Liang v. Immigration & Naturalization Sev., No. 99-5327

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSLOVITER
Citation206 F.3d 308
Parties(3rd Cir. 2000) XU CHENG LIANG, Petitioner v. IMMIGRATION & NATURALIZATION SERVICE, Respondent GIOACCHINO CINQUEMANI, Petitioner v. IMMIGRATION & NATURALIZATION SERVICE, Respondent CARMELO JOSE RODRIGUEZ, Petitioner v. IMMIGRATION & NATURALIZATION SERVICE, Respondent
Docket NumberNo. 99-5053,No. 99-5327,No. 99-6039
Decision Date09 March 2000

Page 308

206 F.3d 308 (3rd Cir. 2000)
XU CHENG LIANG, Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent
GIOACCHINO CINQUEMANI, Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent
CARMELO JOSE RODRIGUEZ, Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent
No. 99-5327 No. 99-5053 No. 99-6039
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued December 20, 1999
Filed March 9, 2000

Petition for Review of a Decision of the Immigration & Naturalization Service (A40 278 218)

Petition for Review of a Decision of the Immigration & Naturalization Service (A35 098 342)

Petition for Review of a Decision of the Immigration & Naturalization Service (A38 502 331)

Page 309

Theodore N. Cox New York, NY 10013 Counsel for Petitioner Xu Cheng Liang, No. 99-5053

Martin A. Kascavage Schoener & Kascavage Philadelphia, PA 19106 Counsel for Petitioner Gioacchino Cinquemani, No. 99-5327

Kerry William Bretz Alan Michael Straus (Argued) Matthew L. Guadagno Bretz & Coven New York, NY 10007 Counsel for Petitioner Carmelo Jose Rodriguez, No 99-6039

Christopher C. Fuller Alison M. Igoe (Argued) Michael P. Lindemann John M. McAdams, Jr. David W. Ogden Terri J. Scadron John D. Williams United States Department of Justice Office of Immigration Litigation Washington, DC 20044 Counsel for Respondent INS

Lee Gelernt (Argued) Lucas Guttentag American Civil Liberties Union Foundation New York, NY 10004-2400 Counsel for Amicus American Civil Liberties Union Foundation

Jeffrey Heller Brooklyn Law School Counsel for Amici Law Professors

Michael J. Wishnie Washington Square Legal Services, Inc. New York, NY 10012 Counsel for Amicus Citizens and Immigrants for Equal Justice

Before: SLOVITER, ROTH and COWEN, Circuit Judges

OPINION FOR THE COURT

SLOVITER, Circuit Judge.

I.

INTRODUCTION

In several opinions handed down in the last two years, this court has had occasion

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to consider the effect of various provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 (1996), on the jurisdiction of the federal courts over issues raised by aliens with respect to deportation proceedings commenced by the Immigration and Naturalization Service ("INS"). Judicial review of cases in which the INS commenced deportation proceedings against the alien prior to April 1, 1997 is governed by the transitional rules of IIRIRA, whereas judicial review of those commenced thereafter are governed by the permanent judicial review amendments of IIRIRA ("permanent rules").

The three cases before us today arise under the permanent rules, which we have not previously interpreted. In particular, they require us to decide whether this court has jurisdiction over a petition for review filed by an alien who has been ordered deported because s/he has been convicted of one or more crimes specified in the Immigration and Nationality Act ("INA") (hereafter referred to as an alien with a criminal conviction).1 As a necessary component of that decision we must also decide whether the permanent judicial review amendments of IIRIRA divest the federal courts of their habeas corpus jurisdiction under 28 U.S.C. S 2241.

In our earlier decisions, we held that AEDPA and the transitional rules of IIRIRA deprived us of jurisdiction over a petition for review from a final order of removal entered against an alien convicted of certain crimes listed in the statutes, see Catney v. INS, 178 F.3d 190 (3d Cir. 1999); Morel v. INS, 144 F.3d 248 (3d Cir. 1998), but that the district courts retain jurisdiction under the general statutory grant of habeas corpus jurisdiction, 28 U.S.C. S 2241, to review statutory and constitutional challenges to the deportation order, see Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999); DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999).

In the cases currently before us, three permanent legal residents, Gioacchino Cinquemani, Carmelo Jose Rodriguez, and Xu Cheng Liang (collectively "petitioners"), have filed petitions for review challenging thefinal orders of removal entered against them by the Board of Immigration Appeals ("BIA"). Rodriguez has also filed a petition for a writ of habeas corpus in the district court of New Jersey, Rodriguez v. Reno, Civ. No. 99-4300, which is pending. The INS filed a motion to dismiss for lack of jurisdiction in each case before us. We directed that petitioners' cases be expedited and consolidated.2 The American Civil Liberties Union ("ACLU") filed an amicus brief on the jurisdictional issues, as did a group of twenty-six law professors. The Citizens and Immigrants for Equal Justice filed an amicus brief on the merits of petitioners' claims. We focus on the jurisdictional issue, as we cannot consider the merits of the petitioners' claims until that is resolved.

II.

BACKGROUND

Gioacchino Cinquemani, a native and citizen of Italy, entered the United States as a lawful permanent resident in 1975. He

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is married and has two United States citizen children. He pled guilty on December 4, 1997 in the United States District Court for the Eastern District of New York to conspiracy to engage in the business of dealing in firearms in violation of 18 U.S.C. S 371 and conspiracy to distribute and possess with intent to distribute heroin and morphine in violation of 21 U.S.C. SS 846 and 841(b)(1)(B), conduct which took place in 1994 and for which he was arrested in 1994. In March 1998, the INS issued an order to show cause why Cinquemani should not be deported based on the convictions.

Carmelo Jose Rodriguez, a native and citizen of the Dominican Republic, entered the United States as a lawful permanent resident in 1983. He also is married and has two United States citizen children. He pled guilty in 1993 in New Jersey state court to two counts of receiving stolen property and to one count of possession of cocaine, pled guilty in 1994 in Ohio state court to receiving stolen property, and pled guilty in 1995 in New Jersey state court to one count of receiving stolen property. He was released from prison for the latter crime on March 5, 1997. On July 1, 1997, the INS initiated removal proceedings against Rodriguez on the basis of his criminal convictions.

Xu Cheng Liang, a native and citizen of China, entered the United States as a lawful permanent resident in 1987. He also has two United States citizen children. He was allegedly convicted in 1989 in New York state court of attempted robbery in the second degree and in May 1997 in federal court of conspiracy to distribute heroin and of possession with intent to distribute heroin in violation of 21 U.S.C. S 846. On February 3, 1998, the INS instituted removal proceedings against Liang on the basis of his convictions.

At their immigration hearings, both Cinquemani and Rodriguez conceded that they were removable aliens based on their criminal convictions, but argued that they should be permitted to seek waiver of deportability under former INA S 212(c). Rodriguez also requested the discretionary relief of cancellation of removal under new INAS 240A, 8 U.S.C. S 1229b, and adjustment of status in conjunction with waiver of inadmissibility under INA S 212(h), 8 U.S.C. S 1182(h). At his immigration hearing, Liang denied the alleged convictions. The Immigration Judge found the government had not met its burden of showing that Liang had been convicted in 1989, but found that it had met its burden as to the 1997 conviction, which still qualified Liang as an aggravated felon subject to removal. Liang then sought discretionary relief under former INA S 212(c).

Under former S 212(c), codified at 8 U.S.C.S 1182(c), the Attorney General or her delegates, such as the BIA, had discretionary authority to waive the deportation of a deportable alien because of extraordinary hardship to the deportee or his family, or other exceptional circumstances.3 Although the statutory provision itself referred only to aliens in exclusion proceedings, it had been interpreted also to apply to aliens in deportation proceedings. See Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993); Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976).4 In 1996, S 212(c) was

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amended by S 440(d) of AEDPA to preclude deportable aliens who had been convicted of an aggravated felony or two crimes of moral turpitude from receiving waivers, regardless of the prison term served for such crimes. See DeSousa v. Reno, 190 F.3d 175 (3d Cir. 1999) (rejecting equal protection challenge to AEDPA S 440(d) because of the distinction made between deportable and excludable aliens).

When, effective April 1, 1997, INA S 212(c) was repealed in its entirety by S 304(b) of IIRIRA, it was replaced with another discretionary relief provision, INA S 240A. See IIRIRA S 304(a) (adding new INA S 240A, codified at 8 U.S.C. S 1229b). That section permits the Attorney General or her delegates in her discretion to cancel removal in certain circumstances, but not when the alien has been convicted of an aggravated felony as defined by the INA, making each of the petitioners ineligible for relief under that section. As a result of these statutory changes the BIA affirmed the decisions of the Immigration Judges that the petitioners were ineligible for relief under former S 212(c).

Petitioners, relying on the principles set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994), and elaborated in Lindh v. Murphy, 521 U.S. 320 (1997), and Martin v. Hadix, 527 U.S. 343 (1999), argue that the BIA erred by interpreting IIRIRA S 304(b) to apply retroactively to criminal conduct and convictions that occurred before the effective date of the section. Thus, petitioners are challenging the BIA's legal interpretation of the statute as depriving it of discretion rather than the exercise of any discretion by the BIA....

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58 practice notes
  • U.S. v. Aguirre-Tello, No. 02-2049.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 7, 2003
    ...have applied that standard to § 1182(c) waivers. See, e.g., Calcano-Martinez v. INS, 232 F.3d 328, 331 (2d Cir. 2000); Liang v. INS, 206 F.3d 308, 311 (3d Cir.2000); Turkhan v. Perryman, 188 F.3d 814, 818 (7th Cir.1999). The majority dismisses these cases applying an extreme hardship standa......
  • Fuller v. I.N.S., No. 3:99CV00454 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 15, 2000
    ...to coalesce, as immigration cases under the new law's transitional and permanent rules reach the Courts of Appeals. See Liang v. INS, 206 F.3d 308 (3rd Cir.2000) (interpreting permanent provisions of IIRIRA, and noting growing consensus among courts of appeals and district courts regarding ......
  • Bakhtriger v. Elwood, No. 02-4134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 10, 2004
    ...immigration law amendment was to eliminate direct review by the courts of appeals of the BIA's determination. We so held in Liang v. INS. 206 F.3d 308, 323 (3d Cir. 2000).5 But that shifted the issue of reviewability back to the district courts. The question arose whether in criminal alien ......
  • Flores Miramontes v. INS, FLORES-MIRAMONTE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 9, 2000
    ...orders no longer exists, but that habeas jurisdiction remains. In doing so, we follow the Third Circuit's decision in Liang v. INS, 206 F.3d 308 (3d Cir. 2000) and the principles we laid down in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). Accordingly, we dismiss the petition before ......
  • Request a trial to view additional results
58 cases
  • U.S. v. Aguirre-Tello, No. 02-2049.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 7, 2003
    ...have applied that standard to § 1182(c) waivers. See, e.g., Calcano-Martinez v. INS, 232 F.3d 328, 331 (2d Cir. 2000); Liang v. INS, 206 F.3d 308, 311 (3d Cir.2000); Turkhan v. Perryman, 188 F.3d 814, 818 (7th Cir.1999). The majority dismisses these cases applying an extreme hardship standa......
  • Fuller v. I.N.S., No. 3:99CV00454 (JBA).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • November 15, 2000
    ...to coalesce, as immigration cases under the new law's transitional and permanent rules reach the Courts of Appeals. See Liang v. INS, 206 F.3d 308 (3rd Cir.2000) (interpreting permanent provisions of IIRIRA, and noting growing consensus among courts of appeals and district courts regarding ......
  • Bakhtriger v. Elwood, No. 02-4134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 10, 2004
    ...immigration law amendment was to eliminate direct review by the courts of appeals of the BIA's determination. We so held in Liang v. INS. 206 F.3d 308, 323 (3d Cir. 2000).5 But that shifted the issue of reviewability back to the district courts. The question arose whether in criminal alien ......
  • Flores Miramontes v. INS, FLORES-MIRAMONTE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 9, 2000
    ...orders no longer exists, but that habeas jurisdiction remains. In doing so, we follow the Third Circuit's decision in Liang v. INS, 206 F.3d 308 (3d Cir. 2000) and the principles we laid down in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999). Accordingly, we dismiss the petition before ......
  • Request a trial to view additional results

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