United States Court of Appeals,
Fifth Circuit.
No. 96-60345.
Joan Marie WILLIAMS, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
June 6, 1997.
Petition for Review of an Order of the Immigration & Naturalization
Service.
Before DAVIS and DENNIS, Circuit Judges, and FALLON,* District
Judge.
FALLON, District Judge:
Petitioner Joan Marie Williams is a native and citizen of
Jamaica, who became a lawful permanent resident of the United
States in 1985. In 1993, petitioner was convicted of conspiracy to
launder money instruments and to structure financial instruments in
connection with an extensive drug trafficking and money laundering
operation. On May 18, 1994, the Immigration and Naturalization
Service ("INS") issued an Order to Show Cause charging petitioner
with being deportable pursuant to section 241(a)(2)(A)(iii) of the
Immigration and Nationality Act ("INA") by reason of having
committed an aggravated felony. On April 11, 1995, the Immigration
Judge found petitioner to be deportable as charged and denied her
application for relief under section 212(c) of the INA. Petitioner
appealed the denial of 212(c) relief to the Board of Immigration
*
District Judge of the Eastern District of Louisiana, sitting
by designation.
1
Appeals ("BIA"). The BIA affirmed on April 18, 1996.
On May 16, 1996, petitioner filed the instant petition seeking
review of the BIA's decision pursuant to section 106 of the INA.
The INS has moved to dismiss the petition on grounds that section
440(a) of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, withdrew our
jurisdiction to review the BIA's decision in this case.
Section 440(a) amends section 106 and precludes judicial
review of "[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)."1
Despite petitioner's protestations against retroactive
application, section 440(a) does apply to her petition, which was
filed several days after the effective date of April 24, 1997, and
would apply even if her petition had been pending on that date.
See Mendez-Rosas v. INS, 87 F.3d 672, 675-76 (5th Cir.1996), cert.
denied, --- U.S. ----, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997).
Williams' only remaining argument against the operation of
section 440(a) is that the provision is violative of the Due
Process Clause and the separation of powers principles encompassed
in Article III. Having carefully weighed these challenges, we join
the First, Second, Third, Seventh, Ninth, and Eleventh Circuits in
1
AEDPA § 440(a), Pub.L. No. 104-132, 110 Stat. 1214 (April 24,
1996), as amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA") § 306(d), Pub.L. No. 104-208,
110 Stat. 3009 (Sept. 30, 1996).
2
rejecting them.2 The Seventh Circuit, in Yang v. INS,3 has taken
particular pains to explain the inadequacies in petitioner's
arguments, and we could add little to its thorough analysis. We
likewise agree with the courts noted above that "limited
opportunity to apply for a writ of habeas corpus may remain"4—at a
minimum "the writ that Art. I § 9 cl. 2 preserves against
suspension."5 However, this case does not require us to explore
the perimeters of judicial review remaining available to criminal
aliens such as Williams.
Section 440(a) applies to foreclose judicial review in this
case.6 Therefore, Williams' petition is DISMISSED for lack of
2
See Yang v. INS, 109 F.3d 1185, 1194-97 (7th Cir.1997);
Boston-Bollers v. INS, 106 F.3d 352, 355 (11th Cir.1997); Kolster
v. INS, 101 F.3d 785, 790-91 (1st Cir.1996); Salazar-Haro v. INS,
95 F.3d 309, 311 (3d Cir.1996); Hincapie-Nieto v. INS, 92 F.3d 27,
30-31 (2d Cir.1996); Duldulao v. INS, 90 F.3d 396, 399-400 (9th
Cir.1996). In addition, the Sixth Circuit has twice dismissed
petitions under section 440(a) without addressing the
constitutional issues. See Figueroa-Rubio v. INS, 108 F.3d 110
(6th Cir.1997); Qasguargis v. INS, 91 F.3d 788 (6th Cir.1996),
cert. denied, --- U.S. ----, 117 S.Ct. 1080, 137 L.Ed.2d 215
(1997).
3
Yang, 109 F.3d at 1194-97.
4
Id. (noting that the First, Second, Third, and Ninth Circuits
have made this observation).
5
Id.
6
We note that "the IIRIRA repeals [section 106 of the INA] and
replaces it with other judicial review provisions, one of which
precludes review of decisions regarding the granting of relief
under ... section 212(c)." Pichardo v. INS, 104 F.3d 756, 760 n.
7 (5th Cir.1997) (Parker, J.) (citing IIRIRA § 306(a)(2)).
However, because we have determined that the AEDPA had divested us
of jurisdiction to hear Williams' claims even before she filed her
petition, we need not explore whether the IIRIRA might apply to
furnish an additional basis for dismissing the petition. See
IIRIRA §§ 306(c)(1)-(2), 309(a), 309(c)(1), 309(c)(4), as amended
3
jurisdiction.
by Pub.L. No. 104-302, 110 Stat. 3656 (October 11, 1996).
4