                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-11-1998

Morel v. INS
Precedential or Non-Precedential:

Docket 95-3271




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Recommended Citation
"Morel v. INS" (1998). 1998 Decisions. Paper 105.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/105


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Filed May 11, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-3271

ELEAZAR MOREL,
       Petitioner

v.

IMMIGRATION AND NATURALIZATION SERVICE,
       Respondent.

On Petition for Review of an
Order of the Board of Immigration Appeals
(INS No. A42-267-305)

Argued March 25, 1996
Reargued April 3, 1997

Before: SLOVITER, GREENBERG and ROTH,
Circuit Judges

(Opinion filed May 11, 1998)
       Robert Frank, Esquire
       60 Park Place
       Suite 1304
       Newark, NJ 07102

       Lee Gelernt, Esquire (Argued)
       Lucas Guttentag, Esquire
       Laura Ho, Esquire
       American Civil Liberties
        Union Foundation
       132 West 43rd Street
       New York, NY 10036

       Attorneys for Petitioner

       Frank W. Hunger
       Assistant Attorney General
       David M. McConnell (Argued)
       Senior Litigation Counsel/Assistant
        Director
       Donald E. Keener, Esquire
       Joan E. Smiley, Esquire
       Linda S. Wendtland
       Senior Litigation Counsel
       William J. Howard, Esquire
       Vernon B. Miles, Esquire
       United States Department of Justice
       Office of Immigration Litigation
       Civil Division
       Ben Franklin Station
       P.O. Box 878
       Washington, DC 20044

OPINION OF THE COURT

ROTH, Circuit Judge:

In this case, we reconsider a petition for review which
was first filed on May 12, 1995, by Eleazar Jose Morel, a
native and citizen of the Dominican Republic. The
Immigration and Naturalization Service (INS) asks us to set
aside our original opinion in this case in which we granted

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Morel's petition challenging the Board of Immigration
Appeals' (BIA) construction of S 212(c) of the Immigration
and Nationality Act (INA), 8 U.S.C. S 1182(c). See Morel v.
INS, 90 F.3d 833 (3d Cir. 1996). The INS now argues that
the Anti-terrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. 104-132, 110 Stat. 1214 (1996), applies
here to foreclose our ability to entertain this petition and
grant the relief Morel requests. Because we agree, we now
vacate our original opinion. Consequently, the decision of
the BIA affirming the immigration judge's denial of the
applicability of S 212(c) to Morel from which appeal was
taken to this Court, is final.

Although the limited factual record has already been set
out in our previous opinion, we nonetheless provide a
detailed procedural history because of the significance of
the timing of the events leading up to this rehearing. These
events were set in motion when Morel was arrested in New
Jersey on August 24, 1991, and charged with possession of
a controlled dangerous substance and possession of a
controlled dangerous substance within 1000 feet of a
school. On January 6, 1993, Morel was sentenced to four
years in a New Jersey correctional facility, after pleading
guilty to the first possession charge.1

While serving his sentence, Morel was served with an
Order to Show Cause and Notice of Hearing by the INS.
Upon completion of his sentence and his transfer to an INS
detention facility in Oakdale, Louisiana, Morel was provided
a hearing before an immigration judge. At the hearing held
on January 17, 1994, Morel conceded that he had been
convicted of a deportable offense, but sought discretionary
relief pursuant to INA S 212(c). The immigration judge
denied Morel's request, finding that he had accumulated
insufficient residency to be eligible for discretionary relief
and ordered him deported to the Dominican Republic. On
April 10, 1995, the BIA affirmed the order and dismissed
Morel's appeal.
_________________________________________________________________

1. The charge of possession of a controlled dangerous substance within
a 1000 feet of a school was dismissed, ostensibly as part of a plea
agreement.

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On May 12, 1995, Morel filed a petition for review in this
Court. We ordered argument of the case on March 25,
1996. On July 26, 1996, a majority of this panel issued an
opinion in which we concluded that the INS had erred in
construing INA S 212(c) to impose a requirement of seven
consecutive years domicile after he was admitted to the
United States as a lawful permanent resident and in
interpreting S 212(c) not to allow for the crediting of Morel's
accumulated residency for the time that his mother
proceeded him in the United States.2 Morel, 90 F.3d at 834.

We remanded Morel's case to the BIA for further
proceedings. However, prior to any further action being
taken before the agency, the INS submitted a Petition for
Panel Rehearing in which the agency contended that
AEDPA's passage on April 24, 1996, had divested us of
jurisdiction to entertain Morel's petition for review. We
ordered additional briefing and granted reargument to
address this serious jurisdictional concern.

We agree that AEDPA divests this Court of jurisdiction.3
_________________________________________________________________

2. Judge Greenberg filed a dissenting opinion. See Morel, 90 F.3d at
842-46.

3. Although the enactment of AEDPA pre-dated thefiling of our original
opinion on July 26, 1996, the INS did not alert us to the possible defect
in our jurisdiction until September 9, 1996. The government now
candidly confesses that the failure to raise the issue sooner was an
oversight on its part.

This case is unusually postured in that no jurisdictional challenge was
advanced until after our merits opinion was filed. There is, however, no
suggestion that we should not examine our jurisdiction for this reason.
Indeed, we are obliged to investigate into our competence to hear a case
regardless of the action or inaction of the parties:

        [N]o action of the parties can confer subject-matter jurisdiction
upon
        a federal court. Thus,   the consent of the parties is irrelevant,
        principles of estoppel   do not apply, and a party does not waive the
        requirement by failing   to challenge jurisdiction early in the
        proceedings. . . . [A]   court, including an appellate court, will
raise
        lack of subject-matter jurisdiction on its own motion. "[T]he rule,
        springing from the nature and limits of the judicial power of the
        United States is inflexible and without exception, which requires
        this court, of its own motion, to deny its jurisdiction, and, in
the

                                  4
In the case of aliens convicted of certain criminal offenses,
AEDPA S 440(a) removes from us jurisdiction to review a
claim of legal error in deportation proceedings.4 Morel does
_________________________________________________________________

         exercise of its appellate power, that of all other courts of the
United
         States, in all cases where such jurisdiction does not affirmatively
         appear in the record."

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 702 (1982) (quoting Mansfield, C. & L.M.R. Co. v. Swan,
111 U.S. 379, 382 (1884) (citations omitted)).

This obligation applies with equal force to claims that we are without
jurisdiction because the action has become moot. North Carolina v. Rice,
404 U.S. 244, 246 (1971) ("the question of mootness is one . . . which
a federal court must resolve before it assumes jurisdiction"); Lusardi v.
Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992) ("Article III requires that
a plaintiff's claim be live not just when he first brings the suit but
throughout the entire litigation, and once the controversy ceases to exist
the court must dismiss the case for lack of jurisdiction.").

Thus, in keeping with these precepts, the past practice of this Court
and others has been to entertain jurisdictional challenges even when not
advanced until a petition for rehearing is filed. See In re Texas E.
Transmission Corp. PCB Contamination Ins. Coverage Litig., 15 F.3d
1230, 1234 (3d Cir. 1994) (addressing jurisdictional issues not raised
until petition for panel rehearing); see also Franchise Tax Bd. of the
State
of Calif. v. Construction Laborers Vacation Trust for S. Calif., 463 U.S.
1,
7 (1983) (same); Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S.
572, 579-80 (1980) (same); Goodwin v. United States, 602 F.2d 107,
108-110 (6th Cir. 1979) (addressing and refuting challenge to subject
matter jurisdiction in decision refusing to grant petition for panel
rehearing); Kelly v. Hartford Accident & Indemnity Co., 294 F.2d 400,
409 (5th Cir. 1961) (same). We therefore do not hesitate to take on this
issue here.

4. AEDPA S 440(a) amends INA S 106(a), 8 U.S.C. S 1105a(a), which
formerly designated the Courts of Appeals as the exclusive fora for
"judicial review of all final orders of deportation" except to the extent
that
limited additional judicial review was available via habeas corpus
proceedings, see INA S 106(a)(10). AEDPA S 440(a) supplants existing
paragraph (10) of Subsection (a) of INA S 106(a) with the following
language:

         Any final order of deportation against an alien who is deportable
by
         reason of having committed a criminal offense covered in section
5
not dispute that he was convicted of a deportable criminal
offense covered in INA S 241(a)(2)(B)(I), 8 U.S.C.
S 1251(a)(2)(B)(I). Thus, we conclude that AEDPA S 440(a)
denies Morel the right to obtain review by an Article III court.5
The subsequent adoption by Congress of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Div. C of Pub. L. 104-208, 110 Stat. 3009
(1996) on September 30, 1996, further restructuring the
deportation process, does not affect the outcome of this
case.

Furthermore, although Morel asserts to the contrary, we
do not see any deprivation of his rights which is of
constitutional proportion. The INS concedes that S 440(a)
does not preclude Article III court review of claims of
"substantial Constitutional error." Resp. Supp. Br. at 20.
Morel's claim here is not such a claim -- he has sought
review of a question of law as we set out in our prior
opinion, see Morel v. INS, 90 F.3d 833 (3d Cir. 1996), that
is, whether in construing S 212(c)'s requirement of seven
consecutive years domicile after one is admitted to the
United States as a lawful permanent resident, one can get
credit for the accumulated residency of one's parent who
preceeded one in the United States. Additionally, relevant
Supreme Court authority does not mandate judicial review
_________________________________________________________________

       1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense
covered by
       section 1251(a)(2)(A)(ii) of this title for which both predicate
offenses
       are covered by section 1251(a)(2)(A)(I) of this title, shall not be
       subject to review by any court.

AEDPA S 440(a). The pre-AEDPA INA S 106(a)(10) was repealed by AEDPA
S 401(e).

5. The question of whether AEDPA S 440(a) applies retroactively has
already been settled in this Circuit. In Salazar-Haro v. INS, 95 F.3d 309
(3d Cir. 1996), cert. denied, 117 S.Ct. 1842 (1997) a panel of this Court
held that AEDPA S 440(a)'s amendment of INAS 106(a)(10) applies to
petitions for review pending when AEDPA was enacted even though
Congress included no effective date in the Act. We reasoned that no
barrier exists to the application of AEDPA S 440(a) because "unlike
situations where retroactivity would affect pre-existing rights,
withdrawal
of jurisdiction, although realistically disrupting settled expectations,
does
not preserve pending litigation." Id. at 311.

                               6
by an Article III court of questions of law underlying
legislatively-created public rights such as immigration. See
Crowell v. Benson, 52 S.Ct. 285 (1932) (drawing a
distinction between public and private rights and listing
immigration as an exemplar of a public right); see also
Northern Pipeline Construction Co. v. Marathon Pipe Line
Co., 102 S.Ct. 2858 (1982); Commodity Futures Trading
Commission v. Schor, 106 S. Ct. 3245 (1986).

To conclude, because Congress has divested us of
jurisdiction to review matters falling within the purview of
AEDPA S 440(a), we will vacate our prior opinion in this
matter, see Morel v. INS, 90 F.3d 833 (3d Cir. 1996), and
we will deny the petition for review.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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