Lara-Ruiz, Ricardo v. INS ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2868
RICARDO LARA-RUIZ,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
No. A17-761-237
Argued October 26, 2000--Decided March 6, 2001
Before Bauer, Posner, and Ripple, Circuit Judges.
Bauer, Circuit Judge. Ricardo Lara-Ruiz ("Lara-
Ruiz") appeals the decision of the Board of
Immigration Appeals ("BIA") which found him
removable from the United States for committing
the "aggravated felony" of "sexual abuse of a
minor," and statutorily ineligible for
discretionary relief from removal. Lara-Ruiz
argues that he did not commit sexual abuse of a
minor under 8 U.S.C. sec. 1101(a) (43)(A), and
that the application of the recently enacted
provisions of the Immigration and Nationality Act
("INA") adding sexual abuse of a minor to the
list of aggravated felonies and making Lara-Ruiz
ineligible to apply for relief from removal
violated his rights to due process and equal
protection. We find that Lara-Ruiz did commit
sexual abuse of a minor and that he fails to
raise any substantial constitutional claims.
Therefore, we dismiss his appeal for lack of
subject matter jurisdiction.
BACKGROUND
Lara-Ruiz is a Mexican national who was granted
lawful permanent residence in the United States
in 1967. In 1994, he was convicted of sexual
assault under Ill.Rev. Stat. 1991, ch. 38, para.para.
12-13(a)(1) and sec. 12-13(a)(2). Section 12-
13(a)(1) defines "sexual assault" as
"commit[ting] an act of sexual penetration by the
use of force or threat of force," and sec. 12-
13(a)(2) defines it as "commit[ting] an act of
sexual penetration and the accused knew that the
victim was unable to understand the nature of the
act or was unable to give knowing consent." The
record indicates that Lara-Ruiz’ victim was a
four-year-old girl.
On December 14, 1998, the Immigration and
Nationalization Service ("INS") issued a Notice
to Appear placing Lara-Ruiz in removal
proceedings. The INS charged him as removable
because he had been convicted of an aggravated
felony under INA sec. 237(a)(2)(A)(iii), codified
at 8 U.S.C. sec. 1227(a)(2)(A)(iii).
Specifically, the INS charged him with committing
sexual abuse of a minor, which is an aggravated
felony under sec. 101(a)(43)(A) of the INA,
codified at 8 U.S.C. sec. 1101(a)(43)(A).
On February 10, 1999, Lara-Ruiz attended a
hearing before an Immigration Judge ("IJ"),
during which he conceded alienage but denied
removability. The IJ found him removable as
charged. The IJ also concluded that because Lara-
Ruiz was an alien convicted of an aggravated
felony, he was statutorily ineligible for
discretionary cancellation of removal under 8
U.S.C. sec. 1229b(a)(3), and that he "d[id] not
appear to be entitled to any other relief from
removal." Lara-Ruiz appealed to the BIA, arguing
that his Illinois convictions for sexual assault
did not constitute sexual abuse of a minor and
that the application of amendments to the INA
which classified sexual abuse of a minor as an
aggravated felony and removed his eligibility to
apply for discretionary relief from removal was
impermissibly retroactive, and therefore violated
his due process rights. The BIA dismissed his
appeal, finding that his Illinois convictions
counted as sexual abuse of a minor, and declined
to address his constitutional claim.
Lara-Ruiz appeals the BIA’s decision,
reasserting the arguments that he made before the
BIA, and adding the contention that sec. 212(h)
of the INA violates his rights to equal
protection under the Due Process Clause of the
Fifth Amendment by making lawful permanent
resident aliens who commit aggravated felonies
statutorily ineligible to receive a waiver of
inadmissibility, while leaving illegal aliens who
commit the same offenses eligible to apply for
such relief. The INS argues that we lack
jurisdiction to hear the appeal because Lara-Ruiz
is an alien who has been ordered removed as an
"aggravated felon" and because his constitutional
claims are meritless.
DISCUSSION
A. Jurisdiction
As a preliminary matter, the government argues
that sec. 1242(a)(2)(c) of the INA, codified at
8 U.S.C. sec. 1252(a)(2) (C), strips us of
jurisdiction to hear Lara-Ruiz’ claims. That
section provides:
Notwithstanding any other provision of law, no
court shall have jurisdiction to review any final
order of removal against an alien who is
removable by reason of having committed a
criminal offense covered in section 1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C), or (D) of this
title, or any offense covered by section
1227(a)(2) (A)(ii) of this title for which both
predicate offenses are, without regard to their
date of commission, otherwise covered by section
1227(a)(2)(A)(i) of this title.
8 U.S.C. sec. 1252(a)(2)(C).
Section 1227(a)(2)(A)(iii) provides that "[a]ny
alien who is convicted of an aggravated felony at
any time after admission is deportable."
Therefore, sec. 1252(a)(2)(C) generally
eliminates our jurisdiction to review any final
order of deportation against an alien convicted
of an aggravated felony. However, we retain
jurisdiction to determine whether we have
jurisdiction--that is, to determine whether an
alien’s criminal conviction is indeed an
"aggravated felony" under the INA, thereby
triggering the jurisdictional bar of sec.
1252(a)(2)(C). See, e.g., Xiong v. INS, 173 F.3d
601, 604 (7th Cir. 1999); Yang v. INS, 109 F.3d
1185, 1192 (7th Cir. 1997). Moreover, in
addressing a similar jurisdictional bar announced
in an earlier enacted amendment to the INA, we
have held that an alien may challenge his
deportability on constitutional grounds directly
in the courts of appeals, provided that he raises
a substantial constitutional claim. See Morales-
Ramirez v. Reno, 209 F.3d 977, 980 (7th Cir.
2000); Singh v. Reno, 182 F.3d 504, 509 (7th Cir.
1999); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th
Cir. 1998). Thus, while we honor Congress’ intent
to curtail judicial review of final deportation
orders for certain disfavored criminals, we have
retained jurisdiction over any substantial
constitutional claims raised as a "safety valve"
to prevent "bizarre miscarriages of justice." See
LaGuerre, 164 F.3d at 1040. However, we have
recognized that such direct review of
constitutional claims is an "exceptional
procedure," see Singh, 182 F.3d at 510, which is
available only when the alien raises substantial
constitutional claims. See Moralez-Ramirez, 209
F.3d at 981. Thus, in addressing Lara-Ruiz’
appeal, we must first determine whether the BIA
correctly concluded that Lara-Ruiz was "an alien
deportable by reason of having committed an
aggravated felony." If we answer that question in
the affirmative, we must then consider whether
Lara-Ruiz has nevertheless raised substantial
constitutional claims, and we may assert
jurisdiction over Lara-Ruiz’ claims only if we
find that he has./1 As both of these inquiries
are jurisdictional in nature, we review them de
novo. See, e.g., Solorzano-Patlan v. INS, 207
F.3d 869, 872 (7th Cir. 2000).
B. Sexual abuse of a minor
Lara-Ruiz argues that he is not deportable
because his state conviction for sexual assault
does not constitute the aggravated felony of
sexual abuse of a minor under sec. 101(a)(43)(A).
He notes that the crime "sexual abuse of a minor"
is defined at 18 U.S.C. sec. 2243(a) as knowingly
engaging in a sex act with a person who is at
least 12 but not yet 16, and who is at least four
years younger than the offender. He argues that
the BIA was obligated to use sec. 2243’s
definition of "sexual abuse of a minor," since
this is the only definition of that exact phrase
contained in the U.S. Code. Because Lara-Ruiz’
victim was not between the ages of 12 and 16, he
maintains that he did not commit "sexual abuse of
a minor." He also notes that the principle of
lenity, which is applicable to deportation
proceedings, see INS v. Cardoza-Fonseca, 480 U.S.
421, 449 (1987), requires us to construe sec.
101(a)(43)(A) narrowly and to resolve all matters
of doubt as to its interpretation in his favor.
He contends that the BIA violated this principle
when it found that he had committed sexual abuse
of a minor. We are not persuaded./2
The phrase "sexual abuse of a minor" is not
defined in sec. 101(a)(43)(A), either expressly
or by reference to any other statutory provision.
In attempting to determine its meaning, the BIA
began by noting that it was not obliged to adopt
any particular federal or state statutory
definition as controlling. However, the BIA went
on to note that, since removal proceedings are a
matter of federal law, "it is useful to look at
federal definitions in determining the meaning of
the language used by Congress." With this
principle in mind, the BIA turned to consider two
federal statutory provisions which it deemed
relevant. Specifically, the BIA considered 18
U.S.C. sec. 2241(c), which provides that
"[whoever] . . . knowingly engages in a sexual
act with another person who has not attained the
age of 12 years" has committed the offense of
aggravated sexual abuse, and 18 U.S.C. sec.
2246(2)(A), which defines "sexual act" as
including contact between the male and female
genitals. The BIA ruled that conduct which fell
within the meaning of these two statutory
provisions would constitute sexual abuse of a
minor under sec. 101(a)(43)(A). The BIA then
considered the "conviction documents"/3 relating
to Lara-Ruiz’ Illinois sexual assault
convictions--which established that Lara-Ruiz had
intentionally performed a sexual act upon a four-
year-old child in that he had initiated the
contact of his genitals with the genitals of the
victim--and concluded that these actions fell
within the ambit of 18 U.S.C. sec.sec. 2241(c)
and 2246(2)(A), and therefore counted as the
aggravated felony of "sexual abuse of a minor."
We find the BIA’s definition of sexual abuse of
a minor to be a reasonable construction. In
construing a statute, we start by looking to the
plain language, giving the words used their
ordinary meaning. See Pioneer Inv. Services Co.
v. Brunswick Assocs., Ltd. Partnership, 507 U.S.
380, 388 (1993); Komorowski v. Townline Mini-Mart
and Restaurant, 162 F.3d 962, 965-66 (7th Cir.
1998). The BIA’s decision referred to various
federal statutory provisions in an attempt to
construct a generic definition of sexual abuse of
a minor which was consistent with the ordinary,
common-sense meaning of that phrase. Cf. Taylor
v. United States, 495 U.S. 575 (1990). The BIA’s
conclusion that a defendant who initiates contact
between his genitals and the genitals of a four-
year-old child engages in sexual abuse of a minor
certainly comports with the ordinary meaning of
that phrase. Indeed, only the most tortured
definition of the phrase would exempt such
conduct from its reach. While there might be room
for doubt as to whether certain kinds of conduct
would count as "sexual abuse of a minor," if the
phrase has any commonly recognized meaning at
all, genital-to-genital contact between an adult
and a four-year-old child is included within that
meaning./4
However, one further point needs to be
addressed. In determining whether Congress
intended the phrase "sexual abuse of a minor" to
include conduct punished under a particular state
statute, we must generally employ a categorical
approach; that is, we consider only whether the
elements of the state offense of which the alien
was convicted--together with the language of the
indictment--constitute sexual abuse of a minor,
rather than whether the alien’s specific conduct
could be characterized as sexual abuse of a
minor. See United States v. Shannon, 110 F.3d
382, 384-85 (7th Cir. 1997). However, in this
case, the BIA looked beyond the Illinois
statutory definition of sexual assault, and
(apparently) beyond the indictment to determine
that Lara-Ruiz had sexually assaulted a minor. It
is likely that the BIA found it necessary to do
this because the statute of conviction did not
list any particular age of the victim or even the
victim’s status as a "minor" as an element of the
offense, and because the indictment for the
offenses of which Lara-Ruiz was ultimately
convicted did not mention the age of the
victim./5 Nevertheless, we find that it was not
improper for the BIA to look beyond the statutory
elements and the charging documents in this case.
First, the statute under which Lara-Ruiz was
convicted would cover conduct that was sexual
abuse of a minor and conduct that was not. In
such circumstances, sentencing courts can look to
the charging document, and if that yields no
clear answer, they can look beyond such documents
(for example, to the criminal complaint),
provided that doing so would not require
evidentiary hearings into contested issues of
fact. See Xiong, 173 F.3d at 605. Further, in his
brief to the BIA, Lara-Ruiz stated that he
admitted before the state court that he fondled
a four-year-old girl, and that he was convicted
of the "Illinois version of ’statutory rape.’" In
addition, he has not contested either the BIA’s
or the INS’ assertion that his victim was four
years old. Finally, several of his arguments to
this Court are premised on the fact that his
victim was a very young child./6 Therefore,
looking beyond the statutes of conviction and the
related indictments in this case would not
require an evidentiary hearing into any contested
issue of fact, and we find that it was proper for
the BIA to do so./7
Lara-Ruiz further argues that the BIA was
obligated to define sexual abuse of a minor by
reference to sec. 2243, because that section (and
only that section) defines the crime of "sexual
abuse of a minor." However, those of our sister
circuits that have addressed this argument have
rejected it, and with good reason. See United
States v. Zavala-Sustaita, 214 F.3d 601, 606 n.8
(5th Cir. 2000); cf. United States v. Baron-
Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).
Congress did not define sexual abuse of a minor
by expressly referencing any other provision of
the U.S. Code, as it did with respect to other
terms in sec. 101(a) (43). See, e.g, 8 U.S.C.
sec. 1101(a)(43)(B), (C), (D), (E), (F), (H),
(I), (J), (K), (L), (M), (N), (O) & (P).
Congress’ decision not to limit sec.
1101(a)(43)(A) in a similar fashion is
conspicuous, and it strongly suggests that
Congress intended to give a broad meaning to the
term "sexual abuse of a minor." See Gozlon-Peretz
v. United States, 498 U.S. 395, 404 (1991)
("Where Congress includes particular language in
one section of a statute but omits it in another
section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.") (internal
quotation omitted); Zavala-Sustaita, 214 F.3d at
607. Moreover, since sec. 2243 creates a
substantive federal offense, while sec.
101(a)(43)(A) merely attaches immigration
consequences to criminal acts already committed,
it would have been reasonable for Congress to
intend a broader definition for the latter
provision. See Zavala-Sustaita, 214 F.3d at 606
n.8. Finally, as the BIA noted in In re
Rodriguez-Rodriguez, Interim Dec. No. 3411, 1999
WL 731793 (BIA 1999), "sexual abuse" is defined
more broadly in 18 U.S.C. sec. 3509 than it is in
sec. 2243. This further undermines Lara-Ruiz’
argument because, even if we were to accept his
misguided premise that sec. 101(a)(43)(A)’s
definition of sexual abuse of a minor should be
exhaustively defined by reference to some other
single statutory provision, Lara-Ruiz offers no
good reason why we must refer to sec. 2243 rather
than to sec. 3509. See id. Finally, we reject
Lara-Ruiz’ argument that the rule of lenity
requires a different result. The rule of lenity
directs us to read "ambiguous" statutory
provisions narrowly in favor of the alien in
deportation proceedings. The rule applies only
when "a reasonable doubt persists about a
statute’s intended scope even after resort to the
language and structure, legislative history, and
motivating policies of the statute." Moskal v.
United States, 498 U.S. 103, 108 (1990) (internal
quotations omitted). We find that sec.
101(a)(43)(A) is not ambiguous. By considering
the ordinary meaning of the words, together with
other relevant provisions of the U.S. Code, we
conclude that Congress clearly intended the
phrase sexual abuse of a minor to cover Lara-
Ruiz’ conduct. Therefore, the rule of lenity is
inapplicable here.
Because we find that the BIA’s interpretation
of sec. 101(a) (43)(A) as applied to Lara-Ruiz’
conduct is reasonable and comports with the
ordinary meaning of the language that Congress
used in that section, we agree with the BIA that
Lara-Ruiz committed the aggravated felony of
"sexual abuse of a minor."
C. Retroactivity
At the time of Lara-Ruiz’ convictions in 1994,
sec. 212(c) of the INA gave the Attorney General
discretionary authority to grant waivers of
deportation for equitable reasons to aliens who
had lawfully resided in the United States for at
least seven years. See 8 U.S.C. sec. 1182(c)
(1994); Jideonwo v. INS, 224 F.3d 692, 695 (7th
Cir. 2000) (citation omitted). In 1996, Congress
passed AEDPA, sec. 440(d) of which limited this
authority. Specifically, sec. 440(d) amended sec.
212(c) by making aliens who had been convicted of
"aggravated felonies" ineligible to receive
discretionary waivers of deportation. Congress
subsequently repealed sec. 212(c) and replaced it
with a new form of discretionary relief called
"cancellation of removal," see IIRIRA sec.
304(a), codified at 8 U.S.C. sec. 1229b(a). This
new section mirrors AEDPA sec. 440(d) in that it
vests the Attorney General with the discretion to
grant waivers of removal, but renders aliens who
have been convicted of "aggravated felonies"
ineligible to receive such relief. Lara-Ruiz
contends that the BIA violated due process by
applying sec. 440(d) to him, thus making him
ineligible for relief. While he concedes that we
have rejected arguments challenging the
retroactive application of sec. 440(d) to aliens
previously convicted of offenses which were
classified as "aggravated felonies" at the time
of the conviction, see Turkhan v. Perryman, 188
F.3d 814, 828 (7th Cir. 1999); LaGuerre v. INS,
164 F.3d at 1041, he attempts to distinguish his
case on the ground that his offense was not
defined as an aggravated felony at the time that
he was convicted. (Sexual abuse of a minor was
added to the list of "aggravated felonies" in
IIRIRA sec. 321.)
As a preliminary matter, we must clarify a
confusion that pervades Lara-Ruiz’ retroactivity
argument. Lara-Ruiz objects to the application of
AEDPA sec. 440(d) to his case, and both parties
cite cases construing the retroactive application
of sec. 440(d) to situations wherein deportation
proceedings were pending prior to its enactment.
In this case, however, the INS began removal
proceedings against Lara-Ruiz on December 14,
1998, well after the passage of both AEDPA sec.
440(d), and IIRIRA sec. 304(a), 8 U.S.C. sec.
1229(b)(a). IIRIRA, which was passed on September
30, 1996, contained temporary transitional rules
as well as permanent provisions. IIRIRA sec. 309
set April 1, 1997 as its effective date. The
transitional rules applied during a "phase-in
period ending on IIRIRA’s effective date." See
St. Cyr v. INS, 229 F.3d 406, 422 (2d Cir. 2000)
(Walker, J., dissenting) (citation omitted).
(That is, they applied to aliens placed in
deportation proceedings prior to April 1, 1997
and whose deportation orders became
administratively final on or after October 31,
1996. Cf. Musto v. Perryman, 193 F.3d 888, 890
n.5 (7th Cir. 1999)). Under the transitional
rules, the Attorney General retained the
discretion to grant waivers of deportation under
INA sec. 212(c), as amended by AEDPA sec. 440(d).
However, IIRIRA’s permanent provisions
"repeal[ed] sec. 212(c) altogether and
consolidate[d] prior ’suspension of deportation’
relief and aspects of former sec. 212(c) relief
into a new form of relief"--namely, cancellation
of removal. Richards-Diaz, 233 F.3d at 1163; see
also 8 U.S.C. sec. 1229b(a). Therefore, since
Lara-Ruiz was placed in removal proceedings after
IIRIRA’s effective date, to address his
retroactivity argument we will have to determine
whether sec. 304(a) of IIRIRA applies, thus
barring him from receiving a cancellation of
removal.
As a lawful permanent resident, Lara-Ruiz is
entitled to due process before he may be deported
or removed. See Yang, 109 F.3d at 1196. Applying
a new law retroactively to conduct completed
before its enactment may violate due process if
it "impair[s] rights a party possessed when he
acted, increase[s] a party’s liability for past
conduct, or impose[s] new duties with respect to
transactions already completed." Landgraf v. USI
Film Prods., 511 U.S. 244, 280 (1994). Therefore,
"there is a presumption against retroactive
application of new laws absent a clear
congressional intent that the law should be
applied to past conduct." Jideonwo, 224 F.3d at
697. Landgraf prescribed a method for determining
whether provisions like IIRIRA sec. 304(a) and
AEDPA sec. 440(d) may be applied retroactively to
pending cases. Landgraf, 511 U.S. at 280. First,
we must determine "whether Congress has expressly
prescribed the statute’s proper reach." Id. at
825. If Congress has clearly indicated that the
provision is to be applied either prospectively
or retroactively, then we must apply it as
Congress directed. See Hughes Aircraft Co. v.
United States, 520 U.S. 939, 946 (1997) (ruling
that the presumption against retroactivity
applies "unless Congress has clearly manifested
its intent to the contrary"); Landgraf, 511 U.S.
at 280; see also Reyes-Hernandez v. INS, 89 F.3d
490, 492 (7th Cir. 1996). However, if we are
unable to discern Congress’ intent, then we must
resort to judicial default rules to determine
whether the statute can be applied retroactively.
Specifically, we must ask whether the statute
would have a "retroactive effect" if it were
applied to conduct which occurred prior to its
enactment (that is, whether it would "impair
rights a party possessed when he acted, increase
a party’s liability for past conduct, or impose
new duties with respect to transactions already
completed.") If so, we invoke the judicial
presumption against applying the provision
retroactively.
Under step one of the Landgraf analysis, we
find that Congress clearly intended IIRIRA sec.
304(a) to apply to all removal proceedings
brought after April 1, 1997. Section 309(a)
states that "the amendments made by [IIRIRA
sec.sec. 301-309, which include the repeal of
sec. 212(c) and the enactment of sec. 1229(b)]
shall take effect on [April 1, 1997]." While it
is generally true that "a statement that a
statute will become effective on a certain date
does not even arguably suggest that it has any
application to conduct that occurred at an
earlier date," Landgraf, 511 U.S. at 257, an
examination of IIRIRA sec. 309 reveals that
Congress included more than a mere "effective
date." Rather, Congress enacted a detailed scheme
of both transitional and permanent provisions,
which expressly "made certain provisions
applicable to certain aliens at certain times,
while simultaneously exempting other aliens from
other provisions." See Richards-Diaz v. Fasano,
233 F.3d 1160, 1164 (9th Cir. 2000). (For
example, section 309(a) expressly exempts
sec.sec. 303(b)(2), 306(c), 308(d)(2)(D), and
308(d)(5) from the general effective dates. See
id.) This carefully crafted scheme suggests that
Congress devoted a good deal of thought to the
question of precisely when the various specific
IIRIRA provisions should apply, and the fact that
it took pains to exempt certain provisions from
the general effective date suggests that it
intended that those provisions which were not
expressly exempted--such as the provision
repealing sec. 212(c) relief--should apply to
proceedings brought against an alien on and after
the effective date. We join the Ninth Circuit in
concluding that
[the] legislative scheme of transitional
provisions followed by permanent legislation can
be reduced to one essential point relevant to
IIRIRA’s repeal of sec. 212(c): Congress intended
the whole of IIRIRA’s permanent provisions to
apply to every alien as of April 1, 1997, except
where it expressly exempted those provisions that
were not meant to apply as of that date. The
provision repealing sec. 212(c) was not one of
them.
Richards-Diaz, 233 F.3d at 1164 (quoting St. Cyr,
229 F.3d at 422 (Walker, J., dissenting)).
Our conclusion that sec. 212(c) waivers of
deportation are not available to aliens against
whom removal proceedings are brought after
IIRIRA’s effective date is bolstered by the fact
that "deportation" proceedings can no longer be
brought against an alien after the enactment of
IIRIRA. As we have noted, IIRIRA abandoned the
old scheme which included both exclusion and
deportation in favor of a new unified scheme
which allows only "removal" proceedings.
Therefore, "to apply sec. 212(c)’s ’waiver of
deportation’ relief to an alien subject to an
order of removal under the new provisions would
create an ’awkward statutory patchwork sewn
together . . . from scraps of the IIRIRA and the
former INA.’" Richards-Diaz, 233 F.3d at 1164(quoting St. Cyr., 229 F.3d at 423 (Walker, J.,
dissenting)). We agree with the Ninth Circuit
that "such [a] construction faces insurmountable
hurdles even on a linguistic level." Id. (citing
St. Cyr, id.).
We conclude that the application of IIRIRA sec.
304(a) to Lara-Ruiz’ case would not be
"retroactive." Since the INS brought removal
proceedings against Lara-Ruiz after the effective
date of sec. 304 (a), we need not determine here
whether a statutory provision can be applied to
a deportation or removal proceeding that was
brought before the provision was enacted.
Therefore, cases like Landgraf and its progeny
(e.g. LaGuerre, Reyes-Hernandez), which address
the application of newly enacted rules to pending
cases, are inapposite. In applying sec. 304(a) to
Lara-Ruiz’ case, the BIA applied the law in
effect at the time that it rendered its decision,
and therefore did not violate Lara-Ruiz’ due
process rights. See Angel-Ramos v. Reno, 227 F.3d
942, 948 (7th Cir. 2000) (citing Landgraf, 511
U.S. at 273). Put another way, because his case
was not pending before April 1, 1997, Lara-Ruiz
had no protected interest in retaining the
ability guaranteed by sec. 212(c) to apply for a
discretionary waiver of deportation. Cf. Morales-
Ramirez, 209 F.3d at 983. Therefore, his
"retroactivity" argument raises no substantial
constitutional claim.
Moreover, even if preventing Lara-Ruiz from
applying for a sec. 212(c) waiver could have some
retroactive effect (in that it might attach new
legal consequences to his past crimes), we would
not find such "retroactivity" impermissible in
this case. First, as we have noted, IIRIRA sec.
309 evidences Congress’ clear intent to apply the
bar on cancellation of removal relief (and by
implication, on the now-superseded waiver of
deportation relief as well) to all proceedings
brought after April 1, 1997. Therefore, under
Landgraf, the provision may permissibly be
applied to all such cases, regardless of the date
of the commission of the offense or the
conviction. Second, even if we were to find that
Congress’ intent regarding the application of
IIRIRA sec. 304(a) was ambiguous, Lara-Ruiz
cannot show that applying the rule to his case
has any impermissible "retroactive effect." We
have found such a retroactive effect in the
application of AEDPA sec. 440(d) to pending cases
in two rather limited circumstances: (1) where
the alien has conceded deportability, forgoing a
colorable defense to deportability, in reliance
(at least in part) on the potential availability
of sec. 212(c) relief, see Reyes-Hernandez, 89
F.3d at 493; and (2) where the alien pled guilty
to the underlying criminal offense in reliance
(at least in part) on the availability of sec.
212(c) relief. See Jideonwo, 224 F.3d at 697-701.
Neither scenario confronts us in this case. Lara-
Ruiz contested his removability before the IJ,
and as he conceded at oral argument, he fully
contested the state criminal charges and did not
enter a plea of guilty. He does not argue that
his expectation of the availability of the waiver
in any way influenced his litigation strategy
either in his state criminal proceedings or in
his removal proceedings. Indeed, he does not
argue that he performed any act or gave anything
up in reliance on the potential availability of
a sec. 212(c) waiver. The only relevant prior
conduct that could conceivably have been
influenced by such reliance is his commission of
the crimes, and we have already stated that "it
would border on the absurd" to argue that an
alien would refrain from committing crimes or
would contest criminal charges more vigorously if
he knew that after he had been imprisoned and
deported, a discretionary waiver of deportation
would no longer be available to him. See
LaGuerre, 164 F.3d at 1041. Thus, Lara-Ruiz
cannot seriously maintain that the application of
any rule barring discretionary relief from
removal or deportation would upset his settled
expectations sufficiently to trigger the
presumption against retroactivity./8
D. Equal Protection
Lara-Ruiz argues that, even if we conclude that
he has committed an aggravated felony and is
therefore removable, he should be eligible for a
waiver of inadmissibility under sec. 212(h) of
the INA, 8 U.S.C. sec. 1182(h)(1)(B). That
section allows the attorney general to waive the
application of various subsections of sec. 1182
(which classify certain aliens as ineligible for
admission to the United States for certain
approved equitable reasons.) However, it also
provides that "[n]o waiver shall be granted under
this subsection in the case of an alien who has
previously been admitted to the United States as
an alien lawfully admitted for permanent
residence if . . . since the date of such
admission the alien has been convicted of an
aggravated felony . . ." 8 U.S.C. sec.
1182(h)(2). The BIA has interpreted this latter
provision as barring consideration for sec.
212(h) relief for lawful permanent resident
aliens ("LPRs") who have been convicted of
aggravated felonies while allowing consideration
for such relief for aliens convicted of the same
offenses who have never been admitted as lawful
permanent residents. See In re Michel, Interim
Dec. No. 3335, 1998 WL 40407 (BIA 1998). Lara-
Ruiz contends that this draws an irrational and
unjustifiable distinction between LPRs and
illegal aliens which violates his right to equal
protection under the due process clause of the
Fifth Amendment.
This is a question of first impression in this
circuit./9 We begin our analysis by noting that
our review of decisions made by Congress in the
immigration context is extremely limited, and
that this is particularly true where the
challenged legislation sets criteria for the
admission or expulsion of aliens. "The power to
expel or exclude aliens [is] a fundamental
sovereign attribute exercised by the Government’s
political departments," which is "largely immune
from judicial control." Fiallo v. Bell, 430 U.S.
787, 792 (1977). "Over no conceivable subject is
the legislative power more complete than it is
over the admission of aliens." Id. (Internal
quotations omitted). In exercising its plenary
power in this area, "Congress regularly makes
rules that would be unacceptable if applied to
citizens," Congress’ decisions in this area are
"subject only to narrow judicial review." Id.Therefore, we must uphold federal immigration
legislation which distinguishes between classes
of aliens if there is any "facially legitimate
and bona fide reason for its enactment." See
Turkhan, 188 F.3d at 828 (quotation omitted).
Under this highly deferential standard of review,
if "any reasonably conceivable state of facts" or
any "plausible reason" could provide a rational
basis for Congress’ decision to treat the classes
differently, our inquiry is at an end, see id. at
828-29, and we may not test the justification by
balancing it against the constitutional interest
asserted by those challenging the statute. See
Campos v. INS, 961 F.2d 309, 316 (1st Cir. 1992)
(citing Fiallo, 430 U.S. at 794-95).
We find that a rational basis exists for
Congress’ decision to declare only those
aggravated felons who have previously been
admitted as LPRs ineligible for sec. 212(h)
relief. One of Congress’ purposes in enacting
reforms to the INA through IIRIRA was to expedite
the removal of criminal aliens from the United
States. Eliminating the availability of sec.
212(h) relief for LPR aggravated felons would
eradicate one source of delay that might thwart
this effort. As the INS noted in its brief,
without section 1182(h)(2), an LPR who is
removable as an aggravated felon might apply to
adjust his status, and seek re-"admission" to the
United States as an LPR. If he could demonstrate
that the certain equitable considerations qualify
him for "readmission," then he could be granted
a waiver of inadmissibility, thereby evading
removal. This would subvert Congress’ intention
to make such aliens immediately removable. While
it might have been wiser, fairer, and more
efficacious for Congress to have eliminated sec.
212(h) relief for non-LPR aggravated felons as
well, the step taken by Congress was a rational
first step toward achieving the legitimate goal
of quickly removing aliens who commit certain
serious crimes from the country, and as such it
should be upheld. ("[A] legislature traditionally
has been allowed to take reform ’one step at a
time, addressing itself to the phase of the
problem which seems most acute to the legislative
mind,’ . . . and a legislature need not run the
risk of losing an entire remedial scheme simply
because it failed, through inadvertence or
otherwise, to cover every evil that might
conceivably have been attacked." McDonald v.
Board of Election Comm’rs of Chicago, 394 U.S.
802, 809 (1969) (internal quotations omitted)).
Moreover, LPRs enjoy rights and privileges by
virtue of their status which are not shared by
non-LPRs, and they typically have closer and
longer-standing ties to the United States through
employment and family relationships. Therefore,
Congress may rationally have concluded that LPRs
who commit serious crimes despite these factors
are uniquely poor candidates for relief from
removal through the "backdoor" of waiver of
inadmissibility. As the INS notes, the Purpose
and Summary of the Senate Judiciary Committee on
S. 1664 (ultimately enacted as IIRIRA) states
that
[a]liens who enter or remain in the United States
in violation of our law are effectively taking
immigration opportunities that might otherwise be
extended to others, potential legal immigrants
whose presence would be more consistent with the
judgment of the elected government of this
country about what is in the national interest."
Sen. Jud. Comm. Rep. No. 104-249 (April 10,
1996), 1996 WL 180026 at *7. In banning only LPR
aggravated felons from waiver eligibility,
Congress might well have found it significant
that, unlike non-LPR aggravated felons, such
aliens have already demonstrated that closer ties
to the United States and all of the benefits
attending LPR status were insufficient to deter
them from committing serious crimes. Therefore,
Congress might have reasoned that LPR aggravated
felons were a higher risk for recidivism, and
were generally less deserving of a second chance
than were non-LPR aggravated felons. Congress may
plausibly have concluded that, if one of these
groups should be allowed to apply for a second
chance, it should be the non-LPR aggravated
felons who did not have all of the benefits of
LPR status when they committed their crimes.
Therefore, we find that Lara-Ruiz has failed to
state a substantial equal protection claim.
CONCLUSION
We find that Lara-Ruiz committed the aggravated
felony of sexual abuse of a minor under 8 U.S.C.
sec. 1101(a)(43) (A). We find further that Lara-
Ruiz has failed to state any substantial
constitutional claims in challenging his final
order of deportation. Accordingly, we lack
jurisdiction to hear this appeal under 8 U.S.C.
sec. 1252(a)(2)(C), and Lara-Ruiz’ petition for
review is DISMISSED.
FOOTNOTES
/1 In considering whether Lara-Ruiz has stated
substantial constitutional claims, we need not
assert jurisdiction to hear the claims. Instead,
we merely assert jurisdiction to determine
whether we have jurisdiction to hear his claims.
See Morales-Ramirez, 209 F.3d at 981 n.1
(citations omitted).
/2 Lara-Ruiz also argued that finding aliens who
sexually abuse very young children removable
would be bad immigration policy because the
offenders in such cases are frequently the
victim’s parent, so deporting the offender would
often result in deporting the child victim as
well. We decline to consider this argument
because, while we have jurisdiction to review
final orders of deportation which raise
substantial constitutional issues, we do not have
jurisdiction to review such orders on policy
grounds. Moreover, even if we were to address it,
it strikes us that the child victim would be
deported in such cases only when the abusing
parent retains custody, which might well be the
exception rather than the rule.
/3 It is unclear from the record which documents the
BIA examined. The only documents in the record
which could be described as a "conviction
document" does not mention the age of the victim.
Moreover, the indictments charging Lara-Ruiz with
the offenses of which he was ultimately convicted
charge him with initiating contact between his
penis and the victim’s vagina, but do not mention
the victim’s age. The only charging documents in
the record which do mention her age are the
indictments for several offenses for which Lara-
Ruiz was never convicted. Finally, at another
point in its opinion, the BIA states that the
"record" reflects the age of the victim,
suggesting that it may have looked beyond the
charging and conviction documents to determine
the victim’s age.
/4 In addition, we note that the BIA has recently
interpreted "sexual abuse of a minor" under sec.
101(a)(43)(A) even more broadly than it did in
Lara-Ruiz’ case. See In re Rodriguez-Rodriguez,
Interim Dec. No. 3411, 1999 WL 731793 (BIA 1999)
(interpreting the phrase in reference to 18
U.S.C. sec. 3509(a)(8)’s definition of "sexual
abuse," and 18 U.S.C. sec. 3509(a)(9)(D)’s
definition of "sexually explicit conduct," and
holding that an alien committed sexual abuse of
a minor by intentionally exposing himself to a
child even though he never made physical contact
with the child).
/5 Lara-Ruiz was also charged with violating other
Illinois statutes which criminalized various
forms of sexual conduct with minors, and the
indictments for some of these charges state that
Lara-Ruiz’ victim was under thirteen years of
age. However, for reasons not explained in the
record, Lara-Ruiz was found not guilty of those
charges, so we may not consider the language in
those indictments in determining whether he
committed "sexual abuse of a minor."
/6 For example, he argues that he did not commit
sexual abuse of a minor under sec. 2243 because
his victim was not between the ages of 12 and 16.
Moreover, in urging us to interpret sec. 101(a)
(43)(A)’s definition of sexual abuse of a minor
strictly by reference to sec. 2243 on policy
grounds, he argues that it would be bad
immigration policy to deport aliens guilty of
sexually abusing "very young children," since the
abusers of such children are often parents of the
child victims, and therefore deporting the
offenders would often result in deporting the
child victims as well.
/7 While we do not decide the issue, we note that
had the INS charged Lara-Ruiz as removable for
having committed either of two alternative
"aggravated felonies" under sec. 101(a)(43)--
namely "a crime of violence" under sec.
101(a)(43)(F) or "rape" under sec. 101
(a)(43)(A)--we likely could have found him
removable without looking beyond the statutes of
conviction. However, as the INS charged him as
removable only on the ground that he committed
"sexual abuse of a minor," these issues are not
before us.
/8 Citing Turkhan and LaGuerre, Lara-Ruiz concedes
that he would have no colorable argument against
the "retroactive" application of a provision
eliminating sec. 212(c) relief if his crimes were
deportable offenses at the time he committed
them, but he argues that we should apply a
stricter presumption against retroactivity here
because the offenses of conviction were not
deportable offenses at the time they were
committed. Sexual abuse of a minor was added to
the list of deportable "aggravated felonies" in
IIRIRA sec. 321, which was enacted after Lara-
Ruiz’ conviction. Lara-Ruiz notes that, while it
might be implausible to suppose that an alien who
knows that he faces prison and deportation if
convicted would contest the charges any more
vigorously if he also knew that he would be
unable to apply for a waiver of deportation, the
matter is altogether different if the offense is
not deportable at the time of the charge. In that
case, Lara-Ruiz contends, the alien might be
inclined to plead guilty for convenience sake, in
reliance on the assumption that there would be no
adverse immigration consequences. In short, Lara-
Ruiz argues that changing the immigration
consequences after the plea is unfair "mouse
trapping." We reject this argument for three
reasons. First, it amounts to an attack on the
application of IIRIRA sec. 321 to his case, and
we foreclosed this argument in Xiong. In Xiong,
we noted that sec. 321(c) states that "the
amendments made by this section shall apply to
actions taken on or after the date of the
enactment of this Act, regardless of when the
conviction occurred," and we concluded that
"[a]ctions taken" are "actions and decisions of
the Attorney General acting through an
immigration judge or the BIA." Xiong, 173 F.3d at
607. We ruled that the BIA’s dismissal of Xiong’s
appeal, which occurred after April 1, 1997, was
an "action taken" that triggered the application
of the new definition of "aggravated felony." See
id. Therefore, as Lara-Ruiz’ appeal was dismissed
by the BIA on July 20, 1999, IIRIRA’s new
definition of "aggravated felony," which rendered
sexual abuse of a minor a removable offense,
applies in his case. Second, it has long been
recognized that Congress may deport aliens for
committing crimes which were not deportable
offenses at the time they were committed. See
Marcello v. Bonds, 349 U.S. 302, 314 (1955); Chow
v. INS, 113 F.3d 659, 667 (7th Cir. 1997)
(abrogated on other grounds) (collecting cases).
Finally, we agree with Lara-Ruiz that applying
such rules to aliens who conceded deportability
or pled guilty in reliance on the assumption that
they would not be deported might violate due
process or the presumption against retroactivity
(at least when such rules are applied
retroactively to pending removal proceedings).
However, this is not one of those cases. Lara-
Ruiz contested both the criminal charges and his
removal. He articulates nothing that he did or
refrained from doing in reliance on the
availability of the waiver. The cases forbidding
retroactive application of rules eliminating the
availability of a sec. 212(c) waiver require that
the alien actually relied on the availability of
the waiver. See, e.g., Morales-Ramirez, 209 F.3d
at 982 (citation omitted). Thus, the reliance
principle underlying the presumption against
retroactive application is not implicated here.
/9 We have previously upheld a similar distinction
created under a previous version of the INA,
which made deportable aliens ineligible to apply
for a waiver of deportation, but which left
excludable aliens convicted of the same
aggravated felonies eligible to apply for sec.
212(c) waiver of exclusion. We ruled that such a
distinction was rational because Congress may
have wanted to give alien felons who are already
in this country an extra incentive to leave on
their own initiative and expense, by giving them
the "opportunity to seek a waiver should they
seek to return to the country and by doing so
trigger exclusion proceedings." LaGuerre, 164
F.3d at 1041.