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Case Name:
ALFARO-REYES V INS

Case Number:

Date Filed:

97-70443

08/03/00


FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAFAEL ALFARO-REYES,
Petitioner,
                                                     No. 97-70443
v.
                                                     INS No.
IMMIGRATION AND NATURALIZATION
                                                     A92-416-471
SERVICE,
Respondent.

ALFREDO DUENAS-LOPEZ,
Petitioner,
                                                     No. 97-70511
v.
                                                     INS No.
IMMIGRATION AND NATURALIZATION
                                                     A93-202-822
SERVICE,
Respondent.

JULIAN SOLORZANO-SALAS,
Petitioner,
                                                     No. 97-70524
v.
                                                     INS No.
IMMIGRATION AND NATURALIZATION
                                                     A14-578-722
SERVICE,
Respondent.

                               9423


SHERVIN MOINI,
Petitioner,                                           No. 97-70641

v.                                                    INS No.
                                                     A38-796-259
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

Petitions for Review of Orders of the
Board of Immigration Appeals

Argued and Submitted
May 4, 2000--Pasadena, California

Filed August 3, 2000

Before: J. Clifford Wallace, Stephen S. Trott, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

_________________________________________________________________



COUNSEL

Jan Joseph Bejar, San Diego, California, for the petitioners.

Kurt B. Larson (argued), Nelda C. Reyna (briefed), Office of
Immigration Litigation, Civil Division, Department of Justice,
Washington, D.C., for the respondent.

_________________________________________________________________

OPINION

GOULD, Circuit Judge:

Petitioners Rafael Alfaro-Reyes, Alfredo Duenas-Lopez,
Julian Solorzano-Salas and Shervin Moini are four lawful per-

                               9426


manent resident aliens deportable because of their convictions
for controlled substance offenses. Petitioners appeal their final
orders of deportation by the Board of Immigration Appeals
("BIA"). They claim that their constitutional rights were vio-
lated when the BIA applied to their cases Antiterrorism and
Effective Death Penalty Act of 19961 ("AEDPA") section
440(d), which amended Immigration and Nationality Act
("INA") section 212(c), 8 U.S.C. S 1182(c), to preclude the
discretionary relief from deportation that they seek. The
threshold issue, however, is whether Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
("IIRIRA") section 309(c)(4)(G),2  another amendment to the
INA, divests this court of jurisdiction to hear such claims of
constitutional error from a decision of the BIA on direct
appeal. We have jurisdiction to determine our own jurisdic-
tion. Ye v. INS, No. 98-70784, 2000 WL 732911, *2 (9th Cir.
June 9, 2000).

In Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir.
1999), this court held that IIRIRA section 309(c)(4)(G)
divested it of jurisdiction to hear claims of statutory error on
direct appeal from a decision of the BIA by aliens deportable
because of convictions for certain specified criminal offenses.
We now hold that IIRIRA section 309(c)(4)(G) also divests
this court of jurisdiction to hear claims of constitutional error
on direct appeal. We therefore dismiss the claims of Alfaro-
Reyes, Duenas-Lopez, Solorzano-Salas and Moini for lack of
jurisdiction.
_________________________________________________________________
1 Pub. L. No. 104-132, S 440(d), 110 Stat. 1214, 1277 (1996).
2 Pub. L. No. 104-208, S 309(c)(4)(G), 110 Stat. 3009-546, 3009-626 to
627 (1996).

                               9427


FACTUAL AND PROCEDURAL HISTORY

A.

1.

Rafael Alfaro-Reyes is a native and citizen of Mexico. He
entered the United States on or about November 15, 1978. He
gained lawful permanent resident status on October 4, 1990.
On June 1, 1993, he was convicted of conspiracy to import
over one hundred pounds of marijuana into the United States.
As a result of his conviction, the Immigration and Naturaliza-
tion Service ("INS") initiated deportation proceedings against
him pursuant to INA section 241(a)(2)(B)(i), 8 U.S.C.
S 1251(a)(2)(B)(i) (now codified at 8 U.S.C.S 1227). At his
July 18, 1995 hearing, Alfaro-Reyes conceded deportability
and requested discretionary relief from deportation under INA
section 212(c). On March 24, 1997, the BIA issued a final
order finding Alfaro-Reyes was statutorily ineligible for dis-
cretionary relief under INA section 212(c) because of its
amendment by AEDPA section 440(d).

2.

Alfredo Duenas-Lopez is a native and citizen of Mexico.
He has been living in the United States since 1985 and gained
lawful permanent resident status on December 1, 1990. On
May 13, 1992, Duenas-Lopez was convicted of possession of
three pounds of marijuana. On May 19, 1992, the INS initi-
ated deportation proceedings, charging him with deportability
pursuant to INA section 241(a)(2)(B)(i), because of his con-
viction of a controlled substance violation. On August 16,
1993, an Immigration Judge ("IJ") found Duenas-Lopez
deportable and ineligible for INA section 212(c) discretionary
relief. On April 3, 1997, the BIA affirmed and issued a final
order of deportation.

                               9428


3.

Julian Solorzano-Salas is a native and citizen of Mexico.
He gained lawful permanent resident status on June 25, 1965.
On April 11, 1991, he was convicted of willful and unlawful
purchase and possession of a controlled substance for sale,
cocaine in excess of 100 pounds. The INS charged Solorzano-
Salas with deportability pursuant to INA section
241(a)(2)(B)(i) for his conviction of a controlled substance
violation. On June 17, 1996, an IJ found Solorzano-Salas
deportable and statutorily ineligible for INA section 212(c)
discretionary relief. On April 8, 1997, the BIA affirmed, issu-
ing a final order of deportation.

4.

Shervin Moini is a native and citizen of Iran. He immi-
grated to the United States in December 1978. He became a
lawful permanent resident alien on November 25, 1985. On
January 7, 1994, he was convicted of possession of metham-
phetamine, a controlled substance. This crime was one in a
series that Moini committed while an addict. Moini has under-
gone drug treatment and has been drug free since 1994. On
January 20, 1994, the INS charged Moini with deportability
under INA section 241(a)(2)(B)(i) because of his conviction
of a controlled substance violation. On May 8, 1997, the BIA
issued a final order of deportation, finding him statutorily
ineligible for INA section 212(c) relief. Moini petitioned this
court to review the BIA's decision.

B.

All Petitioners were convicted of controlled substance vio-
lations, ranging from simple possession to dealing, in conse-
quence of which the INS commenced deportation proceedings
against them. While their proceedings were pending, Con-
gress enacted AEDPA, which, inter alia, amended INA sec-
tion 212(c) to bar the Attorney General from granting a

                               9429


discretionary waiver of deportation to individuals who had
been convicted of certain drug-related offenses, including the
offenses of which petitioners had been convicted. 3 In each of
Petitioners' cases, the BIA determined that in view of the
enactment of AEDPA section 440(d), each was statutorily
ineligible for a discretionary waiver of deportation.

Petitioners in this appeal claim that the BIA's application
of AEDPA section 440(d) to them was impermissible in two
respects. First, they contend that the BIA could not retroac-
tively apply AEDPA section 440(d) to cases, such as theirs,
which were pending at the time of its enactment. Second,
Petitioners contend that the BIA violated their constitutional
right to equal protection because it denied discretionary relief
to them as deportable criminal aliens while granting INA sec-
tion 212(c) relief to similarly situated criminal excludable
aliens.

In Magana-Pizano, we held that IIRIRA section
309(c)(4)(G) divested us of jurisdiction to review on direct
appeal claims of statutory violations raised by aliens who --
similar to Petitioners -- are deportable because of having
been convicted of certain drug offenses. 200 F.3d at 607.
Accordingly, we do not consider statutory claims here.4

In Magana-Pizano, however, we did not address the ques-
tion whether we retain jurisdiction to consider on direct
_________________________________________________________________
3 Specifically, AEDPA S 440(d) amended INA S 212(c) to bar discre-
tionary relief to any alien who:

      is deportable by reason of having committed any criminal offense
      covered in [INA] section 241(a)(2)(iii), (B), (C), or (D), or any
      offense covered by section 241(a)(2)(A)(ii) for which both predi-
      cate offenses are covered by section 241(a)(2)(A)(i).
4 Petitioners are free to pursue these claims by means of a petition for
a writ of habeas corpus. See Magana-Pizano, 200 F.3d at 609. We note
that Magana-Pizano resolved the very statutory issue that petitioners
apparently raise here -- holding that AEDPA section 440(d) cannot be
applied to deportation cases pending at the time it became law. Id. at 611.

                               9430


appeal claims of constitutional violations raised by these same
categories of criminal aliens. Accordingly, before considering
Petitioners' equal protection claims, we must decide whether
we have jurisdiction to do so. Petitioners argue that Congress
may not, consistent with due process, eliminate their ability to
seek review of constitutional violations on direct appeal. For
the reasons described below, we disagree.

STANDARD OF REVIEW

The existence of subject matter jurisdiction is a question of
law reviewed de novo. See Milne v. Hillblom, 165 F.3d 733,
735 (9th Cir. 1999).

DISCUSSION

In 1996, Congress enacted both AEDPA and IIRIRA into
law. Before the enactment of either of these statutes, there
was direct federal judicial review of deportation orders. See
8 U.S.C. S 1105a (1994), repealed by IIRIRA, Pub. L. 104-
208, S 306(b), 110 Stat. 3009-612 (1996). Under the same
provision, deportable aliens could seek review of their depor-
tation orders by filing petitions for a writ of habeas corpus.

[1] IIRIRA changed the judicial review structure through
its permanent and transitional rules. IIRIRA's permanent rules
do not apply to deportation cases that were pending before
April 1, 1997, the effective date of IIRIRA's amendments;
instead, the transitional rules, found in IIRIRA section 309(c),
apply to BIA final orders issued after October 30, 1996 in
deportation cases that were pending before April 1, 1997. See
Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997); Magana-
Pizano, 200 F.3d at 607. Because the BIA issued Petitioners'
final orders of deportation after October 30, 1996, and Peti-
tioners' deportation proceedings all began before April 1,
1997, IIRIRA's transitional rules apply to Petitioners' cases.

[2] Turning to the transitional rules, IIRIRA section
309(c)(4)(G) provides:

                               9431


      [T]here 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) or section 241(a)(2)(A)(iii), (B),
      (C), or (D) of the Immigration and Nationality Act
      (as in effect as of the date of the enactment of this
      Act), or any offense covered by section 241(a)(2)
      (A)(ii) of such Act . . . for which both predicate
      offenses are, without regard to their date of commis-
      sion, otherwise covered by section 241(a)(2)(A)(i) of
      such Act (as so in effect).

IIRIRA S 309(c)(4)(G) (emphasis added).

Petitioners are deportable because each has committed drug
offenses covered by INA section 241(a)(2)(B), and thus
IIRIRA section 309(c)(4)(G) appears to bar their appeals, pre-
cluding our review of their equal protection challenges to the
BIA's discriminatory application of AEDPA section 440(d).
Accordingly, we are squarely faced with the question that was
not raised in Magana-Pizano: Whether IIRIRA section
309(c)(4)(G) divests this court of jurisdiction to hear constitu-
tional challenges, as well as statutory challenges, on direct
appeal.

To answer this question, we first address whether the stat-
ute should be interpreted to divest us of jurisdiction over such
constitutional claims on direct appeal. "In interpreting stat-
utes, we begin with the language of the statute itself."
Aragon-Ayon v. INS, 206 F.3d 847, 851 (9th Cir. 2000).
"Where the plain meaning of a provision is unambiguous, that
meaning is controlling." Id. 

[3] Applying these principles here, we conclude that
IIRIRA section 309(c)(4)(G) is plain and unambiguous on its
face. We read the clause stating "there shall be no appeal" as
demonstrating a clear congressional mandate to divest the
appellate courts of jurisdiction over direct appeals by deport-

                               9432


able criminal aliens covered by IIRIRA section 309(c)(4)(G).
Thus, the terms of the statute preclude direct appellate review
of constitutional issues.

A literal reading of IIRIRA section 309(c)(4)(G), preclud-
ing direct review of constitutional claims, is consistent with
one of the central purposes of IIRIRA, which was to prioritize
the apprehension and removal of aliens involved in drug traf-
ficking or other criminal activity. See IIRIRA S 659, 110 Stat.
3009-720. Our conclusion also is reinforced by the consistent
and reasoned rulings of five other circuit courts of appeal. See
Pak v. Reno, 196 F.3d 666, 672 n.8 (6th Cir. 1999); Catney
v. INS, 178 F.3d 190, 196 (3d Cir. 1999); Ruckbi v. INS, 159
F.3d 18, 21 (1st Cir. 1998); Lerma de Garcia v. INS, 141 F.3d
215, 217 (5th Cir. 1998); Jean-Baptiste v. Reno , 144 F.3d
212, 218-20 (2d Cir. 1998).

[4] We must also consider a second issue, whether Con-
gress has the authority under the Constitution to divest us of
this jurisdiction consistent with due process. The U.S.
Supreme Court has made it clear that "Congress has plenary
authority in all cases in which it has substantive legislative
jurisdiction so long as the exercise of that authority does not
offend some other constitutional restriction." INS v. Chadha,
462 U.S. 919, 941 (1983) (citations and quotations omitted).
Here, any potential due process concern over Congress' elimi-
nation of direct appeals in these deportation cases is alleviated
in the Ninth Circuit, because of the availability of habeas
review for claims of both statutory and constitutional viola-
tions arising during deportation proceedings. See Magana-
Pizano, 200 F.3d at 609. Other circuit courts of appeal hold-
ing that IIRIRA section 309(c)(4)(G) precludes direct review
of constitutional questions have found the continued availabil-
ity of the writ of habeas corpus to be relevant. See Pak, 196
F.3d at 671-73; Catney, 178 F.3d at 195-96; Ruckbi, 159 F.3d
at 21; Lerma de Garcia, 141 F.3d at 217; Jean-Baptiste, 144
F.3d at 218-19.5 Following this beaten path of persuasive pre-
_________________________________________________________________
5 The only case to hold that IIRIRA section 309(c)(4)(G) does not elimi-
nate constitutional review on direct appeal is Musto v. Perryman, 193 F.3d

                               9433


cedent, we hold that because 28 U.S.C. S 2241 habeas corpus
relief is available to review constitutional claims, Congress'
preclusion of direct appeals in IIRIRA section 309(c)(4)(G)
does not offend the Due Process Clause of the Constitution.

CONCLUSION

For these reasons we hold that IIRIRA section 309(c)(4)(G)
divests us of jurisdiction to hear constitutional claims on
direct appeal. Accordingly, we DISMISS Petitioners' peti-
tions for lack of jurisdiction.

_________________________________________________________________
888, 891 (7th Cir. 1999). The Musto holding was the result of the Seventh
Circuit's previous holding that AEDPA section 440(a) curtailed habeas
relief in deportation cases. See LaGuerre v. Reno, 164 F.3d 1035, 1040
(7th Cir. 1998). The Seventh Circuit ruled that allowing constitutional
review of direct appeals was necessary because of "the presumption that
executive resolutions of constitutional issues are judicially reviewable."
Id. The Ninth Circuit has held that habeas review survived IIRIRA section
309(c)(4)(G) and therefore the concerns that motivated the Seventh Circuit
in Musto are inapplicable here. See Magana-Pizano, 200 F.3d at 609.
                               9434


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