UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
97-60348
__________________________
Juana Maria Lerma de Garcia,
Petitioner,
versus
Immigration and Naturalization Service,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_______________________________________________________________
May 11, 1998
Before REAVLEY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Petitioner, Juana Maria Lerma de Garcia, challenges the
Board of Immigration Appeals (“BIA”) final order of deportation
issued on April 29, 1997. We dismiss the petition for lack of
jurisdiction.
BACKGROUND
Petitioner has been a permanent resident of the United
States since 1981. In 1994, petitioner pled guilty to possession
of marijuana, in an amount between five to fifty pounds. Based
upon this conviction, on February 17, 1994, the INS initiated
deportation proceedings against Petitioner for a controlled
substance violation pursuant to section 241(a)(2)(B)(i) of the
Immigration and Nationality Act (“INA”), 8 U.S.C. §
1252(a)(2)(B)(i).
Petitioner admitted she was statutorily eligible for
deportation, but applied for discretionary relief under section
212(c), 8 U.S.C. § 1182(c). Petitioner misplaced the hearing
notice, her attorney mistook the date of the hearing, and neither
she nor her counsel appeared for her hearing. The Immigration
Judge (“IJ”) deemed Petitioner’s application abandoned and ordered
her deportation.
Petitioner filed a motion to reopen, in order to apply
for relief under section 212(c). On December 5, 1994, the IJ
denied the motion on the grounds that petitioner had failed to
demonstrate exceptional circumstances.
Petitioner filed a second motion to reopen, which the IJ
denied on February 10, 1995. The BIA affirmed the IJ’s decision on
June 8, 1995. Petitioner filed a third motion to reopen, which the
IJ denied on August 31, 1995. Petitioner appealed the denial to
the BIA, which dismissed the appeal on February 12, 1996.
Petitioner filed a fourth motion to reopen, this time
directly with the BIA. On April 29, 1997, a single board member,
acting on behalf of the entire board, denied this appeal. The BIA
found section 440(d) of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
1277, as amended by the Illegal Immigration Reform and Immigrant
Act (“IIRIRA”) of 1996, Pub. L. No. 104-208, § 309(c)(4)(G), 110
2
Stat. 3009, 626-27, rendered her statutorily ineligible for the
relief she sought.
Petitioner filed this appeal, claiming (1) that the BIA’s
final order is void, because it was issued by a single boardmember;
and (2) that § 440(d) is unconstitutional. In a related
proceeding, petitioner filed for writ of habeas corpus seeking
review of the Final Order of Deportation in the District Court for
the Southern District of Texas, Brownsville Division.
DISCUSSION
IIRIRA § 309(c)(4)(G), 110 Stat. 3009, 626-27, contains
the provisional standards for criminal deportees whose deportation
proceedings commence before IIRIRA’s general effective date of
April 1, 1997, and conclude more than thirty days after its passage
on September 30, 1996. 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,
otherwise covered by section 241(a)(2)(A)(i) of such Act
(as so in effect).
We have previously held that this language “completely forecloses
our jurisdiction to review decisions of the BIA.” Nguyen v. INS,
117 F.3d 206, 207 (5th Cir. 1997).
Although Petitioner falls within the confines of IIRIRA
§ 309(c)(4)(G), Nguyen is not dispositive of the issue in this
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case. The instant case is unique in that -- unlike the earlier
opinions -- Petitioner is not seeking review of the BIA’s decision,
but rather is challenging the BIA’s proceedings, as well as IIRIRA,
on constitutional grounds. Indeed, the parties now agree that this
court lacks jurisdiction to hear this appeal, but disagree over the
reason. Petitioner maintains that regardless of the nature of her
claim, this court lacks jurisdiction over this appeal, and that the
proper avenue of relief is through writ of habeas corpus.
Respondent maintains that although this court generally lacks
jurisdiction to review deportation orders predicated on section
241(a)(2)(B)(i), this court may exercise jurisdiction if it finds
that petitioner has suffered a “substantial constitutional”
violation. Because, Respondent argues, the petitioner has not
alleged a substantial constitutional violation, it concludes that
this court lacks jurisdiction over this appeal. The issue is
therefore whether such an exception to the jurisdictional bar set
forth under IIRIRA § 309(c)(4)(G) exists.
The Seventh Circuit recently noted that when a petitioner
brings a constitutional challenge against the BIA proceedings
themselves, an avenue of judicial review may be required. See Chow
v. INS, 113 F.3d 659, 668 (7th Cir. 1997).1 The court reasoned
that although the power to expel aliens was committed to the
1
Although the Seventh Circuit was reviewing the language of
AEDPA § 440(a), we have already held that this language “differs
only trivially” from IIRIRA § 309(c)(4)(G). Nguyen, 117 F.3d at
207.
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political branches of government “‘with such opportunity for
judicial review of their action as Congress may see fit to
authorize or permit,’ [the Supreme Court] has also recognized that
such plenary power is subject to judicial intervention ‘under the
paramount law of the Constitution.’” Id. (quoting Carlson v.
Landon, 342 U.S. 524, 537, 72 S. Ct. 525, 532-33 (1952)). The
court, however, added:
[T]hat Congress’s power to grant or restrict judicial
review in deportation proceedings is subject to judicial
intervention under the Constitution does not imply
necessarily that a federal court of appeals such as this
one may retain jurisdiction over a petition raising
constitutional claims. This court is a court created by
statute, and courts created by statute have no
jurisdiction other than that which has been conferred
upon them by statute.
Id. at 669 (citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 449
(1850)). The court concluded that as long as other avenues of
judicial review remain available to resident aliens, it did not
need to address the difficult question whether Congress may limit
the jurisdiction of the lower courts to hear constitutional claims.
See id. at 668-69.
We now join the Seventh and other circuits by holding
that this court does not have jurisdiction to hear Petitioner’s
constitutional claims in the context she has raised them. We have
already followed our sister circuits in noting that “criminal
deportees retain some opportunity to apply for writs of habeas
corpus.” Nguyen, 117 F.3d at 207; see also Williams v. INS, 114
F.3d 82, 84 (5th Cir. 1997) (noting that the “limited opportunity
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to apply for a writ of habeas corpus may remain”); see also
Hincapie-Nieto v. INS, 92 F.3d 27, 30 (2d Cir. 1996) (“The absence
of an opportunity for some aliens to file a petition for review in
a court of appeals does not necessarily mean, however, that the
federal courts are closed to all claims by such aliens arising in
the course of deportation proceedings.”); Mansour v. INS, 123 F.3d
423, 426 (6th Cir. 1997); Kolster v. INS, 101 F.3d 785, 790 (1st
Cir. 1996).
Because we agree with Petitioner that “the scope of
judicial review remaining in habeas is not presently before this
Court,” we will not at this time address the limits of judicial
review that remain available.
Pursuant to IIRIRA § 309(c)(4)(G), this court lacks
jurisdiction over this appeal.2 Accordingly, the petition for
review of the BIA’s order of deportation is DISMISSED.
2
Respondent relies on the Tenth Circuit’s opinion in
Wittgenstein v. INS, 124 F.3d 1244, 1245 (10th Cir. 1997), for the
proposition that this court retains jurisdiction to hear
substantial constitutional questions arising out of BIA final
orders. This reliance is misplaced. The Wittgenstein court noted
only in passing that the Third Circuit has held that “when
‘constitutional rights applicable to aliens may be at stake,
judicial review may not be withdrawn by statute.’” Id. (quoting
Salazar-Haro v. INS, 95 F.3d 309, 311 (3d Cir. 1996)). The
Wittgenstein court never so held that this exception exists, and,
hence, should be dismissed as dicta. Moreover, when the language
in Salazar-Haro is placed in the context in which the Third Circuit
intended, it is clear that the court was not recognizing an
exception to the jurisdictional bar Congress had created. Rather
the court was noting that while a statute cannot foreclose all
avenues of judicial review, AEDPA was constitutionally valid
because aliens retained habeas corpus remedies. See Salazar-Haro,
95 F.3d at 311 (citing Hincapie-Nieto v. INS, 92 F.3d 27, 29-31 (2d
Cir. 1996)).
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Respondent’s pending motions to dismiss appeal and to
supplement the record are hereby DENIED.
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