Lee v. Gonzales

• Decision Date: 04 August 2005
• Docket Number: No. 04-10218.,04-10218.
• Citation: 410 F.3d 778
• Parties: Youn J. LEE, Petitioner-Appellant, v. Alberto R. GONZALES; Nuria Prendes, Field Officer in Charge of Detention and Removal, Bureau of Immigration and Customs Enforcement, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.3d 778

Youn J. LEE, Petitioner-Appellant, v. Alberto R. GONZALES; Nuria Prendes, Field Officer in Charge of Detention and Removal, Bureau of Immigration and Customs Enforcement, Respondents-Appellees.

No. 04-10218.

United States Court of Appeals, Fifth Circuit.

May 31, 2005.

Rehearing Denied August 4, 2005.

Joshua Turin (argued), Sondra Mae Turin, Turin, Turin & Olinger, Dallas, TX, for Petitioner-Appellant.

Frank D. Able (argued), Asst. U.S. Atty., Dallas, TX, for Respondents-Appellees.

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

Before GARWOOD, JONES and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This case requires further explanation of immigration procedure in this circuit. We hold, consistent with our prior decisions, that habeas corpus relief is not available to an immigrant who has other procedural devices to secure court review of Board of Immigration Appeals ("BIA") decisions, even where the form of review is limited to this court's construing statutory provisions concerning our appellate jurisdiction. Lee, having had the opportunity to secure review through an appeal that would have tested this court's jurisdiction, improperly pursued habeas relief instead. The dismissal of his petition must be affirmed.

Youn Jae Lee ("Lee") appeals the district court's dismissal of his petition for habeas corpus. Lee, a native and citizen of South Korea, entered the United States as a visitor on March 22, 1993. Lee became a legal United States resident on May 24, 1996. On April 10, 1998, Lee pled guilty to a single count of violating 18 U.S.C. § 2320, Trafficking in Counterfeit Goods or Services. The court ordered Lee to pay restitution in the amount of $5,479.92 and placed him on probation for sixty months. This conviction prompted the Immigration and Naturalization Service ("INS")¹ to institute removal proceedings against Lee under the Immigration and Nationality Act.

On September 26, 2001, the immigration judge sustained the charge of deportation based on the judge's characterization of Lee's crime as a "crime involving moral turpitude" ("CIMT") for which a sentence of one year or longer could be imposed. See 8 U.S.C. § 1227(a)(2)(A)(i). On January 29, 2003, the BIA affirmed this decision. Lee did not attempt to file a petition for review of the BIA's decision in this court.

On March 3, 2003, Lee filed instead this petition for writ of habeas corpus in the district court. A magistrate judge recommended that the district court dismiss Lee's petition for lack of jurisdiction. The district court agreed that the findings and conclusions of the magistrate judge were correct, adopted those findings and conclusions, and dismissed Lee's petition. Lee timely appealed.

DISCUSSION

We review the district court's dismissal for lack of subject matter jurisdiction de novo, using the same standard applied by that court. See Robinson v. TCI/US West Communications Inc., 117 F.3d 900, 904 (5th Cir.1997). Because the INS instituted removal proceedings against Lee on April 24, 2000, we apply the permanent rules governing immigration proceedings to this case. See DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 813 (5th Cir.2001).

In his habeas petition, Lee urges that his prior conviction is not a CIMT² and contends that he did not file a petition for review of the BIA decision because this court would have lacked jurisdiction to entertain such a petition; based on this belief, and the recent Supreme Court case of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), Lee instead filed the instant petition for habeas corpus.

In a case involving an inadmissible alien (see § 1182(a)(2)(A)(i))³, this court held that "when the alien has been convicted of a crime involving moral turpitude . . . 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction to hear his petition for review." Balogun v. Ashcroft, 270 F.3d 274, 278-79 (5th Cir.2001). Section 1252(a)(2)(C) provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C). Lee has been ordered removed under § 1227(a)(2)(A)(i); his removal order therefore does not appear to fall within the jurisdiction-stripping provisions of § 1252(a)(2)(C). The provision relevant to Lee states:

(a)(2) Criminal Offenses

(A) General crimes

(i) Crimes of moral turpitude—

Any alien who—

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(j) of this title) after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

(ii) Multiple criminal convictions

Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

(iii) Aggravated felony

Any alien who is convicted of an aggravated felony at any time after admission is deportable.

8 U.S.C. § 1227(a)(2). In light of these provisions, Lee contends that § 1227(a)(2)(A)(i) is "subsumed" in § 1182(a)(2)(A)(i), and that under Balogun this court similarly lacks jurisdiction to hear a petition for review by an alien (such as Lee) ordered removed under § 1227(a)(2)(A)(i).

While logical at first blush, Lee's "subsumation theory" cannot survive more careful scrutiny. The INS ordered Lee removed pursuant to § 1227(a)(2)(A)(i). Although this provision does appear in the jurisdiction-stripping statute, § 1252(a)(2), it prohibits appeal only by aliens convicted of multiple CIMT, not aliens convicted of only one CIMT. Because the order removing Lee is not included in the jurisdiction-stripping statute, the unambiguous text of the statute permitted him to seek direct review of the determination in this court. As the district court pointed out, different standards apply to aliens seeking admission to the United States (who may be considered "inadmissible" under § 1182 for their prior conduct) and aliens lawfully admitted to the United States subject to deportation for subsequent conduct (under § 1227). Once an alien is lawfully admitted into this country, logic demands that it be harder to remove that lawfully admitted alien than to refuse admission to an alien seeking entry in the first instance. This notion is borne out in the structure of § 1252(a)(2)(C) (applicable to lawfully admitted aliens subject to deportation), which divests this court of jurisdiction more narrowly than § 1182(a)(2)(A)(i)(applicable to removable aliens never lawfully admitted into the United States). Accord St. Cyr, 533 U.S. at 298, 121 S.Ct. at 2278 (discussing the "strong presumption in favor of judicial review of administrative action"). To hold, as Lee urges, that § 1227(a)(2)(A)(i) is somehow "subsumed" into § 1182(a)(2)(A)(i), would harm the very subgroup of aliens—those legally residing in the United States—to which Lee himself belongs.

Lee argues that our reading of the statute runs counter to the intent of Congress, which was "to deprive criminal aliens of direct judicial review under the INA." Appellant's Br. at 19. He points to no authority, either case law or legislative history, in support of his proposition. Moreover, our reading of the statute supports the view that Congress rationally chose to permit direct review for aliens lawfully admitted into the United States who commit a single CIMT within five years of admission, and to prohibit direct appeal only for those aliens convicted of multiple CIMT. This regime allows review and correction of a possible error for those convicted of a single offense, and dispenses with additional process for repeat offenders. We need not resort to hypothetical inquiries about Congressional intent here, however, because our resolution of the question is supported by the text and structure of the statute as well as our prior decisions; Lee's "subsumation theory" is not.

Lee further contends that Smalley v. Ashcroft, 354 F.3d 332 (5th Cir.2003), requires reversing and remanding the case back to the district court for a hearing of his habeas petition. This argument proves too much. In Smalley, this court held that 8 U.S.C. § 1182(a)(2)(A)(i)(I) stripped this court of jurisdiction to hear a petition for review on direct appeal of a deportation order filed by an alien ordered deportable for committing a single CIMT. 354 F.3d at 335. The court first had to ascertain whether Smalley's conviction for money laundering qualified as a CIMT; after concluding that this offense constituted a CIMT, the court necessarily concluded that it lacked jurisdiction to hear a petition for review because of the jurisdiction-stripping provision in the transitional Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") rules.⁴ 354 F.3d at 339. In determining whether the crime at issue was a CIMT, this court explained that it "always ha[s] jurisdiction to consider whether . . . specific conditions exist that bar . . . jurisdiction over the merits, namely, whether the petitioner is (1) an alien, (2) who is deportable, (3) for committing the type of crime that bars [this court's] review." Id. at 335 (quoting Nehme v. INS, 252 F.3d 415, 420 (5th Cir.2001)). Moreover, Smalley provides the exact sort of review Lee seeks: If Lee had, like Smalley, filed a petition for review this court could have...