Yang v. I.N.S.

• Decision Date: 18 March 1997
• Docket Number: TERRAZAS-GARCI,Nos. 94-3071,P,96-1824 and 96-2044,95-3665,s. 94-3071
• Citation: Yang v. I.N.S., 109 F.3d 1185 (7th Cir. 1997)
• Parties: Ter YANG, also known as Ricky Yang, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Elizardoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Dimitrios KATSOULIS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Jelica BICANIN, also known as Jelica Murati, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1185

109 F.3d 1185

Ter YANG, also known as Ricky Yang, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Elizardo TERRAZAS-GARCIA, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Dimitrios KATSOULIS, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Jelica BICANIN, also known as Jelica Murati, Petitioner, v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 94-3071, 95-3665, 96-1824 and 96-2044.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 24, 1997.

Decided March 18, 1997.

Rehearing and Suggestion for

Rehearing En Banc

Denied in Nos. 95-3665, 96-1824,

96-2044

May 14, 1997. ^*

David D. Cook, Monroe, WI, for Ter Yang.

Janet Reno, U.S. Attorney General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, James B. Burns, Office of the United States Attorney, Chicago, IL, Richard M. Evans, Kristal Marlow(argued), Robert Kendall, Jr., David M. McConnell, Michelle Gluck, Department of Justice, Civil Division, Immigration Litigation, David J. Kline, Department of Justice, Office of Immigration Litigation, Washington, DC, for Immigration and Naturalization Service in No. 94-3071.

Javier H. Rubinstein, Mayer, Brown & Platt, Chicago, Il, Lisa Scott, Mark S. Davidson, Davidson & Scott, Chicago, IL, for Elizardo Terrazas-Garcia.

Janet Reno, U.S. Attorney General, Washington, DC, Tom Schroeder, Immigration & Naturalization Service, Chicago, IL, Richard M. Evans, William J. Howard, David M. McConnell, Stephen W. Funk, Marion E. Guyton, Quynh Vu, Department of Justice, Civil Division, Immigration Litigation, Kristal Marlow, F. Franklin Amanat(argued), Department of Justice, Office of Immigration Litigation, Washington, DC, for Immigration and Naturalization Service in No. 95-3665.

Javier H. Rubinstein, Mayer, Brown & Platt, Chicago, IL, Scott D. Pollock, Pollock & Associates, Chicago, IL, for Dimitrios Katsoulis.

David V. Bernal, Department of Justice, Office of Immigration Litigation, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, F. Franklin Amanat(argued), Papu Sandhu, Department of Justice, Office of Immigration Litigation, Washington, DC, for Immigration and Naturalization Service in No. 96-1824.

Javier H. Rubinstein(argued), Mayer, Brown & Platt, Chicago, IL, Stanley J. Horn, Horn & Villasuso, Chicago, IL, for Jelica Bicanin.

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Joan E. Smiley, Stephen W. Funk, F. Franklin Amanat(argued), Frank W. Hunger, Asst. Attorney General, Quynh Vu, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Immigration and Naturalization Service in No. 96-2044.

Before CUMMINGS, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

These deportation cases pose questions about the meaning and constitutionality of parts of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132,110 Stat. 1214(Apr. 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRA), Division C of Pub.L. 104-208,110 Stat. 3009(Sept. 30, 1996).The IIRA rewrote the rules for both deportation (renamed "removal") and judicial review, but most of its rules apply only to proceedings commenced on or after April 1, 1997.SeeINS v. Yueh-Shaio Yang, --- U.S. ----, ---- n. 1, 117 S.Ct. 350, 352 n. 1, 136 L.Ed.2d 288(1996);Lalani v. Perryman, 105 F.3d 334, 335-37(7th Cir.1997).For earlier proceedings the former law, as modified by the AEDPA, applies.Under this body of law, a final order of deportation is reviewable in the court of appeals, but with an exception created by § 440(a) of the AEDPA(as amended by§ 306(d) of the IIRA), amending§ 106(a)(10) of the Immigration and Nationality Act (INA),8 U.S.C. § 1105a(a)(10):

Any 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), or 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), shall not be subject to review by any court.

Section 241 is codified as 8 U.S.C. § 1251.The pertinent portions of this law, including an amendment made by § 435(a) of the AEDPA, read:

(a) Any alien (including an alien crewman) in the United States shall, upon the order of the Attorney General, be deported if the alien is within one or more of the following classes of deportable aliens: ...

(2) Criminal offenses.

(A) General crimes.

(i) Crimes of moral turpitude.Any alien who--

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(i)[8 U.S.C. § 1255(i) ] ) after the date of entry, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed,

is deportable.

(ii)Multiple criminal convictions.Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

(iii)Aggravated felony.Any alien who is convicted of an aggravated felony at any time after entry is deportable.

(iv)Waiver authorized.Clauses (i), (ii), and (iii) shall not apply in the case of an alien with respect to a criminal conviction if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.

(B) Controlled substances.

(i) Conviction.Any alien who at any time after entry has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act(21 U.S.C. § 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

(ii)Drug abusers and addicts.Any alien who is, or at any time after entry has been, a drug abuser or addict is deportable.

(C) Certain firearm offenses.Any alien who at any time after entry is convicted under any law of purchasing,

selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.

(D) Miscellaneous crimes.Any alien who at any time has been convicted (the judgment on such conviction becoming final) of, or has been so convicted of a conspiracy or attempt to violate--

(i) any offense under chapter 37[18 U.S.C. § 792 et seq.](relating to espionage), chapter 105[18 U.S.C. § 2151 et seq.](relating to sabotage), or chapter 115[18 U.S.C. § 2381 et seq.](relating to treason and sedition) of title 18, United States Code, for which a term of imprisonment of five or more years may be imposed;

(ii) any offense under section 871 or 960 of title 18, United States Code;

(iii) a violation of any provision of the Military Selective Service Act(50 U.S.C.App. § 451 et seq.) or the Trading With the Enemy Act(50 U.S.C.App. § 1 et seq.); or

(iv) a violation of section 215 or 278 of this Act[8 U.S.C. § 1185 or § 1328],

is deportable.

We must decide whether, and if so how, these rules apply to four aliens who have been ordered deported following the commission of crimes.

I

Ter Yang came to the United States as a refugee with his family in 1980, when he was five years old.This Hmong family was in flight from chaos and persecution in Laos.Alas, arrival in the New World did not end its troubles.Ter Yang took up with a gang and began a life of crime.Two of his crimes led to convictions.(1) Members of the gang broke into a pawn shop and stole 23 pistols, apparently for use in gang activities.Yang pleaded guilty to being a party to the crime of burglary and was sentenced to an indeterminate term of not more than 10 years' imprisonment.(2) The Yang family's garage became a depot for the gang's loot.A search of this garage turned up stolen items, including a gun burgled from a second pawn shop.Yang was convicted of concealing stolen firearms and was sentenced to five years' probation; this crime, a Class D felony in Wisconsin, had a maximum punishment of five years' imprisonment.The immigration judge ordered Yang deported under § 241(a)(2)(A)(ii), because both offenses are "crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct", and under § 241(a)(2)(C), because concealing the pilfered gun equates to "possessing" a firearm.The judge also concluded that Yang is ineligible for asylum because the theft of weapons is a "particularly serious crime"(see8 U.S.C. § 1253(h)(2);8 C.F.R. § 208.14(c)) and is ineligible for discretionary relief under § 212(c),8 U.S.C. § 1182(c), because there is no ground of exclusion comparable to the § 241(a)(2)(C) ground of deportation.SeeLeal-Rodriguez v. INS, 990 F.2d 939, 949(7th Cir.1993).Having contested deportation under § 241(a)(2)(A)(ii) before the immigration judge, Yang dropped that contention on appeal to the Board of Immigration Appeals.Although he renewed his argument that the burglary was not a "particularly serious crime," the BIA disagreed.The Board also held Yang ineligible for other relief, for essentially the reasons the immigration judge gave.In this court Yang argues that he is entitled to apply for asylum because the burglary was not a "particularly serious crime";...