9th Circuit Finds Criminal Bar To Appellate Jurisdiction Applies Only Where Removal Order Is Based On Criminal Ground

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

9TH CIRCUIT FINDS CRIMINAL BAR TO APPELLATE JURISDICTION APPLIES ONLY WHERE REMOVAL ORDER IS BASED ON CRIMINAL GROUND
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The U.S. Court of Appeals for the Ninth Circuit has issued a published decision addressing the scope of section 242(a)(2)(C) of the Immigration and Nationality Act. Section 242(a)(2)(C) deprives the court of jurisdiction over a petition for review of a removal order issued against a non–U.S. citizen “who is removable by reason of having committed a criminal offense” listed in INA sec. 212(a)(2) (the criminal grounds of inadmissibility) or in specified criminal grounds of removability. The court found that this bar to jurisdiction applies only where there is an administrative finding that the noncitizen is deportable based on one of the specified criminal grounds.

The petitioner in this case, Ricardo Alvarez-Santos, is a Guatemalan national who entered the U.S. without inspection in 1990. In 1997 he was charged with spouse abuse under California Penal Code sec. 273.5. He initially pled guilty, but was permitted to withdraw the plea and participate in a “batterer’s reeducation program,” and after he successfully completed the diversion program the charge was dismissed.

Subsequently, the Immigration and Naturalization Service commenced removal proceedings, charging Alvarez-Santos with being removable on two grounds: entry without inspection and conviction of a crime of moral turpitude. At his removal hearing, Alvarez-Santos conceded being removable on the first ground, but contested the second ground. He also applied for asylum and withholding, and in the alternative for voluntary departure.

The immigration judge found that because Alvarez-Santos had completed the diversion program, he had not been convicted of a crime of moral turpitude and was not removable on that ground. The IJ denied the applications for asylum and withholding but found that Alvarez-Santos had good moral character and granted him voluntary departure. Alvarez-Santos appealed the denial of asylum and withholding, and the INS appealed the grant of voluntary departure, contending that the petitioner did not merit discretionary relief. The INS did not appeal the IJ’s finding that Alvarez-Santos was not removable for conviction of a crime of moral turpitude.

On appeal, the Board of Immigration Appeals upheld the denials of asylum and withholding. The BIA reversed the grant of voluntary departure, on a basis that the INS had not raised. The BIA found that Alvarez-Santos was ineligible for voluntary departure because he had admitted committing the essential elements of a crime of moral turpitude. Alvarez-Santos then filed a petition for review of the BIA’s decision.

In ruling on the petition for review, the court rejected the INS’s argument that INA sec. 242(a)(2)(C) deprived the court of jurisdiction. The court found that the statute’s phrase “removable by reason of having committed” an offense refers to an administrative determination of the basis for a noncitizen’s removal. Thus, the statute “precludes judicial review only when an alien is actually determined to be removable and ordered removed on the basis of a covered criminal act.”

The court found that it does not have jurisdiction to review the BIA’s denial of voluntary departure because of INA sec. 240B(f), which provides that “[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure . . . .” The court concluded that the language of this provision precludes review of denials of voluntary departure, whether the denial is based on an eligibility determination or a discretionary determination. The court expressly did not reach the question of whether habeas corpus is available to review such determinations, and the court’s description of the denial suggests that it would be: “As we have noted, the BIA denied voluntary departure on a ground not argued by the INS and in apparent violation of its own precedent decisions.”

On the merits, the court upheld the BIA’s decisions to deny asylum and withholding, finding that they were supported by substantial evidence.

Alvarez-Santos v. INS, No. 01-71478 (9th Cir. June 20, 2003).