Anwar v. INS

107 F.3d 339, 1997 WL 80434

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 16, 1997
• Docket: 95-60742
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60742

JAWAID ANWAR,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Appeal from the Board of Immigration Appeals June 16, 1997

Before JOLLY, JONES, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

The panel withdraws the opinion issued in this case dated

March 13, 1997, 107 F.3d 339, and substitutes the following

opinion.

Jawaid Anwar (“Anwar”), a citizen of Pakistan, petitions this

court for review of his due process contention that the Board of

Immigration Appeals (“BIA”) denied him due process in not granting

him an extension of time to file a brief before it affirmed the

decision of the Immigration Judge (“IJ”) denying Anwar asylum and

withholding of deportation. For the reasons given below, we grant

1 the petition and affirm the BIA.

FACTS AND PROCEEDINGS BELOW

Anwar, a 45-year-old citizen of Pakistan, entered the United

States on January 6, 1983 as a nonimmigrant visitor with

authorization to remain for six months. In an Order to Show Cause

dated April 19, 1993, the Immigration and Naturalization Service

(“INS”) charged Anwar with deportability under section 241(a)(1)(B)

of the Immigration and Naturalization Act (“INA” or “the Act”), 8

U.S.C. § 1251(a)(1)(B), for remaining in the United States for a

time longer than permitted, and also under section 241(a)(2)(A)(ii)

of the Act, 8 U.S.C. § 1251(a)(2)(A)(ii), for convictions after

entry of two crimes involving moral turpitude not arising out of a

single scheme of criminal conduct.

After a deportation hearing, the IJ found Anwar deportable as

charged. The INS had submitted records from the State of Virginia

showing the following convictions: (1) sexual battery (1985) (one-

year sentence with six months suspended); and (2) credit card theft

and fraudulent use of a credit card (1992) (five-year suspended

sentence).

Anwar applied for asylum and withholding of deportation under

section 243(h) of the Act, 8 U.S.C. § 1253(h), and section 208(a)

of the Act, 8 U.S.C. § 1158(a). On July 17, 1995, the IJ denied

Anwar’s application for asylum and also found that he was

ineligible for the mandatory exercise of § 243(h)’s withholding of

deportation. The IJ found that Anwar’s sexual battery conviction

was for a “particularly serious crime” and that Anwar was “a danger

2 to the community,” making him ineligible under the Act for §

243(h)’s withholding of deportation.

Regarding Anwar’s asylum application, the IJ found that Anwar

did not establish himself as a “refugee” under 8 U.S.C. §

1101(a)(42)(A) as required to warrant consideration for a

discretionary grant of asylum under § 208 of the Act, 8 U.S.C. §

1158(a). Anwar testified that while in Pakistan, people from

different ethnic groups had abused him verbally and physically

because of his Christian religion and political views. Anwar also

testified that he did not convert to Christianity until after his

entry into the United States. Anwar attested to his suspicions

concerning the deaths of family members who were members of the

Mohajir Quami Movement (“MQM”), a Pakistani political party. He

himself is not a member of MQM. He also testified that he had

never been detained, interrogated, convicted or sentenced to jail

while in Pakistan. In his decision, the IJ referenced the State

Department’s “country report” on Pakistan which stated that MQM is

a legal political party in Pakistan that has won 27 out of a total

of 99 seats in the providential assembly.

Anwar appealed the IJ’s decision pro se to the BIA. He was

given until August 23, 1995 to submit a brief in support of his

appeal to the BIA. On August 8, 1995, the INS sent Anwar a copy of

the hearing transcript. On August 24, 1995, Anwar filed a “Motion

to Request Extension of Time to File Appeal Brief,” pursuant to 8

C.F.R §§ 3.3(c) and 242.8, seeking an extension of time until

September 25, 1995 on the basis that he had retained counsel and

3 his attorney now required preparation time. On August 24, 1995,

an IJ denied Anwar an extension of time to file a brief with the

BIA, noting that, “The motion for an extension of time was received

after [the brief] was due.”

On September 13, 1995, the BIA affirmed the IJ’s decision for

the reasons set forth by the IJ. Anwar now appeals to this court

on due process grounds the BIA’s denial of an extension of time to

file his brief, having filed a timely notice of appeal in December

of 1995.

DISCUSSION

A. Jurisdiction

The issue presented initially is whether we have jurisdiction

of this appeal. During the pendency of Anwar’s appeal to this

court, the Anti-Terrorism and Effective Death Penalty Act of 1996,

Pub. L. 104-132, 110 Stat. 1214 (April 24, 1996), was enacted. It

amended our jurisdiction over final orders of the BIA so as to

preclude our review of certain matters. See Mendez-Rosas v. INS,

87 F.3d 672 (5th Cir. 1996), cert. denied, -- U.S. --, 117 S. Ct.

694, -- L. Ed. 2d -- (1997). After the AEDPA’s enactment, Congress

enacted the Illegal Immigration Reform and Immigrant Responsibility

Act, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996)

(“IIRIRA”), amended by Pub. L. No. 104-302, 110 Stat. 3656 (Oct.

11, 1996), which further amended the source of our jurisdiction.

IIRIRA § 309(c) contains special “transition for aliens in

proceedings” provisions that, absent certain listed exceptions that

do not apply in this case, see IIRIRA § 309(c)(2)-(4), provide a

4 “general rule that [the] new rules do not apply,” see IIRIRA §

309(c)(1), to aliens in deportation proceedings prior to April 1,

1997. Subject to the listed exceptions, “in the case of an alien

who is in exclusion or deportation proceedings before the title

III-A effective date [180 days after the IIRIRA’s enactment, or

April 1, 1997],” “the amendments made by this subtitle shall not

apply, and [] the proceedings (including judicial review thereof)

shall continue to be conducted without regard to such amendments.”

IIRIRA § 309(c)(1) (as amended by Pub. L. No. 104-302, 110 Stat.

3656, § 2(2) (Oct. 11, 1996)); see also, e.g., Ibrik v. INS, 108

F.3d 596 (5th Cir. 1997) (applying IIRIRA § 309 transitional

provision regarding period of time in which appeal must be filed).

Among the amendments in “this subtitle” is IIRIRA § 306(d)

which amended AEDPA § 440(a) to make the language of the AEDPA’s

judicial review provision mirror the AEDPA’s provision restricting

eligibility for waiver of inadmissability under INA § 212(c).

Because the transition provision, IIRIRA § 309(c)(1), provides that

the subtitle’s amendments are generally not effective for aliens

who were in exclusion or deportation proceedings prior to April 1,

1997, there is a group of aliens to which IIRIRA § 306(d)’s

amendment to AEDPA § 440(a)’s judicial review provision does not

apply. Anwar was in deportation proceedings far in advance of

April 1, 1997 and is thus one such alien.1

1 Anwar’s final order of deportation was not entered more than 30 days after the IIRIRA’s enactment and so IIRIRA § 309(c)(4) does not apply to his case. See IIRIRA § 309(c)(4). None of the other listed exceptions to the general transition rule are applicable either. See IIRIRA § 309(c)(2)-(3).

5 AEDPA § 440(a) as unamended by IIRIRA § 306(d) does not

eliminate our jurisdiction over this case.2 Unamended AEDPA §

440(a) is, in pertinent part, as follows.

Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense...covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject to review by any court.

AEDPA § 440(a) (emphasis added). Section 241(a)(2)(A)(ii) of the

INA is the section under which Anwar was found deportable.

According to the plain language of the AEDPA, judicial review is

precluded over such deportation orders only when both of the moral

turpitude offenses that serve as the basis for deportation are

covered by section 241(a)(2)(A)(i) of the INA, a section addressing

2 We recognize the apparent inconsistency of this revised opinion with our opinion in Pichardo v. INS, 104 F.3d 756 (5th Cir. 1997). The parties in Pichardo did not assert that IIRIRA § 309 was applicable to the controversy and therefore the transitional provisions of that section of the IIRIRA were not considered by the court. The only resulting difference in Pichardo and Anwar is the phrase “without regard to the date of their commission” that was added by IIRIRA § 306(d) to AEDPA § 440(a). It is unnecessary to revisit Pichardo, but as the same panel that heard Pichardo, we note that Pichardo would have met the same fate regardless of our jurisdiction discussion in that case. While without the phrase added by IIRIRA § 306(d), we could have considered the merits of Pichardo’s appeal because Pichardo lacked two offenses in the qualifying time frame laid out in AEDPA § 440(a)’s amendment of our jurisdiction (in other words, as unamended by IIRIRA § 306(d)), as the same panel, we note that Pichardo’s claims were meritless. He claimed reversible error in the BIA’s lack of an explicit finding regarding rehabilitation, one of the relevant § 212(c) factors, yet the BIA was only required to demonstrate that it had considered all relevant § 212(c) factors, see Ghassan v. INS, 972 F.2d 631, 636 (5th Cir. 1992); Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992), and the BIA referenced the very absence of Pichardo’s rehabilitation in its opinion. Pichardo also contended that the BIA improperly denied Pichardo a § 212(h) waiver of inadmissability by mentioning Pichardo’s convictions in the context of its “extreme hardship” analysis. The BIA made its “extreme hardship” determination on the basis that Pichardo failed to demonstrate that his deportation would cause “extreme hardship” to his family, and thus was properly within its discretion to find Pichardo ineligible for a favorable exercise of its § 212(h) discretion.

6 the convictions’ time frames and lengths of sentences. AEDPA §

440(a), 8 U.S.C. § 1105(a)(10) (1996). The AEDPA also amended that

section of the INA, but expressly provided that the amendment

applies only to aliens against whom deportation proceedings are

initiated after the date of the AEDPA’s enactment. AEDPA §

435(b). Because the AEDPA was enacted in April 1996 and Anwar’s

Order to Show Cause was issued in 1993, the unamended version of

section 241(a)(2)(A)(i) is to be followed. Because both of Anwar’s

convictions supporting his deportation do not satisfy section

241(a)(2)(A)(i) of the INA, as unamended,3 our review of Anwar’s

appeal is not precluded by the AEDPA’s amendments to our

jurisdiction over BIA deportation orders. Having determined that

our jurisdiction over this order has not been withdrawn, we proceed

3 Section 241(a)(2)(A)(i), as unamended, reads as follows.

an alien who-- (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 1255(i)of this title) after the date of entry, and (II) either is sentenced to confinement or is confined therefor in a prison or correctional institution for one year or longer,

is deportable.

8 U.S.C. § 1251(a)(2)(A)(i) (unamended) (emphasis added). Because Anwar was not a lawful permanent resident, the five-year period of time applies. Anwar’s crimes of moral turpitude supporting his deportation must have been committed within the period of time 1983-1988 in order to satisfy the first condition of § 1251(a)(2)(A)(i)(I). See Medeiros v. INS, 98 F.3d 1333, 1996 WL 614798 at *1 n.2 (1st Cir. 1996). In addition, the sentences or confinements must have been for one year or longer to satisfy the second condition in § 1251(a)(2)(A)(i)(II). Only the sexual battery conviction falls into the qualifying five-year time frame. Since at least two convictions involving moral turpitude must fall into the five-year time frame to meet the conditions of 8 U.S.C. § 1251(a)(2)(A)(i), we need inquire no further.

7 to the merits of this appeal. See 8 U.S.C. § 1105a(a); Opie v.

INS, 66 F.3d 737, 739 (5th Cir. 1995).

B. Due Process Claim

Anwar does not challenge the finding of deportability, nor

does he challenge the IJ’s denial of asylum and withholding of

deportation. His contention is that he was denied due process

because, pursuant to regulations regarding deadlines for filing of

briefs, the BIA did not give him an extension of time to file a

brief appealing the decision of the IJ.

We review due process challenges on a de novo basis.

Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993). It is clearly

established that the Fifth Amendment of the United States

Constitution entitles aliens to due process of law in deportation

proceedings. Animashaun v. INS, 990 F.2d 234, 238 (5th Cir. 1993)

(citing Reno v. Flores, 507 U.S. 292, 113 S. Ct. 1439, 1449, 123 L.

Ed. 2d 1 (1993)). Due process challenges to deportation

proceedings require an initial showing of substantial prejudice.4

Howard v. INS, 930 F.2d 432, 436 (5th Cir. 1991); Calderon-

Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).

In order for Anwar to show that the BIA’s not extending the

4 We note that because Anwar does not assert procedural error correctable by the BIA, but rather, in essence, a challenge to the regulations regarding the submission of briefs, his claim is not subject to an exhaustion requirement. See 8 U.S.C. § 1105a(c); Koroma v. INS, 83 F.3d 427, 1996 WL 207142, at *2 (9th Cir. 1996) (due process claims generally exempt from exhaustion doctrine because not within purview of BIA, except for procedural errors which are within BIA’s jurisdiction); Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (same); see also Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993) (not subjecting alien’s due process claim to exhaustion requirement).

8 deadline for the filing of his brief caused him substantial

prejudice, Anwar must make a prima facie showing that he was

eligible for asylum and that he could have made a strong showing in

support of his application. See Miranda-Lores v. INS, 17 F.3d 84,

85 (5th Cir. 1994); Figeroa v. United States INS, 886 F.2d 76, 79

(4th Cir. 1989). Anwar’s contention must be denied because he has

not shown the requisite prejudice.

The IJ reasoned that Anwar’s sexual battery conviction

constituted a “particularly serious crime” which serves as a bar to

mandatory withholding of deportation. See 8 U.S.C. § 1253(h).

Anwar has not offered any support that he suffered actual prejudice

in relation to his application. He made no attempt to demonstrate

that an extension of time to file his brief with the BIA would have

allowed him to demonstrate that his sexual battery conviction was

not a “particularly serious crime” barring relief under § 243(h).

He also failed to present a prima facie case for withholding of

deportation under § 243(h), as required to demonstrate prejudice.

See Miranda-Lores, 17 F.3d at 85; Figeroa, 886 F.2d at 79.

In order to be considered for a discretionary grant of asylum

under § 208(a) of the Act, an alien must qualify as a “refugee”

under 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(a). A

refugee is defined as an alien who is unwilling or unable to return

to his country of nationality because of persecution or a well-

founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion. See 8 U.S.C. § 1101(a)(42)(A). As Anwar clearly failed

9 to present a prima facie case that he is a refugee, see Guevara

Flores v. INS, 786 F.2d 1242 (5th Cir. 1986) (reviewing

requirements for asylum), he suffered no prejudice by the BIA

declining to extend his deadline for the filing of his brief. See

Miranda-Lores, 17 F.3d at 85; Figeroa, 886 F.2d at 79.

CONCLUSION

For the foregoing reasons, the petition is GRANTED and the BIA

order is AFFIRMED.