UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANK SOLIS,
Petitioner,
v.
No. 98-2415
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an
Order of the Board of Immigration Appeals.
(A23-726-210)
Argued: January 25, 1999
Decided: July 19, 1999
Before ERVIN, NIEMEYER, and KING,
Circuit Judges.
_________________________________________________________________
Dismissed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Niemeyer and Judge King joined.
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COUNSEL
ARGUED: Douglas Allen Anderson, Alexandria, Virginia; Elizabeth
Hutton McGrail, Washington, D.C., for Petitioner. H. Bradford Glass-
man, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney Gen-
eral, David M. McConnell, Assistant Director, Papu Sandhu, Trial
Attorney, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
ERVIN, Circuit Judge:
Petitioner Frank Solis appeals a final order of deportation issued by
the Bureau of Immigration Appeals ("BIA"). Solis was ordered to be
deported because of a burglary conviction. On that basis, the BIA
found him ineligible for the discretionary relief for which he peti-
tioned. Because we determine that Solis is an alien convicted of a
deportable criminal offense, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
§ 309(c)(4)(G), 110 Stat. 3009-546, 3009-626 to -627 (1997)
("IIRIRA"), divests this Court of subject matter jurisdiction to hear
his case and we must therefore dismiss this petition.
I.
Solis, a native of Nicaragua, is a lawful permanent resident who
first came to the United States as a nonimmigrant visitor in Septem-
ber, 1978. In April, 1994, Solis pled guilty to burglary, for which he
was sentenced to five years imprisonment. On December 5, 1995, the
INS issued a show cause order charging Solis with deportability due
to his conviction for an aggravated felony under the Immigration and
Nationalization Act ("INA") § 241(a)(2)(A)(iii). See 8 U.S.C.A.
§ 1227(a)(2)(A)(iii) (West 1999) (previously codified at 8 U.S.C.A.
§ 1251(a)(2)(A)(iii)).
At his first hearing before the appointed immigration judge on
April 24, 1996, Solis conceded deportability due to his criminal con-
2
viction and informed the judge that he would seek relief from depor-
tation under INA § 212(c), 8 U.S.C.A. § 1182(c) (West 1999)
(repealed by IIRIRA § 304(b), Pub. L. No. 104-208, 110 Stat. 3009-
597). The INS was unprepared and unable to locate Solis' file, so the
immigration judge recalendared the case. Solis appeared before the
immigration judge again on May 29 and June 26, 1996. Each time the
INS was unprepared and eventually the case was administratively
closed.
Subsequently, Solis moved to have the proceedings recalendared
and appeared before the immigration judge on October 15, 1996, at
which point he repeated his request for relief from deportation under
INA § 212(c) and added a plea for relief under INA § 212(h). Again,
the INS did not have Solis' file and the case was continued until
October 30, 1996. Finally, a hearing was held on October 30, 1996.
There the immigration judge ruled that Solis' burglary conviction ren-
dered him ineligible for relief pursuant to INA§§ 212(c) or (h), and
ordered him deported.
Solis appealed the denial of his application for relief to the BIA,
alleging that, had the INS been prepared to go forward on the original
hearing date, he would not have been precluded from applying for
INA §§ 212(c) or (h) relief. He argued that, because of the INS'
delay, the AEDPA was retroactively applied to him in violation of the
Due Process Clause.1 He also argued that, because the applicable reg-
ulations distinguish between excludable and deportable aliens, the
regulations treat similarly situated aliens unequally in violation of the
Equal Protection Clause.
On August 27, 1998, the BIA affirmed the immigration judge's
decision. The BIA found that INA § 212(h), as amended by the
IIRIRA § 348, made Solis ineligible for discretionary relief from
deportation because of his felony conviction. Further, the court noted
that it was well-established practice that the BIA does not examine
_________________________________________________________________
1 This references the fact that the Anti-Terrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(1996)("AEDPA"), which narrowed the requirements for relief under
INA § 212(c), became effective on April 24, 1996, the same date as
Solis' first scheduled hearing before the immigration judge.
3
the constitutionality of the regulations that it administers. Finally, the
court mentioned in a footnote that Solis' criminal conviction also
made him ineligible for INA § 212(c) discretionary relief. Solis
appeals the BIA's ruling.
The facts of the case are not in dispute and thus, this Court reviews
this case solely for errors of law. Questions of law are subject to a de
novo review. See Plyler v. Moore, 129 F.3d 728, 734 (4th Cir. 1997).
II.
As a threshold matter, we must consider whether the IIRIRA
removes our jurisdiction over Solis' appeal. Prior to the passage of the
IIRIRA, our jurisdiction over criminal deportation cases was con-
trolled by INA § 106, as amended by the AEDPA. After the passage
of the IIRIRA on September 30, 1996, INA § 106 was repealed and
replaced with new rules governing our review of all direct appeals
from the BIA. See IIRIRA § 309. Even though most of these changes
did not take effect until April 1, 1997, the IIRIRA also included tran-
sitional rules intended to apply to aliens involved in deportation pro-
ceedings prior to the Act's effective date and whose deportation order
was entered more than thirty days after September 30, 1996. See
IIRIRA §§ 309(c)(1), (4). Because Solis was in deportation proceed-
ings before April 1, 1997 and his deportation order did not become
final until August 27, 1998, the transitional rules apply in this case.
The transitional rules provide that:
there shall be no appeal permitted in the case of an alien
who is inadmissible or deportable by reason of having com-
mitted a criminal offense covered in section 212(a)(2) or
section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration
and Nationality Act (as in effect as of [September 30,
1996]).
IIRIRA § 309(c)(4)(G). As of September 30, 1996, INA
§ 241(a)(2)(A)(iii) required that "[a]ny alien who is convicted of an
aggravated felony at the time after admission [to the United States]
is deportable." 8 U.S.C.A. § 1227(a)(2)(A)(iii) (previously codified at
4
8 U.S.C.A. § 1251(a)(2)(A)(iii)). The INS insists that based on these
provisions, the IIRIRA divests this Court of its jurisdiction in this
case.
We addressed this same issue in Hall v. INS, 167 F.3d 852 (4th Cir.
1999). There we held that the "IIRIRA removes our jurisdiction over
the appeals of those aliens who are deportable by reason of their con-
viction of certain offenses." 167 F.3d at 854. We limited our ruling
in Hall, however, concluding that these jurisdiction-limiting proce-
dures are only triggered when certain jurisdictional facts are present;
the petitioner must be (1) an alien, (2) who has been convicted of one
of the statutorily enumerated offenses requiring deportability. See id.
at 855. Our jurisdiction turns on proof of these facts. If we find that
Solis' case presents these jurisdictional facts, we must dismiss his
petition. See id.
III.
Solis conceded deportability due to his criminal conviction in his
first master calendar hearing before the immigration judge. In doing
so, he acquiesced that he is an alien deportable because of his convic-
tion of one of the specified offenses. He indicated nothing to the con-
trary in his briefs or at oral argument. Further, because the offense for
which Solis was convicted is clearly enumerated within the text of
IIRIRA § 309(c)(4)(G), there is no dispute that his crime renders him
deportable.
IV.
Because Solis is an alien who committed an offense that renders
him deportable under INA § 241(a)(2)(A)(iii), IIRIRA § 309(c)(4)(G)
5
removed this Court's jurisdiction over his appeal. 2 Accordingly, this
petition is
DISMISSED.
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2 In Hall, we also held that denying a criminal alien's direct appeal of
a final BIA decision of deportability on jurisdictional grounds did not
offend the Constitution's Due Process Clause. See 167 F.3d at 856-57.
In that case, as here, this Court found that when a petitioner has notice
of the charges against him, an opportunity to be heard before an immi-
gration judge, and appellate review in the BIA and in an Article III court,
he "has received all of the process that the Constitution requires--
perhaps more." Id. at 857.
6