                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 01-1858
                                  ___________

Wieslaw Lukowski,                       *
                                        *
            Petitioner,                 *
                                        * Petition for Review of a Decision of
     v.                                 * the Board of Immigration Appeals.
                                        *
Immigration and Naturalization Service, *
                                        *
            Respondent.                 *
                                 ___________

                            Submitted: December 11, 2001

                                 Filed: January 18, 2002
                                  ___________

Before LOKEN and BYE, Circuit Judges, and BOGUE,* District Judge.
                              ___________


LOKEN, Circuit Judge.

       Wieslaw Lukowski entered the United States as a child and gained lawful
permanent resident alien status. In September 1996, he pleaded guilty to aiding and
abetting auto theft. In April 1997, he pleaded guilty to felony auto theft. The
Immigration and Naturalization Service then began removal proceedings. An
immigration judge found Lukowski deportable, ordered his removal to Poland, denied


      *
       The HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota, sitting by designation.
his application for withholding of removal, and terminated his lawful permanent
resident status. The Board of Immigration Appeals summarily affirmed, and
Lukowski petitioned for review of the BIA’s order. We deny the petition for review.

      1. The immigration judge and the BIA ordered Lukowski’s removal because
his conviction for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(F)
(felony auto theft), and his convictions for two crimes involving moral turpitude
(felony auto theft and aiding and abetting auto theft), make him deportable under 8
U.S.C. §§ 1227(a)(2)(A)(ii) and (iii). In 1996, Congress amended the Immigration
and Nationality Act to provide:

      Notwithstanding any other provision of law, no court shall have
      jurisdiction to review any final order of removal against an alien who is
      removable by reason of having committed a criminal offense covered in
      [8 U.S.C. § 1227(a)(2)(A)(iii)], or any offense covered by [8 U.S.C.
      § 1227(a)(2)(A)(ii)] for which both predicate offenses are, without
      regard to their date of commission, otherwise covered by [8 U.S.C.
      § 1227(a)(2)(A)(i)].

8 U.S.C. § 1252(a)(2)(C). Despite this limitation, a number of our sister circuits have
concluded there is jurisdiction to review a removal order to determine whether the
alien has in fact been convicted of a criminal offense or offenses specified in
§ 1252(a)(2)(C). As the Seventh Circuit explained in Yang v. I.N.S., 109 F.3d 1185,
1192 (7th Cir.), cert. denied sub nom., Katsoulis v. I.N.S., 522 U.S. 1027 (1997),
“[w]hen judicial review depends on a particular fact or legal conclusion, then a court
may determine whether that condition exists.” The INS assumes we have jurisdiction
to consider this threshold issue, as we did in Mendez-Morales v. INS, 119 F.3d 738,
739 (8th Cir. 1997).

      Lukowski’s brief on appeal concedes that he is removable because he has been
convicted of two crimes involving moral turpitude within the meaning of 8 U.S.C.

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§ 1227(a)(2)(A)(ii), and of an aggravated felony within the meaning of 8 U.S.C.
§ 1227(a)(2)(A)(iii). Those are two grounds specified in 8 U.S.C. § 1252(a)(2)(C).
Therefore, our statutory jurisdiction to consider the BIA’s removal order is at an end.
See Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir. 2001).

       On the eve of oral argument, Lukowski advised that the state trial court
amended his sentence for felony auto theft in July 2001 to provide that the conviction
will be “deemed a misdemeanor” if he successfully completes his term of probation.
Lukowski urges us to consider whether this sentence restructuring “could remove
[the] aggravated felony consequences of this conviction.” We may not do so. This
recent state court ruling is a fact not presented to the agency, and our judicial review
is limited to the administrative record. See 8 U.S.C. § 1252(b)(4)(A). Moreover,
while Lukowski presumably could have brought this fact to the agency’s attention by
a motion to reopen, such a motion would now be untimely, see 8 U.S.C.
§ 1229a(c)(6)(C)(i), and in any event its disposition would be beyond our limited
jurisdiction under 8 U.S.C. § 1252(a)(2)(C).

       2. In addition to considering the above statutory issue, other circuits have
concluded there is jurisdiction under 8 U.S.C. § 1252(a)(2)(C) to consider
“substantial” constitutional challenges to the Immigration and Nationality Act. See,
e.g., Finau v. INS, 270 F.3d 859 (9th Cir. 2001). We are less certain these
jurisdiction decisions are sound, because the Supreme Court has noted in other
contexts that Congress may deny the lower federal courts jurisdiction to consider
constitutional claims, though “its intent to do so must be clear.” Webster v. Doe, 486
U.S. 592, 603 (1988). Here, Lukowski raises an equal protection issue, and the INS
assumes we have jurisdiction to consider it. Although lack of subject matter




                                          -3-
jurisdiction is a defense the government may not waive, we will assume without
deciding that we have jurisdiction under § 1252(a)(2)(C) to consider this issue.1

       As amended in 1996, 8 U.S.C. § 1182(h) provides that a discretionary waiver
of inadmissibility may not be granted to an alien, like Lukowski, “who has previously
been admitted to the United States as an alien lawfully admitted for permanent
residence if . . . the alien has been convicted of an aggravated felony.” In Matter of
Michel, 21 I. & N. Dec. 1101 (BIA 1998), the BIA concluded that this restriction is
unambiguously limited to lawful permanent resident aliens who are convicted of
aggravated felonies; therefore, waiver-of-admissibility relief remains available for
aliens who did not achieve lawful permanent resident status before their convictions.
Lukowski argues that this classification is irrational and therefore violates the equal
protection guarantee of the Fifth Amendment’s Due Process Clause. Like three other
circuits that have considered the question, we conclude this contention is without
merit. See Finau, 270 F.3d at 862-63; Moore, 251 F.3d at 924-26; Lara-Ruiz v. INS,
241 F.3d 934, 946-48 (7th Cir. 2001).

       Aliens are protected by the Fifth Amendment’s equal protection guarantee. See
Plyler v. Doe, 457 U.S. 202, 210 (1982). However, “a statutory classification that
neither proceeds along suspect lines nor infringes fundamental constitutional rights
must be upheld against equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification.”
FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). And in rejecting an
equal protection challenge to an INA classification in Fiallo v. Bell, 430 U.S. 787,
792 (1976), the Supreme Court observed “that over no conceivable subject is the

      1
        We clearly have Article III jurisdiction to review the BIA’s decision, so this
is not the type of jurisdictional issue that must be decided before addressing the
merits of the controversy. See Kauthar SDN BHD v. Sternberg, 149 F.3d 659, 663
n.4 (7th Cir. 1998), construing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
95-104 (1998).

                                         -4-
legislative power of Congress more complete than it is over the admission of
aliens. . . . [T]he power to expel or exclude aliens [is] a fundamental sovereign
attribute exercised by the Government’s political departments largely immune from
judicial control.” (Quotation omitted.)

       Applying this standard, the 1996 amendment to § 1182(h) easily passes equal
protection muster. In amending the INA, Congress intended to expedite the removal
of criminal aliens from the United States. See S. Rep. No. 104-249 at 2 (1996). If
eligible for a waiver of inadmissibility, a lawful permanent resident alien might delay
or even avoid removal for an aggravated felony by applying for adjustment of status
and re-admission as a lawful permanent resident. See Lara-Ruiz, 241 F.3d at 947.
Thus, this amendment rationally eliminated one source of delay. As Lukowski points
out, it is arguably unfair to eliminate § 1182(h) relief only for lawful permanent
resident aliens who commit aggravated felonies. But Congress may constitutionally
adopt legislative reform “one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind.” Williamson v. Lee Optical
of Okla., Inc., 348 U.S. 483, 489 (1955) (citation omitted). Congress does not run
afoul of the Fifth Amendment’s equal protection guarantee “simply because it failed
through inadvertence or otherwise, to cover every evil that might conceivably have
been attacked.” McDonald v. Board of Election Comm’rs of Chi., 394 U.S. 802, 809
(1969). Nor does Congress violate the right to equal protection "merely because the
classifications made by its laws are imperfect, or because in practice [a classification]
results in some inequality.” Minn. Senior Fed’n v. United States, 273 F.3d 805, 808
(8th Cir. 2001) (alteration in original; quotations omitted).




                                          -5-
       For the foregoing reasons, we reject Lukowski’s contentions that we have
jurisdiction to consider under 8 U.S.C. § 1252(a)(2)(C) and deny his petition for
review of the BIA’s final removal order.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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