Escalera v. Immigration and Naturalization Service, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

MANUEL ESCALERA,

Petitioner,

v.



IMMIGRATION AND

NATURALIZATION SERVICE,

Respondent.

No. 99-9512

(Agency No. A 74 562 236)

(INS)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before BRORBY, Circuit Judge,

McWILLIAMS, Senior Circuit Judge, and



ELLISON(**),

Senior District Judge.

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 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.
name="txt1a">(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

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 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 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.
name="txt2a">(2)

Motion to dismiss is granted, and the petition is dismissed.

Entered for the court,

Robert H. McWilliams

Senior Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

**.Honorable James O. Ellison, Senior

District Judge, United States District Court

for the Northern District of Oklahoma, sitting by designation.

1.Ruling on the motion to dismiss was

deferred by our order until after briefing on

the merits and oral argument.

2.In Fernandez v. INS, 113 F.3d

1151, 1153 n.1 (10th Cir. 1997) in connection

with 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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