Patel v. Ashcroft

• Decision Date: 08 March 2005
• Docket Number: No. 03-3809.,03-3809.
• Citation: 401 F.3d 400
• Parties: Ravindrakumar M. PATEL, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

401 F.3d 400

Ravindrakumar M. PATEL, Petitioner, v. John D. ASHCROFT, Attorney General, Respondent.

No. 03-3809.

United States Court of Appeals, Sixth Circuit.

Submitted: February 4, 2005.

Decided and Filed: March 8, 2005.

COPYRIGHT MATERIAL OMITTED

ON BRIEF:

Scott E. Bratton, Margaret Wong & Associates, Cleveland, Ohio, for Petitioner. Regina Byrd, David V. Bernal, U.S. Department of Justice, Washington, D.C., for Respondent.

Before: SILER, COLE, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Ravindrakumar M. Patel petitions this Court for review of a final order of the Board of Immigration Appeals ("BIA") denying him relief from an Immigration Judge's ("IJ") order that he be removed as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) and for committing a crime involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i). Patel contends that his Illinois conviction for aggravated criminal sexual abuse is not an aggravated felony within the meaning of the removal statute. Furthermore, Patel seeks to avoid the retroactive repeal of INA § 212(c), formerly codified at 8 U.S.C. § 1182(c) (1994), which provided an avenue of discretionary relief from deportation before Congress enacted AEDPA¹ and IIRIRA² in 1996. We dismiss the petition for lack of jurisdiction.

I. BACKGROUND

Patel is a native and citizen of India who entered the United States on February 18, 1985 as a permanent resident. The IJ ordered Patel removed on the grounds that his 1989 conviction in Illinois for aggravated criminal sexual abuse, see 720 ILL. COMP. STAT. 5/12-16 (1993),³ constitutes a conviction for an aggravated felony as well as a conviction for a crime of moral turpitude within the meaning of the removal statute. See 8 U.S.C. §§ 1227(a)(2)(A)(iii) and (i).

A. The Criminal Proceedings Against Patel in Illinois

On August 23, 1989, a grand jury in Lake County, Illinois, indicted Patel on three counts of aggravated criminal sexual assault, in violation of 720 ILL. COMP. STAT 5/12-14 (1993), for sodomizing a mentally and physically handicapped woman. Patel pled not guilty to all charges but waived his right to a jury trial. After a bench trial, the judge convicted Patel of aggravated criminal sexual abuse, a lesser included offense of aggravated criminal sexual assault. The judge sentenced Patel to five years in prison but he apparently served less than the full sentence. See Brief of Petitioner at 3-4.⁴

B. The Removal Proceedings

On March 23, 1999, the then-Immigration and Naturalization Service ("INS") served Patel with a notice to appear, in which it charged that Patel was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had committed an aggravated felony. On March 14, 2001, the INS added an additional basis for removal, alleging that Patel's Illinois conviction rendered him removable under § 1227(a)(2)(A)(i), which authorizes removal for those convicted of crimes of moral turpitude.

At the removal hearing, Patel admitted that he had been convicted of aggravated criminal sexual abuse in Illinois but denied that the conviction qualified him for removal under either section of the removal statute. In the event the IJ held him removable, Patel sought relief under former INA § 212(c), 8 U.S.C. § 1182(c) (1994), and the Convention Against Torture ("CAT"). Section 212(c), as interpreted by the INS, permitted a deportee to make an application for a waiver of deportation as long as he served less than 5 years of prison time for his conviction. Because Congress repealed that provision with the enactment of the IIRIRA in 1996,⁵ the IJ rejected Patel's claim for relief. Nonetheless, Patel argued that under INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), he was entitled to rely on § 212(c) because he was convicted in 1989, prior to the statute's repeal. Thus Patel challenged the retroactive application of IIRIRA to his case. The IJ declined to extend St. Cyr, which involved a deportee who had pled guilty to a crime in reliance on the expectation that he would receive a sentence low enough to merit § 212(c) relief, to Patel, who had gone to trial on the charges against him.⁶ Patel did not pursue his claim for relief under the CAT and on December 12, 2002, in an oral decision and order, the IJ ordered him removed to India under both § 1227(a)(2)(A)(i) (crimes involving moral turpitude) and § 1227(a)(2)(A)(iii) (aggravated felonies).

C. The BIA's Final Order

Patel timely appealed the IJ's decision. Just as the IJ had, the BIA determined that Patel was precluded from seeking § 212(c) relief because his conviction was the result of a trial, rather than a guilty plea. Patel did not appeal the IJ's determination that he had committed a crime of moral turpitude and was therefore removable under § 1227(a)(2)(A)(i). However, Patel continued to challenge the IJ's determination that his conviction constituted an aggravated felony under § 1227(a)(2)(A)(iii).⁷

The BIA affirmed the IJ's determination that Patel's conviction for the Illinois crime of aggravated criminal sexual abuse constituted a conviction for an aggravated felony and dismissed Patel's appeal. Although Patel did not apply for cancellation of removal, see 8 U.S.C. § 1229b(a), the BIA observed that he would not be eligible for that form of discretionary relief from removal in any event. Under 8 U.S.C. § 1229b, which Congress enacted as part of IIRIRA to replace § 212(c), a permanent resident alien facing an order of removal may apply for cancellation of removal. See § 1229b(a). To be eligible for cancellation of removal — a remedy that is discretionary at all events — an alien must show that he (1) has been lawfully admitted as a permanent resident for not less than 5 years; (2) has resided in the United States continuously for 7 years; and (3) has not been convicted of any aggravated felony. Id.

The BIA determined that Patel is not eligible for the remedy. It concluded that even assuming arguendo that Patel's crime is not an aggravated felony, Patel has not "resided in the United States continuously for 7 years after having been admitted...." See § 1229b(a)(3). Under § 1229b(d)(1), "any period of continuous residence or continuous physical presence in the United States shall be deemed to end ... [(A)] when the alien is served a notice to appear under section 1229(a) of this title, or (B) when the alien has committed an offense referred to in section 1182(a)(2) of this title that renders the alien ... removable from the United States under section 1227(a)(2) or 1227(a)(4) of this title, whichever is earliest." Id. The INS served Patel with a notice to appear in March 1999, 14 years after his admission to the United States. However, Patel was convicted of his crime in 1989, only 4 years after his admission. Furthermore, the crime renders him "removable from the United States under section 1227(a)(2)" and is "an offense referred to in section 1182(a)(2)." See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (rendering inadmissible any alien convicted of "a crime involving moral turpitude" other than purely political offenses); id. § 1227(a)(2)(A)(i) (rendering deportable any alien convicted "of a crime involving moral turpitude committed within five years ... after the date of admission" if the crime could result in a sentence of more than one year).

In sum, because Patel does not challenge the conclusion that he was convicted in 1989 of a crime involving moral turpitude, which crime was committed within 5 years of his entry, and resulted in a sentence of 5 years, Patel's period of continuous residence was capped at 4 years. Consequently, the BIA concluded that he is ineligible for cancellation of removal.

D. Initial Proceedings Before this Court

On June 4, 2003, Patel timely filed a petition for review of the BIA's final order. On June 21 and 26, 2003, the government moved to dismiss the petition for lack of jurisdiction on the grounds that 8 U.S.C. § 1252(a)(2)(C) strips the federal courts of jurisdiction to review final removal orders issued under § 1227(a)(2)(A)(iii). On June 27, 2003, Patel moved for a stay of removal. On July 11, 2003, a motions panel of this Court issued an order denying the government's motion to dismiss for lack of jurisdiction, referred the question of jurisdiction to this panel, and granted Patel a stay of removal. On October 1, 2003, Patel moved the Court to withdraw the stay of removal; and this Court granted the motion on October 31, 2003. On January 23, 2004, the government again moved to dismiss for lack of jurisdiction, this time specifically conceding that the Court has jurisdiction to determine whether it has jurisdiction, i.e., to determine whether the Illinois crime of aggravated criminal sexual abuse constitutes an aggravated felony. On March 17, 2004, this Court denied the government's second motion to dismiss for lack of jurisdiction.

II. DISCUSSION

A. The Scope of Our Jurisdiction

Initially, we must determine whether we have jurisdiction to consider Patel's petition and, if so, whether our jurisdiction extends to all of the issues Patel raises. We conclude that this Court retains jurisdiction to consider the limited question of whether Patel's conviction constitutes grounds for removal under § 1227(a)(2)(A)(iii), i.e., whether his offense was an aggravated felony.

In 1996, with the enactment of AEDPA and IIRIRA, Congress placed significant limits on the courts' jurisdiction over immigration matters. See 8 U.S.C. § 1252(a)(2). Under the provision relevant to this case, the judiciary is instructed that: "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 ... 1227(a)(2)(A)(iii) ...." Id. § (a)(2)(C). The Supreme Court has upheld this jurisdiction-stripping provision insofar as it deprives aliens convicted of aggravated felonies of the ability to peti...