Escalera v. INS

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MANUEL ESCALERA,
Petitioner,
v.
No. 99-9512
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
ORDER
Filed August 1, 2000
Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ELLISON,* Senior District Judge.
This matter is before the court on Respondent’s motion for publication of this
court’s order and judgment filed on May 25, 2000. There was no objection to the motion
and it is granted. A copy of the published opinion is attached.
Entered for the Court
PATRICK FISHER, Clerk of Court
By:
Keith Nelson
Deputy Clerk
*
Honorable James O. Ellison, Senior District Judge, United States District Court
for the Northern District of Oklahoma, sitting by designation.
F I L E D
United States Court of Appeals
Tenth Circuit
MAY 25 2000
PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT
MANUEL ESCALERA,
Petitioner,
v.
No. 99-9512
IMMIGRATION AND
NATURALIZATION SERVICE,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(Agency No. A74 562 236)
Jim Salvator, Lafayette, Colorado, for Petitioner.
David M. McConnell, (David W. Ogden, Acting Assistant Attorney General, Laura A.
Smith and Earle B. Wilson, Attorneys, on the briefs) Office of Immigration Litigation,
Civil Division, Department of Justice, Washington, D.C., for Respondent.
Before BRORBY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ELLISON,* Senior District Judge.
McWILLIAMS, Senior Circuit Judge.
*
Honorable James O. Ellison, Senior District Judge, United States District Court
for the Northern District of Oklahoma, sitting by designation.
This is an immigration case in which Manuel Escalera (“Escalera”), the petitioner,
seeks review of a final deportation order by the Board of Immigration Appeals (“BIA”)
denying his application for suspension of deportation. On October 27, 1997, an
immigration judge found Escalera to be deportable and denied his application for
suspension of deportation. In connection therewith, the immigration judge granted
Escalera voluntary departure, with an alternative order of deportation to Mexico.
Escalera thereafter appealed the decision of the immigration judge to the BIA. On March
19, 1999, the BIA dismissed Escalera’s appeal, thereby affirming the order of the
immigration judge, with one member of the BIA dissenting. Thereafter, on April 19,
1999, Escalera filed in this court a petition to review the BIA’s order.
Escalera is a native and citizen of Mexico. He entered the United States without
inspection at or near San Isidro, California in July, 1989. On October 9, 1996, the
Immigration and Naturalization Service (“INS”) issued an Order to Show Cause charging
Escalera with deportability under the Immigration and Naturalization Act (“INA”) for
having entered the United States without inspection. At his deportation hearing on
January 14, 1997, Escalera conceded his deportability and applied for suspension of
deportation pursuant to the INA (former § 244). As previously stated, a hearing was held
on Escalera’s application for suspension on October 27, 1997, at which time Escalera
testified and offered various documents in support of his application. At the outset of this
hearing the INS stipulated that Escalera had resided in the United States for seven years
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and that he was a person of good moral character. On October 27, 1997, the immigration
judge denied Escalera’s application for suspension of deportation, basing his order on
Escalera’s failure to establish that his deportation would result in “extreme hardship” to
himself or his father, who was a lawful permanent resident of the United States. Escalera
appealed the order of the immigration judge to the BIA, which, on March 19, 1999,
dismissed the appeal and affirmed the immigration judge, granting Escalera the privilege
of voluntary departure. The instant petition for review was then filed in this court.
Section 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, (“IIRIRA”) Pub.L. No. 104-208, 110 Stat. 3009, 3009-626
provides, inter alia, that “there shall be no appeal of any discretionary decision under
section 212(c), 212(h), 212(i), 244 or 245 of the Immigration and Nationality Act (as in
effect as of the date of the enactment of this Act).” The respondent in the present
proceeding in this court, the INS, filed a motion to dismiss Escalera’s petition for lack of
subject matter jurisdiction based on the provisions of IIRIRA.1 IIRIRA was enacted on
September 30, 1996, to become effective on April 1, 1997. IIRIRA, section 309(c)(4)
concerns deportation proceedings that were commenced before April 1, 1997 by
providing, in effect, that its provisions did apply to deportation proceedings commenced
before April 1, 1997, if a final deportation order was filed after October 30, 1996. Such
Ruling on the motion to dismiss was deferred by our order until after briefing on
1
the merits and oral argument.
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fits our case, since deportation proceedings against Escalera were commenced on October
9, 1996, and a final order was not entered by the BIA until March 19, 1999. In this
regard, see Berehe v. INS, 114 F.3d 159, 161 (10th Cir. 1997). In that case we spoke as
follows:
IIRIRA was enacted on September 30, 1996. Although most
of its provisions apply only to proceedings commenced on or
after April 1, 1997, it also adopted transitional rules which
apply in the case of an alien who is in exclusion or
deportation proceedings before IIRIRA’s effective date, April
1, 1997, but the final order of exclusion or deportation is
entered more than thirty days after IIRIRA’s September 30,
1996 date of enactment. See IIRIRA § 309(c)(4). The
transitional rules state in relevant part that, “there shall be no
appeal permitted in the case of an alien who is inadmissable
or deportable by reason of having committed a criminal
offense covered in” the enumerated sections, including
firearm offenses. IIRIRA § 309(c)(4)(G). Because Berehe’s
deportation proceedings commenced before April 1, 1997,
and the final order of deportation was entered after October
30, 1996, the transitional rules apply to Berehe, and preclude
him from filing a petition for review.
Escalera’s counsel concedes that the provisions of IIRIRA apply to the present
case and at oral argument counsel also conceded that under several more or less recent
cases a federal circuit court no longer has jurisdiction to review a “discretionary decision”
of the BIA. Counsel also concedes that a determination by the BIA that one seeking
suspension of a deportation order has not shown “extreme hardship” is a “discretionary
decision.” We agree. See, e.g., Moosa v. INS, 171 F.3d 994, 1012 (5th Cir. 1999)
(holding “that denials of suspension based on the INS § 244 element of ‘extreme
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hardship’ are discretionary decisions, which IIRIRA §309(c) precludes us from
reviewing.”); Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir. 1997)(holding that “[t]he
transitional rules also preclude direct judicial review of the BIA’s determinations of the
threshold eligibility requirements of ‘extreme hardship’ . . .”). See also Skutnik v. INS,
128 F.3d 512, 514 (7th Cir. 1997). In short, we conclude that we have no jurisdiction to
review the decision by the BIA that Escalera failed to show that his deportation would
result in “extreme hardship.”
As we understand it, counsel concedes that under IIRIRA we no longer have
jurisdiction to review the BIA’s decision that Escalera had failed to establish that his
deportation would cause “extreme hardship.” Rather, counsel’s argument in this court is
that Congress’ effort to strip United States Circuit Courts of their former jurisdiction to
review “discretionary decisions” of the BIA violates the due process clause and the
separation of powers provision of the United States Constitution. We are not persuaded.
As the Ninth Circuit stated in Kalaw:
Kalaw also contends that IIRIRA’s attempt to strip this
court of jurisdiction over discretionary decisions of the
Attorney General is unconstitutional because it deprives the
petitioner of his due process rights and violates separation of
powers. We rejected a similar argument in Duldulao v. INS,
90 F.3d 396 (1996), which considered companion legislation
to IIRIRA (the Antiterrorism and Effective Death Penalty Act
of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996).
Duldulao’s logic is equally applicable to IIRIRA’s transitional
rules. A jurisdictional statute, such as the portions of IIRIRA
that are at issue in these cases, “usually takes away no
substantive right but simply changes the tribunal that is to
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hear the case.” Landgraf, 511 U.S. at 274, 114 S.Ct. at 1502
(quoting Hallowell v. Commons, 239 U.S. 506, 508, 36 S.Ct.
202, 203, 60 L.Ed. 409 (1916). (Emphasis added.)
Kalaw, 133 F.3d at 1152.
In this regard, the Seventh Circuit in Skutnik v. INS, 128 F.3d 512 (7th Cir. 1997)
rejected an alien’s claim that he had a “due process” right to judicial review of a decision
by the BIA denying his application for suspension of deportation based on a claim of
“extreme hardship.”
Further, we fail to see any present applicability of Turri v. INS, 997 F.2d 1306(10th Cir. 1993), also relied on by Escalera to establish our jurisdiction to direct review of
the BIA’s order denying his request for suspension of deportation. Turri was decided in
1993, three years prior to the enactment of IIRIRA.2
Motion to dismiss is granted, and the petition is dismissed.
In Fernandez v. INS, 113 F.3d 1151, 1153 n.1 (10th Cir. 1997) in connection with
2
the Antiterrorism and Effective Death Penalty Act we said:
As a preliminary matter, we should note that the Constitution permits Congress
to eliminate this court’s jurisdiction over petitions for review. See Lauf v. E. G.
Shinner & Co., 303 U.S. 323. 330, 58 S.Ct. 578, 582, 82 L.Ed. 872 (1938).
(“There can be no question of the power of Congress . . . to define and limit the
jurisdiction of the inferior courts of the United States.”)
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