Moosa v. INS ( 1999 )

Revised April 19, 1999
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 96-60821
____________________
WAZIRALI MOOSA, also known as Wazir Ali Haider
Ali Moosa; ZEBUNISA WAZIRALI MOOSA,
Petitioners,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________________________________________________
On Petition For Review From The Board
Of Immigration Appeals and Legalization Appeals Unit
_________________________________________________________________
April 2, 1999
Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge.
A deferred adjudication of guilt for indecency with a child by
contact having been entered against Wazirali Moosa in Texas state
court in 1990, and, as a result, Moosa having been denied permanent
residency and having been ordered deported, along with his wife,
primarily at issue is, in the legalization decision, the
retroactive application to that deferred adjudication of the new
definition of “conviction” in § 322(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, codified at 8
U.S.C. § 1101(a)(48)(A). At issue are whether the Legalization
Appeals Unit erred in denying Moosa permanent resident status;
whether we have jurisdiction to review the denial by the Board of
Immigration Appeals of suspension of deportation as to the Moosas;
and, if we do have jurisdiction, whether that denial was in error.
We DENY the petition from the legalization decision. Because we
lack jurisdiction over the deportation decision, we DISMISS that
petition.
I.
Moosa, a native of Pakistan, entered the United States in 1979
as a nonimmigrant visitor. Four years later, his wife, Zebunisa
Moosa, and their two young daughters joined him, also entering as
nonimmigrant visitors. Eventually, the Moosas settled in Texas,
where Moosa was employed, Mrs. Moosa tended to the needs of the
household, and the two daughters enrolled in (and eventually
graduated from) public school.
In September 1988, the INS approved Moosa’s application for
temporary resident status. In April 1989, he applied to the INS to
adjust his status to permanent resident.
Later in 1989, Moosa was indicted in Texas for indecency with
a child by contact (a second-degree felony), stemming from an
incident occurring in early April of that year. The indictment
charged Moosa with molesting a twelve-year-old girl. Moosa pleaded
guilty in January 1990. The following month, a Texas court entered
a deferred adjudication of guilt and placed Moosa on eight years
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probation. He also served 180 days in jail on a work release
program and was ordered, among other things, to attend therapy
sessions, avoid contact with children, and report monthly to a
probation officer.1 (Moosa complied with these requirements, and
was released from community supervision early, in 1993 or 1994.2)
In February 1992, interpreting Moosa’s deferred adjudication
as a “conviction” that rendered him ineligible for legalization,
the Legalization Director issued notice of intent to deny his
permanent residency application. The application was formally
1
The “deferred adjudication” procedure is found in Texas Code
of Criminal Procedure Article 42.12 § 5. After a defendant has
pleaded guilty or nolo contendere, the judge may, pursuant to §
5(a), “defer further proceedings without entering an adjudication
of guilt, and place the defendant on community supervision”. Under
§ 5(b), if the defendant violates a condition of the community
supervision, he may be arrested and his guilt on the original
charge may be adjudicated. “After an adjudication of guilt, all
proceedings, including assessment of punishment, pronouncement of
sentence, granting of community supervision, and defendant’s appeal
continue as if adjudication of guilt had not been deferred.” TEX.
CODE CRIM. P. ART. 42.12 § 5(b). However, if the defendant
successfully completes his community supervision and “the judge has
not proceeded to adjudication of guilt, the judge shall dismiss the
proceedings against the defendant and discharge him”. TEX. CODE
CRIM. P. ART. 42.12 § 5(c). Additionally, the judge may dismiss the
proceedings and discharge the defendant from community supervision
early, if the judge deems such action to be in “the best interest
of society and the defendant”. TEX. CODE CRIM. P. ART. 42.12 § 5(c).
Finally, § 5(c) provides that “a dismissal and discharge under this
section may not be deemed a conviction for the purposes of
disqualifications or disabilities imposed by law for conviction of
an offense”.
2
Moosa’s release date from community supervision is unclear.
A brief to the INS by Moosa’s former attorney states that Moosa was
discharged in June 1994. Moosa testified before the Immigration
Judge that he was discharged in 1993.
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denied on 20 April 1992.
Two weeks later, on 4 May, Moosa appealed the termination of
his temporary resident status to the Legalization Appeals Unit
(LAU).3 His notice of appeal was returned for failure to include
the filing fee. On 22 May, the notice was refiled with the fee.
In July 1994, the LAU dismissed the appeal as untimely for having
been filed more than 30 days after the Legalization Director’s
decision.
The INS commenced deportation proceedings in March 1995
against Mr. and Mrs. Moosa and their daughters (then in their early
20s), for overstaying an authorized period of stay, pursuant to 8
U.S.C. § 1251(a)(1)(B). The Moosas applied for suspension of
deportation under 8 U.S.C. § 1254(a) (now repealed), and a
deportation hearing was held in March 1996. The family claimed
that deportation would impose extreme hardship, justifying a
suspension.
The Immigration Judge (IJ) suspended the deportation of the
Moosas’ daughters; however, suspension was denied for Mr. and Mrs.
3
This appellate division is referred to as the “Legalization
Appeals Unit” because that is the title used by our circuit. See
Martinez-Montoya v. INS, 904 F.2d 1018, 1020 (5th Cir. 1990). It
is an internal division of the Administrative Appeals Unit of the
INS that decides cases arising under the authority of the Associate
Commissioner for Examinations. 8 C.F.R. §§ 103.1(f)(2);
245a.2(u)(2) and 245a.3(j). See Martinez-Montoya, 904 F.2d at 1023
(“The LAU is the sole body within the AAU possessing jurisdiction
to hear appeals from the administrative denial of an application
for legalization under the provisions of [8 U.S.C. § 1255a]”).
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Moosa. The IJ found the serious nature of Moosa’s admitted child
molestations outweighed any favorable factors and “den[ied] his
application for suspension of deportation as a matter of
discretion”. The IJ denied suspension of Mrs. Moosa’s deportation
on the basis that she had not demonstrated “extreme hardship”,
particularly in view of the fact that her husband’s application had
been denied. The IJ did, however, grant the Moosas the privilege
of voluntary departure in lieu of deportation, pursuant to 8 U.S.C.
§ 1254(e).
The Moosas appealed to the Board of Immigration Appeals; it
affirmed in October 1996. The BIA agreed that Mrs. Moosa had not
shown extreme hardship merely by alleging economic hardship,
diabetes, and a bad back. The BIA denied relief to Moosa primarily
because of his sexual contact with children and because it was not
convinced he was rehabilitated. The BIA described his conduct as
“serious” and “predatory” and found that “a favorable exercise of
discretion is not warranted”. The Moosas petitioned this court for
review of the BIA’s decision.
But, after the Moosas’ opening brief was filed with our court,
the INS discovered that the LAU had erred in July 1994 when it
dismissed as untimely Moosa’s appeal of the permanent resident
status decision. Instead, the INS concluded that the appeal was
timely. On joint motion, our court in May 1997 remanded the
legalization question to the LAU. The following December, applying
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the new definition of “conviction” found in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. Law 104-208,
110 Stat. 3009 (1996) (IIRIRA), the LAU upheld the decision of the
Legalization Director.
Therefore, the petitions at hand are from the LAU’s December
1997 decision affirming the denial of Moosa’s permanent resident
application and from the BIA’s decision denying a suspension of
deportation to Mr. and Mrs. Moosa. For the latter, the INS has
moved to dismiss for lack of jurisdiction.
II.
A.
Moosa, who was given temporary resident status in 1988,
applied for permanent residency in 1989 under 8 U.S.C. § 1255a,
enacted as part of the “legalization” or “amnesty” provisions of
the Immigration Reform and Control Act of 1986. See Hussein v.
INS, 61 F.3d 377, 378 (5th Cir. 1995). The regulations provide
that temporary residence granted an alien will terminate if he does
not apply for permanent residence within 43 months. 8 U.S.C.
1255a(b)(2)(C). The local Legalization Director is required to
give the alien notice and an opportunity to respond before
terminating the temporary residency. Luevano v. INS, 5 F.3d 546,
1993 WL 335750, *1 (10th Cir. 1993)(unpublished). Notification of,
and reasons for, a final decision to terminate must also be
provided to the alien. Id. “Once an alien’s temporary resident
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status is terminated, he automatically returns to the unlawful
status he held before he received the temporary resident status and
is amenable to deportation or exclusion proceedings.” Id. (citing
8 C.F.R. 245a.2(u)(4)); 8 U.S.C. 1255a(b)(2)(C)) (Attorney General
shall terminate temporary residence at end of 43rd month after
alien was granted status unless application for adjustment has been
filed and “has not been denied”).
Permanent residence may not be granted aliens “convicted” of
a felony. 8 U.S.C. § 1255a(b)(1)(C)(ii). Yet, prior to 1996,
there was no statutory definition of “conviction”. Beginning with
the Supreme Court’s brief decision in Pino v. Landon, 349 U.S. 901
(1955) (per curiam), courts construed the term “conviction” in
immigration laws to encompass some degree of finality of the
judgment or disposition under state law.4
In 1988, the BIA defined “conviction” in Matter of Ozkok, 19
I&N Dec. 546 (BIA 1988). In Ozkok, the BIA examined its previous
decisions, which looked to the state law effect of the conviction
in order to determine if the finality requirement had been met.
Id. at 549-50. The BIA noted that “most states now employ some
method of ameliorating the consequences of a conviction”; and that
“the standard which [the BIA had] applied to the many variations in
4
The entire Pino opinion follows: “On the record here we are
unable to say that the conviction has attained such finality as to
support an order of deportation within the contemplation of § 241
of the Immigration and Nationality Act, 8 U.S.C.A. § 1251. The
judgment is reversed”. Pino, 349 U.S. at 901.
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state procedure may permit anomalous and unfair results in
determining which aliens are considered convicted for immigration
purposes”. Id. at 550. Therefore, the BIA revised the standard
for determining whether a state conviction was to be considered a
“conviction” for purposes of immigration law, eliminated the
requirement that the state law effect of the conviction be
examined, and created the following standard:
Where adjudication of guilt has been withheld,
however, further examination of the specific
procedure used and the state authority under
which the court acted will be necessary. As a
general rule, a conviction will be found for
immigration purposes where all of the
following elements are present:
(1) a judge or jury has found the alien
guilty or he has entered a plea of guilty or
nolo contendere or has admitted sufficient
facts to warrant a finding of guilty;
(2) the judge has ordered some form of
punishment, penalty, or restraint on the
person’s liberty to be imposed (including but
not limited to incarceration, probation, a
fine or restitution, or community-based
sanctions such as a rehabilitation program, a
work-release or study-release program,
revocation or suspension of a driver’s
license, deprivation of nonessential
activities or privileges, or community
service); and
(3) a judgment or adjudication of guilt may
be entered if the person violates the terms of
his probation or fails to comply with the
requirements of the court’s order, without
availability of further proceedings regarding
the person’s guilt or innocence of the
original charge.
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Id. at 551-52. Superimposed on these three requirements was the
finality requirement. Id. at 553 n.7 (“It is well established that
a conviction does not attain a sufficient degree of finality for
immigration purposes until direct appellate review of the
conviction has been exhausted or waived”); White v. INS, 17 F.3d
475, 479 (1st Cir. 1994).
But, in Matter of M, 19 I&N Dec. 861 (1989), contrary to the
BIA’s conditions, the LAU defined “conviction” without a finality
requirement and found a Texas deferred adjudication to be a
“conviction” that barred permanent residency. The LAU held that,
for purposes of 8 U.S.C. § 1255a, a “conviction” would be found
when an adjudication possessed the following two elements:
(1) a judge or jury has found the alien
guilty or he has entered a plea of guilty or
nolo contendere; and
(2) the judge has ordered some form of
punishment or penalty, including but not
limited to a fine or probation.
Id. at 865. Because the Texas deferred adjudication satisfied both
elements, the LAU determined that the petitioner (who had received
a deferred adjudication for forgery) had been “convicted”.
The petitioner in Matter of M contested the LAU’s decision,
and our court reversed in Martinez-Montoya v. INS, 904 F.2d 1018
(5th Cir. 1990). Our court first found that “at least the LAU is
bound to apply the BIA definition of conviction recognized in
Matter of Ozkok, and that, under the Ozkok standard, Martinez-
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Montoya has not been convicted for purposes of immigration”. Id.
at 1022. This was based on INS regulations that required all INS
employees to follow BIA decisions. Id. at 1023. Accordingly,
Martinez-Montoya’s deferred adjudication was examined under the
Ozkok standard.
Because the defendant in a deferred adjudication faces further
proceedings if he violates the terms of the community supervision,
the court stated that the third prong of the Ozkok test (which
requires that there be no further proceedings available) was not
met by the deferred adjudication. Id. at 1024. Furthermore, the
court found that the deferred adjudication did not satisfy the
additional finality requirement of Ozkok because Martinez-Montoya
could still appeal a finding of guilt if one were entered against
him. Id. at 1025.
Therefore, our court determined that a Texas deferred
adjudication was not a “conviction” for purposes of federal
immigration law. See also Zamora-Morel v. INS, 905 F.2d 833, 839
n.3 (5th Cir. 1990) (recognizing that, under Martinez-Montoya,
Texas deferred adjudication is not a “conviction” for immigration
law purposes). But see Molina v. INS, 981 F.2d 14, 18-20 (1st Cir.
1992) (Rhode Island nolo contendere plea plus probation, which was
not considered “conviction” under state law after successful
completion of probation, was “conviction” under federal immigration
laws); Yanez-Popp v. INS, 998 F.2d 231, 233, 237 (4th Cir. 1993)
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(Maryland’s stay of judgment conditioned on successful completion
of probation was “conviction” under Ozkok); Chong v. INS, 890 F.2d
284, 284-85 (11th Cir. 1989) (Florida procedure of withholding
adjudication of guilt and imposition of sentence but placement of
defendant on probation was “conviction” for immigration purposes
under Ozkok).
Following receipt of the INS’s notice of intent, based on
Moosa’s deferred adjudication, to deny permanent residency (thus
terminating his temporary residency), Moosa’s attorney apprised
the Legalization Director of Martinez-Montoya’s holding that a
Texas deferred adjudication was not a “conviction”. This
notwithstanding, the Legalization Director did not mention
Martinez-Montoya in his April 1992 decision; instead, he relied on
Ozkok in concluding that the deferred adjudication was a
“conviction”.
On 30 September 1996, IIRIRA was enacted; it became effective
on 1 April 1997. Section 322(a) defined the term “conviction” and
amended § 101(a) of the Immigration and Nationality Act of 1952
(INA), 8 U.S.C. § 1101(a). Section 322(a) states:
The term “conviction” means, with respect to
an alien, a formal judgment of guilt of the
alien entered by the court or, if adjudication
of guilt has been withheld, where –
(i) a judge or jury has found the alien guilty
or the alien has entered a plea of guilty or
nolo contendere or has admitted sufficient
facts to warrant a finding of guilt, and
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(ii) the judge has ordered some form of
punishment, penalty, or restraint on the
alien’s liberty to be imposed.
Codified at 8 U.S.C. § 1101(a)(48)(A). Thus, by eliminating the
finality requirement, the new statutory definition of “conviction”
mirrors the Matter of M definition, rejected by our court in
Martinez-Montoya.
The Congressional Conference Committee Report accompanying
IIRIRA commented on Congressional intent in drafting IIRIRA § 322:
This section deliberately broadens the scope
of the definition of “conviction” beyond that
adopted by the Board of Immigration Appeals in
Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988).
As the Board noted in Ozkok, there exist in
the various States a myriad of provisions for
ameliorating the effects of a conviction. As
a result, aliens who have clearly been guilty
of criminal behavior and whom Congress
intended to be considered “convicted” have
escaped the immigration consequences normally
attendant upon a conviction. Ozkok, while
making it more difficult for alien criminals
to escape such consequences, does not go far
enough to address situations where a judgment
of guilt or imposition of sentence is
suspended, conditioned upon the alien’s future
good behavior. For example, the third prong
of Ozkok requires that a judgment or
adjudication of guilt may be entered if the
alien violates a term or condition of
probation, without the need for any further
proceedings regarding guilt or innocence on
the original charge. In some States,
adjudication may be “deferred” upon a finding
or confession of guilt, and a final judgment
of guilt may not be imposed if the alien
violates probation until there is an
additional proceeding regarding the alien’s
guilt or innocence. In such cases, the third
prong of the Ozkok definition prevents the
original finding or confession of guilt to be
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considered a “conviction” for deportation
purposes. This new provision, by removing the
third prong of Ozkok, clarifies Congressional
intent that even in cases where adjudication
is “deferred,” the original finding or
confession of guilt is sufficient to establish
a “conviction” for purposes of the immigration
laws.
H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 1996, 1996 WL
563320 at *496-97 (emphasis added).
As noted, Moosa’s appeal of the Legalization Director’s
decision to the LAU was dismissed as untimely. It was not until
the petition in issue was filed that the INS discovered its mistake
and the matter was remanded to the LAU. Pursuant to the newly
enacted § 322(a) definition of conviction, the LAU found that the
deferred adjudication was a “conviction”, and affirmed the
Legalization Director’s decision.
The legal and factual events can be summarized as follows: (1)
in January 1989, the LAU rendered its decision in Matter of M; (2)
in April 1989, Moosa molested a child and applied for permanent
residency; (3) later in 1989, Moosa was indicted for indecency with
a child; (4) in January 1990, Moosa entered into a plea agreement;
(5) in February 1990, the Texas court entered a deferred
adjudication; (6) in July 1990, Martinez-Montoya was rendered,
reversing Matter of M; (7) in April 1992, Moosa’s temporary
resident status was terminated; (8) in July 1994, the LAU dismissed
Moosa’s appeal as untimely; (9) in 1996, IIRIRA was signed into
law; (10) in 1997, the INS discovered its mistake, the case was
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remanded to the LAU, and the LAU applied § 322 to affirm the
Legalization Director’s decision.
Moosa’s challenge to the LAU decision rests on two sub-issues:
(1) whether the INS is estopped from terminating his temporary
residency; and (2) whether the LAU erred in applying § 322(a).
1.
Moosa bases his estoppel claim on the charge that the INS
engaged in affirmative misconduct in two ways: the dismissal of his
appeal to the LAU as untimely; and the Legalization Director’s not
complying with our circuit precedent for the definition of a
“conviction”.
“To establish estoppel against the government, a party must
prove affirmative misconduct by the government and also establish
the four traditional elements of the doctrine. The four elements
of estoppel are: (1) that the party to be estopped was aware of the
facts, and (2) intended his act or omission to be acted upon; (3)
that the party asserting estoppel did not have knowledge of the
facts, and (4) reasonably relied on the conduct of the other to his
substantial injury.” United States v. Bloom, 112 F.3d 200, 205
(5th Cir. 1997). Valid assertions of equitable estoppel against
the Government are rare indeed. Id.; see also Ferguson v. FDIC,
164 F.3d 894, 898 (5th Cir. 1999); Rew Enterprises, Inc. v. Premier
Bank, N.A., 49 F.3d 163, 167 (5th Cir. 1995); United States v.
Perez-Torres, 15 F.3d 403, 407 (5th Cir.), cert. denied, 513 U.S.
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840 (1994) (“Estoppel against the government is problematical at
best”).
In several cases involving claims that the INS should be
estopped based on conduct of its agents, the Supreme Court has held
that the conduct did not rise to the level of “affirmative
misconduct” and declined to estop the INS. See INS v. Miranda, 459
U.S. 14, 18-19 (1982) (INS’s 18 month delay in processing alien’s
application for permanent residency did not constitute affirmative
misconduct); INS v. Hibi, 414 U.S. 5, 8-9 (1973) (failure of
Government to publicize immigration rights afforded by Congress to
Philippine soldiers before deadline to apply for immigration
benefits expired did not amount to affirmative misconduct); Montana
v. Kennedy, 366 U.S. 308, 314-15 (1961) (failure of American
Consular Officer in Italy to issue passport to alien’s pregnant
mother, resulting in alien’s birth in Italy, did not constitute
affirmative misconduct); see also Schweiker v. Hansen, 450 U.S.
785, 788-90 (1981) (Social Security Administration agent’s
erroneous response to applicant’s inquiry and failure to have
applicant complete written request, as internal regulations
required, were not enough for applicant to succeed on estoppel
claim against Government).
Likewise, our court has declined to estop the INS based on
claims that the INS’s conduct caused the denials of immigration
benefits. See Fano v. O’Neill, 806 F.2d 1262, 1265 (5th Cir. 1987)
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(failure of INS to expedite processing of alien’s application, as
required by INS’s internal operating instructions, did not
constitute affirmative misconduct; “to state a cause of action for
estoppel against the government, a private party must allege more
than mere negligence, delay, inaction, or failure to follow an
internal agency guideline”); Kwon v. INS, 646 F.2d 909, 919 (5th
Cir. 1981)(en banc) (court would not estop INS where its failure to
inform alien of lack of further visa numbers prevented alien from
promptly applying for different type of visa).
In fact, the Supreme Court has not decided whether the INS can
ever be estopped from enforcing immigration laws because of its
misconduct. See Miranda, 459 U.S. at 19 (refusing to estop
Government because no affirmative misconduct, but reserving
question of whether Government could ever be estopped from
enforcing immigration laws); Hibi, 414 U.S. at 8-9 (recognizing
that question of whether affirmative misconduct could estop
Government from denying citizenship was left open in Montana, but
declining to address because found no affirmative misconduct);
Montana, 366 U.S. at 315 (based on finding no affirmative
misconduct; “we need not stop to inquire whether, as some lower
courts have held, there may be circumstances in which the United
States is estopped to deny citizenship because of the conduct of
its officials”).
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What is clear is that, at a minimum, affirmative misconduct by
the INS must be shown before an equitable estoppel claim will be
considered. Fano, 806 F.2d at 1264-65 (“The Supreme Court has
indicated, without deciding, that equitable relief may be available
to a private party aggrieved by certain conduct of government
officials”). “‘Affirmative misconduct’ requires an affirmative
misrepresentation or affirmative concealment of a material fact by
the government.” Linkous v. United States, 142 F.3d 271, 278 (5th
Cir. 1998).
a.
Moosa can point to no evidence indicating that the dismissal
as untimely of his initial appeal to the LAU was an act of
affirmative misconduct. In his reply brief, he asserts that the
LAU “contrived an easy way to dismiss [Moosa’s] appeal” by claiming
that the dates relevant to the timely filing of the appeal were
different than they actually were. Moosa states: “The record, of
course, shows that the Notice of Denial was issued on April 20,
1992 and not on April 15, 1992, as the LAU claimed”. (Emphasis
added.)
It belies common sense for Moosa now to argue that the error
in computing the timing of the notice of appeal was clearly
obvious, when the mistake was not noticed by Moosa, or his previous
or present counsel. Rather, the INS discovered the error in
preparing to address this petition. It then contacted Moosa and
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moved to remand the case to the LAU; the INS did not attempt to
bury the mistake. Moosa’s estoppel claim fails on this basis.
See, e.g., Office of Personnel Management v. Richmond, 496 U.S.
414, 419-20 (1990) (no estoppel for mistaken, unauthorized
statements of Government agent); Miranda, 459 U.S. at 18 (even if
delay in processing application was negligent, estoppel still not
warranted); Schweiker, 450 U.S. at 789 (erroneous advice given by
agent not enough to estop Government); Fano, 806 F.2d at 1265 (to
estop Government, need more than mere negligence or inaction).
b.
Moosa also rests his estoppel claim on the asserted
affirmative misconduct of the Legalization Director in considering
Moosa’s deferred adjudication a “conviction”, in spite of Martinez-
Montoya. Moosa charges the Legalization Director with “knowing[ly]
and deliberate[ly] refus[ing] to obey the controlling law of this
Circuit”.
Moosa misses the mark. We do not review the actions of the
Legalization Director; his was an interim decision superceded by
the LAU’s December 1997 decision. Title 8 U.S.C. § 1255a(f)(3) and
(4) provide for a single level of appellate review of decisions
within the INS. The LAU reviews decisions of the Legalization
Director. 8 C.F.R. §§ 103.1(f)(2), 245a.2(u)(2), 245a.3(j).
Our basis of review for INS legalization determinations is
described in 8 U.S.C. § 1255a(f)(4)(B):
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Such judicial review shall be based solely
upon the administrative record established at
the time of the review by the appellate
authority and the findings of fact and
determinations contained in such record shall
be conclusive unless the applicant can
establish abuse of discretion or that the
findings are directly contrary to clear and
convincing facts contained in the record
considered as a whole.
We review the decision by the appellate authority (ie., the LAU),
not that of the initial adjudicatory entity (ie., the Legalization
Director). Cf. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th
Cir. 1991) (order of IJ not final when alien appeals to BIA;
“[t]his Court is authorized to review only the order of the Board,
not the decision of the [IJ]”). The only legalization decision
before us is the LAU’s December 1997 decision.5
2.
Moosa asserts that, even under IIRIRA § 322(a), 8 U.S.C. §
1101(a)(48), his deferred adjudication should not be treated as a
conviction. On reviewing an Agency’s construction of a statute it
administers, we must perform the well-known two-step inquiry:
5
Even though Moosa informed the Legalization Director of
Martinez-Montoya and, yet, the Legalization Director did not apply
it, we do not have evidence that he deliberately ignored it. His
decision does not indicate that he disagreed with Martinez-Montoya
or that he was choosing to disobey it. Rather, the decision
indicates only that he viewed Moosa’s deferred adjudication as a
conviction under Ozkok. There is no evidence that the Legalization
Director was intentionally flouting the law of this circuit, and we
will not attribute ill will or bad motives to him without any
evidence in this regard. In any event, as discussed, Moosa’s
recourse was with the LAU.
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First, always, is the question whether
Congress has directly spoken to the precise
question at issue. If the intent of Congress
is clear, that is the end of the matter; for
the court, as well as the agency, must give
effect to the unambiguously expressed intent
of Congress. If, however, the court
determines Congress has not directly addressed
the precise question at issue, the court does
not simply impose its own construction on the
statute, as would be necessary in the absence
of an administrative interpretation. Rather,
if the statute is silent or ambiguous with
respect to the specific issue, the question
for the court is whether the agency’s answer
is based on a permissible construction of the
statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842-43 (1984). See also Martinez-Montoya, 904 F.2d
at 1021 (“The federal agency construction is to be upheld if it is
reasonable and not contrary to Congressional intent”).
a.
The text of § 322(a) could not be more clear: Where an
adjudication of guilt has been withheld, a “conviction” exists
where “(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, and (ii) the judge
has ordered some form of punishment, penalty, or restraint on the
alien’s liberty to be imposed”. Again, this definition mirrors
that outlined by the LAU in Matter of M, in which a Texas deferred
adjudication was found to constitute a conviction.
- 20 -
Considering only the text of § 322(a), a Texas deferred
adjudication, see supra note 1, is a “conviction”.6 Under Texas
law, a judge may enter a deferred adjudication “after receiving a
plea of guilty or plea of nolo contendere, hearing the evidence,
and finding that it substantiates the defendant’s guilt”. TEX. CODE
CRIM. P. ART. 42.12 § 5(a). Moosa entered a plea of guilty. The
first prong of § 322(a)’s definition of “conviction” has been met.
The second prong is that some form of punishment or restraint
on liberty is imposed. Texas law provides that, upon finding guilt
and determining that a deferred adjudication would be in the best
interests of the community, the judge may “place the defendant on
community supervision”. TEX. CODE CRIM. P. ART. 42.12 § 5(a). The
judge may also “impose a fine applicable to the offense and require
any reasonable conditions of community supervision”. TEX. CODE CRIM.
P. ART. 42.12 § 5(a). Among other things, Moosa served time in jail
on work release, had to report to a probation officer every month
for the term of his community supervision, and was required to
attend counseling. This was a punishment and a restraint on his
liberty. See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 640
6
In at least one case, a Texas court has recognized that the
new definition of “conviction” has altered the immigration
consequences of a deferred adjudication. Ex parte Silva, 963
S.W.2d 945, 945 (Tex. Ct. App. 1998) (“Due to recent changes in
federal immigration law, the INS now considers Silva’s deferred
adjudication status to be the equivalent of a conviction for the
three counts charged in the indictment”), vacated on other grounds,
968 S.W.2d 367 (Tex. Ct. Crim. App. 1998).
- 21 -
n.11 (1988) (“a fixed term of probation is itself a punishment that
is criminal in nature”).7 Moosa’s deferred adjudication satisfies
the second prong of § 322’s “conviction” definition.
Our conclusion accords with United States v. Campbell, 167
F.3d 94 (2d Cir. 1999), the only other circuit court case we have
found that specifically references § 322, 8 U.S.C. § 1101(a)(48).
In that case, the defendant’s federal sentence was enhanced because
of a Texas conviction that was later “set aside” after the
defendant successfully completed his probation. Id. at 96. In
affirming the enhancement, the Second Circuit first stated that
“[t]he immigration laws contain no ... indication that they are to
be interpreted in accordance with state law”. Id. at 97. After
citing the new IIRIRA § 322, 8 U.S.C. § 1101(a)(48), definition of
“conviction”, the court stated: “No pertinent provision in Title 8
gives controlling effect to state law. And no provision excepts
from this definition a conviction that has been vacated”. Id. at
98 (emphasis added). Although the Second Circuit did not address
the precise issue at hand, its decision evidences a plain language
reading and application of the new definition of “conviction”.
7
Although it is appropriate to look to federal, rather than
state, law to determine this issue, community supervision resulting
from a deferred adjudication is considered “punishment” for
purposes of plea negotiations under Texas law, thus satisfying the
second prong of the definition of “conviction” in § 322(a). See
Watson v. State, 924 S.W.2d 711, 714 (Tex. Ct. Crim. App. 1996)(en
banc)(deferred adjudication is punishment).
- 22 -
Moosa’s deferred adjudication meets each prong of the new
definition of “conviction”. Accordingly, his deferred adjudication
was a conviction for purposes of the immigration laws.
b.
The second question is whether the LAU properly applied this
new definition, which became law in 1996, to Moosa’s 1990 deferred
adjudication. In addressing this issue, the LAU quoted the
language from the Conference Report indicating that § 322 was
designed to clarify Congressional intent. The LAU then stated:
“As Congress evidently considers the holding in Matter of Ozkok to
be incorrect, and has endeavored to clarify its original intent, it
would be inappropriate for the LAU to make a decision today that
deliberately ignored both the law in effect today and Congress’s
apparently long-held view”. The LAU found that “it was Congress’s
intent that the new definition of conviction be applied immediately
and to all criminal proceedings, whether in the past, present, or
future”.
Section 322(c) states unequivocally: “EFFECTIVE DATE.-- The
amendments made by subsection (a) shall apply to convictions and
sentences entered before, on, or after the date of the enactment of
this Act”. (Emphasis added.) The INS asserts that the LAU was
required to apply the law in effect at the time it rendered its
decision. Indeed, the Supreme Court stated in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 226 (1995): “When a new law makes clear
- 23 -
that it is retroactive, an appellate court must apply that law in
reviewing judgments still on appeal that were rendered before the
law was enacted, and must alter the outcome accordingly”. See also
Landgraf v. USI Film Prods., 511 U.S. 244, 264 (1994) (court must
apply law that is effective at time of rendering decision); Elramly
v. INS, 131 F.3d 1284, 1285 (9th Cir. 1997) (quoting Plaut).
Therefore, the LAU was correct in applying the law in effect at the
time of its December 1997 decision (i.e., IIRIRA § 322) if the law
is retroactive.
On the other hand, there is a “presumption against retroactive
legislation [that] is deeply rooted in our jurisprudence”. Hughes
Aircraft Co. v. United States ex rel. Schumer, 117 S. Ct. 1871,
1876 (1997) (quoting Landgraf, 511 U.S. at 265). The Supreme Court
has stated, however, that the principle of applying the law in
effect at the time of the decision does not conflict with the
“presumption against retroactivity when the statute in question is
unambiguous”. Landgraf, 511 U.S. at 273. More recently, the Court
stated that this presumption against retroactivity is applied
“unless Congress has clearly manifested its intent to the
contrary”. Hughes Aircraft, 117 S. Ct. at 1876; see also United
States v. Rocha, 109 F.3d 225, 228 (5th Cir. 1997).
The plain language of § 322(c) leaves no doubt that Congress
intended for the definition in § 322(a) to be applied
retroactively. Congress could not have more clearly expressed this
- 24 -
intent than through its statement that § 322(a) was to apply to
convictions entered before the date of IIRIRA’s enactment. In any
event, Moosa does not contest that the plain language of § 322(c)
mandates retroactive application. Rather, he claims (1) that the
use of “conviction” in § 322(c) with regard to pre-enactment
adjudications requires use of the Ozkok definition; (2) that the
new statutory definition does not eliminate the requirement of
finality; and (3) that applying the new definition to him would
raise retroactivity concerns because it increases his liability for
past conduct.
First, Moosa asserts that § 322(c) requires the use of the
Ozkok test when dealing with adjudications entered before IIRIRA’s
effective date. This contention is based on the following logic:
§ 322(a) applies to him only to the extent that his deferred
adjudication was a “conviction” under the pre-IIRIRA test (i.e.,
Ozkok); and, because his deferred adjudication was not a conviction
under that test, § 322(a) does not apply to him at all.
Moosa’s argument makes no sense. He would have us hold that
Congress created a new definition of “conviction” in § 322(a), but
expected courts and the INS to apply the old definition with regard
to § 322(c). Moosa’s interpretation of § 322(c) would read its
retroactivity provision out of the statute.
Further, § 322(c) states that § 322(a) applies to
“convictions” entered before the effective date of IIRIRA. In
- 25 -
interpreting a statute, it is presumed that words used in the same
statute have the same meaning. United States National Bank of
Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439,
460 (1993); Commissioner v. Keystone Consolidated Indus., Inc., 508
U.S. 152, 159 (1993) (“It is a normal rule of statutory
construction that identical words used in different parts of the
same act are intended to have the same meaning”) (internal
quotations omitted). Here, we are construing the word “conviction”
as contained not only in the same statute, but in the same section.
Accordingly, in light of this presumption, and applying the most
logical reading of the plain language of § 322 in its entirety, we
conclude that the word “conviction” means the same in § 322(c) as
it does in § 322(a). The LAU properly applied the new definition
to Moosa’s deferred adjudication.
Moosa makes an even weaker argument in asserting that § 322(c)
requires a conviction and a sentence in order for it to apply, and
that, under Texas law, there can be no “sentence” for a deferred
adjudication. First, we do not read § 322(c) to require both a
conviction and a sentence. Instead, § 322(c) states that it “shall
apply to convictions and sentences”. This indicates that § 322(c)
applies to both convictions and sentences; we do not read it as
requiring both a conviction and a sentence. Finally, Moosa errs in
using Texas law to interpret the meaning of “sentence” in § 322(c),
because “[i]n the absence of a plain indication to the contrary,
- 26 -
... it is to be assumed when Congress enacts a statute that it does
not intend to make its application dependent on state law”. NLRB
v. Natural Gas Utility Dist., 402 U.S. 600, 603 (1971) (quoting
NLRB v. Randolph Electric Membership Corp. 343 F.2d 60 (4th Cir.
1965)); see also Campbell, 167 F.3d at 98 (citing 8 U.S.C. §
1101(a)(48) and noting that “[n]o pertinent provision in Title 8
gives controlling effect to state law”). Although not controlling,
we note that our court has found Texas deferred adjudications to be
“sentences” under the federal Sentencing Guidelines. United States
v. Valdez-Valdez, 143 F.3d 196, 201 (5th Cir. 1998); United States
v. Giraldo-Lara, 919 F.2d 19, 22 (5th Cir. 1990).
Next, Moosa claims that the new statutory definition of
“conviction” does not eliminate the requirement of finality, which,
ever since the Supreme Court’s decision in Pino, has been used as
an additional requirement for the definition of “conviction”, as
discussed supra. See, e.g., White, 17 F.3d at 479; Martinez-
Montoya, 904 F.2d at 1025; Ozkok, 19 I&N at 553 n.7.
In support of this proposition, Moosa cites Wilson, 43 F.3d at
215, in which our court stated that “the decision of the BIA to
apply a federal conviction standard in Ozkok does not infringe at
all, either explicitly or implicitly, upon the Supreme Court’s
holding in Pino”. Again, it is important to note that, prior to
the enactment of IIRIRA § 322(a), there was no definition of
“conviction” in the immigration laws. See Will v. INS, 447 F.2d
- 27 -
529, 531 (7th Cir. 1971) (“The parties have not cited, nor have we
found, anything of significance in the legislative history of the
[INA] casting light on the precise concept Congress sought to
embody by the use of the term ‘convicted’ in Section 241(a)(11)”).
Thus, courts were called upon to discern the meaning intended
by Congress. Indeed, in Pino, the Court stated that the
“conviction [had not] attained such finality as to support an order
of deportation within the contemplation of § 241 of the Immigration
and Nationality Act”. Pino, 349 U.S. at 901 (emphasis added).
Therefore, Pino, the case from which our court and others drew the
finality requirement, was interpreting the then-undefined term
“conviction” in the immigration laws. See Will, 447 F.2d at 531
(“[I]t appears clear that the Supreme Court’s decision in Pino ...
and from past administrative interpretation that [INA § 241(a)(11)]
contemplates a conviction which has attained a substantial degree
of finality”); In re Punu, Interim Decision (BIA) 3364, 1998 WL
546634 (Aug. 18, 1998)(Grant, Board Member, Concurring) (discussing
why judicially created finality requirement has not survived
IIRIRA).
Now, however, Congress has provided a definition. The
Conference Report, quoted supra, shows that Congress was well aware
of the varying interpretations of “conviction”, but chose to enact
the current definition. Again, our starting point is with the
plain language of the statute. See Uniroyal Chemical Co., Inc. v.
- 28 -
Deltech Corp., 160 F.3d 238, 244 (5th Cir. 1998), opinion modified
on rehearing, 1999 WL 7912 (5th Cir. 1999) (“When the language [of
the statute itself] is plain we must abide it; we may depart from
its meaning only to avoid a result so bizarre that Congress could
not have intended it” (internal quotation omitted)); United States
v. Silva-Chavez, 888 F.2d 1481, 1483 (5th Cir. 1989) (interpreting
words at their plain meaning where Congress explained in
legislative history that words meant exactly what they say); United
States v. Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam) (“In
construing statutes, words are to be given their natural, plain,
ordinary and commonly understood meaning unless it is clear that
some other meaning was intended”).
There is no indication that the finality requirement imposed
by Pino, and this court, prior to 1996, survives the new definition
of “conviction” found in IIRIRA § 322(a). Not only did Congress
omit such a requirement from its definition of “conviction”, but
the legislative history demonstrates that Congress deliberately
eliminated the third prong of the Ozkok test (which appears to
incorporate a finality concept). H.R. Conf. Rep. No. 828, 104th
Cong., 2nd Sess. 1996, 1996 WL 563320 at *496 (“This section
deliberately broadens the scope of the definition of ‘conviction’
beyond that adopted ... in Matter of Ozkok”). More important, the
Conference Report specifically cites deferred adjudications as
being covered by the new definition. H.R. Conf. Rep. No. 828,
- 29 -
104th Cong., 2nd Sess. 1996, 1996 WL 563320 at *497 (“This new
provision, by removing the third prong of Ozkok, clarifies
Congressional intent that even in cases where adjudication is
‘deferred,’ the original finding or confession of guilt is
sufficient to establish a ‘conviction’ for purposes of the
immigration laws”). Earlier judicial interpretations of the term
“conviction” in immigration laws were made without the clear
definition enacted in 1996; finality is no longer a requirement.
See In re Punu, Interim Decision 3364, 1998 WL 546634 (Aug. 18,
1998) (a post-IIRIRA decision in which BIA determined that a Texas
deferred conviction was a “conviction” under § 322, without
applying a finality requirement).8
Next, Moosa asserts that applying the new definition of
“conviction” to him presents retroactivity concerns because it
increases his liability for past conduct. He asserts that he
agreed to the deferred adjudication plea agreement “with an
entirely different understanding of the immigration consequences of
his plea”. This assertion is not borne out by the facts. When
Moosa entered into the plea agreement in January 1990, Martinez-
8
In any event, whether the finality requirement has survived
is a moot issue with regard to Moosa, as he has successfully
completed his deferred adjudication. Approximately five years ago,
Moosa was released from community supervision. According to Texas
law, after community supervision has ended, “the judge shall
dismiss the proceedings against the defendant and discharge him”.
TEX. CODE CRIM. P. ART. 42.12 § 5(c). At this point the proceedings
against Moosa are final and there is no longer a possibility of
appeal from his deferred adjudication.
- 30 -
Montoya had not been issued and Matter of M (a 1989 decision) was
still the law. It was not until July 1990, several months after
Moosa pled guilty, that Martinez-Montoya was decided. In short,
the current definition of conviction is, in fact, the same as the
definition when Moosa pled guilty. In any event, “it is well
settled that Congress has the authority to make past criminal
activity a new ground for deportation”. Ignacio v. INS, 955 F.2d
295, 298 (5th Cir. 1992) (citing Lehman v. United States, 353 U.S.
685, 690 (1957); Mulcahey v. Catalanotte, 353 U.S. 692, 694
(1957)); United States v. Bodre, 948 F.2d 28, 32 (1st Cir. 1991),
cert. denied, 503 U.S. 941 (1992).
Moosa maintains that taking away the finality requirement
would lead to absurd results, such as an alien being deported when
his conviction is on appeal, but the conviction later being
reversed. As discussed, that it not the case here. Be that as it
may, such concerns are more properly addressed to Congress.
Congress has made the policy choice to eliminate the finality
requirement, and we will not second-guess such policy choices
properly made by the legislative branch. See, e.g., Plyler v. Doe,
457 U.S. 202, 237 (1981) (Powell, J., concurring) (Congress has
been “vested by the Constitution with the responsibility of
protecting our borders and legislating with respect to aliens”);
Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“Our cases have long
recognized the power to expel or exclude aliens as a fundamental
- 31 -
sovereign attribute exercised by the Government’s political
departments largely immune from judicial control” (internal
quotation omitted)); Carlson v. Landon, 342 U.S. 524, 534 (1951)
(“So long, however, as aliens fail to obtain and maintain
citizenship by naturalization, they remain subject to the plenary
power of Congress to expel them under the sovereign right to
determine what noncitizens shall be permitted to remain within our
borders”); Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952)
(“Judicially we must tolerate what personally we may regard as a
legislative mistake”); Rodriguez v. INS, 9 F.3d 408, 413 (5th Cir.
1993) (“This Court has recognized Congress’s ‘unbounded power’ in
the area of immigration”); Bright v. Parra, 919 F.2d 31, 34 (5th
Cir. 1990) (Because immigration legislation policy questions are
“entrusted exclusively to the political branches of our Government,
... we have no judicial authority to substitute our political
judgment for that of the Congress” (quoting Fiallo v. Bell, 430
U.S. 787, 798 (1977)).9
9
Our construction of § 322 is in accord with the standard of
review of agency constructions of statutes they are charged with
enforcing. As noted, the first question is whether Congress has
directly spoken to the question at issue. Chevron, 467 U.S. at
842-43. Congress has done so.
Even if we were to assume (as Moosa appears to assert) that
the statute is ambiguous, the next step would be for us to ask
whether the INS’s construction of § 322 is “based on a permissible
construction of the statute”. Id. Based on the plain language of
§ 322 and the strong language in the Conference Report, in which
Congress expressed its intent to change the then-controlling
judicial and agency constructions of “conviction”, the INS’s
- 32 -
In sum, we conclude that the INS is not estopped from denying
Moosa citizenship; IIRIRA eliminated the requirement of finality;
the definition of “conviction” in IIRIRA § 322(a) encompasses Texas
deferred adjudications; the LAU correctly applied IIRIRA § 322(a)
to Moosa; and applying § 322(a) to Moosa did not raise any
retroactivity concerns.
B.
Mr. and Mrs. Moosa also challenge the decision of the BIA
denying suspension of their deportations. The INS contests our
jurisdiction.
Prior to the enactment of IIRIRA, INA § 244, 8 U.S.C.
§1254(a)(1) (now repealed), provided that the Attorney General, “in
[her] discretion”, could suspend the deportation of an otherwise
deportable alien if the alien: (1) had been physically present in
the United States for seven years; (2) was of good moral character;
and (3) “[was] a person whose deportation would, in the opinion of
the Attorney General, result in exceptional and extremely unusual
hardship to the alien or to his spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for
permanent residence”. See also INS v. Jong Ha Wang, 450 U.S. 139,
139-40 (1981) (per curiam). Even if all three factors are met,
construction of § 322 is reasonable.
- 33 -
however, the Attorney General could, in her discretion, deny
suspension. 8 U.S.C. §1254(c) (now repealed).
In reviewing denials based on one of the first two factors, we
upheld the BIA’s decision if it was supported by “substantial
evidence”. Ramos v. INS, 695 F.2d 181, 185 (5th Cir. 1983).
Denials based on a finding of no extreme hardship were reviewed for
abuse of discretion. Id.
IIRIRA established transitional rules that applied to BIA
decisions filed between 31 October 1996 and 31 March 1997. IIRIRA
§ 309(c)(4) (“In the case ... in which a final order of ...
deportation is entered more than 30 days after the date of the
enactment of this Act [30 September 1996], notwithstanding any
provision of section 106 of the [INA] ... to the contrary ... (E)
there shall be no appeal of any discretionary decision under
section ... 244 ... of the [INA]”). Because the BIA decision
denying the Moosas suspension of deportation was entered on 31
October 1996, IIRIRA’s transitional rules apply. See Eyoum v. INS,
125 F.3d 889, 891 (5th Cir. 1997); see also Meguenine v. INS, 139
F.3d 25, 26 (1st Cir. 1998); Pilch v. INS, 129 F.3d 969, 970-71
(7th Cir. 1997) (final deportation orders entered after 30
September 1996 are subject to IIRIRA § 309(c) transitional rules).
Under the transitional rules, INA § 309 precludes judicial review
of “discretionary determinations” whether to suspend deportation
pursuant to INA § 244.
- 34 -
As an initial matter, Moosa asserts that, just because the
BIA’s decision was filed on 31 October 1996 does not mean that it
was “entered” on that date, so the transitional rules do not apply
here. We reject this contention as without merit. Cf. Karimian-
Kaklaki, 997 F.2d 108, 110-11 (5th Cir. 1993); Guirguis v. INS, 993
F.2d 508, 509 (5th Cir. 1993); Ouedraogo v. INS, 864 F.2d 376, 378
(5th Cir. 1989).
At issue is whether the BIA’s decision to deny suspension of
deportation to Mr. and Mrs. Moosa was “discretionary”, thus
precluding our review. The Moosas claimed entitlement to
suspension due to the extreme hardship they would suffer if
deported.
The bases for this claim were: (1) they have community ties
in the United States, including membership in a church; (2) if
deported, Moosa would be unable to provide his daughters with the
financial support to continue their education; (3) Mrs. Moosa
suffers from diabetes and back pain; (4) it would be difficult for
Moosa to find a job in Pakistan and the cost of living there is
very high; (5) drinking water and reliable electricity are not
readily available in Pakistan; and (6) their standard of living in
the United States is better than it would be in Pakistan.
At the deportation hearing, Moosa admitted the factual bases
for the 1990 deferred adjudication; stated that he felt “very
sorry” about his actions; and promised to refrain from such
- 35 -
behavior. On being questioned about complaints filed by six or
seven other children, ranging in age from 10-12, that Moosa had
also molested them, Moosa admitted that he had also “grabbed and
molested” those children, but claimed total rehabilitation. He
also indicated that every molestation had taken place during his
employment at a particular store, but that he had not repeated such
actions since ending his employment there.
With regard to Mr. Moosa, the BIA made it clear that it was
denying his request for suspension based on its discretion.
Although the BIA noted that it did not find that Moosa had proven
extreme hardship, it stated that, even if he had proved all three
required elements, “a favorable exercise of discretion is not
warranted”. Because the BIA was making a discretionary decision,
§ 309 instructs that we do not have jurisdiction. See Kalaw v.
INS, 133 F.3d 1147, 1152 (9th Cir. 1997) (“if the Attorney General
decides that an alien’s application for suspension of deportation
should not be granted as a matter of discretion in addition to any
other grounds asserted, the BIA’s denial of the alien’s application
would be unreviewable under the transitional rules”).
The question with regard to Mrs. Moosa is one of first
impression in this circuit. The BIA found that she satisfied the
first two factors, but that she did not demonstrate that she would
suffer extreme hardship if deported. Thus, at issue is whether
IIRIRA § 309 deprives us of jurisdiction when the BIA bases its
- 36 -
decision to deny suspension on the failure to demonstrate extreme
hardship.
Initially, we note that the power of courts to review
deportation decisions is subject to the will of Congress. As the
Supreme Court stated nearly 50 years ago:
The power to expel aliens, being essentially a
power of the political branches of government,
the legislative and executive, may be
exercised entirely through executive officers,
with such opportunity for judicial review of
their action as congress may see fit to
authorize or permit. This power is, of
course, subject to judicial intervention under
the paramount law of the constitution.
Carlson v. Landon, 342 U.S. 524, 537 (1952) (internal quotations
and citations omitted). See also Lucacela v. Reno, 161 F.3d 1055,
1058 (7th Cir. 1998) (“this court has recognized Congress’ ability
to determine the scope of the court’s review of INS decisions”);
Skutnik v. INS, 128 F.3d 512, 514 (7th Cir. 1997) (“although the
Constitution may require judicial review of a claim of legal
entitlement to remain in the United States, it does not require
review of claims that executive officials should make exceptions to
the rules defining who is legally entitled to reside in the United
States”). Thus, the scope of our review of denials of suspension
of deportation, including whether we are able even to review such
denials, is within the control of Congress.
Although our court has not yet addressed whether we lack
jurisdiction over denials of suspension based on a finding of no
- 37 -
extreme hardship, it has been addressed in both the Seventh and
Ninth Circuits. In Kalaw, the Ninth Circuit addressed the changes
that § 309(c) had made with regard to judicial review of such
denials. Examining each of the three INA § 244 elements, the court
first found that the continuous physical presence element was a
factual inquiry, rather than a discretionary decision, that was
reviewed for substantial evidence; thus, § 309(c) did not divest
the court of its jurisdiction. Kalaw, 133 F.3d at 1151. Next, the
court found that it retained jurisdiction to review findings of bad
moral character under one of the statutory per se categories; but,
that § 309(c) stripped the court of jurisdiction over denials based
on a finding of bad moral character apart from the per se
categories. Id.
Finally, the court addressed denials based on the extreme
hardship element. It stated that a determination that no extreme
hardship exists “is clearly a discretionary act”. Id. at 1152.
The court held that, as a result, “[t]he transitional rules ...
preclude direct judicial review of the BIA’s determinations of the
threshold eligibility requirements of ‘extreme hardship’ and the
discretionary determination of ‘good moral character’”. Id. In
accord with this decision, the Ninth Circuit has found in several
cases that it lacked jurisdiction to review BIA decisions denying
suspension of deportation based on a finding of no extreme
hardship. See Robles v. INS, 161 F.3d 14, 1998 WL 479464 (9th Cir.
- 38 -
1998) (unpublished); Sagrero v. INS, 161 F.3d 14, 1998 WL 479475
(9th Cir. 1998) (unpublished); Perez-Garcia v. INS, 161 F.3d 13,
1998 WL 479470 (9th Cir. 1998) (unpublished); Lee v. INS, 145 F.3d
1339, 1998 WL 276849 (9th Cir. 1998) (unpublished); Sontay v. INS,
142 F.3d 445, 1998 WL 225065 (9th Cir. 1998) (unpublished);
Kechichian v. INS, 141 F.3d 1176, 1998 WL 133183 (9th Cir. 1998)
(unpublished).
Likewise, in Skutnik, the Seventh Circuit stated that, where
the petitioner requested review of a BIA decision based on extreme
hardship, “there can be no doubt that [the petitioner] wants review
of a ‘discretionary decision’”. Skutnik, 128 F.3d at 514.
However, because the alien in Skutnik conceded at oral argument
that IIRIRA precluded judicial review of the BIA’s decision, the
court stated that it “need not confront any of the interpretive
issues that lurk beneath its surface”. Id.
We join our sister circuits in holding that denials of
suspension based on the INS § 244 element of “extreme hardship” are
discretionary decisions, which IIRIRA § 309(c) precludes us from
reviewing. This determination is based not only on the above
decisions from other circuits, but also on Supreme Court precedent.
In Jong Ha Wang, 450 U.S. at 144, the Court stated:
The crucial question in this case is what
constitutes “extreme hardship.” These words
are not self-explanatory, and reasonable men
could easily differ as to their construction.
But the Act commits their definition in the
first instance to the Attorney General and his
- 39 -
delegates, and their construction and
application of this standard should not be
overturned by a reviewing court simply because
it may prefer another interpretation of the
statute.
See also INS v. Phinpathya, 464 U.S. 183, 195 (1984) (“In INS v.
Jong Ha Wang, we rejected a relaxed standard for evaluating the
‘extreme hardship’ requirement as impermissibly shifting
discretionary authority from INS to the courts” (emphasis added)).
Thus, the Supreme Court has indicated that determinations of
extreme hardship are discretionary. Finally, our court formerly
routinely reviewed BIA decisions based on the “extreme hardship”
element under an abuse of discretion standard, further indicating
that such determinations are discretionary. Ramos, 695 F.2d at
184-85 (“The decision whether to suspend the deportation of an
alien who satisfies the three [§ 1254] requirements is ...
discretionary ...”).
In sum, because the BIA based its denial of Mr. Moosa’s
application for suspension on its discretion to do so, IIRIRA
§ 309(c) precludes our review of that decision. Likewise, because
denials of applications of suspension based on the “extreme
hardship” element of INA § 244 are discretionary, we also lack
jurisdiction to review the decision concerning Mrs. Moosa.
III.
For the foregoing reasons, the petition challenging the
decision of the LAU denying Moosa permanent residency and
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terminating his temporary residency is DENIED; the challenges to
the BIA’s decision denying the suspension of deportation for Mr.
and Mrs. Moosa is DISMISSED for lack of jurisdiction.
DENIED IN PART; DISMISSED IN PART
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