Gregory Gelman v. John Ashcroft, United States Attorney General
Docket: 03-4463
Court: Court of Appeals for the Second Circuit; June 17, 2004; Federal Appellate Court
Gregory Gelman petitioned for review of a Board of Immigration Appeals (BIA) decision that found him removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) due to a 1988 first-degree arson conviction. The core legal issue was whether section 602(d) of the Immigration Act of 1990 permits deportation of an alien convicted of an aggravated felony before November 18, 1988, but charged with deportation after March 1, 1991. The Second Circuit previously affirmed the BIA's interpretation in Bell v. Reno, which upheld that such deportation is permissible despite the timing of the conviction relative to the Anti-Drug Abuse Act of 1988. Gelman argued that Supreme Court principles from INS v. St. Cyr challenged this interpretation, but the court maintained the precedent set in Bell as applicable. Gelman, a lawful permanent resident since 1980, was convicted of arson in 1988 and subsequently had his removal initiated by the Immigration and Naturalization Service (INS) in 1999. After exhausting appeals, the BIA affirmed his deportability based on his aggravated felony conviction, leading to the dismissal of Gelman’s petition for lack of jurisdiction.
Gelman’s petition for review acknowledged that the precedent set in Bell would be decisive if it remained valid. He contended that Bell’s interpretation of IMMAct § 602(d) was undermined by the Supreme Court's ruling in INS v. St. Cyr, issued after the BIA dismissed his appeal. Instead of evaluating Gelman's arguments, the court remanded the case to the BIA to assess the implications of St. Cyr on the retroactive enforcement of IMMAct § 602. Upon remand, the BIA determined it lacked the authority to address whether Bell was still good law after St. Cyr but referenced the Kuhali v. Reno decision, which seemed to uphold Bell’s validity. Consequently, the BIA found Gelman removable as an aggravated felon under INA § 237(a)(2)(A)(iii) and dismissed his appeal.
The discussion of jurisdiction clarified that Gelman’s removal proceedings commenced after April 1, 1997, making the permanent provisions of the IIRIRA applicable. Section 242(a)(2)(C) of the INA restricts review of final removal orders for aggravated felons, although the court retains the authority to determine the applicability of this jurisdictional bar. The resolution of Gelman's case is contingent on whether the Bell decision is still authoritative, as it pertains to the deportation grounds for aliens convicted of aggravated felonies. Bell, which involved a similar scenario of deportation based on an aggravated felony conviction predating the ADAA, highlighted that prior to the ADAA, there were no provisions for the deportation of aggravated felons. The ADAA introduced the term and established grounds for removal, but it stipulated that these provisions only applied to convictions occurring after its enactment.
An alien was subject to deportation as an aggravated felon under the Anti-Drug Abuse Act (ADAA) only if convicted after November 1, 1988. However, the IMMAct of 1990 rendered certain provisions of the ADAA obsolete, leading to the denial of a petition related to this matter. The IMMAct expanded the definition of 'aggravated felony' and restructured the grounds for deportation within the Immigration and Nationality Act (INA), particularly redesignating the aggravated felony ground. Moreover, the IMMAct specified that its amendments would not apply to deportation proceedings initiated before March 1, 1991. As a result, it was determined that a redesignation of the aggravated felony ground constituted an 'amendment' under the IMMAct, meaning that aliens convicted of aggravated felonies could be deported if notified of proceedings after this date, regardless of when their convictions occurred.
In the current case, Gelman acknowledges that the precedent set in Bell is applicable but seeks to have it overruled. However, one panel of the court cannot overrule the decision of another unless done by an en banc panel or the Supreme Court. An exception exists if a Supreme Court decision raises doubts about the existing precedent. Gelman argues that the Supreme Court's analysis in INS v. St. Cyr undermines the Bell decision, prompting him to request a reassessment of that precedent.
Gelman's arguments regarding the applicability of the 1996 IIRIRA amendments to his 1980 conviction are rejected based on the precedent set in Kuhali v. Reno, which confirmed the obsolescence of ADAA § 7344(b) due to subsequent congressional actions. The Kuhali court held that aliens convicted of aggravated felonies are subject to removal regardless of when their convictions occurred, thus reinforcing the conclusion from Bell that IMMAct § 602(d) permits the INS to initiate deportation proceedings against Gelman under INA § 237(a)(2)(A)(iii). Consequently, Gelman’s aggravated felony conviction, even though predating the ADAA, allows for his removal. The court concludes that it lacks jurisdiction to review Gelman's petition due to his aggravated felony status and therefore dismisses the petition. Additionally, it notes an error by the BIA regarding the date of Gelman's conviction for arson, clarifying that the correct date of conviction is May 2, 1988, under New York law. The INS is referred to as such in this opinion, despite its reconstitution as the Bureau of Immigration and Customs Enforcement in 2003.
