Mancha-Chairez v. Reno ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-60157
_____________________
JUAN ALONSO MANCHA-CHAIREZ,
Petitioner,
versus
JANET RENO, Attorney General,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
USDC No. A34-690-070
_________________________________________________________________
June 27, 2000
Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Juan Mancha-Chairez has been a lawful permanent resident in
the United States since 1975. In 1988, he pled guilty to marijuana
possession in Texas state court. In 1997, he again pled guilty to
marijuana possession, this time in federal court. The Immigration
and Naturalization Service (the “INS”) began deportation
proceedings against him in 1998, on the grounds that he had been
convicted of a controlled substance offense. At the hearing,
Mancha-Chairez conceded that he was removable, but he petitioned
the court for discretionary relief under 8 U.S.C. § 1229b. The
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
immigration judge determined that Mancha-Chairez merited this
relief, but the Board of Immigration Appeals later reversed.
Mancha-Chairez then filed a timely appeal to this court. For the
reasons stated herein, we conclude that we lack jurisdiction to
review this judgment and therefore dismiss the appeal.
I
Mancha-Chairez was admitted to the U.S. as a lawful permanent
resident in 1975. He is now 44 years old. In 1988, he pled guilty
in Texas state court to a charge of unlawful possession of
marijuana. At the time, Texas law qualified this offense as a
third degree felony. The trial court deferred adjudication of
Mancha-Chairez’s guilt and placed him on five years’ probation.
Though he completed this term without incident, the charge against
Mancha-Chairez was never dismissed because he failed to pay court
costs assessed against him.
In 1997, Mancha-Chairez again pled guilty to marijuana
possession, this time in federal court. The district court granted
a downward departure based on Mancha-Chairez’s diminished mental
faculties and sentenced him to six months’ home confinement and six
months of probation.
In the spring of 1998, however, the INS began deportation
proceedings against Mancha-Chairez. It charged him with
deportability for having been convicted of a controlled substance
offense. At the hearing, Mancha-Chairez conceded that he was an
alien and removable because of his federal marijuana possession
2
conviction. But he petitioned the court for cancellation of
removal under the discretionary relief provisions of 8 U.S.C.
§ 1229b. The INS opposed his request, arguing that his federal
drug possession conviction qualified as an “aggravated felony,”
making him ineligible for relief. Though normally a misdemeanor,
simple possession is punishable as a felony under 21 U.S.C.
§ 844(a) if the defendant has a prior drug trafficking conviction.
According to the INS, because Mancha-Chairez had a state court
conviction of a drug trafficking offense, his federal offense of
simple possession amounted to a felony because it was punishable by
up to two years, regardless of his actual sentence. And because
this felony, drug possession, was analogous to a drug trafficking
crime, it qualified as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43). This provision made Mancha-Chairez ineligible for
cancellation of removal. The immigration judge ruled, however,
that discretionary relief was warranted and canceled removal.
The INS appealed this ruling to the Board of Immigration
Appeals. The Board, however, accepted the INS’ argument that
Mancha-Chairez was ineligible for discretionary relief and reversed
the immigration judge’s ruling.
Mancha-Chairez then filed a timely appeal with this court.
The INS opposes, contending that we lack jurisdiction to review the
Board’s determination under both 8 U.S.C. § 1252(a)(2)(C) and
§ 1252(a)(2)(B)(i).
II
3
Mancha-Chairez sought to cancel removal under 8 U.S.C.
§ 1229b(a).1 The Board ruled that Mancha-Chairez had been
convicted of what amounted to an aggravated felony, and therefore
rejected his request. The threshold question before us, therefore,
is whether such a judgment is reviewable in federal court.
We do not believe it is. Federal law specifically prohibits
us from conducting the review that Mancha-Chairez seeks:
(2) Matters not subject to judicial review . . .
(B) Denials of discretionary relief
Notwithstanding any other provision of law, no
court shall have jurisdiction to review--
(i) any judgment regarding the granting of
relief under section 1182(h), 1182(i),
1229b, 1229c, or 1255 of this title.
8 U.S.C. § 1252(a) (emphasis added).2 We have before us a “denial
of discretionary relief” that involved a “judgment regarding the
granting of relief under section 1229b.”
1
This provision provides:
Cancellation of removal for certain permanent residents
The Attorney General may cancel removal in the case of
an alien who is inadmissible or deportable from the
United States if the alien--
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for
7 years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
2
The INS instituted removal proceedings on May 25, 1998.
Because the permanent provisions of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 apply to proceedings
commenced on or after April 1, 1997, we apply those permanent
provisions to the case before us.
4
Some commentators have suggested this provision should be
construed narrowly, to block judicial review only in cases where
the Board has actually “granted” relief. See, e.g., Lenni B.
Benson, The New World of Judicial Review of Removal Orders, 12 Geo.
Immig. L. J. 233, 241 (1998). We disagree. First, to read the
statute in this way would ignore the heading “Denials of
discretionary relief.” Second, the statute refers to “judgments
regarding the granting of relief,” not “judgments granting relief.”
Both these aspects of the statute force us to reject the proposed
narrow construction. We hold, therefore, that this provision
forestalls any judicial review of Board judgments, regardless of
the conclusion reached.3
Because we reach this result, we need not address the INS’
arguments concerning 8 U.S.C. § 1252(a)(2)(C) or the merits of
Mancha-Chairez’s appeal.
III
For the reasons stated herein, the appeal is
D I S M I S S E D.
Respondent’s Motion To Dismiss Petition for Review for lack of
jurisdiction is denied as moot.
3
We state no opinion here as to the availability of habeas
corpus relief.
5