IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-60396
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NHU PHUC NGUYEN,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
July 2, 1997
Before SMITH, WIENER, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Nhu Phuc Nguyen moves for a stay of deportation and petitions
for review of a final order of deportation entered by the Board of
Immigration Appeals (“BIA”). We dismiss the petition for want of
jurisdiction.
I.
Nguyen, a citizen of Vietnam, became a lawful permanent
resident of the United States in 1982. In August 1990, he was
convicted of embezzlement by a Virginia state court; in September
1990, he was convicted of making false statements in a passport
application. After serving his sentences, he traveled to Canada
and was convicted of a serious crime there. Following the
completion of his Canadian sentence, he was delivered to the
custody of the Immigration and Naturalization Service (“INS”),
which commenced deportation proceedings in June 1995.
An immigration judge found Nguyen deportable under
§ 241(a)(2)(A)(ii) of the Immigration and Naturalization Act
(“INA”), the provision that provides for deportation of aliens who
have been convicted of two or more crimes involving moral turpi-
tude. Nguyen applied for a waiver of deportation under INA
§ 212(c), which was denied on the ground that he had abandoned his
lawful permanent resident status during his stay in Canada. On
May 19, 1997, the BIA found him independently ineligible for
§ 212(c) relief on account of § 440(d) of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L. 104-132,
110 Stat. 1214, as amended by Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”) of 1996, § 306(d), Pub. L.
No. 104-208, 110 Stat. 3009, 3009-1675, which denies such relief to
aliens who have committed certain criminal offenses. The BIA thus
entered a final order of deportation, and Nguyen brought the
instant petition shortly thereafter.
II.
We previously have held that AEDPA § 440(d) deprives us of
jurisdiction to review BIA decisions of this sort. See Williams v.
INS, 114 F.3d 82, 83-84 (5th Cir. 1997). In Williams, we joined
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six other circuits in rejecting the argument that § 440(d) violates
the Fifth Amendment Due Process Clause and article III by unconsti-
tutionally restricting the right of judicial review. Id.
Following the reasoning in Yang v. INS, 109 F.3d 1185, 1194-97 (7th
Cir. 1997), we concluded that, at a minimum, criminal deportees
retain some opportunity to apply for writs of habeas corpus. Id.
at 84. Nguyen's petition is distinguishable from Williams's only
in that an additional statute applies: IIRIRA § 309(c)(4)(G),
110 Stat. at 3009-1700.
Section 309(c)(4)(G) is part of IIRIRA's “transitional
standards,” applicable here because Nguyen's deportation proceed-
ings were both commenced before IIRIRA's general effective date of
April 1, 1997, and concluded more than thirty days after its
passage on September 30, 1996. See IIRIRA § 309(c)(1), 110 Stat.
at 3009-1698; id. § 309(c)(4), 110 Stat. at 3009-1699. Section
309(c)(4)(G) provides that
there shall be no appeal permitted in the case of an
alien who is inadmissible or deportable by reason of
having committed 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 the date of the enactment of this Act), or any offense
covered by section 241(a)(2)(A)(ii) of such Act (as in
effect on such date) for which both predicate offenses
are, without regard to their date of commission, other-
wise covered by section 241(a)(2)(A)(i) of such Act (as
so in effect).
This language differs only trivially from that of AEDPA § 440(d),
the provision we considered in Williams. Like § 440(d), it
completely forecloses our jurisdiction to review decisions of the
BIA, including our jurisdiction to consider motions for stays of
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deportation.
Nguyen protests that this restriction on judicial review
violates the Fifth Amendment's Due Process Clause. Because the
language of AEDPA § 440(d) and IIRIRA § 309(c)(4)(G) is so similar,
however, the questions this raises are indistinguishable from those
that we decided in Williams, 114 F.3d at 83-84. For the reasons
explained in that case, we similarly conclude that IIRIRA
§ 309(c)(4)(G) does not violate either the Fifth Amendment's Due
Process Clause or the separation of powers principles embodied in
article III.
In summary, we are without jurisdiction to review this matter.
Accordingly, the motion for stay of deportation is DENIED. The
INS's motion to dismiss the petition for review is GRANTED. The
INS's alternative motion for an extension of time is DENIED as
moot. The petition for review is DISMISSED.
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