Kalaw v. I.N.S.

• Decision Date: 10 July 1997
• Docket Number: P,97-70333,MIRANDA-GONZALE,97-70294,Nos. 97-70106,s. 97-70106
• Citation: 133 F.3d 1147
• Parties: 97 Cal. Daily Op. Serv. 8943, 97 Daily Journal D.A.R. 14,491 Veronico Blas Almario KALAW; Eleanor Lu Dalisay, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Florencia Garcia REVILLA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Anastaciaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1147

133 F.3d 1147

97 Cal. Daily Op. Serv. 8943, 97 Daily Journal

D.A.R. 14,491

Veronico Blas Almario KALAW; Eleanor Lu Dalisay, Petitioners, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Florencia Garcia REVILLA, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Anastacia MIRANDA-GONZALEZ, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 97-70106, 97-70294, 97-70333.

United States Court of Appeals Ninth Circuit.

Submitted July 10, 1997. ^*

Decided Dec. 1, 1997.

Kelly Giles and Michael J. Gurfinkel, Glendale, CA, for petitioner, Garcia Revilla.

Kimberly R. Furman, Korenberg, Abramowitz & Feldun, Encino, CA, for petitioners, Kalaw, et al.

Wendy S. LeStarge, Stender & Larkin, Phoenix, AZ, for petitioner, Miranda-Gonzalez.

Laura A. Smith, Alice E. Loughran, and Michelle R. Slack, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent.

Petitions for Review of Decisions of the Board of Immigration Appeals.INS Nos. A-70-967-088, A70-018-232, A29-224-361.

Before: CANBY and THOMAS, Circuit Judges, and KING, ^**Senior U.S. District Judge.

THOMAS, Circuit Judge:

In these consolidated petitions, we consider the effect of the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") on our jurisdiction to review the Attorney General's discretionary decisions regarding suspension of deportation.Because the transitional rules removed direct judicial review of discretionary decisions made by the Attorney General within the prescribed time limits, we dismiss the petitions for lack of jurisdiction.

I

Prior to passage of IIRIRA, ¹parties who wished to appeal any decision of the Board of Immigration Appeals("BIA") would file a petition for review in the court of appeals for the circuit in which the administrative proceedings had been held.SeeImmigration and Nationality Act ("INA")§ 106(a)(formerly codified at 8 U.S.C. § 1105a).

IIRIRA dramatically altered this court's jurisdiction to review final deportation and exclusion orders.It introduced sweeping changes into our immigration laws, including the specific repeal of the judicial review procedures previously provided under INA § 106.IIRIRA's replacement section for judicial review, new INA § 242, purports to vest the BIA with final appellate jurisdiction for most INS deportation proceedings.SeeIIRIRA § 306(now codified at 8 U.S.C. § 1252).²The scope and validity of section 242 is not before us on these consolidated petitions.At issue is the nature and scope of judicial review afforded by IIRIRA's "transitional rules."

The effective date for the new jurisdictional provisions of INA § 242 was "the first day of the first month beginning more than 180 days" after IIRIRA's enactment.SeeIIRIRA § 309(a)(describing general effective dates for the chapter).³IIRIRA was enacted on September 30, 1996.Therefore, the effective date for the relevant IIRIRA provisions was April 1, 1997.

IIRIRA § 309(c) specifically addressed deportation and exclusion proceedings that were pending before the April 1, 1997, effective date.These proceedings are to be governed by special "transitional changes in judicial review" that apply to all final orders of deportation or exclusion entered after October 30, 1996.⁴Narayan v. INS, 105 F.3d 1335(9th Cir.1997).Thus, as to cases in which a final deportation or exclusion order was filed on or before October 30, 1996, the INA as it was codified prior to the passage of IIRIRA applies, including the judicial review procedures specified in INA § 106.As to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997, IIRIRA's transitional rules apply.IIRIRA's permanent provisions pertain to removal proceedings initiated by the INS on or after April 1, 1997.⁵

The consolidated petitions before us involve cases in which a final order of deportation was filed in the transition window between October 30, 1996 and April 1, 1997.Thus, the transitional rules apply.Miranda-Gonzalez v. INS provides a good example of how IIRIRA's transitional rules work.In Miranda-Gonzalez, the final order of deportation was issued on March 6, 1997, but her petition for review was not filed until April 2, 1997.The fact that her petition was filed after IIRIRA's effective date is superfluous.In determining which rules apply, the determinative date is the final order of deportation or exclusion, not the petition for review.Thus, the transitional rules apply to her petition.

Similarly, because the BIA issued final decisions concerning Kalaw's and Garcia Revilla's appeals on January 15, 1997, and March 6, 1997, respectively, IIRIRA's transitional rules apply to their cases.

II

Congress clearly intended to limit judicial review over the discretionary decisions of the Attorney General and her delegates during the transitional period.The relevant transitional provision, IIRIRA § 309(c)(4)(E), provides that "there shall be no appeal of any discretionary decision" under INA §§ 212(c), 212(h), 212(i), 244 or 245.Exactly what constitutes a discretionary decision is not defined in the IIRIRA or the INA.

At issue in the consolidated petitions is direct judicial review of the Attorney General's discretionary decision to deny suspension of deportation under INA § 244, recodified at 8 U.S.C. § 1229(b).The plain language of IIRIRA precludes our direct review of the Attorney General's discretionary decisions.However, assessing some of the aspects of statutory eligibility for suspension of deportation requires application of law to factual determinations.As to those elements of statutory eligibility which do not involve the exercise of discretion, direct judicial review remains.

Specifically, section 244 permitted the Attorney General to grant an alien's application for suspension of deportation if the alien:

(1) has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application;

(2) proves that during all of such period he was and is a person of good moral character; and

(3) is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

INA § 244(a)(1),8 U.S.C. § 1254(a)(1)(now repealed).⁶

The first eligibility requirement, continuous physical presence, must be determined from the facts, not through an exercise of discretion.Either the petitioner has been continuously present in the United States for seven years or the petitioner has not.There are legal standards guiding this inquiry, see, e.g., Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S.Ct. 1804, 1812, 10 L.Ed.2d 1000(1963)(brief, casual, and innocent departures from the United States do not break a period of continuous physical presence), and we have reversed the BIA's determination when it applied the wrong standard, see, e.g., Castrejon-Garcia v. INS, 60 F.3d 1359(9th Cir.1995);Kamheangpatiyooth v. INS, 597 F.2d 1253(9th Cir.1979).Moreover, we review whether an alien satisfies the continuous physical presence requirement for substantial evidence rather than abuse of discretion, seeHernandez-Luis v. INS, 869 F.2d 496, 498-99(9th Cir.1989), further suggesting the inquiry is more factual than discretionary.Thus, the transitional rules of judicial review provided in IIRIRA § 309(c)(4)(E), reprinted in8 U.S.C. § 1101 notes, do not remove appellate jurisdiction over an alien's challenge to the BIA's denial of an application for suspension of deportation solely on this ground.

The second requirement, "good moral character," presents a more complex question.8 U.S.C. § 1101(f) lists certain categories of aliens who are per se considered not to have good moral character, including habitual drunkards, id.§ 1101(f)(1), anyone who testified falsely to obtain benefits under the INA, id.§ 1101(f)(6), and anyone who at any time has been convicted of an aggravated felony, id.§ 1101(f)(8), among others.Whether a petitioner falls into one of these per se categories depends upon findings of fact, which we review for substantial evidence.Singh v. INS, 94 F.3d 1353, 1358(9th Cir.1996).If the BIA finds the alien falls into a per se category, the BIA lacks discretion to grant the suspension of deportation application.SeeINA § 244(a)(1), 8 U.S.C. § 1254(a)(1)(now repealed)(Attorney General may grant suspension of deportation only for aliens who meet the statutory eligibility criteria); new INA § 240A(b)(1),8 U.S.C. § 1229b(b)(1)(same).See alsoDe la Cruz v. INS, 951 F.2d 226, 228(9th Cir.1991)(BIA has no discretion to grant voluntary departure where alien fails to meet the statutory requirements for such relief).In short, determination of per se ineligibility is not a discretionary matter.Consequently, direct judicial review is available under the transitional rules of a BIA denial of eligibility for suspension of deportation based on application of the per se exclusion categories.

Apart from the per se categories, however, whether an alien has good moral character is an inquiry appropriate for the Attorney General's discretion.SeeTorres-Guzman v. INS, 804 F.2d 531, 533(9th Cir.1986)(suggesting moral character determinations should be reviewed for an abuse of discretion).This makes sense-whether someone has good moral character is almost necessarily a subjective question, dependent as it is upon the identity of the person or entity examining the issue.Thus, aside from the applicability of any per se category, IIRIRA's transitional rules prohibit direct judicial review of the question of good moral character.

Determination of the third statutory requirement, "extreme hardship," is clearly a...