Turkhan v. Perryman

• Decision Date: 12 October 1999
• Docket Number: No. 98-1964,98-1964
• Citation: 188 F.3d 814
• Parties: (7th Cir. 1999) Shmael Turkhan, Betty Jean Turkhan, and Oriana M. Turkhan, Petitioners-Appellants, v. Brian R. Perryman, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 814

188 F.3d 814 (7th Cir. 1999)

Shmael Turkhan, Betty Jean Turkhan, and Oriana M. Turkhan, Petitioners-Appellants, v. Brian R. Perryman, Respondent-Appellee.

No. 98-1964

United States Court of Appeals, Seventh Circuit

Argued January 15, 1999

Decided August 16, 1999

Rehearing and Rehearing En Banc Denied October 12, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 8010--Charles P. Kocoras, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Posner, Kanne, and Evans, Circuit Judges.

Kanne, Circuit Judge.

Shmael Turkhan appeals the decision of the district court denying his petition for habeas corpus. In that petition, Turkhan sought review of his deportation order to Iraq. Turkhan argues that the district court erred in concluding that his constitutional rights were not violated during the adjudication of his application for a discretionary waiver of deportation. He asks that we reverse the district court's ruling and remand his case to an immigration judge for a new hearing. For the reasons set forth below, we reject Turkhan's appeal and affirm the decision of the district court.

I. History

Turkhan is a citizen of Iraq who lawfully immigrated to the United States as a permanent resident alien in 1979. The named co-petitioners, Betty Jean Turkhan and Oriana Miriam Turkhan, are Turkhan's spouse and child, respectively, and are both United States citizens. Brian R. Perryman is the Chicago District Director of the Immigration and Naturalization Service ("INS").

On April 17, 1990, Turkhan pleaded guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. sec. 846. As a result of that conviction, the INS instituted deportation proceedings against Turkhan by issuing an order to show cause why Turkhan should not be deported on the basis of his drug conviction. The INS charged that Turkhan was deportable pursuant to sec. 241(a)(4)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. sec. 1251(a)(4)(B) (1989), as an alien convicted of an "aggravated felony," and pursuant to INA sec. 241(a)(11), 8 U.S.C. sec. 1251(a)(11) (1989), as an alien convicted of a "controlled substance" violation.¹ Turkhan's drug conviction met the statutory definitions of both an aggravated felony, see 8 U.S.C. sec. 1101(a)(43) (1994), and a controlled substance violation, see 21 U.S.C. sec. 802(6) (1994), and INA sec. 241 provides that any alien convicted of an offense falling within the scope of either of these provisions is subject to deportation upon the order of the Attorney General of the United States.

At his deportation hearing in October 1994, Turkhan conceded to the immigration judge ("IJ") that he was deportable on the grounds charged by the INS. Based on these admissions, the IJ found Turkhan deportable by clear, convincing, and unequivocal evidence. Turkhan then applied for discretionary relief from deportation under INA sec. 212(c), 8 U.S.C. sec. 1182(c) (1994). At that time, INA sec. 212(c) granted the Attorney General (or the Attorney General's delegates, such as the Board of Immigration Appeals ("BIA") and IJ) discretionary authority to waive the deportation of a deportable alien because of extraordinary hardship to the deportee or his family, or other exceptional circumstances.² See LaGuerre v. Reno, 164 F.3d 1035, 1037 (7th Cir. 1998); Reyes-Hernandez v. INS, 89 F.3d 490, 491 (7th Cir. 1996). Although the IJ found Turkhan statutorily eligible for a deportation waiver, he rejected Turkhan's request for relief under INA sec. 212(c). After considering several factors in support of Turkhan's request for a deportation waiver, including the length of Turkhan's legal residence in this country, his family ties to the United States and Iraq, evidence of rehabilitation, and the hardship to him and his family if he was to be deported to Iraq, the IJ concluded that Turkhan failed to demonstrate that he possessed "unusual or outstanding" equities or sufficient rehabilitation outweighing the negative aspects of his case and warranting the granting of a deportation waiver under INA sec. 212(c).

Turkhan appealed the IJ's decision to the BIA. In his appeal, Turkhan asserted two primary claims. First, he claimed that the IJ erred in denying his request for a deportation waiver. Second, he alleged that his counsel rendered him ineffective assistance by failing to request an Assyrian interpreter so that his wife could testify at the hearing before the IJ on his behalf. On November 7, 1995, the BIA affirmed the decision of the IJ and dismissed Turkhan's appeal. The BIA found that Turkhan failed to show that the IJ abused his discretion in denying him a discretionary deportation waiver and that his claim of ineffective assistance of counsel was without merit. As a result, the BIA issued a final order of deportation.

Turkhan filed a petition for review of the BIA's final order with this Court. While that petition was pending before us, Turkhan filed a motion to reopen his case before the BIA. He requested that the BIA reconsider his application for a deportation waiver under INA sec. 212(c) on the ground that the BIA did not give adequate consideration to his arguments in support of his ineffective assistance of counsel claim. In his motion, Turkhan argued that the BIA failed to consider a mislabeled brief that he had filed in connection with his first appeal to the BIA. On May 9, 1997, the BIA denied Turkhan's motion to reopen his case. The BIA found that, as an alien found deportable for having committed an "aggravated felony," Turkhan was now statutorily ineligible for INA sec. 212(c) discretionary relief pursuant to sec. 440(d) of the newly enacted Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214.³ Section 440(d) of the AEDPA amended INA sec. 212(c) to restrict the availability of the relief sought by Turkhan by, inter alia, adding certain drug offenses to the list of deportable offenses that made criminal aliens ineligible for discretionary waivers of deportation.⁴ Relying on the Attorney General's decision in In re Soriano, Interim Decision No. 3289, 1996 WL 426888 (A.G. Feb. 21, 1997), in which the Attorney General ruled that AEDPA sec. 440(d) applied retroactively to criminal aliens with pending applications for deportation waivers, the BIA concluded that Turkhan was now statutorily ineligible for discretionary relief under INA sec. 212(c). Alternatively, the BIA found that the record belied any claim by Turkhan that his counsel rendered ineffective assistance during the deportation hearing. Turkhan then filed a second petition with this Court, asking us to review the BIA's denial of his motion to reopen his case.

We consolidated Turkhan's two petitions for appeal and our opinion is reported at Turkhan v. INS, 123 F.3d 487 (7th Cir. 1997) ("Turkhan I"). In that opinion, we did not reach the merits of Turkhan's constitutional claims because we found that we lacked jurisdiction to review his challenges to either of the BIA orders in light of recent amendments to the INA contained in the AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, Div. C, 110 Stat. 3009. See Turkhan I, 123 F.3d at 488-90.

Prior to these amendments, INA sec. 106(a) governed the judicial review of orders of deportation. See 8 U.S.C. sec. 1105a (1994). Section 106(a) provided that judicial review of final orders of deportation was within the exclusive province of the federal courts of appeal, although INA sec. 106(a)(10) authorized district courts to hear habeas corpus petitions in limited circumstances. See Turkhan I, 123 F.3d at 488. Congress significantly altered this framework for judicial review in 1996 with the passage of the AEDPA and the IIRIRA. Section 440(a) of the AEDPA repealed INA sec. 106(a)(10) to eliminate habeas corpus jurisdiction in the district courts and curtailed our normal review of final orders of deportation by amending INA sec. 106 to provide that "[a]ny final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2) (A)(iii), (B), (C), or (D) [of the INA] . . . shall not be subject to review by any court."

We found that both of Turkhan's petitions fell within the scope of AEDPA sec. 440(a). First, each of the petitions concerned BIA decisions that were considered final orders of deportation. Second, Turkhan's conviction for conspiracy to distribute cocaine is a deportable criminal offense under the INA. The offenses are classified as both an aggravated felony (covered by INA sec. 241(a)(2)(A)(iii)) and a controlled substance violation (covered by INA sec. 241(a) (2)(B)(i)). Third, AEDPA sec. 440(a) had been construed by this Court to apply retroactively to pending deportation cases like Turkhan's. See Yang v. INS, 109 F.3d 1185, 1190-91 (7th Cir. 1997). As a result, we concluded that we no longer had subject matter jurisdiction to review Turkhan's petitions pursuant to the express terms of sec. 440(a) of the AEDPA.⁵ See Turkhan I, 123 F.3d at 488-89.

Turkhan argued that we should construe AEDPA sec. 440(a) to allow judicial review of constitutional claims brought pursuant to INA sec. 106(a)--a proposition we rejected in Chow v. INS, 113 F.3d 659, 668-70 (7th Cir. 1997), a case decided two weeks prior to oral argument in Turkhan I. In Chow, we declined to read an exception for constitutional claims into the language of AEDPA sec. 440(a). Rather, we held that AEDPA sec. 440(a) bars judicial review of all claims brought pursuant to INA sec. 106(a), provided the petitioner is deportable for having committed one of the criminal offenses listed in AEDPA sec. 440(a). See Chow, 113 F.3d at 668-70. Turkhan argued that the decision in Chow was inconsistent with prior holdings of this Court in which we held that our...