Okoro v. INS

REVISED
United States Court of Appeals,

Fifth Circuit.

No. 96-60559.

Benjamine Maduka OKORO, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Oct. 27, 1997.

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

Before GARWOOD, DUHÉ and DEMOSS, Circuit Judges.

DUHÉ, 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

1
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

1
Okoro used the name and the closed checking account of a
former colleague who was serving time in prison.
2
INA § 241(a)(2)(A)(ii)(renumbered as INA § 237 by IIRIRA §
305(a)(2)) provides:

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 conduct, regardless of
whether confined therefor and regardless of whether the
convictions were in a single trial, is deportable.

See 8 U.S.C. § 1251(a)(2)(A)(ii) (West supp.1997)(redesignated
as 8 U.S.C. § 1227(a)(2)(A)(ii), eff. April 1, 1997).
3
The INS also asserted that Okoro was deportable under INA §
241(a)(1)(A) (excludable at time of entry because convicted of
crime of moral turpitude), relying on the Texas conviction, and
under INA § 241(a)(1)(G)(ii) (failure to fulfill marital agreement
made to procure entry as an immigrant). The latter ground was
subsequently withdrawn.

2
("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

3
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

4
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

4
8 U.S.C. § 1105a(a)(10) was repealed by IIRIRA § 306(b),
effective September 30, 1996. The substance of § 1105a(a)(10) can
now be found at 8 U.S.C. § 1252(a)(2)(C) (West Supp.1997).
5
INA § 241(a)(2)(A)(i) provides:

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 1255(j) of this
title) after the date of entry, and

(II) either is sentenced to confinement or is
confined therefor in a prison or correctional
institution for one year or longer,

is deportable.

See 8 U.S.C. § 1251(a)(2)(A)(i) (West Supp.1996). AEDPA § 435
amended § 241(a)(2)(A)(i)(II) to read: "is convicted of a
crime for which a sentence of one year or longer may be
imposed." Section 435 is expressly applicable only to "aliens
against whom deportation proceedings are initiated after the
date of enactment of this Act." AEDPA § 435(b); see 8 U.S.C.
§ 1251(a)(2)(A)(i) (West Supp.1997) (redesignated as 8 U.S.C.
§ 1227(a)(2)(A)(i), eff. April 1, 1997). Since deportation
proceedings were initiated against Okoro prior to April 24,
1996, the pre § 435 provision applies. See Pichardo v. INS,
104 F.3d 756, 758-59 (5th Cir.1997).

5
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

6
We note that every other Circuit to address this issue has
also held that § 440(a) applies to cases pending on the effective
date of the AEDPA. See Kolster v. INS, 101 F.3d 785 (1st
Cir.1996); Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir.1996);
Salazar-Haro v. INS, 95 F.3d 309 (3d Cir.1996), cert. denied, ---
U.S. ----, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (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); Chow v. INS, 113 F.3d 659 (7th
Cir.1997); Mendez-Morales v. INS, 119 F.3d 738 (8th Cir.1997);
Duldulao v. INS, 90 F.3d 396 (9th Cir.1996); Fernandez v. INS, 113
F.3d 1151 (10th Cir.1997); Boston-Bollers v. INS, 106 F.3d 352
(11th Cir.1997).
7
The Supreme Court's recent decision in Lindh v. Murphy, ---
U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), does not cast
serious doubt on Mendez-Rosas. Lindh dealt with a different
section of the AEDPA (Title I, § 107(c), making new chapter 154 of
Title 28, relating to habeas corpus proceedings in capital cases,
applicable to cases pending on the AEDPA's effective date). The
Lindh Court noted that Title I "stands more or less independent of
the Act's other titles" and based its holding on the specific
language of AEDPA § 107(c). Lindh, --- U.S. at ----, 117 S.Ct. at
2063; see Mendez-Morales, 119 F.3d at 739 n. 1 ("Because Lindh
turned upon the drafting peculiarities of Title I, we apply the
Landgraf rule to § 440(a).").

In Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034 (5th
Cir.1997), we noted that Lindh should have no effect on
whether another subsection of AEDPA § 440, § 440(d ), applied
to pending cases seeking discretionary relief under INA §
212(c). Hernandez-Rodriguez, 118 F.3d at 1046. We observed
that § 440(d) contained no language addressing its
applicability to pending cases that would have permitted a
"negative implication" analysis like the one employed in
Lindh. Id.; see Lindh, --- U.S. at ----, 117 S.Ct. at 2063-
68. We also stated that "[i]n this regard, section 440(d) is
similar to section 440(a), which we have held (prior to Lindh)
to apply to pending deportation cases." Hernandez-Rodriguez,
118 F.3d at 1046. But see Yesil v. Reno, No. 96-CIV-8409,
1997 WL 394945 (S.D.N.Y. July 15, 1997) and Mojica v. Reno,
970 F.Supp. 130 (E.D.N.Y.1997) (finding the Lindh analysis
applicable to § 440(d) of the AEDPA).

6
§ 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, §

The accuracy of those observations notwithstanding, we
here note that § 440(a), unlike the provisions addressed in
Lindh, is clearly jurisdictional ("... shall not be subject to
review by any court") and thus benefits from a presumption of
retroactivity. See Landgraf, 511 U.S. at 274-76, 114 S.Ct. at
1502 ("Application of a new jurisdictional rule usually takes
away no substantive right but simply changes the tribunal that
is to hear the case ... Present law normally governs in such
situations because jurisdictional statutes speak to the power
of the court rather than to the rights or obligations of the
parties.") (citation and internal quotation marks omitted). We
also note that other sections in AEDPA Title IV contain explicit
effective dates. See, e.g., § 401(f)(amendments to take effect on
date of enactment and apply to all aliens without regard to date of
entry); § 435(b) (amendment applies to deportation proceedings
initiated after effective date); § 440(f) (amendments in
subsection (e) apply to convictions entered on or after effective
date); § 441(b) (amendment applies to criminal proceedings
initiated after effective date). The various time frames of the
effective dates in Title IV do not create the "negative
implication," as did § 107(c) in Lindh, that Congress intended §
440(a) not to apply to appeals pending on the AEDPA's effective
date. See Lindh, --- U.S. at ----, 117 S.Ct. at 2068 (finding that
express application of new chapter 154 of Title 28 to "pending
cases" created "negative implication" that amendments to chapter
153 did not apply to pending cases).

7
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

8
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 amended by IIRIRA § 306(d):

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, without regard to the date of their commission,

8
We observe that we are in accord with the Sixth and Ninth
Circuits on this point. See Perez v. INS, 116 F.3d 405, 407-08
(9th Cir.1997)(applying AEDPA § 440(a), as amended by IIRIRA §
306(d), to petition for review pending on effective date of
IIRIRA); Figueroa-Rubio v. INS, 108 F.3d 110, 111-12 & nn. 2, 3
(6th Cir.1997)(observing that IIRIRA § 306(d) contains explicit
effective date provision and that, therefore, "the IIRIRA's
amendments to § 440(a) took effect on April 24, 1996.").

9
 otherwise covered by section 241(a)(2)(A)(i), shall not be
subject to review by any court.9

To determine whether this jurisdictional bar applies to Okoro's

petition for review, we must examine whether the underlying

offenses relied on by the INS to deport Okoro are (1) crimes

involving moral turpitude, (2) not arising out of a single scheme

of criminal misconduct, and (3) for which Okoro was sentenced to

one year or more of imprisonment, regardless of actual confinement.

See INA §§ 241(a)(2)(A)(i) and (ii); Yang v. INS, 109 F.3d 1185,

1192 (7th Cir.1997), petition for cert. filed, 66 U.S.L.W. 3157

(U.S. Aug. 12, 1997)(No. 97-279).10

We observe initially that Okoro was sentenced to two

consecutive terms of one year imprisonment. That the sentences

9
We apply the following version of § 241(a)(2)(A)(i), as
unamended by AEDPA § 435, but omitting any reference to the date of
the crime's commission per the command of IIRIRA § 306(d):

[A]n alien who—

(I) is convicted of a crime involving moral
turpitude ... after the date of entry, and

(II) either is sentenced to confinement or is
confined therefor in a prison or correctional
institution for one year or longer,

is deportable.

See Pichardo, 104 F.3d at 756.
10
"When judicial review depends on a particular fact or legal
conclusion, then a court may determine whether that condition
exists. The doctrine that a court has jurisdiction to determine
whether it has jurisdiction rests on this understanding." Yang,
109 F.3d at 1192, citing Land v. Dollar, 330 U.S. 731, 67 S.Ct.
1009, 91 L.Ed. 1209 (1947). The Tenth Circuit has declined to
follow the Yang holding on this issue. See Berehe v. INS, 114 F.3d
159, 161 (10th Cir.1997).

10
were suspended and Okoro was not actually confined is irrelevant.

See 8 U.S.C. § 1251(a)(2)(A)(ii) (West Supp.1997) (redesignated as

8 U.S.C. § 1227(a)(2)(A)(ii), eff. April 1, 1997).

The term "moral turpitude" is not defined in the INA;

interpretation of the phrase is thus left up to the BIA and the

courts. Pichardo, 104 F.3d at 759; see Hamdan v. INS, 98 F.3d

183, 185 (5th Cir.1996). We review de novo the BIA's legal

determination that the crime of theft under Delaware law involves

moral turpitude, according, however, substantial deference to the

BIA's interpretation of the INA. Hamdan, 98 F.3d at 185. We will

uphold the BIA's determination of what conduct constitutes moral

turpitude for deportation purposes if it is reasonable. Id.

Whether a crime involves moral turpitude depends on the

inherent nature of the crime, as defined in the statute concerned,

rather than the circumstances surrounding the particular

transgression. Okabe v. INS, 671 F.2d 863, 865 (5th Cir.1982). 11

In its decision the BIA observed that theft has long been

considered a crime involving moral turpitude. The Second Circuit

has held that "it has long been acknowledged ... that crimes of

theft, however they may be technically translated into domestic

penal provisions, are presumed to involve moral turpitude."

Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir.1980). See also

11
Okoro was convicted of theft under 11 Del.Code § 841, which
provides in pertinent part:

(a) A person is guilty of theft when the person ...
obtains property of another person intending to deprive
that person of it or appropriate it.

11
United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir.1989),

overruled on other grounds by United States v. Proa-Tovar, 975 F.2d

592, 595 (9th Cir.1992)(en banc); Soetarto v. INS, 516 F.2d 778,

780 (7th Cir.1975). Although we are aware of no Fifth Circuit

cases so holding, we accord due deference to the BIA's and other

Circuits' interpretation of the INA and find that the crime of

theft is one involving moral turpitude within the meaning of INA §§

241(a)(2)(A)(i) and (ii).

In determining whether Okoro's crimes were part of a single

scheme of criminal misconduct, we apply a two-prong analysis.

First, we identify the legal standard governing the issue. See

Iredia v. INS, 981 F.2d 847, 849 (5th Cir.1993); Chevron U.S.A. v.

Natural Resources Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct.

2778, 81 L.Ed.2d 694 (1984). We then examine whether substantial

evidence supports the BIA's finding that Okoro's two Delaware

convictions did not arise out of a single scheme. The substantial

evidence standard requires only that the BIA's conclusion be based

upon the evidence presented and that it be substantially

reasonable. Hamdan, 98 F.3d at 185; see Silwany-Rodriguez v. INS,

975 F.2d 1157, 1160 (5th Cir.1992).

The controlling legal standard for interpreting "single

scheme" was set forth in Animashaun v. INS, 990 F.2d 234, 237 (5th

Cir.1993):

When an alien performs an act that in and of itself
constitutes a complete, individual, and distinct crime, he is
deportable when he again commits such an act, even though one
may closely follow the other, be similar in character, and
even be part of an overall plan of criminal misconduct.

12
Okoro was convicted of two counts of theft in Delaware; thus, he

cannot contend the two underlying offenses are not "complete,

individual, and distinct" crimes, even though the second theft

followed the first by a mere two days. See Animashaun, 990 F.2d at

238. Instead, Okoro argues the two distinct crimes were part of a

single criminal scheme because he ordered the computer equipment at

one time and the components arrived separately by mere

happenstance.

In Animashaun, the Petitioner completed an instant credit

application at a furniture store using a false identity. Two days

later, the Petitioner arrived at the store's warehouse to take

delivery of furniture by presenting a receipt with a forged

signature. He was convicted of two separate counts of forgery. We

held that substantial evidence supported the BIA's conclusion that

the two crimes were not part of a single scheme. Animashaun, 990

F.2d at 237-38.

Like the Petitioner in Animashaun, Okoro committed two crimes

within two days of each other. Both offenses had a single aim—to

obtain computer equipment—just as Animashaun's two crimes were both

directed at buying the same furniture. Neither their proximity in

time nor their similarity in purpose prevents Okoro's acts from

constituting two distinct crimes. In the two-day interval between

the offenses, Okoro had time to "dissociate himself from his

enterprise and reflect on what he [had] done." Pacheco v. INS, 546

F.2d 448, 451 (1st Cir.1976). We thus find there was substantial

evidence to support the BIA's conclusion that Okoro's two crimes

13
were not part of a single scheme of criminal misconduct.

CONCLUSION

Because Okoro was found deportable under INA §

241(a)(2)(A)(ii) and because both predicate offenses were covered

under § 241(a)(2)(A)(i), we find we have no jurisdiction to review

his final order of deportation. We therefore do not reach his

other claims.

DISMISSED FOR LACK OF JURISDICTION

14