Ruckbi v. INS

• Court: Court of Appeals for the First Circuit
• Decided: October 29, 1998
• Docket: 97-1992
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________


No. 97-1992



                           ALI RUCKBI,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                           Respondent.



                       ____________________



                 PETITION FOR REVIEW OF AN ORDER



               OF THE BOARD OF IMMIGRATION APPEALS



                       ____________________



                              Before



                     Torruella, Chief Judge,



                Boudin and Stahl, Circuit Judges.



                      _____________________



    Linda A. Cristello, with whom Allan M. Tow, was on brief, for

petitioner.

    Karen Ann Hunold, Trial Attorney, Office of Immigration

Litigation, Civil Division, U.S. Department of Justice, with whom

Frank W. Hunger, Assistant Attorney General, Karen Fletcher

Torstenson, Assistant Director, and Linda S. Wendtland, Senior

Litigation Counsel, were on brief, for respondent.


____________________



                        October 28, 1998

                       ____________________          TORRUELLA, Chief Judge.  Petitioner Ali Ruckbi ("Ruckbi")

seeks review of a Board of Immigration Appeals ("BIA") decision

affirming an Immigration Judge's ("IJ") denial of his application

for adjustment of status pursuant to section 245 of the Immigration

and Nationality Act ("the Act"), 8 U.S.C.  1255, and voluntary

departure under section 244(e) of the Act, 8 U.S.C.  1254(e).  On

appeal, Ruckbi argues that the conduct of the proceedings below

violated his due process rights.  Because we conclude that the

Illegal Immigration Reform and Immigrant Responsibility Act's

("IIRIRA") "transitional rules" divest the courts of appeals of

jurisdiction over this category of claims, we dismiss Ruckbi's

petition for lack of jurisdiction.

I.  BACKGROUND

          Ruckbi is a thirty-two year old citizen of Syria who came

to the United States on April 19, 1992, as a non-immigrant visitor

for pleasure.  He was authorized to remain in the United States

until October 19, 1992.  Ruckbi failed to depart by the required

date or at any time thereafter.  On October 22, 1993, the

Immigration and Naturalization Service ("INS") issued an Order to

Show Cause ("OSC") charging Ruckbi with deportability under INA

 241(a)(1)(B), 8 U.S.C.  1251(a)(1)(B).  

          At an initial hearing on January 11, 1994, Ruckbi

conceded deportability and sought a discretionary grant of

adjustment of status based on his recent marriage to a United

States citizen.  Alternatively, Ruckbi sought a discretionary grant

of voluntary departure.  On April 15, 1994, Ruckbi submitted a

written adjustment application.

          A.   Adjustment of Status

          Section 245 of the Act authorizes the Attorney General,

in her discretion and under such regulations as she may prescribe,

to adjust an alien's status to that of an alien lawfully admitted

for permanent residence, provided that the alien meets certain

statutory requirements.  To be statutorily eligible for adjustment

of status, the alien must show: (1) that he was inspected and

admitted or paroled into the United States; (2) that he has made an

application for such adjustment; (3) that he is eligible to receive

an immigrant visa and is admissible to the United States for

permanent residence; and, (4) that an immigrant visa is immediately

available to him at the time his application is filed.  See 8

U.S.C.  1255(a).  Once the alien has established threshold

statutory eligibility, he must additionally demonstrate to the

Attorney General's satisfaction that he merits relief in the

exercise of discretion.  See Henry v. INS, 74 F.3d 1, 4, 7 (1st

Cir. 1996).

          In the written adjustment application that he submitted

on April 15th, Ruckbi answered "no" to questions whether he had

ever knowingly committed any crime of moral turpitude, or ever been

arrested or charged for violating any law.  At the merits hearing

on May 12, 1994, Ruckbi revised his adjustment application to

indicate a "yes" answer to the foregoing questions.  Subsequently,

per the IJ's order, Ruckbi produced his criminal record.  The

record indicated that between November 16, 1990 and September 3,

1993, Ruckbi was charged with thirty-six different offenses under

several different aliases.  At his hearing, Ruckbi claimed that he

was never criminally convicted of any of the charges against him. 

During cross-examination, however, Ruckbi admitted the commission

of the essential elements of several of the crimes with which he

was charged.  As a result of these admissions, the IJ found Ruckbi

inadmissible under  212(a)(2)(A)(i)(I) of the Act and thus

statutorily ineligible for adjustment of status relief.  The BIA

affirmed the IJ's findings of inadmissibility and statutory

ineligibility.

     Additionally, the IJ denied Ruckbi's application for

adjustment of status as a matter of discretion.  The IJ concluded

that "the respondent's history of criminal and fraudulent activity

is so egregious as to make him a person who cannot show good moral

character."  The BIA affirmed the IJ's determination that Ruckbi 

did not merit relief in the exercise of discretion.  Ruckbi now

seeks review of the BIA decision.  

     B.   Voluntary Departure

     In the event that his application for adjustment of

status was denied, Ruckbi also sought a discretionary grant of

voluntary departure.  Under  244(e) of the INA, the Attorney

General may, in her discretion, permit an alien in deportation

proceedings to depart voluntarily from the United States at his own

expense in lieu of deportation.  See INA  244(e), 8 U.S.C.

 1254(e).  To be statutorily eligible for voluntary departure, an

alien must demonstrate to the Attorney General's satisfaction that

he is and has been a person of good moral character for at least

five years immediately preceding the date of his voluntary

departure application.  See id.  As with adjustment, once an alien

has established statutory eligibility for voluntary departure, he

additionally must persuade the Attorney General that he merits a

grant of relief in the exercise of discretion.  See Molina v. INS,

981 F.2d 14, 17 (1st Cir. 1992).

     As discussed above, the IJ found that Ruckbi failed to

establish his good moral character during the five years

immediately preceding his application for voluntary departure. 

Additionally, the IJ concluded that Ruckbi did not merit relief in

the exercise of discretion.  The BIA affirmed both of these

conclusions.  Ruckbi appeals the BIA decision.

II.  DISCUSSION

     The courts of appeals have jurisdiction to review final

orders of deportation under the circumstances set forth at former

section 106(a) of the Act, 8 U.S.C.  1105a(a), as modified by

"transitional rules" for judicial review established by section

309(c)(4) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009

(Sept. 30, 1996) ("IIRIRA"), as amended by Act of Oct. 11, 1996,

Pub. L. No.  104-302, 110 Stat. 3657.

     Congress enacted IIRIRA on September 30, 1996.  Under

IIRIRA there are two new sets of rules: the new permanent rules and

the "transitional rules."  See IIRIRA  309(c).  As stated in

 309(c)(1), the new permanent rules only apply to cases in which

the INS instituted removal proceedings on or after April 1, 1997. 

See id.  In contrast, the transitional rules apply to deportation

proceedings commenced before April 1, 1997.  See id.  Because the

deportation proceedings against Ruckbi were initiated before

April 1, 1997, his claims are governed by the transitional rules.

     Section 309(c)(4) of the IIRIRA "transitional rules" sets

forth the changes Congress implemented with respect to judicial

review of final orders of deportation or exclusion.  See id. 

Section 309(c)(4)(G) states: "there shall be no appeal permitted in

the case of an alien who is inadmissible or deportable by reason of

having committed a criminal offense covered in section 212(a)(2).

. . ."  IIRIRA  309(c)(4)(G).  Because Ruckbi admitted the

commission of the essential elements of crimes covered by section

212(a)(2), this court is precluded by the plain language of section

309(c)(4)(G) from reviewing his claims.  See id.  The section

states that "there shall be no appeal," a clear reference to an

appeal to the courts of appeals.    

     Ruckbi argues that any interpretation of  309(c)(4)(G)

that divests the courts of appeals of jurisdiction to review

alleged constitutional violations is unconstitutional.  However,

Ruckbi's position is foreclosed by this circuit's recent decisions

in Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998), and Santos v.

INS, 124 F.3d 64 (1st Cir. 1997).  In those cases we held that

where judicial review is otherwise precluded by the IIRIRA's

transitional rules, an alien cannot bring a constitutional

challenge to his deportation order by means of a petition for

review in the court of appeals, but must instead file a habeas

petition in the district court.  See Goncalves, 144 F.3d at 118,

123; Santos, 124 F.3d at 64; cf. Kolster v. INS, 101 F.3d 785, 790

(1st Cir. 1996) (holding that  440 (a) of Antiterrorism and

Effective Death Penalty Act ("AEDPA") divests court of appeals of

jurisdiction to hear petitions for review).  The Goncalves court

specifically addressed the constitutional concerns raised by Ruckbi

and concluded that such an interpretation of  309(c)(4)(G) posed

no constitutional problems because residual jurisdiction existed in

the district court over habeas corpus petitions.  See 144 F.3d at

122, 123.  In light of this circuit precedent, the petition for

review is dismissed for lack of jurisdiction.