United States Court of Appeals
For the First Circuit
No. 99-2049
ARTUR MANUEL SOUSA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin and Lipez, Circuit Judges,
and Casellas,* District Judge.
William E. Graves, Jr. with whom Desai & Graves was on brief
for petitioner.
Brenda M. O'Malley, Office of Immigration Litigation, Civil
Division, Department of Justice, with whom David W. Ogden,
Acting Assistant Attorney General, Civil Division, and Terri J.
Scadron, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief for respondent.
*Of the District of Puerto Rico, sitting by designation.
September 22, 2000
BOUDIN, Circuit Judge. The petitioner in this case,
Artur Manuel Sousa, is a 31-year-old native and citizen of
Portugal. He entered the United States with his parents as an
immigrant in 1971. On June 29, 1990, Sousa was convicted of
unarmed robbery in the Superior Court in Cambridge,
Massachusetts and given a suspended sentence of 3 to 5 years of
imprisonment. In 1996, Sousa was found to be in violation of
the terms of his probation and was ordered to serve the
suspended prison term.
On September 3, 1998, the Immigration and
Naturalization Service ("INS") began removal proceedings against
Sousa, charging him with being removable under section
237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA")
(codified at 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996))
[U.S. Code references are to this edition unless otherwise
indicated], because he had been convicted of an aggravated
felony as defined in section 101(a)(43)(F) of the INA (codified
at 8 U.S.C. § 1101(a)(43)(F)). "Removal" is a generic term now
used to include what used to be called deportation.
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After two adjournments to allow Sousa to seek counsel,
he appeared pro se on March 5, 1999, and the immigration judge
decided to proceed with the removal hearing. After the judge
explained to Sousa his procedural rights, Sousa admitted that he
was a citizen of Portugal and that he had been convicted of
unarmed robbery and sentenced to 3 to 5 years in prison. He
also conceded that he was subject to removal for having
committed a crime of violence for which the sentence was at
least one year. See INA §§ 101(a)(43)(F), 237(a)(2)(A)(iii)
(codified at 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(iii)). The
judge found Sousa removable for having been convicted of an
aggravated felony and also found him ineligible for
discretionary relief from removal.
Sousa then obtained legal counsel and appealed the
removal order to the Board of Immigration Appeals ("BIA"). In
his notice of appeal Sousa contended that the judge should have
permitted him to apply for a waiver of deportation under INA
section 212(c) or, alternatively, that the petitioner should
have been permitted to apply for cancellation of removal under
new INA section 240A.1 Sousa did not claim, in the notice of
1
INA section 212(c) (codified at 8 U.S.C. § 1182(c) (1994))
was repealed by section 304(b) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
110 Stat. 3009-546, 597 ("IIRIRA"). It was replaced, with
modifications, by INA section 240A (codified at 8 U.S.C. §
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appeal or the brief submitted to the BIA, that he was not an
aggravated felon.
The BIA dismissed the appeal on August 12, 1999. It
rejected Sousa's claim that he should be permitted to apply for
a section 212(c) waiver, noting that section 212(c) had been
repealed, see note 1, above, and finding that the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA") had expressly made the repeal of section 212(c)
effective for all cases commencing on or after April 1, 1997.
IIRIRA § 309(a), (c)(1) (codified at 8 U.S.C. § 1101 note).
This, of course, includes Sousa's case.
The BIA did not directly discuss the alternative claim
for cancellation of removal under section 240A, seemingly
because Sousa did not press that possibility when he briefed his
case on review. While both section 212(c) and 240A provide for
discretionary relief in similar terms, section 240A relief is
expressly made unavailable to aggravated felons. INA § 240A
(codified at 8 U.S.C. § 1229b). Sousa now appeals to this court
in accordance with INA section 242 (codified at 8 U.S.C. §
1252), claiming for the first time that he is not removable as
an aggravated felon. He also contends that he should have been
permitted by the INS to apply for relief from removal.
1229b).
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At the outset, the government argues that we lack
subject matter jurisdiction over this appeal. Section
242(a)(2)(C) of the INA (codified at 8 U.S.C. § 1252(a)(2)(C))
provides in relevant part that "no court shall have jurisdiction
to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense
covered" by the statutory provision making aggravated felons
removable. The government's brief says that "[t]he Court's
exercise of its authority to determine its jurisdiction in this
case should go no further than determining that there is an
administratively final order of removal against Sousa entered on
the basis of the BIA's and immigration judge's facially
legitimate finding that Sousa is removable for an aggravated
felony conviction."
The government's position, from which it sensibly
retreated at oral argument, is too broad. Under the INA, our
jurisdiction is eliminated only if the petitioner is (1) an
alien who is (2) removable for having committed one of the
criminal offenses specified in the statute. Sousa challenges
the existence of one of these jurisdiction-stripping facts: he
argues that he has not committed a crime that renders him
removable. To determine whether we lack jurisdiction over this
case, we must therefore determine whether he is correct. Thus
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INA section 242(a)(2)(C) is not a bar to our considering Sousa's
claim that he is not removable as an aggravated felon. Other
circuits have reached the same conclusion. E.g., Ye v. INS, 214
F.3d 1128, 1131 (9th Cir. 2000); Bell v. Reno, 218 F.3d 86, 89
(2d Cir. 2000); Galindo-Del Valle v. Attorney General, 213 F.3d
594, 598 (11th Cir. 2000); Lewis v. INS, 194 F.3d 539, 542 (4th
Cir. 1999).
Alternatively, and with more basis, the government
argues that we lack subject matter jurisdiction because Sousa
failed to assert this claim--that he is not an aggravated felon-
-before the immigration judge and the BIA and thus failed to
exhaust administrative remedies as required by INA section
242(d)(1) (codified at 8 U.S.C. § 1252(d)). That provision
states in relevant part: "A court may review a final order of
removal only if--(1) the alien has exhausted all administrative
remedies available to the alien as of right . . . ." Obviously,
Sousa has gone through the administrative proceeding; the
problem is that he did not raise there the issue he now seeks to
raise in this court.
If we were writing on a clean slate, it would be very
tempting to treat Sousa's forfeit of his claim as something less
than a jurisdictional objection. After all, in both criminal
and civil cases coming from district courts, an appellate court
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has the option to recognize "plain error," e.g., Fed R. Crim. P.
52(b); Fed. R. Evid. 103(d). Although the test is a stringent
one, United States v. Olano, 507 U.S. 725, 732-35 (1993), it
leaves open the opportunity for a reviewing court to avoid a
miscarriage of justice in extreme cases. United States v.
Gandia-Maysonet, 98-1144, slip op. at 9-10 (1st Cir. Sept. 13,
2000). The common law requirement of exhaustion is a fairly
flexible rule with many judicially created exceptions. Davis,
Administrative Law § 15.2 (3d ed. 1994).
Whatever our own views, we are bound by precedent to
apply the INA exhaustion requirement in a more draconian
fashion. The Supreme Court regards exhaustion requirements
imposed by statute as more rigid than the common law doctrine,2
even though (as here) the statutes are rarely explicit in ruling
out exceptions. Not much precedent exists as to section 242(d),
but it merely "restates" its precursor, former INA section
106(c) (codified at 8 U.S.C. § 1105a(c) (1994)). H.R. Conf.
Rep. No. 104-828, 1996 WL 563320, at *478 (Sept. 24, 1996). And
most circuits, including this one, have described former INA
2E.g., McCarthy v. Madigan, 503 U.S. 140, 144 (1992); Coit
Independence Joint Venture v. Federal Sav. and Loan Ins. Corp.,
489 U.S. 561, 579 (1989). In Sims v. Apfel, 120 S. Ct. 2080,
2086 (2000), the Supreme Court recently forgave a failure to
exhaust administrative remedies in the Social Security context
but that case is not relied upon by Sousa and appears to be
distinguishable on multiple grounds.
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section 106(c) as a jurisdictional bar where an issue sought to
be raised in court was not raised in the agency.3
Even where statutes impose an exhaustion requirement
the Supreme Court has, despite the rhetoric of jurisdiction,
carved out exceptions. The best founded is one suggested by the
Supreme Court, and explicitly recognized in this and other
circuits, where a resort to the agency would be futile because
the challenge is one that the agency has no power to resolve in
the applicant’s favor. Bernal-Vallejo v. INS, 195 F.3d 56, 64
(1st Cir. 1999); Ravindran, 976 F.2d at 762. See generally
Mathews v. Eldridge, 424 U.S. 319, 329-30 & n.10 (1976). See
also Singh v. Reno, 182 F.3d 504, 511 (7th Cir. 1999); Bagues-
Valles v. INS, 779 F.2d 483, 484 (9th Cir. 1985). Sousa says
that his case is analogous because the BIA had already rejected
the same attack on aggravated felon status that he wishes to
make in this case.
A close parsing of his claims and the BIA decision he
relies upon as foreclosing them indicates that these claims were
3 Mojsilovic v. INS, 156 F.3d 743, 748-49 (7th Cir. 1998);
Perkovic v. INS, 33 F.3d 615, 619 (6th Cir. 1994); Asencio v.
INS, 37 F.3d 614, 615-16 (11th Cir. 1994); Ravindran v. INS, 976
F.2d 754, 761 (1st Cir. 1992); Rivera-Zurita v. INS, 946 F.2d
118, 120 n.2 (10th Cir. 1991); Athehortua-Vanegas v. INS, 876
F.2d 238, 240 (1st Cir. 1989); Vargas v. INS, 831 F.2d 906, 907-
08 (9th Cir. 1987); Bak v. INS, 682 F.2d 441, 442-43 (3d Cir.
1982). But see Rafeedie v. INS, 880 F.2d 506, 526 (D.C. Cir.
1989) (Ruth Bader Ginsburg, J., concurring).
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not resolved by the BIA until after Sousa’s appeal had been
decided. See In re Truong, Int. Dec. 3416 (BIA 1999). However
this may be, the Supreme Court has said that merely because the
agency has previously rejected an argument is no basis for
failing to make the claim in one’s own case.
It is urged in this case that the Commission
had a predetermined policy on this subject
which would have required it to overrule the
objection if made. While this may well be
true, the Commission is obliged to deal with
a large number of like cases. Repetition of
the objection in them might lead to a change
of policy, or, if it did not, the Commission
would at least be put on notice of the
accumulating risk of wholesale reversals
being incurred by its persistence. Simple
fairness to those who are engaged in the
tasks of administration, and to litigants,
requires as a general rule that courts
should not topple over administrative
decisions unless the administrative body not
only has erred but has erred against
objection made at the time appropriate under
its practice.
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37
(1952); accord Marine Mammal Conservancy, Inc. v. Department of
Agriculture, 134 F.3d 409, 413 (D.C. Cir. 1998).
In all events, we think it is unnecessary in this case
to decide whether, in a case that threatened a miscarriage of
justice, we could forgive the failure to raise a clearly
meritorious claim in the removal proceedings. Here, there is no
miscarriage of justice or anything close to it; instead, Sousa's
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claim on the merits, although perhaps ingenious, is mistaken.
The issue whether Sousa is properly classified as an aggravated
felon is one of statutory construction and is likely to recur,
and we prefer to decide it squarely.
To understand the merits, a brief chronology is useful.
In the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102
Stat. 4181 ("ADAA"), Congress first defined a class of
aggravated felons and made them deportable, limiting this remedy
to persons convicted after November 18, 1988. ADAA §§ 7342,
7344 (codified at 8 U.S.C. §§ 1101(a)(43), 1251 note (1988),
amended by 8 U.S.C. §§ 1101 note, 1252 note (Supp. II 1996)).
Sousa was convicted after 1988 but not of murder, drug
trafficking, or trafficking in firearms or destructive devices--
the only crimes that were then the basis for aggravated felon
status. ADAA § 7342 (codified at 8 U.S.C. § 1101(a)(43)
(1988)).
Then, in section 501(a)(3) of the so-called IMMACT
statute, Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.
4978, which became law on November 29, 1990, Congress expanded
the definition of aggravated felony to include crimes of
violence, but again Sousa was unaffected on one ground and
probably two. IMMACT § 501(a)(3) (codified at 8 U.S.C.
1101(a)(43)(F) (1994) (amended by 8 U.S.C. § 1101(a)(43)(F)
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(Supp. II 1996)). The new definition applied only to crimes
committed on or after November 29, 1990, IMMACT § 501(b)
(codified at 8 U.S.C. § 1101 note (1994))--and Sousa’s occurred
before that date. In addition, the definition required a
sentence of "at least" 5 years, id. § 501(a)(3) (codified at 8
U.S.C. § 1101(a)(43)(F) (1994))--it is not clear that Sousa's 3
to 5 year sentence would satisfy this test.
The difficulty for Sousa is that on September 30, 1996,
IIRIRA became law. IIRIRA expanded the definition of aggravated
felony with respect to crimes of violence by including aliens
with sentences of one year or more. IIRIRA § 321(a)(3)
(codified at 8 U.S.C. § 1101(a)(43)).4 Separately, IIRIRA
provided that this new definition applied to convictions entered
before, on, or after IIRIRA’s enactment. IIRIRA § 321(b)
(codified at 8 U.S.C. § 1101(a)(43)). Further, the statute said
that this new definition was to apply to all "actions," e.g.,
removal orders, taken after IIRIRA’s enactment. IIRIRA § 321(c)
(codified at 8 U.S.C. § 1101 note); Choeum v. INS, 129 F.3d 29,
37 (1st Cir. 1997). Sousa’s removal proceeding did not even
begin until after IIRIRA’s enactment.
4
This covers Sousa’s 3 to 5 year sentence. The fact that
Sousa’s sentence was initially suspended does not matter, 8
U.S.C. § 1101(a)(48)(B); United States v. Banda-Zamora, 178 F.3d
728, 730 (5th Cir. 1999); and, of course, ultimately the
suspension was revoked.
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Nevertheless, Sousa argues on two different grounds
that he is not removable as an aggravated felon. Sousa’s first
argument rests on a claim, on which the circuits are divided, as
to whether and how IMMACT’s pertinent changes in 1990 alter the
original 1988 Anti-Drug Abuse Act provisions. Compare Lettman
v. Reno, 207 F.3d 1368, 1371-72 (11th Cir. 2000) and Lewis v.
INS, 194 F.3d 539, 546 (4th Cir. 1999), with Bell, 218 F.3d at
93-96. How these two statutes interact is, however, irrelevant
in the present case: Sousa is an aggravated felon under
IIRIRA’s more recent definition adopted in 1996, which (as
already noted) expressly rejects temporal limitations and
applies to all actions taken after its enactment.
Sousa’s second effort to avoid the aggravated felon
label does make an attempt to avoid IIRIRA's application. In
substance, Sousa argues that while IIRIRA's expanded definition
of aggravated felon is expressly made applicable to convictions
regardless of when they were entered, the statutory section that
makes aggravated felons removable does not contain any such
provision for "retroactive" application. Literally this is so
but it is hard to see why this matters since (as already noted)
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a provision for removal of aggravated felons has been on the
books since 1988, well before Sousa committed his offense.5
In all events, when Congress in IIRIRA enlarged the
definition of aggravated felony and made it explicitly
applicable to convictions regardless of when they were entered,
Congress made perfectly clear its intent that aliens in this
enlarged class should now be subject to removal. The removal
provision necessarily adopted the enlarged definition, including
its rejection of any temporal limitation based on the date of
conviction. Here, no ambiguity exists about Congress's intent
of the kind that has led to so much litigation about the
retroactive application of restrictions on waivers. See, e.g.,
Wallace v. Reno, 194 F.3d 279, 285-87 (1st Cir. 1999).
True, in the original Anti-Drug Abuse Act, Congress
adopted a definition of aggravated felony without including in
the definition any temporal limitation, ADAA § 7342 (codified at
8 U.S.C. § 1101(a)(43) (1988)), and thus, in determining whether
deportation or other immigration consequences could be based on
5The present removal provision says that "[any] alien who is
convicted of an aggravated felony at any time after admission"
is removable, INA § 237(a)(2)(A)(iii) (codified at 8 U.S.C. §
1227(a)(2)(A)(iii)); but this provision is scarcely different
than the original 1988 language. Compare ADAA § 7344(a)(2)
(codified at 8 U.S.C. § 1251(a) (1988)) ("[a]ny alien . . .
shall . . . be deported who . . . is convicted of an aggravated
felony at any time after entry."). The critical change is in
the successive enlargements of the definition.
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convictions entered prior to the statute, the courts necessarily
looked to see whether those sections themselves gave any
indication of Congressional intent. They did: Congress
explicitly provided that only aliens convicted on or after the
ADAA's enactment would be deportable as aggravated felons. ADAA
§ 7344(b) (codified at 8 U.S.C. § 1251 note (1988)). See, e.g.,
United States v. Baca-Valenzuela, 118 F.3d 1223, 1228-29 & n.12
(8th Cir. 1997); Scheidemann v. INS, 83 F.3d 1517, 1524 (3d Cir.
1996).
To this extent Sousa is right in saying that a
distinction could be drawn, in looking at retroactivity, between
a definitional section and an operational one. But the
distinction made sense under the Anti-Drug Abuse Act because
Congress had not made clear in the original definition any
intent as to retroactive effect vel non. By contrast, in
IIRIRA, Congress made quite clear its intent to apply the
enlarged definition retroactively and this explicit provision
makes sense only if Congress also intended that this enlarged
definition trigger removal, regardless of when the crime
occurred. Congress was interested in results, not labels.
Whether or not one likes the result, the decision was one for
Congress.
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Finally, Sousa says that even if he is removable as an
aggravated felon, the immigration judge and BIA erred in
refusing to consider granting Sousa relief from deportation.
"Relief" in this context refers to the Attorney General’s
discretionary authority, which has been explicitly granted (and
recently restricted) by Congress, to permit one otherwise
removable to remain in this country. See note 1, above.
Whether such relief might or might not be available to Sousa
depends on how one interprets these successive relief statutes
and the retroactivity issues associated with them.
However, the case before us is a proceeding to review
an order of removal. As already noted, INA section 242(a)(2)(C)
precludes our review of any final order of removal by an alien
removable because he is an aggravated felon. We have authority
to determine whether Sousa falls in this category and have
concluded that he does, whether the issue is resolved against
him because he failed to exhaust administrative remedies or on
the merits. But having determined that he is removable as an
aggravated felon, our authority to act in this case with respect
to the removal proceeding, including incidental rulings on
discretionary relief, is at an end.
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This is the view of the other circuits that have
addressed this issue.6 It is reinforced by broad language in INA
section 242(b)(9) (codified at 8 U.S.C. § 1252(b)(9)) which
provides that judicial review of all issues of law and fact
"arising from any action taken or proceeding brought to remove
an alien" is available "only in judicial review of a final order
under [INA section 242]," the source of our jurisdiction in this
case. With respect to the agency's refusal to consider granting
Sousa's waiver, Sousa may seek habeas relief in the district
court, Mahadeo v. Reno, No. 99-1687, 2000 WL 1257273, at *4 (1st
Cir. Sept. 11, 2000), but we express no opinion as to any
specific claim as to waiver that he may make in such a
proceeding.
The petition for review is denied insofar as it
challenges the order of removal on the ground that Sousa is not
an aggravated felon; and insofar as the petition challenges the
refusal to consider Sousa's request for relief from removal, the
petition is dismissed for lack of jurisdiction.
6Flores-Miramontes v. INS, 212 F.3d 1133, 1135-36 (9th Cir.
2000); Liang v. INS, 206 F.3d 308, 323 (3d Cir. 2000). The
Eleventh Circuit pointed out in Richardson v. Reno, 180 F.3d
1311, 1315 (11th Cir. 1999), cert. denied, 120 S. Ct. 1529
(2000), that an alien can always challenge whether the
limitations on judicial review in section 1252 are themselves
constitutional in a given case, but no such challenge is
presented here.
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It is so ordered.
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