Oguejiofor v. Attorney Gen. of the U.S.

• Decision Date: 02 January 2002
• Docket Number: No. 99-13286,99-13286
• Citation: 277 F.3d 1305
• Parties: (11th Cir. 2002) PATRICK OGUEJIOFOR, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, OFFICE OF IMMIGRATION AND NATURALIZATION SERVICE, Respondents
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1305

277 F.3d 1305 (11th Cir. 2002)

PATRICK OGUEJIOFOR, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, OFFICE OF IMMIGRATION AND NATURALIZATION SERVICE, Respondents.

No. 99-13286

UNITED STATES COURT OF APPEALS ELEVENTH CIRCUIT

January 2, 2002

[Copyrighted Material Omitted]

Petition for Review of an Order of the Immigration and Naturalization Service INS No. A28-423-829

Before EDMONDSON and WILSON, Circuit Judges, and PAUL^*, District Judge.

PER CURIAM:

Petitioner Patrick Oguejiofor, a native and citizen of Nigeria, has been a lawful permanent resident of the United States since 1989. He was served with a Notice to Appear (NTA) on 22 July 1997 by the Immigration and Naturalization Service (INS). The NTA charged that Petitioner was subject to removal under § 237(a)(2)(A)(ii) of the Immigration and Nationalization Act (INA) as an alien who had committed two crimes of moral turpitude not arising out of a single scheme of criminal conduct and under § 237(a)(2)(A)(iii) as an alien convicted of an aggravated felony. See 8 U.S.C. §§ 1251(a)(2)(A)(ii), (iii), currently codified at 8 U.S.C. §§ 1227(a)(2)(A)(ii), (iii).

At the removal hearing, the immigration judge (IJ) found that Petitioner had been convicted of escape in November 1996 and sentenced to five years' imprisonment. The IJ also found Petitioner had been convicted of four counts of deposit-account fraud and one count of making false statements and sentenced to four years' imprisonment. The IJ lastly found that Petitioner had been convicted of obstruction of justice and sentenced to three years' imprisonment. The IJ also concluded that the obstruction conviction constituted a crime of violence for which a sentence of at least one year had been imposed and, thus, was an aggravated felony. Based on these findings and conclusions, the IJ determined that Petitioner was removable as an alien who had committed two or more crimes of moral turpitude¹ and removable as an aggravated felon. Based on Petitioner's status as an aggravated felon, the IJ concluded that Petitioner was ineligible to apply for discretionary relief and ordered him deported to Nigeria.

Petitioner appealed to the Board of Immigration Appeals (BIA). He argued that the IJ erred in concluding that obstruction of justice was a crime of violence and, thus, determining him to be guilty of an aggravated felony. He argued that he would have filed for discretionary relief under § 212(c) and § 212(h) but for the IJ's determination that he was an aggravated felon. Petitioner also argued that § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) should not be applied retroactively to bar him from applying for § 212(c) relief and that to do so violated his due process and equal protection rights.

The BIA affirmed the IJ's decision and dismissed Petitioner's appeal, concluding that the IJ did not err in finding obstruction of justice to be an aggravated felony. The BIA also concluded that, because the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) § 304(b) repealed § 212(c), Petitioner could not apply for § 212(c) relief and that, as an aggravated felon, Petition was not eligible for relief under § 212(h). Petitioner then filed a petition for review with us.

In his appeal to this Court, Petitioner raised four issues: (1) whether this Court has jurisdiction to review the BIA's decision; (2) whether the BIA erroneously applied §§ 304 and 348 of IIRIRA to Petitioner; (3) whether the BIA's retroactive application of IIRIRA § 304, repealing INA § 212(c), and IIRIRA § 348, amending INA § 212(h), violated his due process rights; and (4) whether INA § 212(h), as modified by IIRIRA § 348, violates equal protection.

To determine this Court's jurisdiction to review the BIA's decision, we must decide what version of the INA applies to Petitioner's appeal. To answer this question, we must determine when proceedings commenced against Petitioner. See Alanis-Bustamante v. Reno, 201 F.3d 1303, 1306 (11th Cir. 2000). We conclude that proceedings were not commenced against Petitioner until after 1 April 1997, the effective date of IIRIRA, when Petitioner was served with his Notice to Appear.² Therefore, the permanent provisions of INA as amended by IIRIRA, 8 U.S.C. § 1252, apply. See id. at 1306-07.

Because Petitioner has been determined to be removable as an aggravated felon and as having committed two or more crimes involving moral turpitude, this Court only has jurisdiction to address whether the jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(C)³ apply and to address substantial constitutional questions, if any, raised by Petitioner. See Moore v. Ashcroft, 251 F.3d 919, 923-24 (11th Cir. 2001) (stating Court of Appeals has jurisdiction to review whether jurisdiction-stripping provision applies and to review substantial constitutional issues). We conclude that Petitioner is an alien who is removable, based on having committed a disqualifying offense and, therefore, that 8 U.S.C. § 1252(a)(2)(C) applies. See id. at 923. So, we only have jurisdiction to review Petitioner's appeal to the extent that he raises substantial constitutional issues.⁴ See Richardson v. Reno, 180 F.3d 1311, 1316 n.5 (11th Cir. 1999). He raises none.

Petitioner contends he has substantial constitutional challenges to the BIA's retroactive application of IIRIRA's repeal of § 212(c) and amendment of § 212(h) to his case. He argues his due process rights were violated by the retroactive application of IIRIRA §§ 304 and 348, an application which he says attaches new legal consequences -- ineligibility to apply for discretionary relief -- to the previously-made guilty pleas which caused him to be removable.

This argument is without merit. Under our precedent, an alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief. See Mohammed v. Ashcroft, 261 F.3d 1244, 1250 (11th Cir. 2001); Tefel v. Reno, 180 F.3d 1286, 1301-02 (11th Cir. 1999). Therefore, Petitioner can assert no due process challenge to the BIA's conclusion that Petitioner was ineligible for discretionary relief because of §§ 304 and 308 of IIRIRA. See Mohammed, 261 F.3d at 1250.

Furthermore, nothing in the United States Supreme Court's recent decision in INS v. St. Cyr, 121 S. Ct. 2271 (2001), mandates a different conclusion. In St. Cyr, the Court concluded that applying IIRIRA's repeal of § 212(c) to aliens "whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect" would have an impermissible retroactive effect. Id. at 2293. But then the Court decided "§ 212(c) relief remains available for [those] aliens." Id. The Court's decision was not based on constitutional grounds, but instead on principles of statutory interpretation. We conclude that we do not have jurisdiction to grant relief of the kind contemplated by St. Cyr to Petitioner on direct appeal.⁵ See Calcano-Martinez v. INS, 121 S. Ct. 2268, 2269-70 (2001) (stating Court of Appeals lacks jurisdiction to review criminal aliens' direct appeals from BIA decisions applying repeal § 212(c) relief retroactively); cf. Moore, 251 F.3d at 923-24 (when 8 U.S.C. § 1252(a)(2)(C) applies, Court of Appeals only has jurisdiction to consider jurisdictional question and substantial constitutional questions).

Even if we had jurisdiction to consider Petitioner's argument that he is entitled to relief under St. Cyr, we would conclude Petitioner's argument has no merit. Petitioner became ineligible for discretionary relief under §§ 212(c) and 212(h) when he pled guilty to the offenses which made him removable. Therefore, application of §§ 304 and 348 of IIRIRA to Petitioner did not retroactively affect Petitioner's eligibility for discretionary relief.

When Petitioner pled guilty to the charges which made him removable -- in November and December 1996 -- INA § 212(c), as amended by AEDPA § 440(d), was in effect. See 8 U.S.C. § 1182(c) (1997), repealed by IIRIRA of 1997, Pub. L No. 104-208, Div. C, Title III, § 304(b). Under this version of § 212(c), discretionary relief was not available to aliens who had "committed any criminal offense covered in section 1251(a)(2)(A)(iii) . . . or any offense covered by section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are covered by section 1251(a)(2)(A)(i) of this title." See id. In other words, aliens convicted of an aggravated felony or two or more crimes of moral turpitude for which a sentence of at least one year could be imposed were ineligible for discretionary relief under § 212(c), as amended by AEDPA § 440(d).

Petitioner was ineligible for discretionary relief under § 212(c) when he entered his guilty pleas (1) because he had been convicted of two crimes involving moral turpitude for which a sentence of at least one year could be imposed and (2) because he had been convicted of an aggravated felony.⁶

The BIA also found that Petitioner's status as an aggravated felon also made him ineligible for relief under § 212(h) as amended by IIRIRA, Pub. L. 104-208, Div. C, Title III, § 348. See 8 U.S.C. § 1182(h). Congress made § 348 of IIRIRA, which prohibits lawful resident aliens convicted of an aggravated felony from seeking relief under § 212(h), effective as of the date of IIRIRA's enactment: 30 September 1996. See IIRIRA, § 348(b). Therefore, when Petitioner pleaded guilty to obstruction in November 1996, he was ineligible for relief under § 212(h).

Petitioner argues that INA § 212(h) violates equal protection because it bars legal resident aliens convicted of aggravated felonies from applying for relief under that section but does not bar illegal aliens who have been convicted of aggravated felonies from seeking relief under its provisions. But our decision in Moore v. Ashcroft is dispositive of this...