Moosa v. INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 19, 1999
• Docket: 96-60821
• Status: Published

Opinion

Revised April 19, 1999

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 96-60821 ____________________

WAZIRALI MOOSA, also known as Wazir Ali Haider Ali Moosa; ZEBUNISA WAZIRALI MOOSA,

Petitioners,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

_________________________________________________________________

On Petition For Review From The Board Of Immigration Appeals and Legalization Appeals Unit _________________________________________________________________ April 2, 1999

Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge.

A deferred adjudication of guilt for indecency with a child by

contact having been entered against Wazirali Moosa in Texas state

court in 1990, and, as a result, Moosa having been denied permanent

residency and having been ordered deported, along with his wife,

primarily at issue is, in the legalization decision, the

retroactive application to that deferred adjudication of the new

definition of “conviction” in § 322(a) of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, codified at 8

U.S.C. § 1101(a)(48)(A). At issue are whether the Legalization Appeals Unit erred in denying Moosa permanent resident status;

whether we have jurisdiction to review the denial by the Board of

Immigration Appeals of suspension of deportation as to the Moosas;

and, if we do have jurisdiction, whether that denial was in error.

We DENY the petition from the legalization decision. Because we

lack jurisdiction over the deportation decision, we DISMISS that

petition.

I.

Moosa, a native of Pakistan, entered the United States in 1979

as a nonimmigrant visitor. Four years later, his wife, Zebunisa

Moosa, and their two young daughters joined him, also entering as

nonimmigrant visitors. Eventually, the Moosas settled in Texas,

where Moosa was employed, Mrs. Moosa tended to the needs of the

household, and the two daughters enrolled in (and eventually

graduated from) public school.

In September 1988, the INS approved Moosa’s application for

temporary resident status. In April 1989, he applied to the INS to

adjust his status to permanent resident.

Later in 1989, Moosa was indicted in Texas for indecency with

a child by contact (a second-degree felony), stemming from an

incident occurring in early April of that year. The indictment

charged Moosa with molesting a twelve-year-old girl. Moosa pleaded

guilty in January 1990. The following month, a Texas court entered

a deferred adjudication of guilt and placed Moosa on eight years

- 2 - probation. He also served 180 days in jail on a work release

program and was ordered, among other things, to attend therapy

sessions, avoid contact with children, and report monthly to a

probation officer.1 (Moosa complied with these requirements, and

was released from community supervision early, in 1993 or 1994.2)

In February 1992, interpreting Moosa’s deferred adjudication

as a “conviction” that rendered him ineligible for legalization,

the Legalization Director issued notice of intent to deny his

permanent residency application. The application was formally

1 The “deferred adjudication” procedure is found in Texas Code of Criminal Procedure Article 42.12 § 5. After a defendant has pleaded guilty or nolo contendere, the judge may, pursuant to § 5(a), “defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision”. Under § 5(b), if the defendant violates a condition of the community supervision, he may be arrested and his guilt on the original charge may be adjudicated. “After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if adjudication of guilt had not been deferred.” TEX. CODE CRIM. P. ART. 42.12 § 5(b). However, if the defendant successfully completes his community supervision and “the judge has not proceeded to adjudication of guilt, the judge shall dismiss the proceedings against the defendant and discharge him”. TEX. CODE CRIM. P. ART. 42.12 § 5(c). Additionally, the judge may dismiss the proceedings and discharge the defendant from community supervision early, if the judge deems such action to be in “the best interest of society and the defendant”. TEX. CODE CRIM. P. ART. 42.12 § 5(c). Finally, § 5(c) provides that “a dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense”. 2 Moosa’s release date from community supervision is unclear. A brief to the INS by Moosa’s former attorney states that Moosa was discharged in June 1994. Moosa testified before the Immigration Judge that he was discharged in 1993.

- 3 - denied on 20 April 1992.

Two weeks later, on 4 May, Moosa appealed the termination of

his temporary resident status to the Legalization Appeals Unit

(LAU).3 His notice of appeal was returned for failure to include

the filing fee. On 22 May, the notice was refiled with the fee.

In July 1994, the LAU dismissed the appeal as untimely for having

been filed more than 30 days after the Legalization Director’s

decision.

The INS commenced deportation proceedings in March 1995

against Mr. and Mrs. Moosa and their daughters (then in their early

20s), for overstaying an authorized period of stay, pursuant to 8

U.S.C. § 1251(a)(1)(B). The Moosas applied for suspension of

deportation under 8 U.S.C. § 1254(a) (now repealed), and a

deportation hearing was held in March 1996. The family claimed

that deportation would impose extreme hardship, justifying a

suspension.

The Immigration Judge (IJ) suspended the deportation of the

Moosas’ daughters; however, suspension was denied for Mr. and Mrs.

3 This appellate division is referred to as the “Legalization Appeals Unit” because that is the title used by our circuit. See Martinez-Montoya v. INS, 904 F.2d 1018, 1020 (5th Cir. 1990). It is an internal division of the Administrative Appeals Unit of the INS that decides cases arising under the authority of the Associate Commissioner for Examinations. 8 C.F.R. §§ 103.1(f)(2); 245a.2(u)(2) and 245a.3(j). See Martinez-Montoya, 904 F.2d at 1023 (“The LAU is the sole body within the AAU possessing jurisdiction to hear appeals from the administrative denial of an application for legalization under the provisions of [8 U.S.C. § 1255a]”).

- 4 - Moosa. The IJ found the serious nature of Moosa’s admitted child

molestations outweighed any favorable factors and “den[ied] his

application for suspension of deportation as a matter of

discretion”. The IJ denied suspension of Mrs. Moosa’s deportation

on the basis that she had not demonstrated “extreme hardship”,

particularly in view of the fact that her husband’s application had

been denied. The IJ did, however, grant the Moosas the privilege

of voluntary departure in lieu of deportation, pursuant to 8 U.S.C.

§ 1254(e).

The Moosas appealed to the Board of Immigration Appeals; it

affirmed in October 1996. The BIA agreed that Mrs. Moosa had not

shown extreme hardship merely by alleging economic hardship,

diabetes, and a bad back. The BIA denied relief to Moosa primarily

because of his sexual contact with children and because it was not

convinced he was rehabilitated. The BIA described his conduct as

“serious” and “predatory” and found that “a favorable exercise of

discretion is not warranted”. The Moosas petitioned this court for

review of the BIA’s decision.

But, after the Moosas’ opening brief was filed with our court,

the INS discovered that the LAU had erred in July 1994 when it

dismissed as untimely Moosa’s appeal of the permanent resident

status decision. Instead, the INS concluded that the appeal was

timely. On joint motion, our court in May 1997 remanded the

legalization question to the LAU. The following December, applying

- 5 - the new definition of “conviction” found in the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996, Pub. Law 104-208,

110 Stat. 3009 (1996) (IIRIRA), the LAU upheld the decision of the

Legalization Director.

Therefore, the petitions at hand are from the LAU’s December

1997 decision affirming the denial of Moosa’s permanent resident

application and from the BIA’s decision denying a suspension of

deportation to Mr. and Mrs. Moosa. For the latter, the INS has

moved to dismiss for lack of jurisdiction.

II.

A.

Moosa, who was given temporary resident status in 1988,

applied for permanent residency in 1989 under 8 U.S.C. § 1255a,

enacted as part of the “legalization” or “amnesty” provisions of

the Immigration Reform and Control Act of 1986. See Hussein v.

INS, 61 F.3d 377, 378 (5th Cir. 1995). The regulations provide

that temporary residence granted an alien will terminate if he does

not apply for permanent residence within 43 months. 8 U.S.C.

1255a(b)(2)(C). The local Legalization Director is required to

give the alien notice and an opportunity to respond before

terminating the temporary residency. Luevano v. INS, 5 F.3d 546,

1993 WL 335750, *1 (10th Cir. 1993)(unpublished). Notification of,

and reasons for, a final decision to terminate must also be

provided to the alien. Id. “Once an alien’s temporary resident

- 6 - status is terminated, he automatically returns to the unlawful

status he held before he received the temporary resident status and

is amenable to deportation or exclusion proceedings.” Id. (citing

8 C.F.R. 245a.2(u)(4)); 8 U.S.C. 1255a(b)(2)(C)) (Attorney General

shall terminate temporary residence at end of 43rd month after

alien was granted status unless application for adjustment has been

filed and “has not been denied”).

Permanent residence may not be granted aliens “convicted” of

a felony. 8 U.S.C. § 1255a(b)(1)(C)(ii). Yet, prior to 1996,

there was no statutory definition of “conviction”. Beginning with

the Supreme Court’s brief decision in Pino v. Landon, 349 U.S. 901

(1955) (per curiam), courts construed the term “conviction” in

immigration laws to encompass some degree of finality of the

judgment or disposition under state law.4

In 1988, the BIA defined “conviction” in Matter of Ozkok, 19

I&N Dec. 546 (BIA 1988). In Ozkok, the BIA examined its previous

decisions, which looked to the state law effect of the conviction

in order to determine if the finality requirement had been met.

Id. at 549-50. The BIA noted that “most states now employ some

method of ameliorating the consequences of a conviction”; and that

“the standard which [the BIA had] applied to the many variations in

4 The entire Pino opinion follows: “On the record here we are unable to say that the conviction has attained such finality as to support an order of deportation within the contemplation of § 241 of the Immigration and Nationality Act, 8 U.S.C.A. § 1251. The judgment is reversed”. Pino, 349 U.S. at 901.

- 7 - state procedure may permit anomalous and unfair results in

determining which aliens are considered convicted for immigration

purposes”. Id. at 550. Therefore, the BIA revised the standard

for determining whether a state conviction was to be considered a

“conviction” for purposes of immigration law, eliminated the

requirement that the state law effect of the conviction be

examined, and created the following standard:

Where adjudication of guilt has been withheld, however, further examination of the specific procedure used and the state authority under which the court acted will be necessary. As a general rule, a conviction will be found for immigration purposes where all of the following elements are present:

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty;

(2) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed (including but not limited to incarceration, probation, a fine or restitution, or community-based sanctions such as a rehabilitation program, a work-release or study-release program, revocation or suspension of a driver’s license, deprivation of nonessential activities or privileges, or community service); and

(3) a judgment or adjudication of guilt may be entered if the person violates the terms of his probation or fails to comply with the requirements of the court’s order, without availability of further proceedings regarding the person’s guilt or innocence of the original charge.

- 8 - Id. at 551-52. Superimposed on these three requirements was the

finality requirement. Id. at 553 n.7 (“It is well established that

a conviction does not attain a sufficient degree of finality for

immigration purposes until direct appellate review of the

conviction has been exhausted or waived”); White v. INS, 17 F.3d

475, 479 (1st Cir. 1994).

But, in Matter of M, 19 I&N Dec. 861 (1989), contrary to the

BIA’s conditions, the LAU defined “conviction” without a finality

requirement and found a Texas deferred adjudication to be a

“conviction” that barred permanent residency. The LAU held that,

for purposes of 8 U.S.C. § 1255a, a “conviction” would be found

when an adjudication possessed the following two elements:

(1) a judge or jury has found the alien guilty or he has entered a plea of guilty or nolo contendere; and

(2) the judge has ordered some form of punishment or penalty, including but not limited to a fine or probation.

Id. at 865. Because the Texas deferred adjudication satisfied both

elements, the LAU determined that the petitioner (who had received

a deferred adjudication for forgery) had been “convicted”.

The petitioner in Matter of M contested the LAU’s decision,

and our court reversed in Martinez-Montoya v. INS, 904 F.2d 1018

(5th Cir. 1990). Our court first found that “at least the LAU is

bound to apply the BIA definition of conviction recognized in

Matter of Ozkok, and that, under the Ozkok standard, Martinez-

- 9 - Montoya has not been convicted for purposes of immigration”. Id.

at 1022. This was based on INS regulations that required all INS

employees to follow BIA decisions. Id. at 1023. Accordingly,

Martinez-Montoya’s deferred adjudication was examined under the

Ozkok standard.

Because the defendant in a deferred adjudication faces further

proceedings if he violates the terms of the community supervision,

the court stated that the third prong of the Ozkok test (which

requires that there be no further proceedings available) was not

met by the deferred adjudication. Id. at 1024. Furthermore, the

court found that the deferred adjudication did not satisfy the

additional finality requirement of Ozkok because Martinez-Montoya

could still appeal a finding of guilt if one were entered against

him. Id. at 1025.

Therefore, our court determined that a Texas deferred

adjudication was not a “conviction” for purposes of federal

immigration law. See also Zamora-Morel v. INS, 905 F.2d 833, 839

n.3 (5th Cir. 1990) (recognizing that, under Martinez-Montoya,

Texas deferred adjudication is not a “conviction” for immigration

law purposes). But see Molina v. INS, 981 F.2d 14, 18-20 (1st Cir.

1992) (Rhode Island nolo contendere plea plus probation, which was

not considered “conviction” under state law after successful

completion of probation, was “conviction” under federal immigration

laws); Yanez-Popp v. INS, 998 F.2d 231, 233, 237 (4th Cir. 1993)

- 10 - (Maryland’s stay of judgment conditioned on successful completion

of probation was “conviction” under Ozkok); Chong v. INS, 890 F.2d

284, 284-85 (11th Cir. 1989) (Florida procedure of withholding

adjudication of guilt and imposition of sentence but placement of

defendant on probation was “conviction” for immigration purposes

under Ozkok).

Following receipt of the INS’s notice of intent, based on

Moosa’s deferred adjudication, to deny permanent residency (thus

terminating his temporary residency), Moosa’s attorney apprised

the Legalization Director of Martinez-Montoya’s holding that a

Texas deferred adjudication was not a “conviction”. This

notwithstanding, the Legalization Director did not mention

Martinez-Montoya in his April 1992 decision; instead, he relied on

Ozkok in concluding that the deferred adjudication was a

“conviction”.

On 30 September 1996, IIRIRA was enacted; it became effective

on 1 April 1997. Section 322(a) defined the term “conviction” and

amended § 101(a) of the Immigration and Nationality Act of 1952

(INA), 8 U.S.C. § 1101(a). Section 322(a) states:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by the court or, if adjudication of guilt has been withheld, where –

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

- 11 - (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

Codified at 8 U.S.C. § 1101(a)(48)(A). Thus, by eliminating the

finality requirement, the new statutory definition of “conviction”

mirrors the Matter of M definition, rejected by our court in

Martinez-Montoya.

The Congressional Conference Committee Report accompanying

IIRIRA commented on Congressional intent in drafting IIRIRA § 322:

This section deliberately broadens the scope of the definition of “conviction” beyond that adopted by the Board of Immigration Appeals in Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988). As the Board noted in Ozkok, there exist in the various States a myriad of provisions for ameliorating the effects of a conviction. As a result, aliens who have clearly been guilty of criminal behavior and whom Congress intended to be considered “convicted” have escaped the immigration consequences normally attendant upon a conviction. Ozkok, while making it more difficult for alien criminals to escape such consequences, does not go far enough to address situations where a judgment of guilt or imposition of sentence is suspended, conditioned upon the alien’s future good behavior. For example, the third prong of Ozkok requires that a judgment or adjudication of guilt may be entered if the alien violates a term or condition of probation, without the need for any further proceedings regarding guilt or innocence on the original charge. In some States, adjudication may be “deferred” upon a finding or confession of guilt, and a final judgment of guilt may not be imposed if the alien violates probation until there is an additional proceeding regarding the alien’s guilt or innocence. In such cases, the third prong of the Ozkok definition prevents the original finding or confession of guilt to be

- 12 - considered a “conviction” for deportation purposes. This new provision, by removing the third prong of Ozkok, clarifies Congressional intent that even in cases where adjudication is “deferred,” the original finding or confession of guilt is sufficient to establish a “conviction” for purposes of the immigration laws.

H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 1996, 1996 WL

563320 at *496-97 (emphasis added).

As noted, Moosa’s appeal of the Legalization Director’s

decision to the LAU was dismissed as untimely. It was not until

the petition in issue was filed that the INS discovered its mistake

and the matter was remanded to the LAU. Pursuant to the newly

enacted § 322(a) definition of conviction, the LAU found that the

deferred adjudication was a “conviction”, and affirmed the

Legalization Director’s decision.

The legal and factual events can be summarized as follows: (1)

in January 1989, the LAU rendered its decision in Matter of M; (2)

in April 1989, Moosa molested a child and applied for permanent

residency; (3) later in 1989, Moosa was indicted for indecency with

a child; (4) in January 1990, Moosa entered into a plea agreement;

(5) in February 1990, the Texas court entered a deferred

adjudication; (6) in July 1990, Martinez-Montoya was rendered,

reversing Matter of M; (7) in April 1992, Moosa’s temporary

resident status was terminated; (8) in July 1994, the LAU dismissed

Moosa’s appeal as untimely; (9) in 1996, IIRIRA was signed into

law; (10) in 1997, the INS discovered its mistake, the case was

- 13 - remanded to the LAU, and the LAU applied § 322 to affirm the

Moosa’s challenge to the LAU decision rests on two sub-issues:

(1) whether the INS is estopped from terminating his temporary

residency; and (2) whether the LAU erred in applying § 322(a).

1.

Moosa bases his estoppel claim on the charge that the INS

engaged in affirmative misconduct in two ways: the dismissal of his

appeal to the LAU as untimely; and the Legalization Director’s not

complying with our circuit precedent for the definition of a

“To establish estoppel against the government, a party must

prove affirmative misconduct by the government and also establish

the four traditional elements of the doctrine. The four elements

of estoppel are: (1) that the party to be estopped was aware of the

facts, and (2) intended his act or omission to be acted upon; (3)

that the party asserting estoppel did not have knowledge of the

facts, and (4) reasonably relied on the conduct of the other to his

substantial injury.” United States v. Bloom, 112 F.3d 200, 205

(5th Cir. 1997). Valid assertions of equitable estoppel against

the Government are rare indeed. Id.; see also Ferguson v. FDIC,

164 F.3d 894, 898 (5th Cir. 1999); Rew Enterprises, Inc. v. Premier

Bank, N.A., 49 F.3d 163, 167 (5th Cir. 1995); United States v.

Perez-Torres, 15 F.3d 403, 407 (5th Cir.), cert. denied, 513 U.S.

- 14 - 840 (1994) (“Estoppel against the government is problematical at

best”).

In several cases involving claims that the INS should be

estopped based on conduct of its agents, the Supreme Court has held

that the conduct did not rise to the level of “affirmative

misconduct” and declined to estop the INS. See INS v. Miranda, 459

U.S. 14, 18-19 (1982) (INS’s 18 month delay in processing alien’s

application for permanent residency did not constitute affirmative

misconduct); INS v. Hibi, 414 U.S. 5, 8-9 (1973) (failure of

Government to publicize immigration rights afforded by Congress to

Philippine soldiers before deadline to apply for immigration

benefits expired did not amount to affirmative misconduct); Montana

v. Kennedy, 366 U.S. 308, 314-15 (1961) (failure of American

Consular Officer in Italy to issue passport to alien’s pregnant

mother, resulting in alien’s birth in Italy, did not constitute

affirmative misconduct); see also Schweiker v. Hansen, 450 U.S.

785, 788-90 (1981) (Social Security Administration agent’s

erroneous response to applicant’s inquiry and failure to have

applicant complete written request, as internal regulations

required, were not enough for applicant to succeed on estoppel

claim against Government).

Likewise, our court has declined to estop the INS based on

claims that the INS’s conduct caused the denials of immigration

benefits. See Fano v. O’Neill, 806 F.2d 1262, 1265 (5th Cir. 1987)

- 15 - (failure of INS to expedite processing of alien’s application, as

required by INS’s internal operating instructions, did not

constitute affirmative misconduct; “to state a cause of action for

estoppel against the government, a private party must allege more

than mere negligence, delay, inaction, or failure to follow an

internal agency guideline”); Kwon v. INS, 646 F.2d 909, 919 (5th

Cir. 1981)(en banc) (court would not estop INS where its failure to

inform alien of lack of further visa numbers prevented alien from

promptly applying for different type of visa).

In fact, the Supreme Court has not decided whether the INS can

ever be estopped from enforcing immigration laws because of its

misconduct. See Miranda, 459 U.S. at 19 (refusing to estop

Government because no affirmative misconduct, but reserving

question of whether Government could ever be estopped from

enforcing immigration laws); Hibi, 414 U.S. at 8-9 (recognizing

that question of whether affirmative misconduct could estop

Government from denying citizenship was left open in Montana, but

declining to address because found no affirmative misconduct);

Montana, 366 U.S. at 315 (based on finding no affirmative

misconduct; “we need not stop to inquire whether, as some lower

courts have held, there may be circumstances in which the United

States is estopped to deny citizenship because of the conduct of

its officials”).

- 16 - What is clear is that, at a minimum, affirmative misconduct by

the INS must be shown before an equitable estoppel claim will be

considered. Fano, 806 F.2d at 1264-65 (“The Supreme Court has

indicated, without deciding, that equitable relief may be available

to a private party aggrieved by certain conduct of government

officials”). “‘Affirmative misconduct’ requires an affirmative

misrepresentation or affirmative concealment of a material fact by

the government.” Linkous v. United States, 142 F.3d 271, 278 (5th

Cir. 1998).

Moosa can point to no evidence indicating that the dismissal

as untimely of his initial appeal to the LAU was an act of

affirmative misconduct. In his reply brief, he asserts that the

LAU “contrived an easy way to dismiss [Moosa’s] appeal” by claiming

that the dates relevant to the timely filing of the appeal were

different than they actually were. Moosa states: “The record, of

course, shows that the Notice of Denial was issued on April 20,

1992 and not on April 15, 1992, as the LAU claimed”. (Emphasis

added.)

It belies common sense for Moosa now to argue that the error

in computing the timing of the notice of appeal was clearly

obvious, when the mistake was not noticed by Moosa, or his previous

or present counsel. Rather, the INS discovered the error in

preparing to address this petition. It then contacted Moosa and

- 17 - moved to remand the case to the LAU; the INS did not attempt to

bury the mistake. Moosa’s estoppel claim fails on this basis.

See, e.g., Office of Personnel Management v. Richmond, 496 U.S.

414, 419-20 (1990) (no estoppel for mistaken, unauthorized

statements of Government agent); Miranda, 459 U.S. at 18 (even if

delay in processing application was negligent, estoppel still not

warranted); Schweiker, 450 U.S. at 789 (erroneous advice given by

agent not enough to estop Government); Fano, 806 F.2d at 1265 (to

estop Government, need more than mere negligence or inaction).

b.

Moosa also rests his estoppel claim on the asserted

affirmative misconduct of the Legalization Director in considering

Moosa’s deferred adjudication a “conviction”, in spite of Martinez-

Montoya. Moosa charges the Legalization Director with “knowing[ly]

and deliberate[ly] refus[ing] to obey the controlling law of this

Circuit”.

Moosa misses the mark. We do not review the actions of the

Legalization Director; his was an interim decision superceded by

the LAU’s December 1997 decision. Title 8 U.S.C. § 1255a(f)(3) and

(4) provide for a single level of appellate review of decisions

within the INS. The LAU reviews decisions of the Legalization

Director. 8 C.F.R. §§ 103.1(f)(2), 245a.2(u)(2), 245a.3(j).

Our basis of review for INS legalization determinations is

described in 8 U.S.C. § 1255a(f)(4)(B):

- 18 - Such judicial review shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole.

We review the decision by the appellate authority (ie., the LAU),

not that of the initial adjudicatory entity (ie., the Legalization

Director). Cf. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th

Cir. 1991) (order of IJ not final when alien appeals to BIA;

“[t]his Court is authorized to review only the order of the Board,

not the decision of the [IJ]”). The only legalization decision

before us is the LAU’s December 1997 decision.5

2.

Moosa asserts that, even under IIRIRA § 322(a), 8 U.S.C. §

1101(a)(48), his deferred adjudication should not be treated as a

conviction. On reviewing an Agency’s construction of a statute it

administers, we must perform the well-known two-step inquiry:

5 Even though Moosa informed the Legalization Director of Martinez-Montoya and, yet, the Legalization Director did not apply it, we do not have evidence that he deliberately ignored it. His decision does not indicate that he disagreed with Martinez-Montoya or that he was choosing to disobey it. Rather, the decision indicates only that he viewed Moosa’s deferred adjudication as a conviction under Ozkok. There is no evidence that the Legalization Director was intentionally flouting the law of this circuit, and we will not attribute ill will or bad motives to him without any evidence in this regard. In any event, as discussed, Moosa’s recourse was with the LAU.

- 19 - First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842-43 (1984). See also Martinez-Montoya, 904 F.2d

at 1021 (“The federal agency construction is to be upheld if it is

reasonable and not contrary to Congressional intent”).

The text of § 322(a) could not be more clear: Where an

adjudication of guilt has been withheld, a “conviction” exists

where “(i) a judge or jury has found the alien guilty or the alien

has entered a plea of guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of guilt, and (ii) the judge

has ordered some form of punishment, penalty, or restraint on the

alien’s liberty to be imposed”. Again, this definition mirrors

that outlined by the LAU in Matter of M, in which a Texas deferred

adjudication was found to constitute a conviction.

- 20 - Considering only the text of § 322(a), a Texas deferred

adjudication, see supra note 1, is a “conviction”.6 Under Texas

law, a judge may enter a deferred adjudication “after receiving a

plea of guilty or plea of nolo contendere, hearing the evidence,

and finding that it substantiates the defendant’s guilt”. TEX. CODE

CRIM. P. ART. 42.12 § 5(a). Moosa entered a plea of guilty. The

first prong of § 322(a)’s definition of “conviction” has been met.

The second prong is that some form of punishment or restraint

on liberty is imposed. Texas law provides that, upon finding guilt

and determining that a deferred adjudication would be in the best

interests of the community, the judge may “place the defendant on

community supervision”. TEX. CODE CRIM. P. ART. 42.12 § 5(a). The

judge may also “impose a fine applicable to the offense and require

any reasonable conditions of community supervision”. TEX. CODE CRIM.

P. ART. 42.12 § 5(a). Among other things, Moosa served time in jail

on work release, had to report to a probation officer every month

for the term of his community supervision, and was required to

attend counseling. This was a punishment and a restraint on his

liberty. See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 640

6 In at least one case, a Texas court has recognized that the new definition of “conviction” has altered the immigration consequences of a deferred adjudication. Ex parte Silva, 963 S.W.2d 945, 945 (Tex. Ct. App. 1998) (“Due to recent changes in federal immigration law, the INS now considers Silva’s deferred adjudication status to be the equivalent of a conviction for the three counts charged in the indictment”), vacated on other grounds, 968 S.W. 2d 367 (Tex. Ct. Crim. App. 1998).

- 21 - n.11 (1988) (“a fixed term of probation is itself a punishment that

is criminal in nature”).7 Moosa’s deferred adjudication satisfies

the second prong of § 322’s “conviction” definition.

Our conclusion accords with United States v. Campbell, 167

F.3d 94 (2d Cir. 1999), the only other circuit court case we have

found that specifically references § 322, 8 U.S.C. § 1101(a)(48).

In that case, the defendant’s federal sentence was enhanced because

of a Texas conviction that was later “set aside” after the

defendant successfully completed his probation. Id. at 96. In

affirming the enhancement, the Second Circuit first stated that

“[t]he immigration laws contain no ... indication that they are to

be interpreted in accordance with state law”. Id. at 97. After

citing the new IIRIRA § 322, 8 U.S.C. § 1101(a)(48), definition of

“conviction”, the court stated: “No pertinent provision in Title 8

gives controlling effect to state law. And no provision excepts

from this definition a conviction that has been vacated”. Id. at

98 (emphasis added). Although the Second Circuit did not address

the precise issue at hand, its decision evidences a plain language

reading and application of the new definition of “conviction”.

7 Although it is appropriate to look to federal, rather than state, law to determine this issue, community supervision resulting from a deferred adjudication is considered “punishment” for purposes of plea negotiations under Texas law, thus satisfying the second prong of the definition of “conviction” in § 322(a). See Watson v. State, 924 S.W.2d 711, 714 (Tex. Ct. Crim. App. 1996)(en banc)(deferred adjudication is punishment).

- 22 - Moosa’s deferred adjudication meets each prong of the new

definition of “conviction”. Accordingly, his deferred adjudication

was a conviction for purposes of the immigration laws.

The second question is whether the LAU properly applied this

new definition, which became law in 1996, to Moosa’s 1990 deferred

adjudication. In addressing this issue, the LAU quoted the

language from the Conference Report indicating that § 322 was

designed to clarify Congressional intent. The LAU then stated:

“As Congress evidently considers the holding in Matter of Ozkok to

be incorrect, and has endeavored to clarify its original intent, it

would be inappropriate for the LAU to make a decision today that

deliberately ignored both the law in effect today and Congress’s

apparently long-held view”. The LAU found that “it was Congress’s

intent that the new definition of conviction be applied immediately

and to all criminal proceedings, whether in the past, present, or

future”.

Section 322(c) states unequivocally: “EFFECTIVE DATE.-- The

amendments made by subsection (a) shall apply to convictions and

sentences entered before, on, or after the date of the enactment of

this Act”. (Emphasis added.) The INS asserts that the LAU was

required to apply the law in effect at the time it rendered its

decision. Indeed, the Supreme Court stated in Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 226 (1995): “When a new law makes clear

- 23 - that it is retroactive, an appellate court must apply that law in

reviewing judgments still on appeal that were rendered before the

law was enacted, and must alter the outcome accordingly”. See also

Landgraf v. USI Film Prods., 511 U.S. 244, 264 (1994) (court must

apply law that is effective at time of rendering decision); Elramly

v. INS, 131 F.3d 1284, 1285 (9th Cir. 1997) (quoting Plaut).

Therefore, the LAU was correct in applying the law in effect at the

time of its December 1997 decision (i.e., IIRIRA § 322) if the law

is retroactive.

On the other hand, there is a “presumption against retroactive

legislation [that] is deeply rooted in our jurisprudence”. Hughes

Aircraft Co. v. United States ex rel. Schumer, 117 S. Ct. 1871,

1876 (1997) (quoting Landgraf, 511 U.S. at 265). The Supreme Court

has stated, however, that the principle of applying the law in

effect at the time of the decision does not conflict with the

“presumption against retroactivity when the statute in question is

unambiguous”. Landgraf, 511 U.S. at 273. More recently, the Court

stated that this presumption against retroactivity is applied

“unless Congress has clearly manifested its intent to the

contrary”. Hughes Aircraft, 117 S. Ct. at 1876; see also United

States v. Rocha, 109 F.3d 225, 228 (5th Cir. 1997).

The plain language of § 322(c) leaves no doubt that Congress

intended for the definition in § 322(a) to be applied

retroactively. Congress could not have more clearly expressed this

- 24 - intent than through its statement that § 322(a) was to apply to

convictions entered before the date of IIRIRA’s enactment. In any

event, Moosa does not contest that the plain language of § 322(c)

mandates retroactive application. Rather, he claims (1) that the

use of “conviction” in § 322(c) with regard to pre-enactment

adjudications requires use of the Ozkok definition; (2) that the

new statutory definition does not eliminate the requirement of

finality; and (3) that applying the new definition to him would

raise retroactivity concerns because it increases his liability for

past conduct.

First, Moosa asserts that § 322(c) requires the use of the

Ozkok test when dealing with adjudications entered before IIRIRA’s

effective date. This contention is based on the following logic:

§ 322(a) applies to him only to the extent that his deferred

adjudication was a “conviction” under the pre-IIRIRA test (i.e.,

Ozkok); and, because his deferred adjudication was not a conviction

under that test, § 322(a) does not apply to him at all.

Moosa’s argument makes no sense. He would have us hold that

Congress created a new definition of “conviction” in § 322(a), but

expected courts and the INS to apply the old definition with regard

to § 322(c). Moosa’s interpretation of § 322(c) would read its

retroactivity provision out of the statute.

Further, § 322(c) states that § 322(a) applies to

“convictions” entered before the effective date of IIRIRA. In

- 25 - interpreting a statute, it is presumed that words used in the same

statute have the same meaning. United States National Bank of

Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439,

460 (1993); Commissioner v. Keystone Consolidated Indus., Inc., 508

U.S. 152, 159 (1993) (“It is a normal rule of statutory

construction that identical words used in different parts of the

same act are intended to have the same meaning”) (internal

quotations omitted). Here, we are construing the word “conviction”

as contained not only in the same statute, but in the same section.

Accordingly, in light of this presumption, and applying the most

logical reading of the plain language of § 322 in its entirety, we

conclude that the word “conviction” means the same in § 322(c) as

it does in § 322(a). The LAU properly applied the new definition

to Moosa’s deferred adjudication.

Moosa makes an even weaker argument in asserting that § 322(c)

requires a conviction and a sentence in order for it to apply, and

that, under Texas law, there can be no “sentence” for a deferred

adjudication. First, we do not read § 322(c) to require both a

conviction and a sentence. Instead, § 322(c) states that it “shall

apply to convictions and sentences”. This indicates that § 322(c)

applies to both convictions and sentences; we do not read it as

requiring both a conviction and a sentence. Finally, Moosa errs in

using Texas law to interpret the meaning of “sentence” in § 322(c),

because “[i]n the absence of a plain indication to the contrary,

- 26 - ... it is to be assumed when Congress enacts a statute that it does

not intend to make its application dependent on state law”. NLRB

v. Natural Gas Utility Dist., 402 U.S. 600, 603 (1971) (quoting

NLRB v. Randolph Electric Membership Corp. 343 F.2d 60 (4th Cir.

1965)); see also Campbell, 167 F.3d at 98 (citing 8 U.S.C. §

1101(a)(48) and noting that “[n]o pertinent provision in Title 8

gives controlling effect to state law”). Although not controlling,

we note that our court has found Texas deferred adjudications to be

“sentences” under the federal Sentencing Guidelines. United States

v. Valdez-Valdez, 143 F.3d 196, 201 (5th Cir. 1998); United States

v. Giraldo-Lara, 919 F.2d 19, 22 (5th Cir. 1990).

Next, Moosa claims that the new statutory definition of

“conviction” does not eliminate the requirement of finality, which,

ever since the Supreme Court’s decision in Pino, has been used as

an additional requirement for the definition of “conviction”, as

discussed supra. See, e.g., White, 17 F.3d at 479; Martinez-

Montoya, 904 F.2d at 1025; Ozkok, 19 I&N at 553 n.7.

In support of this proposition, Moosa cites Wilson, 43 F.3d at

215, in which our court stated that “the decision of the BIA to

apply a federal conviction standard in Ozkok does not infringe at

all, either explicitly or implicitly, upon the Supreme Court’s

holding in Pino”. Again, it is important to note that, prior to

the enactment of IIRIRA § 322(a), there was no definition of

“conviction” in the immigration laws. See Will v. INS, 447 F.2d

- 27 - 529, 531 (7th Cir. 1971) (“The parties have not cited, nor have we

found, anything of significance in the legislative history of the

[INA] casting light on the precise concept Congress sought to

embody by the use of the term ‘convicted’ in Section 241(a)(11)”).

Thus, courts were called upon to discern the meaning intended

by Congress. Indeed, in Pino, the Court stated that the

“conviction [had not] attained such finality as to support an order

of deportation within the contemplation of § 241 of the Immigration

and Nationality Act”. Pino, 349 U.S. at 901 (emphasis added).

Therefore, Pino, the case from which our court and others drew the

finality requirement, was interpreting the then-undefined term

“conviction” in the immigration laws. See Will, 447 F.2d at 531

(“[I]t appears clear that the Supreme Court’s decision in Pino ...

and from past administrative interpretation that [INA § 241(a)(11)]

contemplates a conviction which has attained a substantial degree

of finality”); In re Punu, Interim Decision (BIA) 3364, 1998 WL

546634 (Aug. 18, 1998)(Grant, Board Member, Concurring) (discussing

why judicially created finality requirement has not survived

IIRIRA).

Now, however, Congress has provided a definition. The

Conference Report, quoted supra, shows that Congress was well aware

of the varying interpretations of “conviction”, but chose to enact

the current definition. Again, our starting point is with the

plain language of the statute. See Uniroyal Chemical Co., Inc. v.

- 28 - Deltech Corp., 160 F.3d 238, 244 (5th Cir. 1998), opinion modified

on rehearing, 1999 WL 7912 (5th Cir. 1999) (“When the language [of

the statute itself] is plain we must abide it; we may depart from

its meaning only to avoid a result so bizarre that Congress could

not have intended it” (internal quotation omitted)); United States

v. Silva-Chavez, 888 F.2d 1481, 1483 (5th Cir. 1989) (interpreting

words at their plain meaning where Congress explained in

legislative history that words meant exactly what they say); United

States v. Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam) (“In

construing statutes, words are to be given their natural, plain,

ordinary and commonly understood meaning unless it is clear that

some other meaning was intended”).

There is no indication that the finality requirement imposed

by Pino, and this court, prior to 1996, survives the new definition

of “conviction” found in IIRIRA § 322(a). Not only did Congress

omit such a requirement from its definition of “conviction”, but

the legislative history demonstrates that Congress deliberately

eliminated the third prong of the Ozkok test (which appears to

incorporate a finality concept). H.R. Conf. Rep. No. 828, 104th

Cong., 2nd Sess. 1996, 1996 WL 563320 at *496 (“This section

deliberately broadens the scope of the definition of ‘conviction’

beyond that adopted ... in Matter of Ozkok”). More important, the

Conference Report specifically cites deferred adjudications as

being covered by the new definition. H.R. Conf. Rep. No. 828,

- 29 - 104th Cong., 2nd Sess. 1996, 1996 WL 563320 at *497 (“This new

provision, by removing the third prong of Ozkok, clarifies

Congressional intent that even in cases where adjudication is

‘deferred,’ the original finding or confession of guilt is

sufficient to establish a ‘conviction’ for purposes of the

immigration laws”). Earlier judicial interpretations of the term

“conviction” in immigration laws were made without the clear

definition enacted in 1996; finality is no longer a requirement.

See In re Punu, Interim Decision 3364, 1998 WL 546634 (Aug. 18,

1998) (a post-IIRIRA decision in which BIA determined that a Texas

deferred conviction was a “conviction” under § 322, without

applying a finality requirement).8

Next, Moosa asserts that applying the new definition of

“conviction” to him presents retroactivity concerns because it

increases his liability for past conduct. He asserts that he

agreed to the deferred adjudication plea agreement “with an

entirely different understanding of the immigration consequences of

his plea”. This assertion is not borne out by the facts. When

Moosa entered into the plea agreement in January 1990, Martinez-

8 In any event, whether the finality requirement has survived is a moot issue with regard to Moosa, as he has successfully completed his deferred adjudication. Approximately five years ago, Moosa was released from community supervision. According to Texas law, after community supervision has ended, “the judge shall dismiss the proceedings against the defendant and discharge him”. TEX. CODE CRIM. P. ART. 42.12 § 5(c). At this point the proceedings against Moosa are final and there is no longer a possibility of appeal from his deferred adjudication.

- 30 - Montoya had not been issued and Matter of M (a 1989 decision) was

still the law. It was not until July 1990, several months after

Moosa pled guilty, that Martinez-Montoya was decided. In short,

the current definition of conviction is, in fact, the same as the

definition when Moosa pled guilty. In any event, “it is well

settled that Congress has the authority to make past criminal

activity a new ground for deportation”. Ignacio v. INS, 955 F.2d

295, 298 (5th Cir. 1992) (citing Lehman v. United States, 353 U.S.

685, 690 (1957); Mulcahey v. Catalanotte, 353 U.S. 692, 694

(1957)); United States v. Bodre, 948 F.2d 28, 32 (1st Cir. 1991),

cert. denied, 503 U.S. 941 (1992).

Moosa maintains that taking away the finality requirement

would lead to absurd results, such as an alien being deported when

his conviction is on appeal, but the conviction later being

reversed. As discussed, that it not the case here. Be that as it

may, such concerns are more properly addressed to Congress.

Congress has made the policy choice to eliminate the finality

requirement, and we will not second-guess such policy choices

properly made by the legislative branch. See, e.g., Plyler v. Doe,

457 U.S. 202, 237 (1981) (Powell, J., concurring) (Congress has

been “vested by the Constitution with the responsibility of

protecting our borders and legislating with respect to aliens”);

Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“Our cases have long

recognized the power to expel or exclude aliens as a fundamental

- 31 - sovereign attribute exercised by the Government’s political

departments largely immune from judicial control” (internal

quotation omitted)); Carlson v. Landon, 342 U.S. 524, 534 (1951)

(“So long, however, as aliens fail to obtain and maintain

citizenship by naturalization, they remain subject to the plenary

power of Congress to expel them under the sovereign right to

determine what noncitizens shall be permitted to remain within our

borders”); Harisiades v. Shaughnessy, 342 U.S. 580, 590 (1952)

(“Judicially we must tolerate what personally we may regard as a

legislative mistake”); Rodriguez v. INS, 9 F.3d 408, 413 (5th Cir.

1993) (“This Court has recognized Congress’s ‘unbounded power’ in

the area of immigration”); Bright v. Parra, 919 F.2d 31, 34 (5th

Cir. 1990) (Because immigration legislation policy questions are

“entrusted exclusively to the political branches of our Government,

... we have no judicial authority to substitute our political

judgment for that of the Congress” (quoting Fiallo v. Bell, 430

U.S. 787, 798 (1977)).9

9 Our construction of § 322 is in accord with the standard of review of agency constructions of statutes they are charged with enforcing. As noted, the first question is whether Congress has directly spoken to the question at issue. Chevron, 467 U.S. at 842-43. Congress has done so.

Even if we were to assume (as Moosa appears to assert) that the statute is ambiguous, the next step would be for us to ask whether the INS’s construction of § 322 is “based on a permissible construction of the statute”. Id. Based on the plain language of § 322 and the strong language in the Conference Report, in which Congress expressed its intent to change the then-controlling judicial and agency constructions of “conviction”, the INS’s

- 32 - In sum, we conclude that the INS is not estopped from denying

Moosa citizenship; IIRIRA eliminated the requirement of finality;

the definition of “conviction” in IIRIRA § 322(a) encompasses Texas

deferred adjudications; the LAU correctly applied IIRIRA § 322(a)

to Moosa; and applying § 322(a) to Moosa did not raise any

retroactivity concerns.

Mr. and Mrs. Moosa also challenge the decision of the BIA

denying suspension of their deportations. The INS contests our

jurisdiction.

Prior to the enactment of IIRIRA, INA § 244, 8 U.S.C.

§1254(a)(1) (now repealed), provided that the Attorney General, “in

[her] discretion”, could suspend the deportation of an otherwise

deportable alien if the alien: (1) had been physically present in

the United States for seven years; (2) was of good moral character;

and (3) “[was] a person whose deportation would, in the opinion of

the Attorney General, result in exceptional and extremely unusual

hardship to the alien or to his spouse, parent, or child, who is a

citizen of the United States or an alien lawfully admitted for

permanent residence”. See also INS v. Jong Ha Wang, 450 U.S. 139,

139-40 (1981) (per curiam). Even if all three factors are met,

construction of § 322 is reasonable.

- 33 - however, the Attorney General could, in her discretion, deny

suspension. 8 U.S.C. §1254(c) (now repealed).

In reviewing denials based on one of the first two factors, we

upheld the BIA’s decision if it was supported by “substantial

evidence”. Ramos v. INS, 695 F.2d 181, 185 (5th Cir. 1983).

Denials based on a finding of no extreme hardship were reviewed for

abuse of discretion. Id.

IIRIRA established transitional rules that applied to BIA

decisions filed between 31 October 1996 and 31 March 1997. IIRIRA

§ 309(c)(4) (“In the case ... in which a final order of ...

deportation is entered more than 30 days after the date of the

enactment of this Act [30 September 1996], notwithstanding any

provision of section 106 of the [INA] ... to the contrary ... (E)

there shall be no appeal of any discretionary decision under

section ... 244 ... of the [INA]”). Because the BIA decision

denying the Moosas suspension of deportation was entered on 31

October 1996, IIRIRA’s transitional rules apply. See Eyoum v. INS,

125 F.3d 889, 891 (5th Cir. 1997); see also Meguenine v. INS, 139

F.3d 25, 26 (1st Cir. 1998); Pilch v. INS, 129 F.3d 969, 970-71

(7th Cir. 1997) (final deportation orders entered after 30

September 1996 are subject to IIRIRA § 309(c) transitional rules).

Under the transitional rules, INA § 309 precludes judicial review

of “discretionary determinations” whether to suspend deportation

pursuant to INA § 244.

- 34 - As an initial matter, Moosa asserts that, just because the

BIA’s decision was filed on 31 October 1996 does not mean that it

was “entered” on that date, so the transitional rules do not apply

here. We reject this contention as without merit. Cf. Karimian-

Kaklaki, 997 F.2d 108, 110-11 (5th Cir. 1993); Guirguis v. INS, 993

F.2d 508, 509 (5th Cir. 1993); Ouedraogo v. INS, 864 F.2d 376, 378

(5th Cir. 1989).

At issue is whether the BIA’s decision to deny suspension of

deportation to Mr. and Mrs. Moosa was “discretionary”, thus

precluding our review. The Moosas claimed entitlement to

suspension due to the extreme hardship they would suffer if

deported.

The bases for this claim were: (1) they have community ties

in the United States, including membership in a church; (2) if

deported, Moosa would be unable to provide his daughters with the

financial support to continue their education; (3) Mrs. Moosa

suffers from diabetes and back pain; (4) it would be difficult for

Moosa to find a job in Pakistan and the cost of living there is

very high; (5) drinking water and reliable electricity are not

readily available in Pakistan; and (6) their standard of living in

the United States is better than it would be in Pakistan.

At the deportation hearing, Moosa admitted the factual bases

for the 1990 deferred adjudication; stated that he felt “very

sorry” about his actions; and promised to refrain from such

- 35 - behavior. On being questioned about complaints filed by six or

seven other children, ranging in age from 10-12, that Moosa had

also molested them, Moosa admitted that he had also “grabbed and

molested” those children, but claimed total rehabilitation. He

also indicated that every molestation had taken place during his

employment at a particular store, but that he had not repeated such

actions since ending his employment there.

With regard to Mr. Moosa, the BIA made it clear that it was

denying his request for suspension based on its discretion.

Although the BIA noted that it did not find that Moosa had proven

extreme hardship, it stated that, even if he had proved all three

required elements, “a favorable exercise of discretion is not

warranted”. Because the BIA was making a discretionary decision,

§ 309 instructs that we do not have jurisdiction. See Kalaw v.

INS, 133 F.3d 1147, 1152 (9th Cir. 1997) (“if the Attorney General

decides that an alien’s application for suspension of deportation

should not be granted as a matter of discretion in addition to any

other grounds asserted, the BIA’s denial of the alien’s application

would be unreviewable under the transitional rules”).

The question with regard to Mrs. Moosa is one of first

impression in this circuit. The BIA found that she satisfied the

first two factors, but that she did not demonstrate that she would

suffer extreme hardship if deported. Thus, at issue is whether

IIRIRA § 309 deprives us of jurisdiction when the BIA bases its

- 36 - decision to deny suspension on the failure to demonstrate extreme

hardship.

Initially, we note that the power of courts to review

deportation decisions is subject to the will of Congress. As the

Supreme Court stated nearly 50 years ago:

The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, with such opportunity for judicial review of their action as congress may see fit to authorize or permit. This power is, of course, subject to judicial intervention under the paramount law of the constitution.

Carlson v. Landon, 342 U.S. 524, 537 (1952) (internal quotations

and citations omitted). See also Lucacela v. Reno, 161 F.3d 1055,

1058 (7th Cir. 1998) (“this court has recognized Congress’ ability

to determine the scope of the court’s review of INS decisions”);

Skutnik v. INS, 128 F.3d 512, 514 (7th Cir. 1997) (“although the

Constitution may require judicial review of a claim of legal

entitlement to remain in the United States, it does not require

review of claims that executive officials should make exceptions to

the rules defining who is legally entitled to reside in the United

States”). Thus, the scope of our review of denials of suspension

of deportation, including whether we are able even to review such

denials, is within the control of Congress.

Although our court has not yet addressed whether we lack

jurisdiction over denials of suspension based on a finding of no

- 37 - extreme hardship, it has been addressed in both the Seventh and

Ninth Circuits. In Kalaw, the Ninth Circuit addressed the changes

that § 309(c) had made with regard to judicial review of such

denials. Examining each of the three INA § 244 elements, the court

first found that the continuous physical presence element was a

factual inquiry, rather than a discretionary decision, that was

reviewed for substantial evidence; thus, § 309(c) did not divest

the court of its jurisdiction. Kalaw, 133 F.3d at 1151. Next, the

court found that it retained jurisdiction to review findings of bad

moral character under one of the statutory per se categories; but,

that § 309(c) stripped the court of jurisdiction over denials based

on a finding of bad moral character apart from the per se

categories. Id.

Finally, the court addressed denials based on the extreme

hardship element. It stated that a determination that no extreme

hardship exists “is clearly a discretionary act”. Id. at 1152.

The court held that, as a result, “[t]he transitional rules ...

preclude direct judicial review of the BIA’s determinations of the

threshold eligibility requirements of ‘extreme hardship’ and the

discretionary determination of ‘good moral character’”. Id. In

accord with this decision, the Ninth Circuit has found in several

cases that it lacked jurisdiction to review BIA decisions denying

suspension of deportation based on a finding of no extreme

hardship. See Robles v. INS, 161 F.3d 14, 1998 WL 479464 (9th Cir.

- 38 - 1998) (unpublished); Sagrero v. INS, 161 F.3d 14, 1998 WL 479475

(9th Cir. 1998) (unpublished); Perez-Garcia v. INS, 161 F.3d 13,

1998 WL 479470 (9th Cir. 1998) (unpublished); Lee v. INS, 145 F.3d

1339, 1998 WL 276849 (9th Cir. 1998) (unpublished); Sontay v. INS,

142 F.3d 445, 1998 WL 225065 (9th Cir. 1998) (unpublished);

Kechichian v. INS, 141 F.3d 1176, 1998 WL 133183 (9th Cir. 1998)

(unpublished).

Likewise, in Skutnik, the Seventh Circuit stated that, where

the petitioner requested review of a BIA decision based on extreme

hardship, “there can be no doubt that [the petitioner] wants review

of a ‘discretionary decision’”. Skutnik, 128 F.3d at 514.

However, because the alien in Skutnik conceded at oral argument

that IIRIRA precluded judicial review of the BIA’s decision, the

court stated that it “need not confront any of the interpretive

issues that lurk beneath its surface”. Id.

We join our sister circuits in 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. This determination is based not only on the above

decisions from other circuits, but also on Supreme Court precedent.

In Jong Ha Wang, 450 U.S. at 144, the Court stated:

The crucial question in this case is what constitutes “extreme hardship.” These words are not self-explanatory, and reasonable men could easily differ as to their construction. But the Act commits their definition in the first instance to the Attorney General and his

- 39 - delegates, and their construction and application of this standard should not be overturned by a reviewing court simply because it may prefer another interpretation of the statute.

See also INS v. Phinpathya, 464 U.S. 183, 195 (1984) (“In INS v.

Jong Ha Wang, we rejected a relaxed standard for evaluating the

‘extreme hardship’ requirement as impermissibly shifting

discretionary authority from INS to the courts” (emphasis added)).

Thus, the Supreme Court has indicated that determinations of

extreme hardship are discretionary. Finally, our court formerly

routinely reviewed BIA decisions based on the “extreme hardship”

element under an abuse of discretion standard, further indicating

that such determinations are discretionary. Ramos, 695 F.2d at

184-85 (“The decision whether to suspend the deportation of an

alien who satisfies the three [§ 1254] requirements is ...

discretionary ...”).

In sum, because the BIA based its denial of Mr. Moosa’s

application for suspension on its discretion to do so, IIRIRA

§ 309(c) precludes our review of that decision. Likewise, because

denials of applications of suspension based on the “extreme

hardship” element of INA § 244 are discretionary, we also lack

jurisdiction to review the decision concerning Mrs. Moosa.

III.

For the foregoing reasons, the petition challenging the

decision of the LAU denying Moosa permanent residency and

- 40 - terminating his temporary residency is DENIED; the challenges to

the BIA’s decision denying the suspension of deportation for Mr.

and Mrs. Moosa is DISMISSED for lack of jurisdiction.

DENIED IN PART; DISMISSED IN PART

- 41 -