. Jideonwo argues that because he pled guilty partially in reliance on his eligibility to receive a sec. 212(c) waiver, retroactively applying the provisions of AEDPA's sec. 440(d) in his case violates his rights under the Due Process Clause.²

A. Jurisdiction

The government contends that sec. 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") limits our jurisdiction over appeals from BIA decisions such that we do not have jurisdiction to consider Jideonwo's claim.³ It is uncontested that we at least have jurisdiction over Jideonwo's claim to determine whether we have jurisdiction to consider and resolve it. See Xiong v. INS, 173 F.3d 601, 604 (7th Cir. 1999); Yang v. INS, 109 F.3d 1185, 1192 (7th Cir. 1997) ("[A] court has jurisdiction to determine whether it has jurisdiction."), disapproved on other grounds by Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999). In making this determination, we do not defer to the INS's interpretation of IIRIRA or its conclusions on this issue. See INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987); Yang, 109 F.3d at 1192 ("[A]pplication of a review-preclusion statute does not depend on the agency's findings.").

In LaGuerre v. Reno, we concluded that the review-limiting provision contained in sec. 440(a) of AEDPA,⁴ which is substantially similar to the IIRIRA provision at issue here, see Musto v. Perryman, 193 F.3d 888, 891 (7th Cir. 1999), left open the opportunity for deportees to bring constitutional issues directly before the courts of appeals. 164 F.3d 1035, 1040 (7th Cir. 1998). We based this conclusion on our determination that "[a]dministrative agencies, although they may consider constitutional claims, lack the authority to deal with them dispositively; the final say on constitutional matters rests with the courts." Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999); see also Turkhan, 188 F.3d at 823. We determined that leaving the "safety valve" of direct appellate review open effectuates Congress's intent to curtail judicial review of final deportation orders of convicted felons while enabling "judicial correction of bizarre miscarriages of justice." LaGuerre, 164 F.3d at 1040. In Singh, we applied this conclusion to the jurisdiction- limiting provisions contained in sec. 309(c)(4)(G) of IIRIRA. See Singh, 182 F.3d at 508 n.3 & 510.

The government contends that Jideonwo's claim that sec. 440(d) should not be applied retroactively in his case presents only an issue of statutory interpretation, and not a question of constitutional dimensions, so that we do not have jurisdiction to hear it. However, as a permanent resident alien, Jideonwo has the right to receive due process of law before he may be removed or deported from the United States. See Yang, 109 F.3d at 1196 ("[A]liens who have lawfully entered the United States are entitled to due process of law before they may be deported or removed.") (citing Landon v. Plasencia, 459 U.S. 21, 32-33 (1982)); Batanic v. INS, 12 F.3d 662, 666 (7th Cir. 1993). Therefore, if Jideonwo's claim is cognizable under the Due Process Clause, we have jurisdiction to hear it under our holdings in LaGuerre and Singh.

The Supreme Court has held that applying a law retroactively such that it results in "manifest injustice" violates the Due Process Clause. See Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 716 (1974). Manifest injustice may occur where a new law changes existing rights or imposes unanticipated obligations on a party without providing appropriate notice. See id. at 720; see also Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994) ("The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation."). Retrospective changes in INS procedure have been found to violate the due process rights of affected aliens. For example, in Accardi v. Shaughnessy, the Supreme Court held that retroactively changing a procedure for granting relief from deportation from one of discretion to one of predetermined results violated the Due Process Clause where it took away a procedure to which the alien-petitioner previously had a right prescribed by statute. 347 U.S. 260, 266-68 (1954); see also Tasios v. Reno, 204 F.3d 544, 552 (4th Cir. 2000). Similarly, in Reyes-Hernandez, we held that retroactive application of sec. 440(d) to an alien who had conceded a colorable defense to deportability in reliance on being considered for sec. 212(c) relief violated the alien's due process rights. 89 F.3d at 493; see Musto, 193 F.3d at 891.

In this case, Jideonwo's assertion that applying sec. 440(d) retroactively to him would violate his due process rights by taking away a procedure to which he previously had a right granted by statute is a cognizable claim under the Due Process Clause. See Brownell v. We Shung, 352 U.S. 180, 182 n.1 (1956) ("[D]ue process has been held in cases similar in facts to the [immigration case] here involved to include a fair hearing as well as conformity to statutory grounds."); Torres v. INS, 144 F.3d 472, 474 (1998) (noting that an alien has an interest in the immigration procedures that Congress has chosen to provide that is protected by the Due Process Clause); see also Kopec v. City of Elmhurst, 193 F.3d 894, 904 n.7 (7th Cir. 1999) (noting that the "judicial default" rules employed when determining whether a statute should be applied retroactively include the "manifest injustice" test of constitutionality under the Due Process Clause). Therefore, under the holdings of LaGuerre, 164 F.3d at 1040, and Singh, 182 F.3d at 509, we have jurisdiction to consider Jideonwo's constitutional due process claim.⁵

B. Retroactive Application of Section 212(c) to Plea Bargains

Because "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly,"...