Cunningham v. U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 27, 2003
No. 00-15657
THOMAS K. KAHN
________________________ CLERK

BIA No. A38-838-056

BEVERLY LYN QUEE DE CUNNINGHAM,

Petitioner,

versus

U. S. ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

________________________

Petition for Review of a Final Decision of
the Board of Immigration Appeals
_________________________
(June 27, 2003)
Before WILSON and RONEY, Circuit Judges, and LIMBAUGH*, District Judge.

PER CURIAM:

____________________________

*Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of
Missouri, sitting by designation.
 Beverly Lyn Quee De Cunningham (“Lyn Quee”) petitions this Court pursuant

to 8 U.S.C. § 1252 for direct review of the Board of Immigration Appeals’ (“BIA”)

summary affirmance of an Immigration Judge’s (“IJ”) denial of her application for

waiver of deportation proceedings pursuant to the Immigration and Nationality Act

(“INA”) § 242 et seq., 8 U.S.C. § 1252 et seq, as amended in 1996 (“new INA”). Lyn

Quee does not challenge the IJ’s finding that she was deportable but instead argues

that she is entitled to apply for discretionary relief under the pre-1996 INA § 212(c)

and (h). We hold that, under the facts of this case, the removal proceedings

commenced prior to enactment of the 1996 amendments to the INA, that the pre-1996

INA applies, and that Lyn Quee is entitled to apply for discretionary relief under the

pre-1996 INA § 212(c) and (h).

Lyn Quee’s Background & INS Removal Proceedings

Lyn Quee is a native and citizen of Jamaica who has been a lawful permanent

resident alien of the United States since November 1, 1984. She previously resided

in the United States from 1980. She has two children, both United States citizens,

ages 14 and 15 years old. On March 9, 1990, after a jury trial, Lyn Quee was

convicted of possession of counterfeit United States obligations and receipt of

counterfeit United States obligations in violation of 18 U.S.C. §§ 472 and 473. She

was sentenced to sixteen months’ imprisonment.

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 On January 25, 1991, the Immigration and Naturalization Service (“INS”)

issued a “Notice of Action” addressed to the “Inmate Records” department of the

federal correctional institution housing Lyn Quee. The Notice of Action stated the

following, “Investigation has been initiated to determine whether this person is

subject to deportation from the U.S.” It further stated, “An Order to Show Cause in

deportation proceedings, a copy of which is attached, . . . WILL BE ISSUED.” It

directed prison officials to notify the INS upon the release of Lyn Quee, “IT IS

REQUESTED THAT YOU: Notify this office at least 30 days prior to release.”

Attached to the Notice of Action was a letter advising the warden of the correctional

institution that “there will be no detainer lodged. We only request that you notify our

Deportation section . . . of [Lyn Quee’s] forwarding address at time of release so that

further Immigration proceedings may be initiated.” On January 28, 1991, the INS

delivered an Order to Show Cause (“OSC”) to the correctional institution housing

Lyn Quee, where a Federal Bureau of Prisons (“BOP”) employee signed for receipt

of the Order to Show Cause. The OSC stated, “THE COPY OF THIS ORDER

SERVED UPON YOU IS EVIDENCE OF YOUR ALIEN REGISTRATION WHILE

YOU ARE UNDER DEPORTATION PROCEEDINGS. THE LAW REQUIRES

THAT IT BE CARRIED WITH YOU AT ALL TIMES.” Administrative records

indicate that a copy of the OSC – the charging document – was never filed with the

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immigration court.

Lyn Quee was released from prison in late 1991. The BOP released her at the

completion of her federal sentence. The record is unclear, however, whether the BOP

notified the INS of Lyn Quee’s release, as was requested by the INS’s letter to the

warden.

Approximately six years later, Lyn Quee, following a two-day business trip to

Jamaica, attempted to re-enter the United States at Miami International Airport in

November 1997. She presented a valid U.S. permanent resident card and a Jamaican

passport to an INS officer. The INS officer, however, denied her admission and

issued a “Notice to Appear” on February 24, 1998 for removal proceedings as a result

of her 1990 counterfeiting convictions. The Notice to Appear denied her admission

into the United States because Lyn Quee was “convicted of a crime involving moral

turpitude,” and charged her with deportability under: (1) INA § 212(a)(2)(A)(i)(I) as

an alien convicted of a crime involving moral turpitude; and (2) INA § 212(a)(7)(A)

as an immigrant, who at the time of application for admission, was not in possession

of a valid entry document required by the INA in violation of INA § 211(a).

Lyn Quee’s Immigration Hearings

Several hearings were held before an IJ in 1998. Lyn Quee advanced several

arguments to the IJ. She admitted the counterfeiting conviction but requested

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permission to file for a waiver of inadmissability under INA § 212(c) and § 212(h)

and for Cancellation of Removal under § 240(A)(a). She also argued that the

counterfeiting conviction was not an aggravated felony in the context of INA §

237(a)(2)(A)(iii). Strictly applying the new INA, the IJ sustained the moral turpitude

charge for removal and found that her crimes were “aggravated felonies.” In so

finding, the IJ pretermitted consideration of her requested relief for waiver or

cancellation, ruling such relief was statutorily unavailable to an aggravated felon

under the new INA. The IJ then ordered Lyn Quee “removed and deported” to

Jamaica. Lyn Quee appealed to the BIA, which the BIA summarily affirmed. Lyn

Quee then timely filed a “Petition for Review” in this Court. Both jurisdictional

briefing and oral argument have taken place.

The Difference Between the Old INA and the 1996 Amended INA

At the time that the INS first issued the OSC in 1991, Lyn Quee would have

been entitled to apply for a waiver under INA § 212(c)1 and § 212(h)2, and this Court

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Old INA § 212(c) states in relevant part:

Aliens lawfully admitted for permanent residence who temporarily proceeded
abroad voluntarily and not under an order of deportation, and who are returning to
a lawful unrelinquished domicile of seven consecutive years, may be admitted in
the discretion of the Attorney General . . .. Nothing contained in this subsection
shall limit the authority of the Attorney General to exercise the discretion vested
in him under section 1181(b) of this title. The first sentence of this subsection
shall not apply to an alien who has been convicted of one or more aggravated
felonies and has served for such felony or felonies a term of imprisonment of at

5
would have had jurisdiction of an appeal from a BIA order denying her the right to

so apply.

In the six-year period between the INS’s issuance of the OSC in 1991 and Lyn

Quee’s 1997 detention at the Miami International Airport, major changes to

Immigration law occurred. Congress passed two pieces of legislation: the

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 Reform

and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div. C., 110

Stat. 3009-546 (collectively referred to as “the 1996 amendments”), enacted on

least 5 years.

8 U.S.C. § 1182(c) (1995) (repealed).
2
Old INA § 212(h) states in relevant part:

The Attorney General may, in his discretion, waive the application of [specified
subsections] . . .
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a
citizen of the United States or an alien lawfully admitted for permanent residence
if it is established to the satisfaction of the Attorney General that the alien’s
exclusion would result in extreme hardship to the United States citizen or lawfully
resident spouse, parent, son, or daughter of such alien; and
(2) the Attorney General, in his discretion, and pursuant to such terms,
conditions and procedures as he may by regulations prescribe, has consented to
the alien’s applying or reapplying for a visa, for admission to the United States, or
adjustment of status. No waiver shall be provided under this subsection in the
case of an alien who has been convicted of (or who has admitted committing acts
that constitute) murder or criminal acts involving torture, or an attempt or
conspiracy to commit murder or a criminal act involving torture.

8 U.S.C. § 1182(h) (1995) (repealed).

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September 30, 1996.

These statutes significantly amended the INA in two respects that are relevant

here. Under the new INA, Lyn Quee would lose this appeal for two reasons: (1) this

Court would be jurisdictionally barred from review of the BIA’s final order; and (2)

in any event, no discretionary relief is available for aggravated felons under the new

INA.

1. The New INA’s Limitation of Federal Courts’ Jurisdiction of Immigration Cases.

The new INA substantially limited a federal court’s review of any final order

against an alien who is found removable for certain reasons. Prior to the enactment

of the new INA, this Court had jurisdiction to review all final orders of the BIA, so

long as the alien “exhausted the administrative remedies available to him as of right

under the immigration laws and regulations.” 8 U.S.C. § 1105a(c) (1995) (repealed).

In fact, this Court had discretionary authority to grant a stay of deportation for an

aggravated felon. See 8 U.S.C. § 1105a(a)(3) (repealed).

The new INA provides no such jurisdiction for this Court. Section 306 of

IIRIRA states:

ORDERS AGAINST CRIMINAL ALIENS. - -

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

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 committed a criminal offense covered in section 1182(a)(2)
or 1227(a)(2)(A)(iii) [defining aggravated felony], (B), (C),
or (D) of this title, or any offense covered by section
1227(a)(2)(A)(ii) for which both predicate offenses are,
without regard to their date of commission, otherwise
covered by section 1227(a)(2)(A)(i) of this title.

8 U.S.C. § 1252(a)(2)(C) (2000). Therefore, under the new INA, the statute on its

face jurisdictionally bars this Court from review of the IJ’s pretermittation of Lyn

Quee’s requests for § 212(c) and § 212(h) waivers.

2. Substantial Limitation of Discretionary Relief under the New INA.

Second, before AEDPA and IIRIRA, the old INA § 212(c) stated that an

aggravated felony conviction rendered a lawful permanent resident alien ineligible

for a discretionary waiver of deportation only when the alien had served five or more

years in prison for the aggravated felony. See I.N.S. v. St. Cyr, 533 U.S. 289, 297

(2001); 8 U.S.C. § 1182(c) (1995) (repealed). Aliens with less than five years in

prison for an aggravated felony were eligible for a § 212(c) discretionary waiver if

they were “lawfully admitted for permanent residence who temporarily proceeded

abroad voluntarily . . . and who are returning to a lawful unrelinquished domicile of

seven consecutive years.” 8 U.S.C. § 1182(c) (1995) (repealed). Therefore, because

Lyn Quee served only sixteen months’ imprisonment, lived more than seven

consecutive years in the United States, and voluntarily traveled to Jamaica for a two-

8
day business trip, she would have been entitled to apply for discretionary waiver of

deportation under old INA § 212(c). IIRIRA repealed § 212(c) and replaced it with

IIRIRA § 304(b) – 8 U.S.C. § 1229b – that removed discretionary waivers for a

lawful resident alien if she was convicted of any aggravated felony. See Alanis-

Bustamante v. Reno, 201 F.3d 1303, 1306-07 n.6 (11th Cir. 2000); 8 U.S.C. § 1229b.

Similarly, the old INA § 212(h) could have afforded Lyn Quee discretionary

relief. The old INA permitted discretionary waivers for aliens convicted of

aggravated felonies, so long as those aliens were not convicted of “murder or criminal

acts involving torture.” 8 U.S.C. § 1182(h) (1995) (repealed). Section 212(h) was

and is available for aliens who are, among other things, parents “of a citizen of the

United States . . . and the alien’s exclusion would result in extreme hardship to the

United States [citizen’s family.]” Id. § 1182(h)(1)(B). The 1996 amendments,

however, also precluded § 212(h) discretionary relief for an alien who had been

convicted of any aggravated felony. See 8 U.S.C. § 1182(h) (1998). Thus, under the

new INA, Lyn Quee could neither apply for § 212(c) nor § 212(h) relief because her

offense is defined as an “aggravated felony” under the new INA. Under the old INA,

however, Lyn Quee, despite her “aggravated felony” conviction, would likely have

received relief. In fact, a substantial percentage of aliens’ applications for

discretionary relief have been granted by the INS. See St. Cyr, 533 U.S. at 296.

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 The new INA also broadened the old INA’s previous definition of “aggravated

felony.” At the time of both Lyn Quee’s counterfeiting conviction and the 1991

issuance of the OSC, the old INA did not enumerate counterfeiting as an “aggravated

felony.” The new INA expanded the definition of “aggravated felony” so as to

include counterfeiting and mandated application of the new definition regardless of

whether the conviction was entered before, on, or after the date of enactment of the

new INA. 8 U.S.C. § 1101(a)(43) (West Supp. 2000). Procedurally, the 1996

amendments also replaced the OSC with a “notice to appear” as the charging

document for removal proceedings. Alanis-Bustamante, 201 F.3d at 1305 n.5.

The Pre-1996 INA Applies

Thus, both the jurisdiction of this appeal, and the availability of the right to

apply for a waiver turn on which version of the INA applies. This Court must

determine which INA applies because it is the fundamental issue to our jurisdiction.

Even under the new INA, this Court would have jurisdiction to determine its

jurisdiction.

“To determine this Court’s jurisdiction to review the BIA’s decision, we must

decide what version of the INA applies to Petitioner’s appeal. To answer this

question, we must determine when proceedings commenced against Petitioner.”

Oguejiofor v. Attorney General of U.S., 277 F.3d 1305, 1308 (11th Cir. 2002). The

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“general rule” is that the 1996 amendments do not apply to aliens who are in

deportation proceedings prior to April 1, 1997. As such, IIRIRA states that “the

proceedings (including judicial review thereof) shall continue to be conducted

without regard to such amendments.” IIRIRA § 309(c)(1)(B). This issue turns on

whether the deportation proceedings commenced upon service of the OSC in 1991,

or upon filing a Notice to Appear on November 25, 1997 with the immigration court.

The 1996 amendments, however, apply to any proceedings “commenced” after April

1, 1997. Oguejiofor, 277 F.3d at 1308. They do not apply in this case if Lyn Quee’s

deportation proceedings “commenced” before April 1, 1997.

Thus, the controlling issue turns on when the deportation proceedings

commenced. These are the relevant dates and actions:

1980: Since which Lyn Quee has resided in the United States.

November 1, 1984: Since which Lyn Quee has been a lawful permanent resident

alien of the United States.

March 9, 1990: After a jury trial, Lyn Quee was convicted of possession of

counterfeit United States obligations and receipt of counterfeit United States

obligations in violation of 18 U.S.C. §§ 472 and 473.

January 25, 1991: INS issued a “Notice of Action” addressed to the “Inmate Records”

department of the federal correctional institution housing Lyn Quee.

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January 28, 1991: The INS delivered an OSC to the correctional institution housing

Lyn Quee, where a Federal Bureau of Prisons employee signed for receipt.

Late 1991: Lyn Quee was released from prison.

April 24, 1996: AEDPA was enacted.

September 30, 1996: IIRIRA was enacted.

November 1997: Lyn Quee attempted to re-enter the United States at Miami

International Airport. She was denied admission by an INS official and was issued

a “Notice to Appear” on February 24, 1998.

1998: Several hearings on removal proceedings as a result of her 1990 counterfeiting

convictions were held before an IJ.

This Court has held that “for purposes of determining the applicability of the

1996 amendments to the INA, removal proceedings against an alien have begun when

the INS has served him with an order to show cause and has lodged a warrant of

detainer against him.” Alanis-Bustamante, 201 F.3d at 1304. In Alanis-Bustamante,

Bustamante, a resident alien, lawfully entered the United States in 1969. In 1994, he

was convicted of a federal drug charge and sentenced to thirty-three months’

imprisonment and four years’ probation. In 1995, while still incarcerated for that

federal drug conviction, the INS served Bustamante with an OSC. Shortly before

then, the INS also issued a warrant of detainer notifying prison authorities that

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Bustamante was to be turned over to the INS after the completion of his sentence.

The OSC informed Bustamante that the INS intended to initiate removal proceedings

against him and indicated that he was removable under the INA for committing an

“aggravated felony,” as defined by INA § 241(a)(2)(A)(iii) and § 241(a)(2)(B)(i),

which authorizes removal of an alien convicted of a controlled substance crime. The

INS, however, failed to file the OSC with the immigration court. After IIRIRA and

AEDPA were enacted in 1996 but before Bustamante completed his sentence, the INS

issued Bustamante a “notice to appear” and filed that notice with the immigration

court. At Bustamante’s removal hearing, he admitted the allegations set out in the

notice to appear, conceded that he was removable, but requested a waiver of

deportation pursuant to pre-1996 amendment INA § 212(c). Applying the new INA,

the IJ determined that because Bustamante was convicted of an “aggravated felony,”

he was not eligible for cancellation of removal, which was the IIRIRA equivalent of

the pre-amendment INA § 212(c) waiver of deportation. The BIA affirmed.

Bustamante then filed a habeas corpus petition in federal district court,

arguing that the BIA had erroneously determined that he was ineligible for a pre-

1996 amendment INA § 212(c) waiver of deportation. The district court did not

reach the merits of this claim, however, because it held that IIRIRA had stripped it

of jurisdiction on all matters related to removal proceedings. This Court reversed,

13
holding that for purposes of determining the applicability of the 1996 amendments

to the INA, removal proceedings against an alien have begun when the INS has

served him with an order to show cause and has lodged a warrant of detainer against

him. Alanis-Bustamante, 201 F.3d at 1304. This Court reasoned that, although an

OSC – the pre-1996 amendments charging document – was never filed in the

immigration court, Bustamante still received the OSC and a detainer was lodged

against him prior to the enactment of the 1996 amendments. This Court reasoned

that the proceedings “commenced” because Bustamante was “subject to the authority

of the INS and to possible removal.” Id. at 1309; see also Wallace v. Reno, 194 F.3d

279, 287 (1st Cir. 1999) (holding that service of OSC alone is adequate to effectively

commence INS deportation proceedings). This Court noted that “as of June 28,

1995, Bustamante was clearly subject to the authority of the INS, was unlikely to be

released without more being done, and faced eventual removal proceedings.”

Alanis-Bustamante, 201 F.3d at 1310. This Court further explained, “Bustamante

was eligible for consideration of an INA § 212(c) discretionary waiver, and he

continued to be eligible until April 24, 1996, the effective date of AEDPA – which

came almost 10 months after the INS served the order.” Id.

Here, the INS sent an OSC to the federal correctional institution housing Lyn

Quee in 1991, putting Lyn Quee on notice of deportation proceedings and asserting

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its jurisdiction over her. Like Alanis-Bustamante, the INS failed to file an OSC with

the immigration court. But unlike Alanis-Bustamante, the INS never lodged a

detainer against Lyn Quee upon her release from the federal correctional institution.

This is understandable. The January 25, 1991 letter to the warden of the correctional

institution housing Lyn Quee suggested that the INS never intended to lodge a

detainer against Lyn Quee. The INS therefore did everything it had planned to assert

jurisdiction and commence proceedings over Lyn Quee.

Because the INS issued the OSC to Lyn Quee and it never intended to lodge

a warrant of detainer against Lyn Quee, we hold, in accord with Alanis-Bustamante,

that she was “subject to the authority of the INS and a possible” removal from the

country in 1991, and, as such, the pre-1996 amended INA applies. She was thus

impermissibly denied the opportunity to apply for § 212(c) or § 212(h) relief under

the pre-1996 amendments by the IJ. cf. St. Cyr, 533 U.S. at 326 (holding that §

212(c) relief remained available for aliens whose deportation or removal commenced

after the enactment of the new INA but who pled guilty to an aggravated felony prior

to the new Act); but see Morales-Ramirez v. Reno, 209 F.3d 977, 983 (7th Cir. 2000)

(rejecting argument that the INS’s failure to commence proceedings prior to

enactment of the new Act “cost him the opportunity to apply for discretionary

waiver” because proceedings did not commence until the INS filed the appropriate

15
charging document with the immigration court).

Because Lyn Quee’s counterfeiting conviction and deportation proceedings

were effectively commenced before the new INA, the old INA applies. Accordingly,

we grant Lyn Quee’s petition and vacate the IJ’s decision and the subsequent BIA’s

affirmance. On remand, we direct the IJ to apply the immigration law in effect in

1991, upon issuance of the 1991 OSC. That is, whatever remedies or administrative

applications that would have been available to Lyn Quee upon issuance of the 1991

OSC, including § 212(c) and § 212(h) discretionary relief, must be made available

to Lyn Quee at those proceedings. Having granted relief on this ground, we need not

consider the remaining constitutional issues presented.

PETITION GRANTED; REMANDED FOR FURTHER

CONSIDERATION.

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