Gerard James Catney v. Immigration & Naturalization Service

Citations: 178 F.3d 190; 1999 WL 330421; 1999 U.S. App. LEXIS 10220Docket: 98-3154

Court: Court of Appeals for the Third Circuit; May 25, 1999; Federal Appellate Court

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Gerard James Catney, a permanent resident alien from Northern Ireland, challenges his deportation order issued by the Board of Immigration Appeals (BIA). Catney, who has lived in the U.S. since 1962, is married to a U.S. citizen and has a U.S. citizen daughter. He contends that the BIA misapplied a provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and argues that certain provisions of AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) violate the equal protection component of the Fifth Amendment's Due Process Clause. The government counters that Catney waived his right to raise these constitutional claims since he did not file a brief with the BIA or include one of the issues in his appeal notice.

The court, however, refrains from addressing these claims based on the precedent set in Sandoval v. Reno, which limits the court's jurisdiction over Catney's petition. Instead, the court concludes that Catney must submit his legal error claims, whether constitutional or otherwise, through a habeas corpus petition to seek relief from the BIA's order.

The enactment of AEDPA and IIRIRA in 1996 significantly curtailed the scope of federal court review regarding deportation orders. Notably, AEDPA mandates that deportation orders against aliens convicted of certain crimes are not subject to judicial review. Additionally, IIRIRA provides transitional judicial-review rules for cases initiated before April 1, 1997, affecting Catney’s case, which falls under the transitional rules since his deportation proceedings began in 1992 and the final order was issued in February 1998.

Relief from deportation for 'criminal aliens' like Catney was historically available under two provisions of the Immigration and Nationality Act (INA): sections 212(c) and 212(h). 

Section 212(c), repealed in 1996, allowed the Attorney General discretion to waive deportation for certain lawful permanent residents (PRAs) who had maintained a lawful domicile in the U.S. for seven consecutive years and had briefly traveled abroad. Initially, it applied only to those PRAs returning from abroad, but the Second Circuit expanded its scope to include PRAs who had never left the country. However, amendments in 1990 and 1996 limited this relief, excluding PRAs convicted of specific aggravated felonies, thus rendering individuals like Catney ineligible for such discretionary relief. The Board of Immigration Appeals (BIA) interpreted the 1996 enhancements to apply retroactively to pending cases, a position contested in Sandoval v. INS, which held that it did not apply to Catney's pending deportation case.

Section 212(h) similarly grants the Attorney General discretionary authority to waive deportation for individuals subject to removal due to certain criminal convictions. This section is applicable if the alien is a close family member of a U.S. citizen or lawful permanent resident and can demonstrate that their exclusion would cause extreme hardship to those relatives. The Attorney General must also consent to the alien's application or reapplication for a visa or adjustment of status.

Catney, a primary breadwinner with a family of U.S. citizens, is ineligible for relief under section 212(h) due to having committed an aggravated felony since his lawful admission to the U.S., as stipulated by section 348(a) of IIRIRA. He initially sought relief from deportation under sections 212(c) and 212(h), but the Immigration Judge denied his request. After failing to submit a brief for his appeal to the Board of Immigration Appeals (BIA), Catney’s case was dismissed in 1998. 

In his petition for review, Catney raises three key issues: 

1. He argues against the application of section 440(d) of AEDPA to cases pending at its enactment date, referencing a contrary ruling in a related case.
2. He contends that the distinction made between criminal aliens facing deportation and those facing exclusion violates the equal protection clause of the Fifth Amendment, as it treats those outside the country more favorably than those like him remaining in the U.S.
3. He claims that under the amended section 212(h) of IIRIRA, the law irrationally denies relief to aggravated felons who are lawful residents while allowing it for those who entered the country unlawfully. 

Catney asserts that these legal distinctions lack rational justification, particularly favoring individuals with multiple offenses over those with a single aggravated felony following lawful entry.

The government argues that Catney has waived his claims by not presenting them to the Board of Immigration Appeals (BIA) and failing to include section 440(d) issues in his appeal notice. It disputes Catney's arguments regarding the retrospective application and constitutionality of the relevant provisions. Jurisdiction to hear statutory or constitutional claims, as well as denials of relief from deportation, is retained for most aliens, excluding criminal aliens like Catney, under 8 U.S.C. 1252. Following the enactment of AEDPA and IIRIRA, criminal aliens can no longer seek judicial review of discretionary relief denials, necessitating challenges to BIA interpretations and constitutional issues via habeas petitions instead. Consequently, the court declines to address Catney's substantive arguments or the government's waiver claims. 

The Sandoval case clarifies that habeas jurisdiction remains intact despite the limitations imposed by AEDPA and IIRIRA, although direct review does not. The court emphasizes a duty to interpret statutes in a way that avoids constitutional issues, rejecting the government's assertion that courts of appeals have jurisdiction over claims of 'substantial constitutional error' due to a lack of statutory support. The absence of a constitutional imperative to interpret the 1996 statutes differently further solidifies the court's stance. The court concludes that habeas jurisdiction encompasses both statutory and constitutional claims, leaving the question of whether jurisdiction for substantial constitutional claims exists in appellate courts unresolved.

At various times, both parties (Catney and the INS) asserted that jurisdiction was both present and lacking regarding Catney's claims of constitutional error. The court has determined that, under current jurisprudence following the enactment of AEDPA and IIRIRA, it lacks jurisdiction to review final orders of removal for criminal aliens, which includes any claims of statutory or constitutional error. Consequently, Catney's constitutional challenges to these acts and his argument regarding the BIA's application of section 440(d) of AEDPA will result in the dismissal of the Petition for Review.

Catney, a 'criminal alien' due to prior convictions for armed robbery and armed burglary, is subject to deportation under the INA. The BIA has clarified that the proviso in section 212(c) of AEDPA, which excludes certain aliens from relief based on criminal offenses, does not apply to those who have left the country and are thus excludable. IIRIRA has streamlined the process by eliminating distinctions between deportation and exclusion, replacing them with a single 'removal' proceeding.

The IIRIRA provisions, particularly section 348(a), apply retroactively to cases pending as of its enactment date (September 30, 1996), which includes Catney's case since his deportation order was not finalized until February 11, 1998. Additionally, Catney has filed a motion to the BIA to reopen his case and stay deportation, which is still pending.

The amendment to section 212(h) of the Act specifies that the aggravated felony bar to relief applies only to aliens who have been lawfully admitted to the United States as permanent residents. There is currently a circuit split regarding the availability of habeas relief for criminal aliens facing deportation. The Seventh Circuit has determined that such relief is no longer available, although constitutional claims can be raised in appellate court. Conversely, the First, Second, and other circuits maintain that habeas relief remains available. Additionally, Catney's request for a stay of deportation pending judicial review is denied as moot due to a lack of jurisdiction to review the deportation order.