                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-9-2007

Debeato v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3235




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ____________

                   No. 05-3235
                  ____________

       LUZ MARTINA FELIZ DEBEATO

                                  Petitioner

                        v.

ATTORNEY GENERAL OF THE UNITED STATES

                                  Respondent
                  ____________

        Initially docketed as an Appeal from the
            United States District Court
      for the Eastern District of Pennsylvania
               (D.C. No. 04-cv-0603)
   District Judge: Honorable Cynthia M. Rufe
   Converted to a Petition for Review from the
           Board of Immigration Appeals
       Pursuant to the REAL ID Act of 2005
             (Board No. A 41 943 418)
Immigration Judge: Honorable Bruce Michael Barrett
                   ____________
                  Argued May 23, 2007
      Before: CHAGARES, HARDIMAN and TASHIMA ,
                    *
                      Circuit Judges.

                   (Filed: October 9, 2007 )


Jonathan Feinberg, Esq. (Argued)
Kairys, Rudovsky, Messing & Feinberg
718 Arch Street
Suite 501 South
Philadelphia, PA 19106

        Attorneys for Petitioner

Richard M. Bernstein, Esq. (Argued)
Dennis M. Abraham, Esq.
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106

        Attorneys for Respondent

                         ____________

                  OPINION OF THE COURT


  *
     The Honorable A. Wallace Tashima, Senior Circuit Judge
for the United States Court of Appeals for the Ninth Circuit,
sitting by designation.

                               2
                        ____________

HARDIMAN, Circuit Judge.

       This immigration case began as a petition for writ of
habeas corpus, but is before us now as a petition for review. For
the reasons that follow, we will deny the petition.

                               I.

       Petitioner Luz Martina Feliz-Debeato (Debeato), a
Dominican national, first came to the United States in 1988.
Two years later, she pleaded guilty to drug possession,
distribution, and conspiracy-related offenses in the Court of
Common Pleas of Lehigh County, Pennsylvania. After serving
three years of a six-year sentence, she was paroled.

        Following Debeato’s release from prison, the INS
commenced deportation proceedings, alleging that she was
deportable as an “aggravated felon” within the meaning of the
Immigration and Nationality Act (INA). The immigration judge
(IJ) found her subject to deportation as charged — and ineligible
for discretionary relief under Section 212(c) of the INA — on
the ground that she had not lived in the United States
continuously for seven years. Accordingly, Debeato was
ordered deported to the Dominican Republic.

       The Board of Immigration Appeals (BIA) affirmed the
decision of the IJ, finding both that Debeato did not have seven
years of unrelinquished domicile in the United States and that
she was ineligible for Section 212(c) relief because she was an

                               3
“aggravated felon” for purposes of Section 440(d) of the Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA).

       Although Debeato left the United States in 1998, she was
apprehended at her husband’s home in Reading, Pennsylvania
in 2000 after having returned surreptitiously. Debeato was
charged with one count of illegal reentry in violation of 8 U.S.C.
§ 1326(a) & (b)(2) and was sentenced to forty-six months in
prison after entering a guilty plea to that charge.

       On August 1, 2003, Debeato filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 requesting
cancellation of her removal order and adjustment of her status.
Debeato claimed that her prior deportation was invalid because
the immigration court erred when it deemed her ineligible for a
Section 212(c) waiver of deportation. Six months later — while
Debeato remained incarcerated — the Department of Justice
issued a Form I-871, Notice of Intent/Decision to Reinstate Prior
Order under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (Form I-
871). The Form I-871 summarily reinstated the October 1993
order of deportation.

                                II.

       The REAL ID Act, Pub. L. 109-13, Div. B, Title I §
106(c), requires us to treat Debeato’s habeas petition as a
petition for review under § 242 of the INA. See Bonhometre v.
Gonzales, 414 F.3d 442, 446 (3d Cir. 2005); see also Kamara v.
Attorney Gen., 420 F.3d 202, 210 (3d Cir. 2005). But first we
must ascertain whether we have jurisdiction over the petition for
review despite the parties’ agreement that jurisdiction lies in this

                                 4
Court. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
95, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998); see also Soltane
v. U.S. Dept. of Justice, 381 F.3d 143, 146 (3d Cir. 2004).

        Before 2005, we lacked jurisdiction over any petition
brought by an alien who had been convicted of one of the
offenses listed in 8 U.S.C. § 1252(a)(2)(C). Debeato concedes
that she is an alien, and admits that she was convicted of one of
the enumerated offenses set forth in § 1252(a)(2)(C). Thus,
under the precursor to the REAL ID Act, we would have lacked
jurisdiction over Debeato’s petition. See Papageorgiou v.
Gonzales, 413 F.3d 356, 357 (3d Cir. 2005). However, “[t]he
jurisdictional framework for aliens convicted of certain
enumerated offenses was restructured by Congress and the
President on May 11, 2005,” when the REAL ID Act was
enacted into law. Id. at 357-58.

        The REAL ID Act divested all courts of jurisdiction over
denials of discretionary relief and orders against criminal aliens,
including those challenged through a habeas corpus petition.
See 8 U.S.C. §§ 1252(a)(2)(B) and (C). However, in a new
subparagraph captioned “Judicial Review of Certain Legal
Claims,” Congress restored a portion of the jurisdiction it took
away in subparagraphs (B) and (C). That subparagraph reads,
in pertinent part:

       Nothing in subparagraph (B) or (C), or in any
       other provision of this Act (other than this
       section) which limits or eliminates judicial
       review, shall be construed as precluding review of
       constitutional claims or questions of law raised

                                5
      upon a petition for review filed with an
      appropriate court of appeals in accordance with
      this section.

8 U.S.C. § 1252(a)(2)(D). In Papageorgiou, we quoted that
same subparagraph, and interpreted it as follows:

      With this amendment, Congress evidenced its
      intent to restore judicial review of constitutional
      claims and questions of law presented in petitions
      for review of final removal orders. This now
      permits all aliens, including criminal aliens, to
      obtain review of constitutional claims and
      questions of law upon the filing of a petition for
      review with an appropriate court of appeals. We
      reach this conclusion because Congress has
      provided that nothing in 8 U.S.C. § 1252(a)(2)(B),
      (C), or any other provision of the INA shall
      preclude judicial review of such orders, unless
      such review is barred by some other provision of
      8 U.S.C. § 1252. For this reason, we believe that,
      with passage of the Act, Congress has repealed all
      jurisdictional bars to our direct review of
      constitutional claims and questions of law in final
      removal orders other than those remaining in 8
      U.S.C. § 1252 ( e.g., in provisions other than
      (a)(2)(B) or (C)) following the amendment of that
      section by the Act.

413 F.3d at 358. As Debeato concedes, Papageorgiou did not
decide whether the grant of jurisdiction in § 1252(a)(2)(D)

                              6
extended to orders reinstated pursuant to 8 U.S.C. § 1231(a)(5).
But we see no reason why Papageorgiou should not apply with
equal force to reinstated orders.

       On this point, we find persuasive the reasoning of
Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006), in
which the Court of Appeals for the Fifth Circuit found
jurisdiction over a challenge to a reinstated order. In so doing,
the Fifth Circuit explained:

       The REAL ID Act has in fact removed one barrier
       to our jurisdiction that might otherwise have
       existed. Title 8 U.S.C. § 1231(a)(5) specifies that
       when the Attorney General reinstates an order of
       removal after an alien re-enters the United States
       in violation of that order, the order “is not subject
       to being reopened or reviewed.” . . . In addition to
       carving out exceptions to the jurisdiction-
       stripping provisions of § 1252 for constitutional
       and legal claims, § 1252(a)(2)(D) states that “[no]
       other provision of this chapter . . . which limits or
       eliminates judicial review, shall be construed as
       precluding constitutional claims or claims of
       law.” Section 1231 is in the same chapter as §
       1252. Because § 1231(a)(5) limits judicial
       review, § 1252(a)(2)(D) prevents its operation in
       cases, such as this one, in which the validity of an
       underlying order is questioned on constitutional or
       legal grounds.

Id. at 513-14. We find the foregoing reasoning consistent with

                                7
our statement that § 1252(a)(2)(D) “repeal[ed] all jurisdictional
bars to our direct review of constitutional claims and questions
of law in final removal orders.” Papageorgiou, 413 F.3d at 358.
Our confidence in this conclusion is reinforced by our
observation in another post-REAL ID Act case, in which we
noted that “an order reinstating a prior removal order is the
functional equivalent of a final order of removal.” Dinnall v.
Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005) (citation and
internal quotation marks omitted).

       After Papageorgiou and Dinnall, there is no principled
reason for reading § 1252(a)(2)(D) as permitting jurisdiction to
review a final removal order, yet denying jurisdiction to review
a reinstatement of that very same order.2 Accordingly, we
conclude that the REAL ID Act, specifically § 1252(a)(2)(D),
permits us to exercise jurisdiction over legal and constitutional
challenges to final orders of removal, including those final
orders that the Attorney General has reinstated pursuant to §
1231(a)(5).



 2
   Although the Sixth Circuit found jurisdiction lacking in these
circumstances in Tilley v. Chertoff, 144 F. App’x 536 (6th Cir.
2005), and although Tilley was decided after the REAL ID Act
became law, it — unlike Ramirez-Molina — reached its result
by relying on pre-REAL ID caselaw and made no effort to
reconcile that result with the language of § 1252(a)(2)(D). For
that reason, and because we cannot square Tilley with our
reading of the REAL ID Act that we advanced in Papageorgiou,
we decline to follow Tilley on this point of law.

                               8
                               III.

       Having established jurisdiction, we must ascertain the
appropriate standard of review. “Although [Debeato’s] habeas
corpus petition has now been converted to a petition for review,
our standard of review remains the same.” Silva-Rengifo v.
Attorney Gen., 473 F.3d 58, 63 (3d Cir. 2007); see also Kamara,
420 F.3d at 210-11. Thus, we review Debeato’s constitutional
and legal questions de novo, see id., but defer to the BIA’s
reasonable interpretations of the statutes it is charged with
administering. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424,
119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999); see also Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).

       Although the foregoing standard of review plainly applies
on direct review of an original removal order, we recognize that
Debeato has brought a collateral attack on a removal order for
which the Fifth Circuit required a showing of “a gross
miscarriage of justice sufficient to allow [consideration of] the
merits of a petitioner’s collateral attack on a removal order.”
Ramirez-Molina, 436 F.3d at 514. Debeato characterizes this as
a “requirement unique to the Fifth Circuit,” and we agree with
her to a point. Insofar as Ramirez-Molina characterized the
“gross miscarriage of justice” requirement as jurisdictional, see
436 F.3d at 514-15, we decline to follow it. But we have
required petitioners bringing collateral challenges to orders of
deportation or exclusion to show a “gross miscarriage of justice”
— not as a jurisdictional showing, but as a prerequisite to relief.
See McLeod v. Peterson, 283 F.2d 180, 184 (3d Cir. 1960) (as
amended). Accordingly, we will apply the “gross miscarriage”

                                9
standard not as did the Fifth Circuit in Ramirez-Molina, but
rather as a facet of the standard of review of collateral
challenges to removal orders.

                                IV.

       Having established our jurisdiction, and having
ascertained the appropriate standard of review, we reach the
merits of the petition. Debeato challenges the BIA’s April 1,
1997 order, which held, in pertinent part:

       [Debeato] is seeking relief from deportation under
       section 212(c) of the Immigration and Nationality
       Act, 8 U.S.C. § 1182(c). At the time of the
       hearing, the Immigration Judge properly denied
       that relief because [Debeato] did not then have the
       7 years lawful unrelinquished domicile required
       for the waiver. Moreover, [she] is now statutorily
       ineligible for such relief as an “alien who is
       deportable by reason of having committed any
       c rim in a l o f f e n s e c o v e r e d in s e c tio n
       241(a)(2)(A)(iii), (B), (C), or (D), or any offense
       covered by section 241(a)(2)(A)(ii) for which
       both predicate offenses are covered by section
       241(a)(2)(A)(I).” See Antiterrorism and Effective
       Death Penalty Act of 1996, Pub. L. No. 104-132,
       110 Stat. 1214 (“AEDPA”), § 440(d); Matter of
       Soriano, Interim Decision 3289 (A.G., Feb. 21,
       1997).

Debeato argues that the BIA incorrectly determined that she had

                                 10
not met the domicile requirement, and that it erred in applying
AEDPA to her case. She acknowledges that these issues are not
of “constitutional dimension.” Instead, she characterizes her
claim as presenting a “question of law” reviewable under §
1252(a)(2)(D).

        The government concedes the foregoing points, and
rightly so. We have held that an alien’s lawful permanent
resident status ends with the entry of a final administrative order
of deportation. See Katsis v. INS, 997 F.2d 1067, 1071 (3d Cir.
1993); see also Tipu v. INS, 20 F.3d 580, 583 (3d Cir. 1994). As
to the second point, we have held that § 440(d) of AEDPA did
not apply retroactively to cases pending in 1996. See Sandoval
v. Reno, 166 F.3d 225, 242 (3d Cir. 1999) (abrogating Matter of
Soriano). Accordingly, both of the reasons the BIA offered for
affirming the IJ’s 1993 order of deportation were, with the
benefit of hindsight, incorrect.

        Given our conclusion that the BIA’s 1997 order was
erroneous as a matter of law in both respects, the question then
becomes whether these errors resulted in a gross miscarriage of
justice. Like the Fifth Circuit, we have yet to describe the
contours of the “gross miscarriage” standard. See Ramirez-
Molina, 436 F.3d at 514. Where, as here, a petitioner’s
collateral attack on a removal order raises only a “question of
law” within the meaning of § 1252(a)(2)(D), the Seventh Circuit
has observed that a gross miscarriage of justice has been found
only when “the individual should not have been deported based
on the law as it existed at the time of the original deportation.”
See Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 682 n.13 (7th
Cir. 2003) (emphasis added) (declining to find a gross

                                11
miscarriage of justice where a petitioner “seeks to have applied
to him an interpretation of the law made subsequent to the time
of the original deportation decision, namely [INS v.] St. Cyr[,
533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001)].”)
(citing Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967), and
Matter of Malone, 11 I & N Dec. 730, 731-32 (BIA 1966)
(finding a “gross miscarriage of justice” when “on the basis of
judicial and administrative decisions existing at the time of the
original proceeding, no order of deportation should have been
entered”)). We find this approach persuasive and consistent
with our more general formulation of the standard. See McLeod,
283 F.2d at 184 (finding a gross miscarriage of justice where the
“error was so obvious and so clear that counsel should have
been quick to appeal”).

       Under this approach, it is clear that the BIA’s 1997
decision affirming the IJ’s order of deportation was not grossly
unjust. The first ground the BIA cited in support of its decision
— namely, that Debeato was deportable because she had not
met the seven-year domiciliary requirement at the time of her
1993 hearing before the IJ — was demonstrably wrong, even in
1997. See Katsis, 997 F.2d at 1071; see also Tipu, 20 F.3d at
583. But the BIA’s final decision was not based on that ground
alone. As noted above, it also was based on the conclusion that
AEDPA § 440(d) applied retroactively and barred certain felons,
including Debeato, from § 212(c) relief. In Sandoval, we held
that this retroactive application of AEDPA § 440(d) was
improper and the Supreme Court reached a similar decision in
St. Cyr. But Sandoval was not decided until 1999, and St. Cyr
was decided in 2001. Thus, under the Attorney General’s
interim decision in Matter of Soriano — “the law as it existed at

                               12
the time of the original deportation,” Robledo-Gonzales, 342
F.3d at 682 n.13 — the BIA’s determination that Debeato was
deportable pursuant to AEDPA § 440(d) was not a gross
miscarriage of justice.3

      For all of the aforementioned reasons, and after careful
consideration of the record and the parties’ contentions, we will
deny Debeato’s petition for review.




    3
     On this point, we decline to follow the Sixth Circuit’s
unpublished opinion in Tilley v. Gonzales, 228 F. App’x 585
(6th Cir. 2007). In Tilley, the court vacated a 1997 order of
deportation — which had depended upon a retroactive
application of the AEDPA — on the ground that it was
“contrary to” Pak v. Reno, 196 F.3d 666, 676 (6th Cir. 1999),
which in turn established that AEDPA did not apply
retroactively in these circumstances. See Tilley, 228 F. App’x
at 587 (citing Pak). This approach is problematic. Although the
Sixth Circuit has applied the “gross miscarriage” standard, see
Palma v. INS, 318 F.2d 645, 647 (6th Cir. 1963), it has not done
so since well before the enactment of the REAL ID Act and the
Sixth Circuit made no mention of it in Tilley. In any event,
Tilley involved a direct, not a collateral, challenge to a removal
order.
                               13
