Jean Fides Alexandre v. U.S. Atty. General

[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).

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of 1996 (IIRIRA) repealed § 212(c), which allowed deportable aliens to seek a waiver of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
4
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