Pulice v. INS ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0198P (6th Cir.)
File Name: 00a0198p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

GIUSEPPE PETER PULICE,

Petitioner,


No. 98-4497
v.

>
IMMIGRATION AND 

Respondent. 
NATURALIZATION SERVICE,

1
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A19 681 578.
Submitted: April 26, 2000
Decided and Filed: June 13, 2000
Before: RYAN and BOGGS, Circuit Judges; DUGGAN,
District Judge.*
*
The Honorable Patrick J. Duggan, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
2 Pulice v. INS No. 98-4497
_________________
COUNSEL
ON BRIEF: David W. Leopold, DAVID WOLFE
LEOPOLD & ASSOCIATES, Cleveland, Ohio, for Petitioner.
Michelle R. Slack, Richard M. Evans, U.S. DEPARTMENT
OF JUSTICE, OFFICE OF LITIGATION, Washington, D.C.,
for Respondent.
_________________
OPINION
_________________
PATRICK J. DUGGAN, District Judge. Petitioner
Giuseppe Peter Pulice seeks review of the Board of
Immigration Appeals’s final order of deportation. For the
reasons set forth below, we conclude that this Court lacks
jurisdiction over Petitioner’s claims and, therefore, the
petition for review must be dismissed.
Background
Petitioner, a native and citizen of Italy, has been a lawful
permanent resident of the United States since February 13,
1970. On May 21, 1996, Petitioner pled guilty to possession
with intent to distribute marijuana in violation of 21 U.S.C.
§ 841(a)(1). On August 9, 1996, the INS instituted
deportation proceedings against Petitioner, charging him with
deportability under sections 241(a)(2)(A)(iii) and
241(a)(2)(B) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1251(a)(2)(A)(iii) & (a)(2)(B). The Immigration
Judge found Petitioner deportable under the INA.1
During his deportation proceedings, Petitioner requested the
opportunity to pursue a waiver of deportation under section
1
Petitioner does not contest the Immigration Judge’s finding of
deportability.
No. 98-4497 Pulice v. INS 3
212(c) of the INA, 8 U.S.C. § 1182(c). The Immigration
Judge, however, found Petitioner statutorily ineligible for a
waiver of deportation under section 212(c).2 Petitioner
appealed to the Board of Immigration Appeals (“BIA”). The
BIA, finding Petitioner statutorily ineligible for relief under
section 212(c), dismissed the appeal. A final order of
deportation was entered on November 17, 1998.
On December 15, 1998, Petitioner filed a petition for
review of the BIA’s final order of deportation and a stay
of deportation pending review in this Court.3 On June 25,
1999, while his petition for review was still pending in this
Court, Petitioner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in the United States District
Court for the Northern District of Ohio, also challenging the
BIA’s final order of deportation.
Discussion
Prior to the enactment of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), direct review of a
final order of deportation was available in the circuit courts
pursuant to 8 U.S.C. § 1105a (1994). The AEDPA, however,
amended § 1105a to provide that:
Any final order of deportation against an alien who is
deportable by reason of having committed a criminal
offense covered in [INA] section 241(a)(2)(A)(iii), (B),
(C), or (D), or any offense covered by [INA] section
241(a)(2)(A)(ii) for which both predicate offenses are
2
Section 212(c) was amended by section 440(d) of the Antiterrorism
and Effective Death Penalty Act of 1996, 110 Stat. 1214 (Apr. 24, 1996),
such that aliens convicted of certain offenses, including those for which
Petitioner was convicted, were precluded from seeking a waiver of
deportation.
3
On February 26, 1999, the Court denied Petitioner’s motion to stay
deportation pending review.
4 Pulice v. INS No. 98-4497 No. 98-4497 Pulice v. INS 5
covered by [INA] section 241(a)(2)(A)(i), shall not be IIRIRA § 309(c)(4)(G), 110 Stat. 3009-626 (1996) (codified
subject to review by any court. at 8 U.S.C. § 1101(c)(4)(G)) (emphasis added).
AEDPA § 440(a)(10), 110 Stat. 1276-77 (1996) (codified at Petitioner, who was found deportable under sections
8 U.S.C. § 1105a (1996)) (emphasis added). 241(a)(2)(A)(iii) and 241(a)(2)(B) of the INA, falls squarely
within these provisions. As such, this Court lacks jurisdiction
The Illegal Immigration Reform and Immigrant over Petitioner’s claims. See Mansour v. Immigration &
Responsibility Act of 1996 (“IIRIRA”), enacted in September Naturalization Serv., 123 F.3d 423 (6th Cir. 1997) (upholding
of 1996, further altered the INA’s judicial review structure by provisions of AEDPA and IIRIRA in face of constitutional
repealing § 1105a and establishing a set of permanent and challenges under the Suspension Clause, Due Process Clause,
transitional provisions. Of particular importance to the case and separation of power principles of Article III, and
sub judice is section 309(c)(4)(G) of the IIRIRA, a dismissing petition for review for lack of jurisdiction).
transitional provision that limits an alien’s right to appeal a
final deportation order that was 4 based upon the alien’s Petitioner does not challenge this Court’s prior decision in
conviction of certain offenses. Specifically, section Mansour that direct appeal to the circuit courts is no longer
309(c)(4)(G) of the IIRIRA provides that in all cases for available for aliens convicted of certain criminal offenses.
which a final order of deportation was entered more than Instead, Petitioner seeks what essentially amounts to an
thirty days after the IIRIRA’s enactment date of September advisory opinion from this Court that the foregoing
30, 1996: amendments do not eliminate habeas corpus review for such
aliens. Petitioner’s arguments, however, are moot in light of
[T]here shall be no appeal permitted in the case of an this Court’s recent decision in Pak v. Reno, 196 F.3d 666, 673
alien who is inadmissible or deportable by reason of (6th Cir. 1999), in which this Court specifically held that
having committed a criminal offense covered in section “habeas corpus jurisdiction under § 2241 for criminal aliens
212(a)(2) or section 241(a)(2)(A)(iii), (B), (C), or (D) of whose petitions fall within the purview of IIRIRA’s
the Immigration and Nationality Act (as in effect as of transitional rules survives enactment of AEDPA as modified
the date of the enactment of this Act), or any offense by IIRIRA’s transitional rules.” Petitioner is free to pursue
covered by section 241(a)(2)(A)(ii) of such Act (as in his claims on habeas review in the district court.
effect on such date) for which both predicate offenses
are, without regard to their date of commission, Conclusion
otherwise covered by section 241(a)(2)(A)(i) of such Act
(as so in effect).5 Pursuant to § 440(a)(10) of the AEDPA and § 309(c)(4)(G)
of the IIRIRA, the petition for review is DISMISSED for
lack of jurisdiction.
4
The IIRIRA’s transitional rules apply to all deportation proceedings
that were initiated before the IIRIRA’s effective date of April 1, 1997.
Petitioner concedes that his claims are governed by the IIRIRA’s
transitional provisions because his deportation proceedings were initiated
on August 9, 1996.
5
Petitioner’s final order of deportation was entered on November 17,
1998.