Okoro v. I.N.S.

• Decision Date: 27 October 1997
• Docket Number: No. 96-60559,96-60559
• Citation: 125 F.3d 920
• Parties: Benjamine Maduka OKORO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 920

125 F.3d 920

Benjamine Maduka OKORO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-60559.

United States Court of Appeals Fifth Circuit.

Oct. 27, 1997.

Benjamine Maduka Okoro, Marksville, LA, pro se.

Laura Anderson Smith, U.S. Department of Justice, Civil Division, Washington, DC, Janet Reno, Office of the United States Attorney General, Civil Division, Appellate Staff, Washington, DC, Robert L. Bombaugh, Director, Office of Immigration Litigation, Civil Division, Washington, DC, John B.Z. Caplinger, Director, Immigration and Naturalization Service, District Directors Office, New Orleans, LA, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, DUHE and DEMOSS, Circuit Judges.

DUHE, Circuit Judge:

Petitioner Benjamine Maduka Okoro ("Okoro") seeks review of a final order of deportation by the Board of Immigration Appeals ("BIA"). For the reasons that follow, we find that we have no jurisdiction to entertain Okoro's petition.

BACKGROUND

Okoro, a citizen of Nigeria, originally entered the United States in 1983 as a student. In 1986, he was convicted in Texas of issuing worthless checks. Based on his marriage to a United States citizen, he applied for an adjustment to his status in 1988 and became a legal permanent resident in 1990. Okoro left the United States in early 1992 and, when he returned in June 1992, was admitted as a returning student.

In July, 1992, Okoro was convicted in Delaware on two counts of theft and was sentenced to two consecutive terms of one year imprisonment, with each sentence suspended. The convictions were based on the following facts: in July, 1991, Okoro, using another's name, ordered computer equipment by telephone; on August 5, 1991, the UPS delivered part of the order, and Okoro paid with a check issued in the name of another person; on August 7, 1991, the rest of the order was delivered and Okoro paid with a similarly unauthorized check. ¹

On January 24, 1994, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Okoro. In its Order to Show Cause ("OSC"), the INS asserted Okoro was deportable, inter alia, under § 241(a)(2)(A)(ii) ² of the Immigration and Nationality Act ("INA"), in that he had been convicted of two crimes involving moral turpitude: the 1986 Texas conviction for issuing bad checks and one of the two 1992 Delaware convictions for theft. ³ On October 27, 1994, the Immigration Judge ("IJ") terminated the proceedings against Okoro. The IJ found that the crime underlying the Texas conviction did not involve moral turpitude and thus neither ground of deportability asserted applied. The IJ noted that Okoro "might be deportable" on the independent ground that he had been convicted of two counts of theft in Delaware. Since the INS did not raise the second Delaware conviction, however, the IJ did not reach that issue and terminated the proceedings.

On October 31, 1994, the INS issued a new OSC asserting that Okoro was deportable under INA § 241(a)(2)(A)(ii), based on the two Delaware theft convictions. Okoro moved to terminate the proceedings, asserting that they were barred by res judicata, that the underlying crimes did not involve moral turpitude, that he was not sentenced to imprisonment of one year or longer, and that the two crimes arose out of a single scheme of criminal conduct. Following a hearing on December 2, 1994, the IJ, without addressing his motion to terminate, ordered Okoro deported. Okoro appealed to the BIA, which found that the IJ should have considered the motion to terminate on the record and thus remanded the case to the IJ for further proceedings.

Following another hearing, in which Okoro raised his previous claims, the IJ issued a second decision on June 12, 1995, rejecting all of Okoro's arguments and ordering him deported pursuant to INA § 241(a)(2)(A)(ii) for having committed two crimes of moral turpitude that were not part of a single scheme of criminal misconduct. On June 16, 1995, Okoro appealed to the BIA, which dismissed his appeal on March 6, 1996. Okoro filed a petition for review in the United States Court of Appeals for the Third Circuit on March 22, 1996. The Third Circuit granted Okoro's motion to transfer venue to the Fifth Circuit on August 21, 1996.

DISCUSSION

In his petition for review, Okoro raises the following issues: that the deportation proceedings brought under the second OSC were barred by res judicata and collateral estoppel; that the second OSC was actually a motion to reopen that did not meet the requirements of 8 C.F.R. § 242.22 and thus deprived Okoro of his right to procedural due process; that the Delaware theft convictions were not for crimes involving moral turpitude; and, that both crimes were part of a single scheme of criminal misconduct.

As a threshold matter, however, we must address the question of jurisdiction. The INS asserts that under the INA, as recently amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, we lack jurisdiction over this petition for review. After considering the effect of the two recent statutes, we must agree.

The AEDPA became effective on April 24, 1996. We are here concerned with Title IV of the AEDPA, "Terrorist and Criminal Alien Removal and Exclusion," and specifically subsection 440(a). That subsection amends § 106 of the INA (8 U.S.C. § 1105a(a)(10)) ⁴ to read:

Any final order of deportation against an alien who is deportable by reason of having committed ... any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), ⁵ shall not be subject to review by any court.

In Mendez-Rosas v. INS, 87 F.3d 672, 676 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997), we held that § 440(a) of the AEDPA applies retroactively to appeals pending before the effective date of the AEDPA. ⁶ Observing that Congress did not expressly provide an effective date for § 440(a), we analyzed the provision under Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). ⁷ We found that § 440(a) was "easily classified as jurisdictional in nature" and was thus presumed to apply retroactively. Mendez-Rosas, 87 F.3d at 676, citing Landgraf, 511 U.S. at 280-81, 114 S.Ct. at 1505. We further found that Petitioner Mendez-Rosas had not rebutted that presumption of retroactivity by showing that § 440(a)'s jurisdictional bar "curtailed one or more of Petitioner's substantive rights." Mendez-Rosas, 87 F.3d at 676.

Thus, INA § 106, as amended by § 440(a) of the AEDPA, applies to Okoro's petition for review, even though his petition was pending on the effective date of the AEDPA.

The question is somewhat complicated by the fact that IIRIRA, signed into law on September 30, 1996, amended, inter alia, § 440(a) of the AEDPA. IIRIRA § 306(d), a "technical amendment" to the AEDPA, reads as follows:

Effective as if included in the enactment of the [AEDPA], subsections (a), (c), (d), (g), and (h) of section 440 of such Act are amended by striking "any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i)" and inserting "any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i)".

(emphasis added). By its own terms, IIRIRA § 306(d) applies as if enacted with the AEDPA. Since we have already determined that AEDPA § 440(a) applies to Okoro's pending petition for review, we apply that version of § 440(a) as amended by IIRIRA § 306(d). See Pichardo v. INS, 104 F.3d 756, 758 & n. 3 (5th Cir.1997) ("The relevant IIRIRA provision, section 306(d), has its own effective date that is different than most of the IIRIRA's provisions.").

Our recent decision in Anwar v. INS, 116 F.3d 140 (5th Cir.1997)(replacing Anwar v INS, 107 F.3d 339), seems to contradict Pichardo regarding the applicability of IIRIRA § 306(d). See Anwar, 116 F.3d at 143. In Anwar, we construed the transitional provision of IIRIRA, § 309(c)(1), as including § 306(d); thus, where an alien was in deportation proceedings on the general effective date of the IIRIRA [April 1, 1997 (see IIRIRA § 309(a)) ], those proceedings (including judicial review thereof) would "continue to be conducted without regard to such amendments," including § 306(d). IIRIRA § 309(c)(1)(B). Anwar admitted that its reasoning regarding the effective date of § 306(d) would create an "apparent inconsistency" with Pichardo, but added that the result in Pichardo would have been the same even had the panel reached the merits. Anwar, 116 F.3d at 143 n. 2.

Notwithstanding any language to the contrary in Anwar, we read IIRIRA § 306(d) to apply, per its explicit direction, "as if included in the enactment of" AEDPA § 440(a). ⁸ We observe that a successive panel of this Court may not overrule a prior panel. See Lowrey v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir.1997); Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997), petition for cert. filed, 66 U.S.L.W. 3108 (U.S. July 21, 1997)(No. 97-126). We think this rule obtains even if, as in the case of Pichardo and Anwar, the membership on the two panels is identical. We therefore follow Pichardo.

Additionally, we note that the language of § 306(d) is specific, while the language of § 309(c)(1) is general. To give effect to § 309(c)(1) and thus apply 306(d) only to deportation proceedings begun 180 days after the IIRIRA's effective date (as § 309(a) directs) would deprive the explicit language in § 306(d) of any meaning.

Thus, we apply to Okoro's petition the following version of AEDPA § 440(a), as...