IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-60694
Summary Calendar
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RUBEN ISAAC DELEON-HOLGUIN,
Petitioner,
versus
JOHN ASHCROFT, U.S. Attorney General,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
June 7, 2001
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Ruben Isaac DeLeon-Holguin (“DeLeon”), a citizen of the
Dominican Republic, was ordered removed from the United States
because of his conviction for an aggravated felony. After the
immigration court and the Board of Immigration Appeals decided that
he was ineligible for relief from removal, DeLeon petitioned this
court for review of his removal order. The Immigration and
Naturalization Service, however, contends that we have no
jurisdiction to review the removal order against DeLeon.
1
The specific question is whether the removal proceedings
against DeLeon “commenced” before or after the April 1, 1997,
effective date of the Illegal Immigration Reform and Immigrant
Responsibility Act (“IIRIRA”), which proscribes judicial review of
certain removal orders. Because we conclude that the removal
proceedings against DeLeon commenced in 1999 when the appropriate
charging document was filed with the immigration court, we hold
that we have no jurisdiction to review the removal order.
I
DeLeon is a native and citizen of the Dominican Republic who
lawfully entered the United States as an immigrant in 1983. In
August 1995, DeLeon was convicted in the United States District
Court for the District of Rhode Island of conspiracy to possess and
distribute cocaine, in violation of 21 U.S.C. § 846. DeLeon was
sentenced to 72 months’ imprisonment.
In October 1995, while DeLeon was incarcerated in a federal
corrections institution in Loretto, Pennsylvania, officials from
the Immigration and Naturalization Service office in Providence,
Rhode Island, served DeLeon with an “Order to Show Cause and Notice
of Hearing” (“OSC”). The OSC informed DeLeon that he was subject
to deportation because he had been convicted of an aggravated
felony and had violated federal controlled substances laws. An
attachment to the OSC explicitly stated that DeLeon’s OSC “is not
being filed with the Office of the Immigration Judge at this time”
2
and that the INS would notify DeLeon when an immigration judge had
been assigned to his case. However, the INS never filed the OSC
with an immigration court, and no further action was taken at that
time.
In October 1999, after DeLeon had been transferred to a
federal detention center in Oakdale, Louisiana, officials from the
INS office in Oakdale served DeLeon with a “Notice to Appear”
(“NTA”), charging that DeLeon was removable under 8 U.S.C. §
1227(a)(2)(A)(iii) because his drug conviction qualified as an
“aggravated felony” under 8 U.S.C. § 1101(a)(43). This time, the
INS filed the NTA with the immigration court.
In January 2000, DeLeon appeared before an immigration judge
and, through his counsel, admitted the allegations of the NTA and
conceded removability. DeLeon then sought a waiver of deportation
under former section 212(c) of the Immigration and Nationality Act.
The immigration judge found DeLeon ineligible for any relief from
removal and ordered him removed from the United States.
DeLeon appealed his removal order to the Board of Immigration
Appeals, and the BIA affirmed the judgment and dismissed the
appeal. In October 2000, DeLeon filed this petition for review of
the BIA’s decision,1 contending that the district court and the BIA
1
Shortly before filing his petition for review with this
court, DeLeon filed a petition for a writ of habeas corpus in the
United States District Court in Rhode Island. We held the instant
petition for review in abeyance until the district court in Rhode
Island had disposed of DeLeon’s habeas petition. The district
court has since dismissed the petition.
3
erred in holding that he was ineligible to seek a waiver of
deportation under former section 212(c) of the INA. The INS then
filed a motion to dismiss DeLeon’s petition for lack of
jurisdiction. The INS contends that the IIRIRA deprives this court
of jurisdiction to review the removal order against DeLeon.2
II
A
The IIRIRA’s amendments to the INA deprive the federal courts
of jurisdiction to review removal orders against aliens convicted
of aggravated felonies. See 8 U.S.C. § 1252(a)(2)(C)
(“Notwithstanding any other provision of law, no court shall have
jurisdiction to review any final order of removal against an alien
who is removable by reason of having committed a criminal offense
covered in section . . . 1227(a)(2)(A)(iii) [the aggravated felony
provision]. . . .”). It is undisputed that DeLeon is an alien who
is removable because his federal drug conviction qualifies as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. §
924(c)(2).
The question before us is whether the IIRIRA governs DeLeon’s
petition for review. As this court has noted before, the IIRIRA’s
restrictions on judicial review apply only to cases in which
removal proceedings were commenced on or after April 1, 1997, the
2
Of course, we retain jurisdiction to determine whether the
conditions exist that would preclude jurisdiction over this
petition. Lopez-Elias v. Reno, 209 F.3d 788, 791 n.3 (5th Cir.
2000); Max-George v. Reno, 205 F.3d 194, 199 (5th Cir. 1999).
4
effective date of the IIRIRA. Lopez-Elias, 209 F.3d at 790 n.1.
Thus, whether this court has jurisdiction over DeLeon’s petition
depends upon whether removal proceedings were commenced when the
INS served the Order to Show Cause on DeLeon in 1995 or when the
INS filed the Notice to Appear with the immigration court in 1999.
B
The INS contends that the removal proceedings against DeLeon
commenced in 1999 when the INS filed the NTA with the immigration
court in Oakdale, Louisiana. According to INS regulations, removal
proceedings “commence when a charging document is filed with the
Immigration Court.” 8 C.F.R. § 3.14(a).3 In the INS’s opinion,
the 1995 Order to Show Cause is irrelevant to our inquiry because
the INS never filed the OSC with the immigration court.
Whether to use the INS’s regulatory definition of “commence”
for the purpose of determining whether the IIRIRA applies is a
question of first impression in this circuit. The other circuits
that have addressed this issue have not reached a consensus.
DeLeon, relying on decisions from the First and Eleventh
Circuits, contends that removal proceedings commence when an order
to show cause is served on the alien. See Wallace v. Reno, 194
F.3d 279 (1st Cir. 1999); Alanis-Bustamante, 201 F.3d at 1309. The
3
Similarly, the relevant regulation in 1995 provided that, as
a general rule, a deportation proceeding “is commenced by the
filing of an order to show cause with the Office of the Immigration
Judge.” 8 C.F.R. § 242.1 (1995)(repealed)(quoted in Alanis-
Bustamante v. Reno, 201 F.3d 1303, 1308-09 (11th Cir. 2000)).
5
First Circuit focused on the reliance interests of the alien and
held that “when an order to show cause is served on the alien, the
deportation process has effectively begun and expectations properly
form. . . .” Wallace, 194 F.3d at 287. The Eleventh Circuit
agreed that “the alien’s perspective is the relevant one for
determining when a proceeding commences for purposes of deciding
which statutory rules apply.” Alanis-Bustamante, 201 F.3d at 1309
(holding that proceedings commence when the order to show cause is
served on the alien and the INS has filed a warrant of detainer).
The court went on to say that the application of the INS’s
regulatory definition of “commence” would undermine the “reasonable
expectations” of removable aliens and would be inconsistent with
fundamental “[c]onsiderations of fairness.” Id. at 1310.
The Sixth and Seventh Circuits, on the other hand, have
adopted the INS’s definition of “commence” for the purpose of
determining whether the IIRIRA applies. See Asad v. Reno, 242 F.3d
702, 706 (6th Cir. 2001); Morales-Ramirez v. Reno, 209 F.3d 977,
981-82 (7th Cir. 2000). Emphasizing that the courts generally
defer to procedural regulations governing administrative practice,
these circuits have elected not to formulate a definition of
“commence” that is completely inconsistent with the definition used
by the INS. Morales-Ramirez, 209 F.3d at 982. As we see it, a
clear and uniform rule regarding when proceedings commence enables
the courts to avoid speculative and fact-intensive questions, such
6
as when a particular alien formed “legitimate expectations”
regarding relief from removal. Moreover, applying the INS’s
regulatory definition of “commence” will prevent unnecessary
confusion and uncertainty within the INS. As the Seventh Circuit
observed, “The purpose of the filing requirement is to allow
immigration courts to manage the vast number of cases that are
litigated before them each year. Allowing proceedings to commence
at whatever point the INS decides to serve a charging document on
an alien would frustrate this purpose and further ensnarl the
bureaucratic web of immigration proceedings.” Morales-Ramirez, 209
F.3d at 982-83.
Like the Sixth and Seventh Circuits, we find no reason to
formulate a rule that is at odds with the clear language of
procedural regulations promulgated by the Attorney General. DeLeon
has presented no evidence that removal proceedings were in any
sense “pending” during his incarceration from August 1995 until
late 1999. Nor is there any allegation that the INS manipulated
the regulations to deprive DeLeon of his ability to request a
waiver under former § 212(c).
We therefore hold that removal proceedings commence when the
INS files the appropriate charging document with the immigration
court. The removal proceedings against DeLeon commenced when the
Notice to Appear was filed in 1999, more than two years after the
effective date of the IIRIRA. Under the IIRIRA’s amendments to the
7
INA, 8 U.S.C. § 1252(a)(2)(C), this court lacks jurisdiction to
review DeLeon’s removal order.
III
For the reasons discussed above, the respondents’ motion to
dismiss the petition for lack of jurisdiction is GRANTED, and
DeLeon’s petition for review is
D I S M I S S E D .
8