[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 15, 2008
No. 07-12933 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A30-917-419
NAEL DAWUD SAMMOUR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 15, 2008)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Nael Dawud Sammour, a native and citizen of Jordan, petitions for review of
the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order of removal and granting the Department of Homeland
Security’s (“DHS”) motion to pretermit Sammour’s application for relief, which
was filed under former INA § 212(c), 8 U.S.C. § 1182(c) (1996). After review, we
dismiss in part and deny in part the petition for review.
I. BACKGROUND
While a lawful permanent resident, Sammour was convicted of several
criminal offenses, including 1985 convictions for two counts of receiving stolen
property, a 1992 conviction for attempted receipt of stolen property and 1992
federal convictions for two counts of bank fraud. In 1992, the Immigration and
Naturalization Service (“INS”) 1 issued an Order to Show Cause, charging
Sammour with deportability under former INA § 241(a)(2)(A)(ii), 8 U.S.C. §
1251(a)(2)(A)(ii), because his criminal convictions constituted two or more crimes
involving moral turpitude. In 1995, an IJ ordered Sammour deported.
That same year, Sammour filed an application for waiver of deportation
under former INA § 212(c). In 1996, Congress passed two pieces of legislation
(“the 1996 amendments”) that significantly changed immigration law, the
1
In 2003, the INS was abolished and its enforcement functions were transferred to the
newly created DHS. See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 471,
116 Stat. 2135.
2
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214 (1996), enacted on April 24, 1996; and the Illegal Immigration
Removal and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div.
C., 110 Stat. 3009-546, enacted on September 30, 1996. Among other things, the
1996 amendments eliminated § 212(c) relief for aliens convicted of certain
disqualifying offenses, including “crimes of moral turpitude.” See AEDPA
§ 440(d).2
In 1997, the IJ denied Sammour’s application because his 1985 receipt of
stolen property and 1992 bank fraud convictions were “crimes of moral turpitude”
and the 1996 amendments had rendered aliens convicted of such crimes ineligible
for § 212(c) relief. In 1998, the BIA affirmed.
In 2001, Sammour filed with the BIA a “Special 212(c) Motion to Reopen
and Remand” based on INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293
(2001), which held that the provisions of the 1996 amendments eliminating
§ 212(c) relief could not apply retroactively to aliens who were eligible for
2
Section 440(d) of AEDPA amended INA § 212(c) to expand the types of offenses that
could disqualify an alien for § 212(c) relief to include an alien who is deportable “by reason of
having committed any criminal offense covered in section 241(a)(2)(A)(iii) [aggravated
felonies], (B) [controlled substances convictions], (C) [certain firearm offenses], or (D)
[miscellaneous crimes], or any offense covered by section 241(a)(2)(A)(ii) [multiple criminal
convictions] for which both predicate offenses are covered by section 241(a)(2)(A)(i) [crimes of
moral turpitude].” Later, IIRIRA repealed § 212(c) altogether. See Pub. L. No. 104-208, Div. C
Title III § 304(b), 110 Stat. 3009-597.
3
§ 212(c) relief at the time they pled guilty to a disqualifying offense. The BIA
granted Sammour’s motion to reopen and remanded the case to an IJ for further
proceedings.
On remand, the DHS filed a motion to pretermit Sammour’s application for
§ 212(c) relief, which was denied. The DHS filed a renewed motion to pretermit
Sammour’s § 212(c) application, charging Sammour with deportability under
another immigration statute, former INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C),
based on a 1982 Ohio conviction for possessing an unregistered firearm.3
The IJ granted the DHS’s renewed motion. The IJ concluded that the 1996
amendments’ elimination of § 212(c) relief applied to Sammour, despite St. Cyr,
because Sammour was convicted following a trial, rather than a guilty plea.
Alternatively, the IJ concluded that Sammour was ineligible for § 212(c) relief
because his 1982 firearms offense did not have a comparable ground for exclusion,
and thus could not be waived.
3
INA § 241 authorized the Attorney General to enter an order deporting an alien who fell
within certain classes of deportable aliens. Included within this list of deportable aliens were
aliens convicted of certain firearm offenses, as follows:
(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) in violation of any law
is deportable.
INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1996) (currently codified at 8 U.S.C. §
1227(a)(2)(C)).
4
The BIA declined to adopt the IJ’s denial of § 212(c) relief based on the fact
that Sammour’s 1982 firearm conviction resulted from a jury verdict. The BIA
concluded that § 309(c) of IIRIRA and 8 C.F.R. § 1212.3(g) preserved § 212(c)
relief requests for aliens, like Sammour, who were placed in deportation
proceedings before enactment of the 1996 amendments. Thus, the BIA determined
that Sammour’s conviction by a jury, rather than a guilty plea, did not affect the
availability of § 212(c) relief.4
Instead, the BIA concluded that Sammour was statutorily ineligible for §
212(c) relief. However, this ineligibility was not based on the 1996 amendments,
but based on a separate ground. A former § 212(c) waiver was available to
removable lawful permanent residents only to the extent the grounds for removal
were analogous to grounds for exclusion under INA § 212(a), 8 U.S.C. § 1182(a).
The BIA concluded that Sammour was ineligible for a § 212(c) waiver of
removability based on his 1982 firearm offense because there was no comparable
ground for exclusion under § 212(a).
Sammour filed this appeal.
II. DISCUSSION
4
Sammour argues that the IJ erred in finding that he was ineligible for § 212(c) relief
under St. Cyr because he was convicted after trial. However, the BIA did not adopt the IJ’s
ruling on this point. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (explaining
that we review the IJ’s reasoning only to the extent the BIA adopts it).
5
As a threshold matter, we first determine whether we have jurisdiction over
Sammour’s petition for review.5 Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th
Cir. 2001). We lack jurisdiction “to review any final order of removal against an
alien who is removable by reason of having committed [certain enumerated
criminal offenses].” INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); Moore v.
Ashcroft, 251 F.3d 919, 922-23 (11th Cir. 2001). One of the enumerated criminal
offenses is a conviction “under any law of . . . possessing . . . any weapon, part, or
accessory which is a firearm . . . .” See INA § 237(a)(2)(C), 8 U.S.C. §
1227(a)(2)(C); INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (referencing, for the
purpose of identifying disqualifying offenses, 8 U.S.C. § 1227(a)(2)(C)). When
judicial review is limited by statutory conditions, we retain jurisdiction to
determine only whether these statutory conditions exist. Brooks v. Ashcroft, 283
F.3d 1286, 1272 (11th Cir. 2002). Thus, our review is limited to the threshold
issues of whether a petitioner is (1) an alien; (2) who is removable; (3) based on
having committed a disqualifying offense. Id.
In 1982, Sammour was convicted in Ohio of possessing an unregistered
firearm. Sammour does not dispute that his firearm conviction is a disqualifying
offense for purposes of depriving this Court of jurisdiction to review his final
5
The government filed a motion to dismiss Sammour’s petition for lack of appellate
jurisdiction. We review issues of subject matter jurisdiction de novo. Brooks v. Ashcroft, 283
F.3d 1268, 1272 (11th Cir. 2002).
6
removal order. Therefore, to the extent Sammour seeks review of his removal
order, we lack jurisdiction and dismiss his petition.
We still must consider Sammour’s § 212(c) claim for waiver of
removability. As to the discretionary aspect of that relief, we also lack jurisdiction
to review denials of discretionary relief, including waiver of removability under
INA § 212(c). See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i); see also
Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1347-48 (11th Cir. 2006).
However, we retain jurisdiction to review constitutional claims or questions of law.
See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), as amended by the REAL ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 231; Balogun v. U.S. Att’y Gen., 425
F.3d 1356, 1359-60 (11th Cir. 2005).6 Therefore, we have jurisdiction to review
the legal question of whether Sammour’s firearm conviction rendered him
ineligible for § 212(c)’s waiver of removability.
Under § 212(c), the Attorney General has the discretion to waive an alien’s
inadmissible status if the alien was a lawful permanent resident who had lived
continuously in the United States for seven years. See INA § 212(c), 8 U.S.C. §
1182(c) (1996). Although § 212(c) originally provided for a waiver of exclusion
6
Although Sammour’s deportation proceedings began before April 1, 1997, his petition
for review is governed by IIRIRA. Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1008 n.3 (11th
Cir. 2005) (explaining that, after the REAL ID Act, “[t]he date on which a petition is filed is no
longer important, as Congress has now directed that all petitions for review will be governed
under the permanent provisions of IIRIRA”).
7
for aliens who had temporarily gone abroad, the provision was “extended to
provide relief from deportation orders as well.” Asencio v. INS, 37 F.3d 614, 616
(11th Cir. 1994). However, as already noted, the § 212(c) waiver is available to
removable lawful permanent residents only to the extent the grounds for removal
are analogous to grounds for exclusion under INA § 212(a), 8 U.S.C. § 1182(a).
Here, the BIA concluded that Sammour was ineligible for a § 212(c) waiver
of removability based on his firearms offense because there is no comparable
ground for exclusion under § 212(a). This Court has reached the same conclusion.
See Rodriguez-Padron v. INS, 13 F.3d 1455, 1460-61 (11th Cir. 1994) (concluding
that an alien convicted of a firearms violation is not eligible for § 212(c) relief
because there is not a comparable ground for exclusion); see also Adefemi v.
Ashcroft, 386 F.3d 1022, 1031 (11th Cir. 2004) (en banc) (same). Accordingly,
the BIA correctly concluded that Sammour’s firearm conviction rendered him
ineligible for § 212(c) relief. With respect to this issue, Sammour’s petition for
review is denied.7
PETITION DISMISSED IN PART, DENIED IN PART.
7
In light of this opinion, we deny the government’s motion to dismiss as moot.
8