Zavala-Garcia v. Pasquarell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-50204
Summary Calendar

NATIVIDAD ZAVALA-GARCIA,

Petitioner-Appellant,

versus

KENNETH PASQUARELL, District Director
Immigration and Naturalization Service,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Texas
(SA-96-CV-52)

September 18, 1998

Before GARWOOD, JONES and STEWART, Circuit Judges.*

GARWOOD, Circuit Judge:

Petitioner-appellant Natividad Zavala-Garcia (Zavala) appeals

the district court’s grant of summary judgment denying habeas

relief. We affirm.

Facts and Proceedings Below

The facts of this case are not in dispute. Zavala, a native

*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
and citizen of Mexico, was ordered excluded from the United States

after unsuccessfully attempting to aid his niece, an undocumented

alien, to gain illegal entry into the United States.1 At his

exclusion hearing, Zavala conceded excludability and requested

discretionary relief pursuant to section 212(d)(11) of the

Immigration and Nationality Act (INA). On July 21, 1994, the

Immigration Judge (IJ) granted the requested section 212(d)(11)

relief, and the Immigration and Naturalization Service (INS),

disagreeing with the IJ’s application of section 212(d)(11),

appealed to the Board of Immigration Appeals (BIA or "the Board").

On July 5, 1995, the Board vacated the IJ’s decision and ordered

Zavala excluded and deported. On September 18, 1995, Zavala filed

a motion to reopen his exclusion proceedings, claiming that his

recent completion of seven years’ lawful residence rendered him

newly eligible for discretionary relief under INA § 212(c). The

Board denied the motion to reopen on January 3, 1996, on the basis

that Zavala was statutorily ineligible for section 212(c) relief

because his "lawful" status had terminated upon the entry of a

final deportation order by the Board. On January 19, 1995, Zavala,

under INS parole awaiting his physical removal from this country,

filed the instant petition in the United States District Court for

the Western District of Texas, seeking habeas relief under 28

1
In addition to instituting exclusion proceedings, the INS
filed a criminal complaint charging Zavala with one count of
conspiring to aid an undocumented alien to illegally enter the
United States in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 371.
Zavala pleaded guilty to the charge and was sentenced to ninety
days’ imprisonment.

2
U.S.C. § 2241 and challenging the Board’s decision finding him

statutorily ineligible for section 212(d)(11) relief and the

Board’s denial of his motion to reopen. On February 25, 1997, the

district court entered summary judgment denying habeas relief, from

which judgment Zavala brought this timely appeal.

Discussion

This case presents one difficult jurisdictional issue coupled

with two comparatively easy substantive claims.

I. Jurisdiction

The INS argues for the first time on appeal that the recently

enacted Illegal Immigration Reform and Immigrant Responsibility Act

of 19962 (IIRIRA) operates to divest this Court of jurisdiction

over Zavala’s claims.3 The basis for this jurisdictional challenge

is found in IIRIRA § 306(a),4 entitled "Exclusive Jurisdiction,"

which created new INA § 242(g):

“Except as provided in this section and notwithstanding
any other provision of law, no court shall have
jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under
this chapter.”5

The effective date of this provision is provided by section 306(c),

2
Pub. L. No. 104-208, 110 Stat. 3009-546 (1996).
3
The INS argues on appeal that, pursuant to IIRIRA, neither
the district court nor this Court has jurisdiction and urges us to
remand the case to the district court with instructions to dismiss
for lack of jurisdiction.
4
110 Stat. at 3009-612.
5
INA § 242(g) as amended by IIRIRA § 306(a), and codified at
8 U.S.C. § 1252(g) (West Supp. 1998).

3
which states that the new INA § 242(g) shall apply "without

limitation to claims arising from all past, pending, or future

exclusion, deportation, or removal proceedings under [the INA]."6

Because Zavala’s claims "arise" from a past exclusion proceeding,

the INS argues that they fall within the broad sweep of the new INA

§ 242(g) and, consequently, outside the narrowed jurisdiction of

this Court. Thus, the INS takes the position that "petitioner can

obtain no judicial review of his challenge to the Board’s final

orders." (Emphasis added).7

While we recognize the apparent breadth of these provisions,

we decline to accept the construction the INS proposes. When

considered in isolation, the sweeping language of section 306 does

appear to bar virtually all claims arising out of exclusion and

deportation proceedings. It is, however, far from obvious that

Congress intended the provision to operate in such a manner. As

other courts have noted, the strict application of the new

INA § 242(g) urged by the INS conflicts with the IIRIRA’s "general

rule" of nonretroactivity, as well as several of the transitional

provisions contained in the statute. See, e.g., Goncalves v. Reno,

144 F.3d 110, 122 (1st Cir. 1998) ("If the ‘notwithstanding’ clause

6
110 Stat. at 3009-612.
7
The INS asserts that "according to the plain language of the
new INA § 242(g), this court, as well as the district court, lacks
jurisdiction over petitioner’s appeal notwithstanding the fact that
both final orders, from which he appeals, and his appeal to the
district court, were filed prior to the enactment of IIRIRA.
Simply put, petitioner cannot obtain judicial review in this Court,
and [similarly can obtain relief] in no other court, as he seeks to
challenge the Attorney General’s decision to execute the removal
order issued against him."

4
of subsection (g) is read to preclude any jurisdiction except that

specifically authorized in new INA § 242, then that conflicts with

IIRIRA § 309.").

Furthermore, the INS furnishes scant evidence that this

position has been accepted by our sister circuits, citing only

Ramallo v. Reno, 114 F.3d 1210 (D.C. Cir. 1997), and Auguste v.

Reno, 118 F.3d 723 (11th Cir. 1997), as supporting its construction

of the provision in question. Unfortunately, neither of these two

cases fully embraces the position that the INS has taken in the

case sub judice. The Ramallo court did adopt a broad application

of the new INA § 242(g), stating that "IIRIRA now undisputably

deprives both courts of appeals and district courts of jurisdiction

to decide the instant action." 114 F.3d at 1213. The court’s

holding, however, was tempered by the explicit recognition that

"[a] statute that removes jurisdiction from all courts to vindicate

constitutional rights poses serious constitutional objections."8

Having rejected an application of IIRIRA that barred all judicial

review, the court went on to state that it "need not decide whether

the IIRIRA has such an [objectionable] effect, or, if it does,

whether it is constitutional because, as the Government concedes,

habeas review remains available to appellee to raise substantial

constitutional questions." Id. Thus, the Ramallo court limited

its holding by pretermitting the question of whether new

INA § 242(g) divested federal courts of all jurisdiction over the

8
Id. at 1214 (citing Bartlett v. Bowen, 816 F.2d 695, 703
(D.C. Cir. 1987).

5
claims described by section 242(g). The court also explicitly

recognized the continued availability of habeas relief for

"substantial constitutional questions" and did not specifically

preclude potential habeas relief of nonconstitutional questions.9

In sum, the Ramallo court did adopt a broad interpretation of the

appropriate application of new INA § 242(g), but it did not, as the

INS seems to imply in its brief, hold that IIRIRA acts as a

complete bar to any and all forms of judicial review of the claims

described in IIRIRA §§ 306(a) and (c).

The second case cited by the INS, Auguste, is even less

helpful. While the original opinion in Auguste did adopt a broad

interpretation of the new INA § 242(g),10 the court subsequently

modified its decision on petition for rehearing. Auguste v. INS,

140 F.3d 1373 (11th Cir. 1998). In the modified opinion, the court

reversed its conclusion that new INA 242(g) automatically divested

it of jurisdiction over appellee’s petition for review of his

deportation order, finding that the transitional rules set out in

9
It should be noted that the court did imply that habeas
review might be limited to constitutional claims, but because it
did not reach the issue of whether IIRIRA created an absolute bar
to judicial review, the court did not expressly rule on the scope
of available habeas review. Thus, the narrow holding of Ramallo
does not preclude the possibility of continued habeas review of
nonconstitutional claims.
10
The original decision in Auguste held that, as of the
effective date of the new INA § 242(g), "no court has had
jurisdiction to review [appellee’s] deportation order, except as
provided by newly amended [8 U.S.C. § 1252]." 118 F.3d at 725.
Finding that appellee had not complied with 8 U.S.C. § 1252, the
court held that it lacked jurisdiction over the case and remanded
it to the district court with instructions to dismiss. Id. at 726-
27.

6
IIRIRA § 309(c) rendered the IIRIRA amendments inapplicable to

appellee. Id. at 1376-77. The court based its conclusion on

IIRIRA § 309(c), which provides that an alien who is "in exclusion

or deportation proceedings" before the statute’s effective date is

exempted from the IIRIRA amendments, including the limitations on

judicial review.11 Apparently finding that petitioner’s direct

appeal, which was pending on the effective date, sufficed to bring

the case within the section 309(c) requirement that the alien be

"in exclusion or deportation proceedings," the court held that it

had jurisdiction over the case and proceeded to rule on the merits.

Id. at 1377. The court concluded that section 309(c) "carves out

an exception to section 306(g)’s general abrogation of the federal

courts’ jurisdiction over deportation proceedings not conducted

pursuant to [the amended INA provisions for judicial review]," id.

at 1376-77, and held that pursuant to IIRIRA § 309(c) it

"retain[ed] jurisdiction to review deportation proceedings for

aliens whose proceedings were pending on April 1, 1997." Id. at

1377. Thus, instead of supporting the INS’s argument that we lack

jurisdiction over Zavala’s claims, Auguste suggests a potential

basis for jurisdiction. Because Zavala’s case was pending on April

1, 1997, under the reasoning of Auguste, both the district court

and this Court retained jurisdiction over the claims raised in

Zavala’s habeas petition.

The INS position is further weakened by two recent cases that

11
110 Stat. at 3009-625, as amended by Act of Oct. 11, 1996,
§ 2, Pub. L. No. 104-302, 110 Stat. 3656, 3657.

7
have recognized continued jurisdiction over claims arising from

exclusion and deportation proceedings under 28 U.S.C. § 2241.

First, in Goncalves, the First Circuit squarely rejected the

argument that the new INA § 242(g) completely divested federal

district courts of jurisdiction over claims arising out of

exclusion and deportation proceedings. In response to an argument

similar to the one made by the INS in the case sub judice, the

Goncalves court stated that "[a]lthough the breadth of the

‘notwithstanding’ clause [in the new INA § 242(g)] is sweeping, a

reading which provided for no exceptions would have enormous

consequences that are contrary to clearly expressed congressional

intent." Id. 144 F.3d at 122. The court then proceeded to hold

that neither the AEDPA or IIRIRA abrogated federal courts’ habeas

jurisdiction granted pursuant to 28 U.S.C. § 2241 to decide certain

classes of claims arising out of immigration proceedings. Id. at

122-23. The Goncalves court declined to define the scope of habeas

review available under section 2241, holding only that such review

specifically included statutory questions as well as constitutional

claims.12 Id. at 124-25. The Second Circuit came to a similar

conclusion in Jean-Baptiste v. Reno, 144 F.3d 212 (2d Cir. 1998),

stating in dicta that "[n]othing in the language of either the

12
It should be noted that Goncalves differs from the case at
bar in that it considered the interaction of IIRIRA § 309(c)(4)(G),
which provides that "there shall be no appeal permitted in the case
of an alien who is inadmissible or deportable by reason of having
committed [certain classes of] criminal offense[s]," with the more
general jurisdictional bar posed by new INA § 242(g). This
difference, however, does not affect the court’s interpretation of
the new INA § 242(g) nor does it weaken the applicability of that
analysis in the case sub judice.

8
[AEDPA] or the [IIRIRA] suggests that Congress expressly repealed

§ 2241, limited its scope, or eliminated the jurisdiction of the

district courts under that statute to entertain petitions seeking

writs of habeas corpus." Id. at 219. The Jean-Baptiste court also

declined to expound upon the types of claims cognizable under

section 2241 jurisdiction, explaining that "in finding that § 2241

habeas review remains available for aliens deemed deportable under

certain circumstances to raise constitutional questions, we express

no opinion on the permissible scope of that review." Id. at 220.

As regards the specific source of our jurisdiction in this

case, the discussion above outlines two potential bases for

jurisdiction: First, under the reasoning of Auguste, Zavala’s

pending appeal would be sufficient to qualify him as being "in

exclusion or deportation proceedings," bringing him within the

IIRIRA § 309(c) exception to the IIRIRA amendments, including the

new section 242(g); and second, Zavala’s claims may be cognizable

pursuant to 28 U.S.C. § 2241 on the reasoning advanced in

Goncalves. Other arguable bases for jurisdiction could be

enumerated,13 but considering that this and every other circuit

court to consider this issue has concluded that some avenue of

review has been retained,14 and because the particular source of our

13
See, e.g., American-Arab Anti-Discrimination Committee v.
Reno, 119 F.3d 1367, 1372 (9th Cir. 1997) (holding that INA
§ 242(g) necessarily "incorporated by reference" several exceptions
to its seemingly absolute bar to federal jurisdiction).
14
As stated by the Goncalves court:

"In every circuit which has addressed constitutional
challenges to this withdrawal of jurisdiction, the court

9
jurisdiction does not——in the context of this particular

case——affect the manner in which we review Zavala’s claims,15

further inquiry into the jurisdictional questions raised on appeal

appears to be both unnecessary and unwarranted.16 Thus, because the

found that preclusion of all judicial review would present serious
constitutional questions, and in every case those questions were
avoided by noting the continuing availability of habeas review.
Although the cases diverge in their approaches, they all agree on
these two basic points--that Congress can constitutionally withdraw
jurisdiction over such petitions for review under old INA § 106,
but that some jurisdiction remains on habeas." Goncalves, 144 F.3d
at 126 (citing Turkhan v. INS, 123 F.3d 487, 489-90 (7th Cir.
1997); Mansour v. INS, 123 F.3d 423, 426 (6th Cir.1997); Auguste v.
Reno, 118 F.3d 723, 726 n.7 (11th Cir.1997); Ramallo v. Reno, 114
F.3d 1210, 1214 & n.1 (D.C.Cir.1997); Williams v. INS, 114 F.3d 82,
83-84 (5th Cir.1997); Fernandez v. INS, 113 F.3d 1151, 1154-55
(10th Cir.1997); 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, 400 n. 4 (9th Cir.1996)).
15
We note that because Zavala was in exclusion, rather than
deportation, proceedings, the proper avenue of review under the old
INA § 106(b) was to petition for habeas review in the district
court. See, e.g., Delgado-Carrera, 773 F.2d 629, 631 (5th Cir.
1985) (noting that federal circuit courts "do not have power to
review an order of exclusion, except on appeal of a habeas corpus
proceeding filed in district court"). Thus, under either of the
potential bases of jurisdiction, Zavala appears to have filed a
timely petition in the appropriate court.
16
It is appropriate to note that the neither the INS nor the
Attorney General seems to have adopted a consistent position with
respect to the question of where any constitutionally mandated
habeas jurisdiction is grounded. Contrary to the position taken in
the case sub judice, in past cases involving the analogous
jurisdiction-stripping provision contained in section 440(a) of the
AEDPA, the INS has conceded that some avenue for judicial review is
preserved, but has argued that there is no need to determine the
jurisdictional basis for such review. For example, in Kolster v.
INS, 101 F.3d 785 (1st Cir. 1996), the court noted that:

"The INS’s precise position is that such constitutionally
compelled habeas review, or its equivalent, remains, and
that we need not here determine ‘whether the jurisdictional basis
for “constitutional habeas” review of a deportation order would be
28 U.S.C. § 2241, section 1651, or a ‘free standing’ Constitutional
authorization." Id. at 790 n.4.

10
jurisdictional issues were not fully briefed on appeal, and because

neither party has taken into consideration recent developments in

the applicable law, we choose to cut rather than further unravel

the Gordian knot presented to us on appeal, holding without

additional discussion that this Court properly exerts jurisdiction

over the case at bar based on either or both of the jurisdictional

bases discussed above.17

In a subsequent case considering the proper construction of IIRIRA
§ 306, the Attorney General conceded, in the words of the court,
that "there must be inherent authority in the judiciary to review
certain non-constitutional claims, i.e., whether the person being
deported meets the statutory prerequisites." Goncalves, 144 F.3d
at 119. The court went on to note, however, that:

"It is far from clear from what source the Attorney
General finds the authority for such review. One theory
is that the authority may be derived not from an explicit
statutory text but, at best, from the interstices of the
various immigration statutes. Another theory is that the
source of jurisdiction is the Constitution itself. Both
theories present obvious problems." Id.

In the case at bar, the INS simply argues that no judicial review
is available to Zavala. The INS, however, fails to address the
implications of its proposed construction of new INA § 242(g),
despite our consistent statements that some level of habeas review
likely has been preserved. See, e.g., Lerma de Garcia v. INS, 141
F.3d 215, 217 (5th Cir. 1998), and Williams v. INS, 114 F.3d 82, 84
(5th Cir. 1997).
17
We are mindful of the Supreme Court’s recent statement
regarding the impropriety of pretermitting jurisdictional questions
so as to enable the court to resolve contested questions of law
when its jurisdiction is in doubt. See Steel Co. v. Citizens for
a Better Environment, 118 S.Ct. 1003, 1016 (1998). In the case sub
judice we do not assume "hypothetical" jurisdiction in order to
reach the merits of Zavala’s petition. Rather, we have satisfied
ourselves that we have jurisdiction over the specific case before
us, but decline to engage in further discussion and analysis of the
potential sources of our jurisdiction or to embrace one particular
theory to the potential exclusion of the others where there is no
clear indication of which source is more appropriate, where the
jurisdictional issues raised were not fully briefed, and where
recent developments in the caselaw have created inconsistent

11
II. Substantive Claims

The BIA has been conferred broad discretion in deciding

motions to reopen proceedings and is accorded deference in its

statutory interpretation. Statutory interpretation, however, is a

question of law, which is reviewed de novo. Hernandez-Rodriguiez

v. Pasquarell, 118 F.3d 1034, 1039 (5th Cir. 1997). Thus, we exert

de novo review over both the Board’s determination of Zavala’s

statutory ineligibility under sections 212(d)(11) and 212(c) and

the district court’s grant of summary judgment on these questions.

Id.

In his petition to the district court, Zavala raised

essentially two substantive issues. He argued that the BIA erred

in its interpretation of INA § 212(d)(11)18 and that the Board

abused its discretion in refusing to reopen his case to allow him

to seek discretionary relief under INA § 212(c).19 The case was

referred to a magistrate judge, who found Zavala’s claims to be

without merit and recommended that summary judgment be granted in

favor of the INS. The district court adopted the recommendation of

the magistrate judge, denying Zavala’s petition for habeas relief.

approaches to the jurisdictional issue presented. The various
approaches taken by the courts of appeals appear to lead to the
same general conclusion (i.e., that some habeas jurisdiction is
retained by the federal courts and that this jurisdiction
encompasses the authority to review constitutional claims as well
as preserving the institutional function of federal courts to "say
what the law is"). Because resolution of the precise basis of
jurisdiction is not necessary to our disposition of the case sub
judice, we leave it for another day.
18
8 U.S.C. § 1182(d)(11).
19
8 U.S.C. § 1182(c) (repealed 1996).

12
On appeal, Zavala reasserts the same arguments that he presented in

the court below, contending on the basis of these arguments that

the district court erred in granting summary judgment.

A. Section 212(d)(11)

Zavala’s first claim involves a question of pure statutory

construction. He argues that the BIA’s interpretation of section

212(d)(11),20 which provides for discretionary waiver of exclusion

in certain circumstances, is incorrect as a matter of law because

it contravenes the "plain language" of the provision.

Consequently, Zavala contends that the Board erred in finding him

statutorily ineligible for relief under this provision. We find

this claim to be plainly without merit.

Zavala’s argument is based on a hyper-technical grammatical

construction of section 212(d)(11), which, in 1996, read as

follows:

"The Attorney General, may, in his discretion, for
humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest, waive application of clause
(i) of subsection (a)(6)(E) of this section in the case of any
alien lawfully admitted for permanent residence who
temporarily proceeded abroad voluntar[ily] and not under an
order of deportation, and who is otherwise admissible to the
United States as a returning resident under section 1181(b) of
this title and in the case of an alien seeking admission or
adjustment of status as an immediate relative or immigrant
under section 1153(a) of this title (other than paragraph (4)
thereof) if the alien has encouraged, induced, assisted,
abetted, or aided only the alien's spouse, parent, son, or
daughter (and no other individual) to enter the United States
in violation of law."21

Thus, section 212(d)(11) defines two distinct categories of aliens

20
8 U.S.C. § 1182(d)(11).
21
8 U.S.C. § 1182(d)(11) (1996 West Supp.).

13
potentially eligible for waiver: returning permanent resident

aliens and aliens seeking admission or adjustment of status.

Zavala argues, in essence, that because Congress failed to include

a comma separating the language describing the second category of

eligible aliens from the phrase requiring a specific familial

relationship (i.e., "if the alien has . . . aided only the alien’s

spouse, parent, son, or daughter"), the familial relationship

requirement applies only to the second category of eligible aliens

(those "seeking admission or adjustment of status") and not to the

first category (returning resident aliens).22

We find Zavala’s interpretation of section 212(d)(11)

implausible on its face. When read in context, it is reasonably

clear that the familial relationship requirement was intended to

apply to both categories of potentially eligible aliens. Further,

Congress recently corrected the punctuation error on which Zavala’s

argument is based. The Omnibus Consolidated Appropriations Act of

22
Zavala states the essence of his grammatical argument as
follows:

"The absence of a comma after that phrase [describing the
second category of eligible aliens] makes it impossible
to use the language found in the defining construction
(limiting the scope of smuggling to immediate family
members) to identify a word that is not the object of
that particular defining construction (which is ‘the
case’ identifying the first dependent clause [which
describes the first category of eligible aliens]). The
language that limits waivers to people who smuggle in
immediate family members cannot be separated from its
context to provide an additional element to the defining
construction in an unrelated dependent clause just
because the Board of Immigration Appeals would prefer
this result."

14
1997,23 contains a section entitled "Miscellaneous Technical

Corrections," which includes a provision directing that "Section

212(d)(11) (8 U.S.C. 1182(d)(11)) is amended by inserting a comma

after ‘(4) thereof)’."24 Thus, Congress expressed its unambiguous

intent that the familial relationship requirement apply to both

categories of aliens eligible for section 212(d)(11) waiver.25

Because the young woman whom Zavala aided was his niece, and not

his "spouse, parent, son, or daughter," Zavala did not and does not

meet the criteria for relief under section 212(d)(11). Therefore,

the BIA did not err in finding Zavala statutorily ineligible, and

the district court did not err in granting summary judgment as to

Zavala’s first claim.

B. Section 212(c)

Zavala’s second claim is that the BIA erred in denying his

motion to reopen exclusion proceedings so that he could seek relief

under INA § 212(c).26 He argues both that the BIA incorrectly

23
Pub. L. No. 104-208, 110 Stat. 3009 (1996).
24
Title VI, § 671(e)(3), 110 Stat. at 3009-723.
25
It should be noted that the legislative history of section
212(d)(11), as well as the general structure of the INA, also tend
to refute Zavala’s arguments. Further, these arguments were
propounded, and the precise issue before us ably disposed of
adversely to Zavala, by a federal district court in Compean-Guevara
v. Solis, 939 F.Supp. 551 (W.D. Tex. 1996) and by the BIA in Matter
of Compean, Int. Dec. 3249 (BIA 1995) (1995 WL 314391).
26
Prior to its repeal, 8 U.S.C. § 1182(c) provided, in
pertinent part, that "Aliens lawfully admitted for permanent
residence who temporarily proceeded abroad voluntarily and not
under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, may be admitted
in the discretion of the Attorney General." (Repealed by Pub. L.
No. 104-208, Div. C, Title III, § 304(b),110 Stat. 3009-597

15
interpreted section 212(c) and that the Board violated its own

promulgated regulations in denying his motion to reopen on the

basis that he was ineligible for the relief he sought. Both of

these arguments are foreclosed by the prior decisions of this

Court.

Section 212(c) has traditionally provided an avenue for

discretionary relief to "[a]liens lawfully admitted for permanent

residence" who, after a temporary absence from the country, are

"returning to a lawful unrelinquished domicile of seven years." At

his exclusion hearing, Zavala, through counsel, conceded that he

was not eligible for section 212(c) relief because he did not meet

the seven year requirement. On April 28, 1995, while his case was

pending appeal to the BIA, Zavala completed his seven year’s

residence. He did not, however, apply for section 212(c) relief at

that time. More than two months later, on July 5, 1995, the BIA

issued a final order, vacating the IJ’s decision and ordering

Zavala excluded and deported. On September 18, 1995, he filed a

motion to reopen the proceedings, seeking to be considered for

section 212(c) relief. The BIA found Zavala statutorily ineligible

for waiver under section 212(c) and consequently denied his motion

to reopen. In his habeas petition to the district court and on

appeal in this Court, Zavala seeks to challenge the BIA’s decision,

arguing that it erred as a matter of law in finding him statutorily

ineligible.

Clearly applicable circuit precedents preclude Zavala’s

(1996)).

16
arguments. In Ghassan v. INS, 972 F.2d 631 (5th Cir. 1992), we

held that "after the BIA decides that an alien is deportable, he is

no longer a legal resident and thus is not eligible for section

212(c) relief, so his petition for reopening must be rejected."

Id. at 637-38. Thus, under Ghassan, Zavala’s status as a legal

resident ended on July 5, 1995, the date that the BIA ruled him

excludable and ordered him excluded and deported. Consequently,

when Zavala filed his motion to reopen on September 18, 1995, he

was no longer eligible to be considered for a section 212(c)

waiver. Although Zavala asserts that the BIA erred in finding that

he was no longer a lawful permanent resident alien at the time that

he filed his motion to reopen, he fails to cite a single decision

from this Circuit in support of this contention. Ghassan is

directly applicable in the case at bar and dictates the conclusion

that Zavala lost his status as a lawfully admitted alien prior to

filing his motion to reopen.

In arguing that he should have been deemed eligible for a

section 212(c) waiver, Zavala also seeks to take advantage of

promulgated regulations governing the BIA’s resolution of motions

to reopen. Specifically, Zavala relies on the regulations

currently codified at 8 C.F.R. § 3.2(c)(1), which provide that "a

motion to reopen proceedings for consideration or further

consideration of an application for relief under section 212(c) of

the Act (8 U.S.C. 1182(c)) may be granted if the alien demonstrates

that he or she was statutorily eligible for such relief prior to

the entry of the administratively final order of deportation."

17
Unfortunately, the current version of the regulation on which

Zavala relies is inapplicable in the case sub judice. The

provision quoted above did not become effective until after the

BIA’s denial of Zavala’s motion to reopen, and the new regulations

do not apply retroactively.27 In Hernandez-Rodriquez v. Pasquarell,

118 F.3d 1034, 1041 (5th Cir. 1997), we considered and rejected the

retroactive application of this particular provision, holding that

"a habeas petitioner cannot take advantage of procedural changes in

the regulations governing section 212(c) relief on a collateral

habeas challenge to the order of exclusion when the Board’s denial

of a motion to reopen was proper under the standards applicable at

the time it denied the motion." Consequently, although the current

version of the regulatory provision relied on by Zavala may be in

tension with Ghassan and other decisions of this Court, we have

unequivocally rejected "the notion that the promulgation of new

regulations governing Board procedure can serve to invalidate final

decisions of the Board on habeas review." Id. Therefore, because

the Board’s denial of Zavala’s motion to reopen was correct under

the regulatory standard and caselaw applicable at the time of the

decision, and because the denial is not subject to challenge based

on subsequently promulgated regulations, the Board did not err in

finding Zavala ineligible for section 212(c) relief. Accordingly,

the district court did not err in granting summary judgment in

favor of the INS as to Zavala’s second claim.

27
The new regulations were promulgated by the Attorney General
on April 29, 1996, and became effective on July 1, 1996. See 61
Fed.Reg. 18900, 18905 (1996).

18
 Conclusion

We find Zavala’s claims for habeas relief to be without merit

and accordingly the judgment of the district court is

AFFIRMED.

19