United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 8, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60624
_____________________
JOHN FALEK,
Petitioner,
versus
ALBERTO R. GONZALES, U. S. ATTORNEY GENERAL,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
In this petition for review, John Falek, who was denied
admissibility upon reentry into this country, appeals the decision
of the Board of Immigration Appeals (“BIA”), which vacated the
Immigration Judge’s (“IJ”) grant of a § 212(c) waiver of
inadmissability and ordered him deported. Because the decision to
grant or not to grant waiver of admissibility is discretionary with
the BIA, the merits of that decision are nonappealable. Bravo v.
Ashcroft, 341 F.3d 590, 593 (5th Cir. 2003). Falek contends,
however, that in deciding his case, the BIA violated his due
process rights because (1) the BIA, not the Immigration Judge,
entered an order of removal in the first instance, (2) the BIA
failed to follow its own precedent, and (3) the BIA applied the law
in an impermissibly retroactive fashion. Because we determine that
the first challenge is foreclosed by our precedent and that we lack
jurisdiction to consider the second and third challenges, we deny
in part and dismiss in part the petition for review.
I
Falek arrived in the United States in 1973 at the age of
fifteen, and has since lived in this country continuously as a
lawful permanent resident. His mother and three siblings are
United States citizens, all living in the United States. His
father lives in the Philippines, but Falek has not spoken to him
since 1969. Falek served for three years in the United States
Navy, and was honorably discharged. He then worked as a clerk at
Bellevue Hospital in New York.
Falek married a woman who had a daughter and they later had a
biological daughter together. In 1989, Falek committed a sexual
assault against his stepdaughter, who was about ten years old at
the time. She approached Falek for comfort while her mother was in
the hospital, and while sleeping close together, he hugged her and
then touched her breasts and pudendum. In November 1992, Falek
entered a guilty plea for the offense of sexual assault in the
second degree. He was sentenced to seven years of imprisonment on
May 28, 1993, and served four years of that sentence. He is a
registered sex offender who must report once a year to New York’s
Board of Examiners for Sex Offenders (“New York Board”). The New
York Board assigned him a risk level of one, meaning that he poses
2
a low risk of being a repeat offender. Furthermore, Falek is only
allowed supervised visits with his biological daughter, who lives
with her mother.
Several years later, Falek worked as an aide for Albert
Bildner, an elderly friend whom Falek assisted with daily
activities and household tasks. In 2000, Falek began accompanying
Bildner on short trips abroad. He traveled with Bildner twice, re-
entering the United States without difficulty both times. On
September 10, 2000, Falek accompanied Bildner on a nine-day trip to
Brazil. Upon Falek’s return to the United States at JFK Airport on
September 19, 2000, he was arrested by the Immigration and
Naturalization Service as an alien seeking admission into the
United States under 8 U.S.C. § 1101(a)(13), and he was issued a
Notice to Appear, which charged him with inadmissibility as an
alien who has been convicted of a crime involving moral turpitude,
under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act
(“INA”).
II
Falek’s case has been before the IJ and the BIA twice, before
the federal courts in New York and before us once before. The
appeal we consider today arises from his second habeas petition,
which was transferred to this court from the Southern District of
New York. In January 2001 the first immigration hearing was held.
The IJ later issued a written decision finding Falek removable and
ordering him removed because his crime involved moral turpitude.
3
The IJ further found that Falek’s offense was an aggravated felony
under the INA, which meant that Falek was both statutorily
ineligible for cancellation of removal and ineligible for a §
212(c) waiver of inadmissibility under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).
Falek’s argument that the IJ should follow Second Circuit
retroactivity precedent that would make him eligible for § 212(c)
relief was rejected because the IJ found no analogous precedent of
this court. In June, the Supreme Court rendered its decision in
INS v. St. Cyr, 533 U.S. 289 (2001), holding that it was an
impermissibly retroactive application of IIRIRA to bar § 212(c)
relief for aliens who, in reliance on the availability of that
relief, had pleaded guilty to aggravated felonies. In July, Falek
appealed the IJ’s decision to the BIA based on St. Cyr, asking for
a hearing on a § 212(c) waiver of inadmissibility. He did not,
however, raise the question of retroactive application of §
1101(a)(13)(C), that is, whether the statute was impermissibly
retroactive as to him, and thus whether, under the statute, he
should have been considered “seeking admission” to the country when
he returned from a brief trip abroad. The BIA affirmed in part and
vacated in part, agreeing with the IJ that Falek’s guilty plea
subjected him to the amended statute but remanding to the IJ to
allow Falek to apply for § 212(c) relief, as per St. Cyr.
4
On March 29, 2002, the IJ conducted a hearing on the issue of
§ 212(c) waiver, and ultimately granted the waiver. The IJ
considered Falek’s conviction to be a serious adverse factor that
could only be overcome by a showing of outstanding equities. The
IJ considered that most of Falek’s family is in the United States,
that he has essentially no relatives in the Philippines, that he
moved to the United States at the age of fifteen, that he had lived
in the United States for about thirty years, and that he had served
in the United States Armed Forces. The IJ concluded that Falek
would suffer extreme hardship if removed to the Philippines, as he
had not lived there since the age of fifteen and had no family
there to help him readjust. The IJ next considered the issue of
rehabilitation, determining that Falek had demonstrated
rehabilitation because of his low risk rating by the New York
Board, and because Falek had been out of jail for several years and
had not committed any other crimes. Ultimately concluding that
“positive equities were sufficiently outstanding to outweigh
[Falek’s] criminal conviction,” the IJ granted Falek’s application
for a § 212(c) waiver.
The Government appealed the IJ’s decision to the BIA. On
December 4, 2002, the BIA reversed the decision of the IJ, granted
the Government relief and ordered Falek removed. The BIA reasoned
that it “agree[d] with the [Government’s] contention that the
positive factors demonstrated by [Falek], i.e., long term residence
in the United States, some military service and extensive family
5
ties in the United States, cannot outweigh the seriousness of the
circumstances surrounding his 1993 conviction for sexual assault.”
The BIA further noted that “when considering the important issue of
rehabilitation, we agree with the [Government] that [Falek] has
failed to provide any evidence of genuine rehabilitation.” Again,
the merits of this BIA decision are nonappealable. The posture of
his case has required Falek to pursue different avenues of relief
in other forums.
On December 26, 2002, Falek filed a petition for habeas corpus
in the United States District Court for the Eastern District of New
York, alleging for the first time since his initial January 2001
appearance before the IJ that he was not an “alien” under the
relevant law. On January 30, 2004, because Falek has always been
incarcerated in Oakdale, Louisiana, the petition was transferred to
this Court. On December 6, 2004, Falek filed another habeas
petition in the United States District Court for the Eastern
District of New York, alleging that his due process rights had been
violated. On February 15, 2005, this Court dismissed Falek’s first
petition for lack of jurisdiction and failure to raise a genuine
issue of material fact as to whether he is an “alien.” On June 27,
2005, the district court transferred the relevant portions of
Falek’s second habeas petition to this Court, pursuant to the REAL
ID Act. See Pub. L. No. 109-13, 119 Stat. 231, 311, § 106(c).
This second habeas petition, converted to a petition for review
under the REAL ID Act, see id., is the subject of this appeal.
6
III
Falek now argues that his due process rights were violated by:
(1) the BIA’s entry of an order of removal in the first instance,
that is, in the absence of such an earlier order by the IJ;1 (2)
the BIA’s failure to follow its own precedent by refusing to
consider evidence in the record on the relevant factors of
rehabilitation and hardship;2 and (3) the retroactive application
of § 1101(a)(13). The Government, however, also raises the
question of this court’s jurisdiction to consider Falek’s third
claim of error, to which we now turn.
Falek argues that at the time he agreed to plead guilty, his
guilty plea did not impose consequences on his immigration status
based on departure from and reentry into this country; however,
when Congress changed the law in IIRIRA, his departure and reentry
resulted in his detainment and order of removal. Thus the law had
1
Falek’s argument on this issue fails, as this Court has
recently decided the issue in the Government’s favor. See Delgado-
Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006).
2
In cases such as this one, this Court has appellate
jurisdiction, but that jurisdiction is limited to (1)
“constitutional claims” or (2) “questions of law” that have been
exhausted. 8 U.S.C. §§ 1252(a)(2)(D), 1252(d)(1). Our review of
the record makes clear to us that the BIA did in fact consider the
factors of rehabilitation and hardship. Falek frames his “legal”
argument, that the BIA did not follow its own precedent, “to cloak
a request for review of the BIA’s discretionary decision, which is
not a question of law.” See Delgado-Reynua, 450 F.3d at 600; see
also Hadwani v. Gonzales, 445 F.3d 798, 800-01 (5th Cir. 2006).
Thus, we dismiss Falek’s petition for lack of jurisdiction “in so
far as it challenges the BIA’s denial of section 212(c)
discretionary relief from removal.” See Delgado-Reynua, 450 F.3d
at 600.
7
an impermissibly retroactive effect when applied to him. The
Government counters that we lack jurisdiction to entertain this
question because a question of law must be first presented and
exhausted administratively before the BIA.
The applicable law on exhaustion is statutory and emphatic:
“A court may review a final order of removal only if [] the alien
has exhausted all administrative remedies as of right.” 8 U.S.C.
§ 1252(d)(1). We have emphasized that: “An alien fails to exhaust
his administrative remedies with respect to an issue when the issue
is not raised in the first instance before the BIA.” Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). The Government
contends that Falek’s claims regarding retroactivity are nothing
more than legal claims regarding admission procedures, in which
case the BIA is empowered to consider them. Arguing that Falek did
not raise these claims on his first direct appeal to the BIA in
2001, the Government contends that he has failed to exhaust these
claims, and, accordingly, this Court lacks jurisdiction to consider
them.
Falek concedes that the specific argument he offers here was
not raised below. Instead, he argues that his retroactivity
argument need not have been made previously, citing this court’s
decision in Lopez de Jesus v. INS, 312 F.3d 155 (5th Cir. 2002).
Falek contends that there this court considered an impermissible
retroactivity argument that was not raised below because it was not
a “procedural error correctable by the BIA” and thus was “not
8
subject to an exhaustion requirement.” See 312 F.3d at 162 n.47.
Falek also relies on a more recent Ninth Circuit case in which the
court held that “[r]etroactivity challenges to immigration laws
implicate legitimate due process considerations that need not be
exhausted in administrative proceedings because the BIA cannot give
relief on such claims.” See Garcia-Ramirez v. Gonzales, 423 F.3d
935, 938 (9th Cir. 2005).
Falek is incorrect. Although there is language in the Supreme
Court’s seminal decision in Landgraf v. USI Film Products, 511 U.S.
244 (1994), indicating that retroactive application of the law can
implicate legitimate due process concerns, constitutional due
process was not the ground relied upon by the court in that case or
in St. Cyr. A careful reading of Landgraf demonstrates that a
claim based on St. Cyr -- which is plainly what Falek attempts to
bring here -- is an argument of statutory interpretation. It draws
upon a “presumption against retroactive legislation [that] is
deeply rooted in our jurisprudence, and embodies a legal doctrine
centuries older than our Republic.” Landgraf, 511 U.S. at 265.
Although the Supreme Court found that “the antiretroactivity
principle finds expression in several provisions of our
Constitution,” including the Due Process clause, those
“restrictions ... are of limited scope.” Id. at 266, 267.
Ultimately, the Court concluded discussion of the Constitution by
stating that “while the constitutional impediments to retroactive
9
civil legislation are now modest, prospectivity remains the
appropriate default rule.” Id. at 272 (emphasis in original). It
then analyzed the statute at issue under this rule. St. Cyr
follows the same analytical path and nowhere mentions the
Constitution in its analysis of the impermissibly retroactive
effect of IIRIRA on the petitioner’s earlier guilty plea.
A concise delineation of the Landgraf/St. Cyr analysis,
concerning whether it is statutory or constitutional, appears in an
Eleventh Circuit case, Mohammed v. Ashcroft, 261 F.3d 1244 (11th
Cir. 2001). As that court put it:
Technically speaking ... Landgraf does not
purport to lay down rules for deciding when
retroactive application of a statute would
violate Due Process. Rather, the 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, the
Court did not attempt to define precisely when
retroactive application of a statute would
violate Due Process.
261 F.3d at 1248-49 (citation omitted). This view of Landgraf also
comports with the decision of the Fourth Circuit in Olatunji v.
Ashcroft, 387 F.3d 383 (4th Cir. 2004), which characterized an
alien’s claim under Landgraf/St. Cyr as a “statutory retroactivity
claim,” see id. at 389 n.2. The resolution of the retroactivity
claim through statutory analysis meant that the Fourth Circuit
10
panel did not need to address the petitioner’s claim under the
Fifth Amendment’s Due Process clause. Id.
Lopez de Jesus, the case relied upon by Falek to support our
jurisdiction, is inapposite for at least two reasons. First, the
IIRIRA provision at issue there was expressly retroactive. See
Lopez de Jesus, 312 F.3d at 162. This is important because express
retroactivity brings into question the undefined constitutional
concerns discussed in dicta in Landgraf.3 These issues are not
implicated in the prong of the Landgraf/St.Cyr analysis that
applies a presumption against retroactive application of laws that
are not expressly retroactive, the prong at issue in Falek’s
challenge. Second, the petitioner in Lopez de Jesus briefed and
argued a Fifth Amendment Due Process challenge in this court.4 Id.
Falek, by contrast, brings a St. Cyr-type challenge and offers no
3
The first prong of the analysis asks whether “Congress has
communicated, with clarity, its intent that the law be applied
retroactively.” Hernandez-Castillo v. Moore, 436 F.3d 516, 519
(5th Cir. 2006). If so, the Supreme Court has intimated that some
constitutional limits may apply. See St. Cyr, 533 U.S. at 316
(“[I]t is beyond dispute that, within constitutional limits,
Congress has the power to enact laws with retrospective effect.”).
The second prong, at issue here, arises if there is no clear
statement from Congress and, as a matter of statutory
interpretation, it asks if “the application of the statute
‘attaches new legal consequences to events completed before ...
enactment.’” Hernandez-Castillo, 436 F.3d at 519 (quoting Landgraf,
511 U.S. at 270).
4
This is why the exhaustion requirement did not apply: there
is no dispute that the BIA has no power to adjudicate
constitutional claims. See Hernandez-Rivera v. INS, 630 F.2d 1352,
1355 (9th Cir. 1980) (citing Johnson v. Robison, 415 U.S. 361, 368
(1974)).
11
argument based on Fifth Amendment due process.5 In sum, Lopez de
Jesus provides no support for his argument that his claim raises a
constitutional issue that does not require administrative
exhaustion.
Falek’s reply brief also points to a 2005 Ninth Circuit case,
Garcia-Ramirez, for the proposition that challenges to the
retroactive application of immigration laws need not be exhausted.
This authority suffers from the precise problem as Lopez de Jesus;
Garcia-Ramirez also concerned the expressly retroactive (and hence
potentially constitutional) prong of the Landgraf analysis. See
Garcia-Ramirez, 423 F.3d at 939-40. As the Ninth Circuit panel put
it, “Garcia-Ramirez's claim is properly viewed as an assertion that
application of the 90/180-day rule of § 1229b(d)(2) to her violates
due process ....” Id. at 938. The 90/180-day rule, as applied to
those against whom the IRS had begun deportation proceedings before
IIRIRA became effective, is expressly retroactive. See IIRIRA §
309(c); Ram v. INS, 243 F.3d 510, 515-18 (9th Cir. 2001). The
parties agree that this is not the claim asserted here.
IV
It is clear that a petitioner must exhaust before the BIA all
claims that he raises in the federal courts, that is, unless they
5
Falek has neither briefed nor argued a Fifth Amendment Due
Process claim in this court, despite his attempt to call the BIA’s
alleged errors violations of his right to due process. We
therefore consider such an argument waived and express no opinion
on whether the constitutional concerns cited in dicta in Landgraf
might offer some relief to a petitioner in Falek’s situation.
12
are constitutional. 8 U.S.C. § 1252(a)(2)(D). As we have said
above, Falek made an argument based on impermissible retroactivity
before the IJ in his first appearance in January 2001, which the IJ
rejected. After the Supreme Court’s St. Cyr decision, however, in
his appeal to the BIA, he decided not to appeal the IJ’s legal
conclusion on that issue; instead his appeal argued only the
availability of a § 212(c) waiver hearing for people in his
situation, which had been made available by St. Cyr. Because (1)
he then could have argued that IIRIRA was impermissibly retroactive
as applied to his attempted reentry into this country and (2) the
BIA is fully capable of having adjudicated such a claim, Falek
failed to exhaust administrative remedies. We therefore do not
have jurisdiction to hear his non-constitutional retroactivity
claim and it is hereby dismissed.
For the foregoing reasons, Falek’s petition for review is
DENIED in part and DISMISSED in part.
13
Falek v. Gonzales
Court: Court of Appeals for the Fifth Circuit
Date filed: 2007-01-08
Citations: 475 F.3d 285
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