[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 12, 2006
No. 05-15421 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A36-469-045
JEAN FIDES ALEXANDRE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 12, 2006)
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Jean Fides Alexandre, a native of Haiti, petitions for review of the decision
of the Board of Immigration Appeals (BIA) denying his motion to reopen his
deportation proceedings in order to permit him to apply for relief under former
INA § 212(c).1 The BIA denied the motion to reopen on the ground that Alexandre
was ineligible for § 212(c) relief because he had been convicted of drug charges
amounting to an aggravated felony and had served five years of his sentence. That
conviction was imposed in 1989 by a Florida state court following a jury trial.
We note at the outset that, even though Alexandre is a convicted felon, we
do have jurisdiction to hear his claims on appeal because they are constitutional
and legal in nature. See 8 U.S.C. § 1252(a)(2)(C), (D) (stripping us of jurisdiction
to review a final removal order against an alien convicted of certain criminal
offenses except to the extent that a petitioner raises a constitutional question or a
question of law).
I.
Alexandre contends that § 106 of the REAL ID Act Pub. L. No. 109-13, 119
Stat. 231 (2005) violates the Suspension Clause of the United States Constitution
because it expressly forecloses any habeas review, and a petition for review is not
the equivalent of one seeking habeas corpus relief since the reviewing court is not
allowed to take evidence.
1
In September 1996, the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) repealed § 212(c), which allowed deportable aliens to seek a waiver of
inadmissibility. See Pub. L. No. 104-132, § 304(b), 110 Stat. 3009-546.
2
The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas
Corpus shall not be suspended.” U.S. Const. art. I, § 9, cl. 2. The Supreme Court
has held that, “the substitution of a collateral remedy which is neither inadequate
nor ineffective to test the legality of a person's detention does not constitute a
suspension of the writ of habeas corpus.” Swain v. Pressley, 430 U.S. 372, 381, 97
S.Ct. 1224, 1230, 51 L.Ed.2d 411 (1977). If a substitute remedy provides the same
scope of review as a habeas remedy, it is adequate and effective. Id. at 381-82, 97
S.Ct. at 1229-30. “Congress could, without raising any constitutional questions,
provide an adequate substitute through the courts of appeals.” Immigration and
Naturalization Serv. v. St. Cyr, 533 U.S. 289, 314 n.38, 121 S.Ct. 2271, 2287 150
L.Ed.2d 347 (2001). “Habeas review available in § 2241 petitions by aliens
challenging removal orders” includes constitutional issues and errors of law, but
“does not include review of administrative fact findings or the exercise of
discretion.” Cadet v. Bulger, 377 F.3d 1173, 1184 (11th Cir. 2004).
Section 106 of the REAL ID Act amended 8 U.S.C. § 1252(a) so that a
petition for review filed with the appropriate court is now an alien’s exclusive
means of review of a removal order. 8 U.S.C. § 1252(a)(5), as amended by the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005). While limiting
the avenues of judicial review, the REAL ID Act expanded courts of appeals’
jurisdiction to consider constitutional and legal questions presented in a petition for
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review. § 1252(a)(2)(D). Congress believed that “[b]y placing all review in the
courts of appeals, [the REAL ID Act] would provide an ‘adequate and effective’
alternative to habeas corpus.” The thinking was that the Act “would not change
the scope of review that criminal aliens currently receive, because habeas review
does not cover discretionary determinations or factual issues that do not implicate
constitutional due process.” 151 Cong. Rec. H2813-01, H2873. Because Congress
gave courts of appeal jurisdiction to review all legal and constitutional errors in a
removal order, habeas review became unnecessary. See Balogun v. U.S. Att’y
Gen., 425 F.3d 1356, 1360 (11th Cir. 2005) (deciding that we had jurisdiction to
review whether the BIA legally erred in determining that alien’s conviction was an
aggravated felony).
We can find no fault in Congress’ reasoning. Section 106 of the REAL ID
Act does not violate the Suspension Clause of the Constitution because it provides,
through review by a federal court of appeals, an adequate and effective remedy to
test the legality of an alien’s detention. Even though habeas corpus relief is
precluded by the REAL ID Act, a deportable alien can still seek review of
constitutional and legal claims by moving the BIA to reopen or reconsider its
previous ruling, and if unsuccessful, by filing a petition for review in the court of
appeals. See 8 C.F.R. § 1003.2(c); 8 U.S.C. §1252(a)(5), (2)(D). This procedure
offers the same review as that formerly afforded in habeas corpus which provided
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legal, but not factual or discretionary, determinations. See Cadet, 377 F.3d at
1184. Since the substitute remedy of a petition for review offers the same scope of
review as a habeas remedy, it is adequate and effective. See Swain at 381-82,
97 S.Ct. at 1229-30.
Alexandre had the opportunity in his motion before the BIA to offer
evidence to prove his eligibility for § 212(c) relief. As the BIA noted, he failed to
do so. See 8 C.F.R. § 1033.44(f) (noting that an alien filing a motion under this
section must submit “supporting documents”).
Because Alexandre brought only constitutional and legal claims on appeal, it
was not error for his habeas petition to be construed as a petition for review and
transferred to us by the district court where he filed it.
II.
Alexandre argues that the BIA erred as a matter of law in concluding that his
§ 212(c) motion to reopen was barred because he had already served five years of
his sentence, and for that reason he was precluded from receiving relief based on
the Immigration Act of 1990, which provided that an alien convicted of an
aggravated felony who had served at least five years of his sentence could not seek
a waiver of inadmissibility under then INA § 212(c), 8 U.S.C. § 1182(c). See Pub.
L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (IMMACT-90). Alexandre argues
that applying the five-year bar to him produces an impermissibly retroactive effect.
5
We have not yet been called upon to identify the standard of review
applicable to a denial of a motion to reopen brought pursuant to 8 C.F.R.
§ 1003.44. However, it is unnecessary for us to determine which standard of
review is appropriate in this case, because Alexandre is clearly not eligible for §
212(c) relief under any standard.
The provisions that repealed discretionary relief from deportation under
§ 212(c) do not apply retroactively to an alien who pled guilty to criminal charges,
in reliance on the possibility of § 212(c) relief, prior to the enactment of the
repealer provisions. St. Cyr, 533 U.S. at 326, 121 S.Ct. at 2293. If an alien pled
guilty or nolo contendere to certain crimes before April 1, 1997, he may file a
motion to reopen his deportation proceedings in order to seek § 212(c) relief. 8
C.F.R. § 1003.44. An alien is ineligible for § 212(c) relief if he has been convicted
of an aggravated felony, unless he was convicted between 1990 and 1996 and
served less than 5 years of his sentence, or he was convicted pursuant to a guilty
plea before 1990. §§ 1003.44(c), 1212.3(f)(4)(i)-(ii).
This § 212(c) relief is not available to aliens who were convicted after a trial
instead of on a guilty plea. § 1003.44(a). We have upheld, as consistent with St.
Cyr, the distinction between aliens who pled guilty and those who proceeded to
trial. Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002).
6
The BIA did not err in finding that Alexandre was ineligible for § 212(c)
relief. From the record, it is clear that Alexandre was convicted in 1989 of an
aggravated felony after a jury trial and he served more than five years of his
sentence. It is also clear that relief under former § 212(c) was not available to him
when deportation proceedings were instituted against him in 1994 because he had
served at least 5 years of his sentence. See IMMACT-90, § 511(a). However, the
retroactivity rationale of St. Cyr does not apply to IMMACT-90. Thus, at the time
of his deportation proceedings, he was ineligible for § 212(c) relief because of the
five-year bar.
Alexandre argues that the five-year bar produces an impermissible
retroactive effect because he committed his crime before the statute including it
was passed, but that argument was resolved in Alexandre’s initial appeal before the
BIA, and for that reason it is not properly before us now. Even if the retroactivity
rationale of St. Cyr did apply to IMMACT-90, it would not apply to Alexandre
because he did not plead guilty to his drug trafficking charges, but instead
proceeded to trial and was convicted by a jury. Even without the five-year bar, the
plain language of § 1003.44 also precludes those who did not plead guilty from
relief. See § 1003.44(a); § 1212.3(f)(4)(ii); Brooks, 283 F.3d at 1274.
III.
PETITION DENIED.
7