[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 16, 2001
No. 99-10045 THOMAS K. KAHN
________________________ CLERK
INS No. 28426457-A
HAMID B. MOHAMMED,
Petitioner,
versus
JOHN ASHCROFT, U.S. Attorney General,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents.
________________________
Petition for Review of an order
of the Board of Immigration Appeals
_________________________
(August 16, 2001)
Before ANDERSON, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
MARCUS, Circuit Judge:
Petitioner Hamid Mohammed seeks review of a decision by the Board of
Immigration Appeals (“BIA”) of the Immigration and Naturalization Service
(“INS”) ordering him removed to his native Trinidad. The BIA found in pertinent
part that Mohammed, as an “aggravated felon,” was not eligible for any
discretionary relief from deportation. Mohammed pled guilty in Florida state court
in 1996 to two counts of dealing in stolen property. Under a subsequent
amendment to the Immigration and Naturalization Act (“INA”), these offenses
were classified as aggravated felonies; prior to that amendment, these offenses
were not deemed aggravated felonies. Mohammed argues that the Due Process
Clause forbids applying the amended definition of aggravated felony in order to
deny him an opportunity to seek discretionary relief from removal, because he
could have sought such relief at the time of his guilty plea. Having reviewed the
record and carefully considered the parties’ arguments, we find no Due Process
violation, and therefore affirm.
I.
This case arises out of removal (formerly called deportation) proceedings
against Mohammed, a Trinidad native who arrived in the United States in 1982 and
became a permanent resident alien in 1989. On July 9, 1996, Mohammed pled
guilty before a Florida state court to two counts of dealing in stolen property. The
two counts related to two separate incidents where Mohammed attempted to pawn
stolen goods (two video camcorders and some tools). Both incidents occurred in or
2
about July 1995. Mohammed was sentenced to 18 months imprisonment on each
of the two counts against him, with the sentences running concurrently.
On July 29, 1998, the INS began removal proceedings based on
Mohammed’s convictions. The INS alleged that Mohammed was removable under
the terms of the INA for having committed two crimes involving moral turpitude
and for having been convicted of an aggravated felony within the meaning of 8
U.S.C. § 1101(43), as amended.1 On September 16, 1998, Mohammed -- still in
prison for the stolen property offenses -- appeared pro se (having waived counsel)
at the removal hearing before an Immigration Judge (“IJ”). Mohammed argued
that removing him to Trinidad would cause great hardship; among other things,
Mohammed pointed out that he had a wife and children in this country, no longer
had any family in Trinidad, and had a job as a plumber waiting for him once he
was released. It is unclear whether Mohammed actually sought relief under, or
even identified, any particular provision of the INA. The IJ ultimately expressed
some sympathy for Mohammed’s plight. He concluded, however, that because
Mohammed had been convicted for an aggravated felony (as defined in the
1
Mohammed does not, and as best we can tell did not, dispute that he is removable under
at least the “moral turpitude” provision.
3
amended INA), the Attorney General was not empowered to grant any relief. The
IJ therefore ordered Mohammed removed to Trinidad.
Mohammed appealed that order to the BIA. In a submission dated on or
about December 30, 1998, Mohammed reiterated his hardship arguments, and also
stated an objection to applying the amended definition of aggravated felony to his
case. On or about February 18, 1999, Mohammed submitted a second brief in
which he repeated his prior arguments and asserted that he was entitled to a
suspension of deportation. Mohammed also asserted that he had been denied Due
Process, because he did not fit the statutory definition of aggravated felon either at
the time of his misconduct or at the time he entered his guilty plea.
On March 16, 1999, the BIA denied Mohammed’s appeal. The Board
explained that “[n]otwithstanding the contentions presented on appeal,
[Mohammed], as an aggravated felon, is ineligible for any form of relief that is
within the power of the Immigration Judge or this Board to grant.” The Board also
observed that although Mohammed asserted that his plea bargain should not be
used against him in these proceedings, “that matter is beyond our jurisdiction to
review. The conviction records confirm that [he] has been convicted of an
aggravated felony, regardless of the date of conviction.”
4
The sequence of events after that becomes a bit more obscure. On April 1,
1999, Mohammed, still pro se, filed a Petition for Review with this Court. It
appears, however, that on or about April 9, 1999, he also filed a motion to reopen
or reconsider with the BIA. The BIA denied that motion in an order dated May 10,
1999. The BIA first construed the motion as one to reconsider rather than reopen,
because no previously-unavailable evidence had been submitted with it. The
Board then said that it saw no error in its earlier decision. The Board also
addressed and rejected Mohammed’s contention (apparently raised for the first
time in the reconsideration motion) that he was entitled to a waiver of deportation
under former INA § 212(c). The Board explained that § 212(c) had been repealed
and was thus inapplicable to Mohammed, whose “relief, if any, is limited to
cancellation of removal under section 240A of the Act.” The Board also rejected
Mohammed’s argument that his convictions were not final for immigration
purposes because he had moved in state court to vacate his convictions.
Mohammed did not separately Petition for Review of that order.
Meanwhile, this Court, acting upon Mohammed’s April 1, 1999 Petition,
issued a lengthy set of jurisdictional questions. In orders dated December 1, 1999,
we (1) carried the jurisdictional questions with the case and directed the parties to
address them in their briefs; (2) granted Mohammed’s in forma pauperis request,
5
and (3) appointed counsel for Mohammed for purposes of this appeal. During oral
argument, counsel for Mohammed indicated that the Florida courts have denied
Mohammed’s motion to vacate his convictions, finding that Mohammed was
properly advised of the deportation consequences of his guilty plea. Also during
oral argument, counsel indicated that Mohammed has now been removed to
Trinidad.
II.
Notwithstanding the wide variety of issues mentioned by Mohammed in the
course of his pro se Petition for Review, he develops only a single issue in his
counseled briefs: “Whether Mohammed was denied due process under the U.S.
Constitution by the retroactive application of a revised definition of ‘aggravated
felony’ under immigration law, which attached new legal consequences to his
guilty plea by retroactively foreclosing his right to a waiver or cancellation.” Pet.
at 2. The thrust of Mohammed’s argument is that the expanded definition of
aggravated felony added to the INA by the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), Pub. L. 104-208, cannot -- consistent
with Due Process -- be applied to make him ineligible to pursue discretionary relief
6
from removal. We review de novo this legal challenge to the BIA’s decision. See,
e.g., Le v. United States Attorney General, 196 F.3d 1352, 1353 (11th Cir. 1999).2
At the time Mohammed pled guilty in July 1996 to the two charges of
receiving stolen property in violation of Florida law, the INA’s definition of
aggravated felony did not encompass that offense. Less than two months later on
September 30, 1996, however, Congress in IIRIRA expanded the definition to
include “a theft offense (including receipt of stolen property) or burglary offense
for which the term of imprisonment is at least one year.” IIRIRA § 321(a)(3),
amending 8 U.S.C. § 1101(a)(43)(G). IIRIRA took effect on April 1, 1997. There
is no dispute that the crime to which Mohammed pled guilty comes within the
amended definition of aggravated felony, but does not come within the pre-IIRIRA
definition. There is also no dispute that, under any version of the INA applicable
2
In its briefs, the INS argued that we may lack jurisdiction to hear Mohammed’s petition
because Mohammed is appealing only the BIA’s resolution of his “motion to reopen,” and the
denial of a motion to reopen may be a discretionary decision as to which judicial review is
foreclosed by IIRIRA. This objection fails because, as the INS acknowledged during oral
argument, Mohammed has sought review of the BIA’s original April 9, 1999 decision affirming
the IJ’s ruling. That ruling, accordingly, is squarely before us. We note as well that the INS
does not contend that there is a statutory constraint on our jurisdiction to address constitutional
challenges. Cf. Richardson v. Reno, 180 F.3d 1311, 1316 n.5 (11th Cir. 1999) (jurisdiction-
stripping provision in IIRIRA did not “foreclose constitutional challenges to the statute itself or
other substantial constitutional issues from being raised in the court of appeals”), cert. denied,
529 U.S. 1036, 120 S. Ct. 5529 (2000).
7
to his case, Mohammed would not be eligible for discretionary relief from
deportation if he had been convicted of an aggravated felony.3
Mohammed contends that applying the amended definition of aggravated
felony to a conviction that pre-dates IIRIRA’s effective date, thereby making him
ineligible to seek discretionary relief from removal, violates his rights under the
Due Process Clause of the Fifth Amendment. In making this argument,
Mohammed relies extensively on the Supreme Court’s opinion in Landgraf v. USI
Film Products, 511 U.S. 244, 114 S. Ct. 1483 (1994). Technically speaking,
however, Landgraf does not purport to lay down rules for deciding when
retroactive application of a statute would violate Due Process. Rather, the
3
Status as an “aggravated felon” renders an alien ineligible for discretionary relief --
called cancellation of removal -- under 8 U.S.C. § 1229b. This provision was the only relevant
provision of the INA that would have authorized the Attorney General to provide discretionary
relief at the time of Mohammed’s removal proceeding. This provision was adopted in IIRIRA as
a replacement for former INA §§ 212(c) and 244(a)(2) (“suspension of deportation”), which
IIRIRA repealed. See IIRIRA § 304(b). In St. Cyr v. INS, No. 00-767 (U.S. June 25, 2001), the
Supreme Court held that IIRIRA’s repeal of former INA § 212(c) could not be applied
retroactively to persons who pled guilty to offenses prior to IIRIRA’s effective date and who
“would have been eligible for § 212(c) relief at the time of their plea under the law then in
effect.”
Mohammed does not argue in his briefs to this Court that the BIA’s decision should be set aside
because the Board improperly found him ineligible for relief under § 212(c). Rather, the only
argument fairly developed in this Court concerns the validity under Due Process of IIRIRA’s
expanded definition of aggravated felony as it affects Mohammed’s eligibility for discretionary
relief under the current version of the INA. Any objection based on § 212(c) has been waived,
and hence we do not consider whether the BIA erred in denying Mohammed relief under that
provision. Cf. Flanigan’s Enterprises, Inc. v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir.
2001) (party waives issue not developed in its briefs)(citing Continental Tech. Servs., Inc., v.
Rockwell Int’l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991) (same)).
8
Supreme Court in that case established principles to be used by courts in evaluating
whether, as a matter of statutory analysis, an Act of Congress may be applied
retroactively. Although the Court did discuss potential Due Process considerations
as one reason to adhere to the general presumption against a statute’s retroactivity
in the absence of clear Congressional intent to the contrary, see id. at 266, 114 S.
Ct. at 1497, the Court did not attempt to define precisely when retroactive
application of a statute would violate Due Process. Cf. Bradley v. School Bd. of
City of Richmond, 416 U.S. 696, 716-17, 94 S. Ct. 2006, 2019 (1974) (suggesting
that applying a law retroactively violates Due Process when it causes manifest
injustice). Landgraf, therefore, does not fully address the constitutional objection
raised by Mohammed. Nevertheless, in an abundance of caution, we will consider
Mohammed’s argument under both the statutory analysis set forth in Landgraf as
well as under this Court’s existing Due Process jurisprudence.
Turning first to the statutory retroactivity analysis, the Supreme Court
recently reaffirmed that “[d]espite the dangers inherent in retroactive legislation, it
is beyond dispute that, within constitutional limits, Congress has the power to
enact laws with retrospective effect.” St. Cyr, -- U.S. at --. A federal statute may
be applied retroactively if there is a clear indication from Congress that it intended
such a result. See id. This standard is not easily met. “[C]ases where this Court
9
has found truly retroactive effect adequately authorized by statute have involved
statutory language that was so clear that it could sustain only one interpretation.”
Id. (internal quotation marks and citation omitted).4 But when Congress has
provided a clear statement of its intent to apply a statute retroactively, we respect
that intention. See, e.g., Tefel v. Reno, 180 F.3d 1286, 1302 (11th Cir. 1999)
(“Landgraf provides that the ‘first task is to determine whether Congress has
expressly prescribed the statute’s proper reach. If Congress has done so, of course,
there is no need to resort to judicial default rules.’”), cert. denied, 530 U.S. 1228,
120 S. Ct. 2657 (2000); Mayers, 175 F.3d at 1300 (same). In attempting to
ascertain Congressional intent, “a court should use the ‘normal rules of
construction’ and examine the text, structure, and history of the legislation to
determine whether Congress intended for there to be retrospective application.”
Mayers, 175 F.3d at 1302 (quoting Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct.
2059, 2063 (1997)).
With regard to IIRIRA § 321(a)(3), Congress made a clear and unambiguous
statement in favor of retroactivity. In the same section of IIRIRA that expanded
4
When the statute contains no such express command, a court must determine whether
the new statute would have retroactive effect, “i.e., whether it would impair rights a party
possessed when he acted, increase a party’s liability for past conduct, or impose new duties with
respect to transactions already completed. If the statute would operate retroactively, our
traditional presumption teaches that it does not govern absent clear congressional intent favoring
such a result.” Mayers v. INS, 175 F.3d 1289, 1302 (11th Cir. 1999).
10
the type of theft offense constituting an aggravated felony, Congress also amended
the overall definition of aggravated felony to make clear that the new definition of
aggravated felony applied not only to future convictions, but also to convictions
entered prior to IIRIRA:
EFFECTIVE DATE OF DEFINITION. -- Section 101(a)(43) (8
U.S.C. 1101(a)(43)) is amended by adding at the end the following
new sentence: “Notwithstanding any other provision of law (including
any effective date), the term applies regardless of whether the
conviction was entered before, on, or after the date of enactment of
this paragraph.”
Pub. L. 104-208, § 321(b); see also id. § 321(c) (“The amendments made by this
section shall apply to actions taken on or after the date of the enactment of this Act,
regardless of when the conviction occurred.”). That language is now formally
codified at 8 U.S.C. 1101(a)(43) as part of the new, broadened definition of
aggravated felony. It provides that: “Notwithstanding any other provision of law
(including any effective date), the term applies regardless of whether the
conviction was entered before, on, or after September 30, 1996.”
It is hard to imagine a clearer statement of Congressional intent to apply the
expanded definition of aggravated felony to convictions -- such as Mohammed’s --
pre-dating IIRIRA. Indeed, in St. Cyr, the Supreme Court specifically cited §
321(b) as evidence of “Congress’ willingness in [parts of] IIRIRA to indicate
unambiguously its intention to apply specific provisions retroactively.” -- U.S. at -
11
-. As the Court explained: “IIRIRA’s amendment of the definition of ‘aggravated
felony,’ . . . clearly states that it applies with respect to ‘conviction[s] . . . entered
before, on, or after’ the statute’s enactment date.” Id. (quoting § 321(b)).
Accordingly, under the Landgraf statutory analysis, we do not ever reach the
questions on which Mohammed predicates his retroactivity argument, such as his
assertion that § 321(a)(3) would impair rights he possessed when he pled guilty
and increase his liability for past conduct. Congress clearly intended § 321(a)(3) to
apply to convictions pre-dating IIRIRA, and under Landgraf our analysis goes no
further.
Mohammed’s Due Process objection fails for different reasons. Mohammed
presumes that he has a Due Process right to be eligible for discretionary relief from
removal, or at least a right not to be deemed ineligible based on the expanded
definition of aggravated felony created by IIRIRA § 321(a)(3). The critical flaw in
this argument is that, under our precedent, an alien does not have a constitutionally
protected interest in receiving discretionary relief from removal or deportation. In
Tefel, for example, we rejected the argument advanced by several aliens that
provisions of IIRIRA making them ineligible for the discretionary relief of
suspension of deportation violated Due Process:
No constitutionally protected interest arises from the INS’ actions in
granting or denying applications for suspension because the Attorney
12
General exercises “unfettered” discretion over applications for
suspension. Therefore, regardless of the ultimate disposition of an
application for suspension of deportation, Plaintiffs do not possess a
constitutionally protected interest in their expectancy of receiving
suspension. Thus, just as Plaintiffs enjoy no “liberty or property”
interest in their expectancy of receiving suspension of deportation,
they enjoy no “liberty or property” interest in being eligible to be
considered for suspension. Accordingly, being ineligible for
suspension does not deprive Plaintiffs of a constitutionally protected
interest any more than having their applications for suspension denied.
180 F.3d at 1301-02. Likewise, in Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th
Cir. 1999), we rejected a Due Process challenge in connection with a BIA
determination that an alien was ineligible for suspension of deportation because
“an alien has not been deprived of ‘fundamental fairness’ simply by being
ineligible for a purely discretionary ‘act of grace’ like suspension of deportation.”
Id. at 1148; see also Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001)
(no constitutionally protected liberty interest infringed by denial of cancellation of
removal).5
Mohammed has no constitutionally-protected right to discretionary relief
from removal, and therefore cannot -- at least in these circumstances -- claim a
5
The cases cited by Mohammed primarily concern the retroactivity of § 440(d) of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, 1277
(“AEDPA”), and turn on application of the second step of Landgraf, not Due Process. The
retroactivity of AEDPA § 440 is not at issue in this case, in part because AEDPA took effect
several months before Mohammed entered his guilty pleas in July 1996 and well before the INS
commenced removal proceedings against him in 1998.
13
substantive Due Process violation based upon Congress’s decision in IIRIRA to
make a broader class of aliens ineligible for this relief.6 In any event, Mohammed
fails to show on this record that Congress’s decision to apply its expanded
definition of aggravated felony to convictions pre-dating IIRIRA was irrational.
Cf. United States v. Plummer, 221 F.3d 1298, 1308-09 (11th Cir. 2000) (“Under
our substantive due process jurisprudence, a statute or regulation will be upheld so
long as it is rationally related to a lawful governmental purpose and is not
unlawfully arbitrary or discriminatory.”). Simply put, Mohammed cites no case
finding a Due Process violation on any facts similar to those at issue here, and does
not attempt to articulate or apply our substantive Due Process jurisprudence to his
situation.
Finally, we note that Mohammed argues repeatedly that applying the
amended aggravated felony definition to him is unfair because he did not know
that ineligibility for relief from deportation would be a consequence of pleading
guilty to the stolen property offenses, which were not “aggravated felonies” at the
time of his guilty pleas. To the extent this argument turns on the retroactivity
6
The Supreme Court’s recent decision in St. Cyr does not help Mohammed. As noted
above, Mohammed, unlike the petitioner in St. Cyr, does not squarely argue that the BIA’s
decision should be set aside on the ground that the BIA erred in failing to grant relief under §
212(c). More generally, Mohammed’s argument in this case is expressly predicated on Due
Process, an issue the St. Cyr majority did not address.
14
concerns discussed above, we reject it for the reasons stated above. To the extent
this argument is based on a claim that the Florida trial court which took his plea
improperly failed to advise him of the deportation consequences of pleading guilty,
the argument is unavailing. If the Florida trial court erred -- something that is not
established on this record -- then Mohammed’s remedy is a collateral attack on the
underlying convictions in Florida state court, not a judicial determination, in the
context of a Petition for Review of an BIA decision, that he must as a matter of
Due Process be eligible for relief from removal. In any event, it appears that the
Florida courts have now rejected Mohammed’s attempt to set aside his guilty
pleas.7
For all of the foregoing reasons, while we understand Mohammed’s
dilemma, we are constrained to deny his Petition for Review, and therefore affirm
the BIA’s removal order.
PETITION DENIED.
7
We note as well that there is no evidence in this record that Mohammed relied upon, or
even considered, the prospect of discretionary relief from deportation in deciding to plead guilty.
15