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


9-25-2007

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Precedential or Non-Precedential: Precedential

Docket No. 06-1887




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                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                       No. 06-1887
                      ____________

                 DARIUSZ BISKUPSKI,

                                   Petitioner,

                              v.

    ATTORNEY GENERAL OF THE UNITED STATES,

                                   Respondent.

                      ____________

              On Review of a Decision of the
              Board of Immigration Appeals
               (Agency No. A73-081-356)
           Immigration Judge: Alberto J. Riefkohl


                   Argued: June 19, 2007


 Before: McKEE, FISHER, and CHAGARES, Circuit Judges.

                      ____________

                (Filed: September 25, 2007)


Thomas E. Moseley, Esq., Argued
One Gateway Center, Suite 2600
Newark, NJ 07102
Attorney for Petitioner
James E. Grimes, Esq., Argued
William C. Minick, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box. 878
Ben Franklin Station
Washington, DC 20044
Attorney for Respondent


                   OPINION OF THE COURT


CHAGARES, Circuit Judge.

        This case presents an issue of first impression in this Circuit
and requires us to interpret the meaning of “actions taken” in
section 321(c) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110
Stat. 3009-546. For the reasons expressed below, we hold that
“actions taken” refers to orders and decisions of an immigration
judge (IJ) or the Board of Immigration Appeals (BIA) which apply
the “aggravated felony” definitions in 8 U.S.C. § 1101(a)(43) to
determine the availability of hardship relief. Because the BIA’s
final order denied petitioner Dariusz Biskupski relief on this basis,
we conclude that the order was an “action taken” within the
contemplation of section 321(c). As such, the expanded definition
in 8 U.S.C. § 1101(a)(43) for aggravated felonies applied to
Biskupski. Accordingly, the petition for review will be denied.

                                  I.

       In December 1988, at age twenty nine, Biskupski left his
native Poland and entered the United States. His visa allowed him
to remain until June 20, 1989. However, Biskupski overstayed his
visa. As of January 23, 1994, Biskupski worked as a taxi driver
and dispatcher for a company in Clifton, New Jersey. During his
off hours, he moonlighted as a chauffeur, making trips to the local
airports and occasionally to points beyond such as Washington
D.C., Philadelphia, and areas within New England. He advertised

                                  2
his services almost exclusively within the local Polish community.
        After returning home from work on or about January 22, his
then-girlfriend told Biskupski she had received a call to pick up
several Polish people in upstate New York and bring them to New
Jersey. Biskupski and his girlfriend departed, their destination
being a gas-station/restaurant called the Bear’s Den on Route 37,
which is in the middle of the Akwesasne Indian Reservation
bordering Canada in upstate New York. They arrived shortly after
midnight on January 23 and met the intended passengers.
Approximately eleven miles into the return trip, Biskupski
encountered a routine Driving While Intoxicated roadblock. State
police stopped Biskupski, and, after questioning him and his
passengers, the police surmised that Biskupski was transporting
illegal aliens. Although Biskupski maintained that he did not know
his passengers had illegally entered the United States, Biskupski
was arrested and charged with aiding and abetting alien smuggling,
a misdemeanor violation of 8 U.S.C. § 1324(a)(2)(A). He pleaded
guilty and, on January 31, 1994, he was sentenced to thirty days’
imprisonment and a $250 fine.

        On January 25, 1994, the Immigration and Naturalization
Service (INS) 1 placed Biskupski in deportation proceedings by
serving him with an Order to Show Cause (OTSC). In the OTSC,
the government alleged that Biskupski was deportable under 8
U.S.C. § 1251(a)(1)(B) (remaining in the United States longer than
permitted), 8 U.S.C. § 1251(a)(1)(C)(i) (failing to maintain or
comply with the conditions of nonimmigrant status under which he
was admitted), and 8 U.S.C. § 1251(a)(1)(E)(i) (knowingly
assisting, aiding, or abetting another alien to enter illegally, within



       1
          On March 1, 2003, Congress transferred the INS’s
functions to the Bureau of Immigration and Customs Enforcement
(ICE) and the U.S. Customs and Immigration Service (USCIS) of
the United States Department of Homeland Security (DHS).
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451
& 471, 116 Stat. 2135, 2192, 2195-97 & 2205 (codified at 6 U.S.C.
§§ 251, 271 & 291); see also Zheng v. Gonzales, 422 F.3d 98, 103
n.2 (3d Cir. 2005) (citing Knapik v. Ashcroft, 384 F.3d 84, 86 n.2
(3d Cir. 2004)).

                                  3
five years of his entry into the United States).2 The government
subsequently withdrew the allegation that Biskupski was
deportable under 8 U.S.C. § 1251(a)(1)(E)(i), because the events
supporting his conviction occurred more than five years after
Biskupski’s 1988 admission into the United States.

       At an immigration hearing in Newark, New Jersey on
December 19, 1996,3 the IJ found that the government had
established Biskupski’s prior conviction by clear and convincing
evidence. The IJ accepted Biskupski’s application for suspension
of deportation, but queried, in light of the passage of IIRIRA,
whether Biskupski’s conviction for alien smuggling would render
him statutorily ineligible for suspension of deportation. The IJ
heard testimony from Biskupski and his witnesses in support of his
application for relief. However, the hearing was continued to
permit the parties to address the legal issue of eligibility for
suspension. For reasons that are not clear, Biskupski’s case was
not reconvened until July 25, 2000. The proceedings were again
continued until the final hearing on August 11, 2003.

       On April 20, 2005, the IJ issued a written decision,
superceding a prior oral decision. The IJ ruled that Biskupski’s
conviction for alien smuggling rendered him ineligible for
suspension of deportation and denied that application. The IJ also
denied Biskupski’s applications for asylum, withholding of
deportation and protection under the Convention Against Torture
(CAT). 4 Biskupski appealed the IJ’s decision to the BIA.


       2
         Section 1251 of Title 8 of the United States Code was
redesignated as § 1227 by the passage of IIRIRA in 1996. IIRIRA,
Pub. L. No. 104-208, § 305, 110 Stat. 3009-546, 3009-598 (1996).
       3
        Biskupski’s case was transferred from Boston,
Massachusetts to Newark, New Jersey on February 28, 1996.
       4
         United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85, implemented in the United States by the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, § 2242, 112 Stat. 2681-761, 2681-822 (codified at 8

                                4
        On March 7, 2006, the BIA dismissed the appeal, ruling that
Biskupski’s prior conviction under 8 U.S.C. § 1324(a)(2)(A) barred
eligibility for relief under former section 244 of the of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1254 (1993).5
Under former section 244, an alien qualifies for discretionary
suspension of deportation by demonstrating both physical presence
in the United States for a continuous period of not less than seven
years immediately preceding the date of application for such relief
and good moral character. 8 U.S.C. § 1254(a)(1) (1993).
However, an alien “who at any time has been convicted of an
aggravated felony (as defined in subsection (a)(43) of this section)”
cannot demonstrate the requisite good moral character. 8 U.S.C.
§ 1101(f)(8). Here, the BIA found that Biskupski’s conviction was
for an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(N).
Therefore, Biskupski could not show the good moral character
necessary to be eligible for suspension of deportation. This petition
for review followed.

                                II.

        Biskupski pleaded guilty to 8 U.S.C. § 1324(a)(2), which
states in pertinent part:

              Any person who, knowing or in
              reckless disregard of the fact that an
              alien has not received prior official
              authorization to come to, enter, or
              reside in the United States, brings to
              or attempts to bring to the United
              States in any manner whatsoever, such


U.S.C. § 1231).




       5
         On appeal to the BIA, Biskupski did not raise any
challenges to the denial of his applications for asylum, withholding
of deportation or protection under CAT and, likewise, does not
raise any such challenges to this Court.

                                 5
              alien, regardless of any official action
              which may later be taken with respect
              to such alien shall, for each alien in
              respect to whom a violation of this
              paragraph occurs--

              (A) be fined in accordance with Title
              18 or imprisoned not more than one
              year, or both[.]

This statute has been interpreted to include transporting illegal
aliens from one place to another within the United States. See,
e.g., Gavilan-Cuate v. Yetter, 276 F.3d 418, 419 n.1 (8th Cir. 2002)
(citing Matter of Ruiz-Romero, 22 I & N Dec. 486 (BIA 1999)).

       When Congress added the “aggravated felony” provision to
the INA, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as
amended at 8 U.S.C. §§ 1101-1537) with the enactment of the
Anti-Drug Abuse Act of 1988, Pub L. No. 100-690, § 7347, 102
Stat. 4181, 4471 (1988), the statutory definition of “aggravated
felony” in 8 U.S.C. § 1101(a)(43) did not include offenses under 8
U.S.C. § 1324(a)(1)(A) or (2). In 1994, when the INS commenced
deportation proceedings against Biskupski, his crime of conviction
was still not among those constituting an “aggravated felony”
within the meaning of the INA.

        It was not until 1996 that Congress enacted legislation
making certain changes significant to Biskupski’s situation.
Specifically, Congress enacted the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), in which it amended the
definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(N) to
include “an offense described in paragraph (1)(A) or (2) of section
274(a) [codified at 8 U.S.C. § 1324(a)] (relating to alien
smuggling) for which the term of imprisonment is at least 5 years.”
AEDPA, Pub. L. No. 104-132, § 440(e)(3), 110 Stat. 1214, 1278
(1996).

      Shortly thereafter, Congress enacted IIRIRA, further
amending § 1101(a)(43)(N) by striking the minimum five-year term



                                 6
of imprisonment requirement.6 IIRIRA, § 321(a)(8), 110 Stat. at
3009-628 (1996). Congress expressly mandated that the changes
made to the term “aggravated felony” in 8 U.S.C. § 1101(a)(43)
“applie[d] regardless of whether the conviction was entered before,
on, or after the date of enactment of this paragraph.” IIRIRA, §
321(b), 110 Stat. at 3009-628 (emphasis added). Congress dictated
that “[t]he amendments made by this section shall apply to actions
taken on or after the date of the enactment of this Act, regardless
of when the conviction occurred.” IIRIRA, § 321(c), 110 Stat. at
3009-628 (emphasis added).

        The term “actions taken” is not defined anywhere in
IIRIRA. Biskupski argues that the term relates to such “actions”
as the initiation of deportation proceedings against him in 1994 or
the submission of his application for suspension of deportation on
August 16, 1996.7 Because these “actions” occurred pre-IIRIRA,
Biskupski contends that the pre-IIRIRA definitions of aggravated
felony should apply, which did not encompass the crime for which
he was convicted. At the other end of the temporal spectrum, the
government argues that “actions taken” means final orders and
decisions of the IJ or the BIA in adjudicating Biskupski’s case.
The government asserts that because the BIA issued its final
decision on March 7, 2006, the IIRIRA amendments to the
definition of aggravated felony apply to render Biskupski ineligible
for suspension relief.




       6
         By the same amendment, Congress created an exception in
the case of a first offense where the alien affirmatively
demonstrated that he or she “committed the offense for the purpose
of assisting, abetting, or aiding only the alien’s spouse, child or
parent . . . .” IIRIRA, § 321(a)(8), 110 Stat. at 3009-628. This
exception does not apply to Biskupski.
       7
         We reject Biskupski’s argument that the IJ in Boston made
a ruling that he was eligible for suspension relief. The IJ’s passing
observation that Biskupski might be eligible for suspension of
deportation was not an “action taken” within the meaning of
section 321.

                                 7
                                III.

       We lack jurisdiction to review final orders of removal
against an alien removable as an aggravated felon. 8 U.S.C. §
1252(a)(2)(C); Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001).
We nonetheless retain jurisdiction to review questions of law, 8
U.S.C. § 1252(a)(2)(D), and we have jurisdiction to determine our
jurisdiction, United States v. Ruiz, 536 U.S. 622, 628 (2002).
Whether a statute has retroactive application and issues of statutory
construction are questions of law over which we exercise plenary
review. See Park v. Attorney General, 472 F.3d 66, 70-71 (3d Cir.
2006).

                                 A.

        Before turning to the issue of retroactivity, we will address
Biskupski’s argument that his conviction for a federal
misdemeanor was a crime insufficiently serious to be considered an
“aggravated felony” in this context.8 See Pet. Reply Br. at 13.
According to Biskupski, the word “felony” has one defining
characteristic, namely an offense subject to a sentence of one year
or more, see United States v. Graham, 169 F.3d 787, 792 (3d Cir.
1999) (“[U]nder federal law, a felony is defined as a crime that has
a maximum term of more than one year.”), which should be held to
inhere in every aggravated felony provision in § 1101(a)(43) unless
Congress evinces a contrary intent. Biskupski argues that
Congress’s removal of the five-year sentence requirement from §
1101(a)(43)(N) by IIRIRA demonstrates its intent to “fall[] back .
. . on the general requirement that an ‘aggravated felony’ be a
felony.” Pet. Reply Br. at 15.

      Biskupski points to Lopez v. Gonzales, ___ U.S. ___, 127
S. Ct. 625 (2006), for the proposition that interpreting



       8
        We find no merit to Biskupski’s waiver and law of the case
arguments. Biskupski withdrew his argument that the present
aggravated felony definition does not include aiding and abetting
offenses. Letter from Thomas E. Moseley, Esq. to Marcia
Waldron, Clerk of the Court (April 25, 2007).

                                 8
misdemeanor to mean felony is “just what the English language
tells us not to expect,” id. at 630, so Biskupski’s misdemeanor
conviction should not be held to constitute an aggravated felony.
The government responds that where Congress defines a term of art
like “aggravated felony” to mean something particular, as here –
alien smuggling defined by 8 U.S.C. § 1324(a)(2) – then alien
smuggling is an aggravated felony, even if technically only a
misdemeanor under federal law. Compare 18 U.S.C. § 3559(a)(6)
(classifying an offense with a maximum term of imprisonment of
one year or less but more than six months as a Class A
misdemeanor) with 8 U.S.C. § 1324(a)(2)(A) (providing a
maximum of one year imprisonment).9

        Our analysis begins with the statutory text. If the text of the
statute is plain and unambiguous, then our analysis also ends there.
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). This
is so because our role “is to give effect to the will of Congress, and
where its will has been expressed in reasonably plain terms, ‘that
language must ordinarily be regarded as conclusive.’” Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982) (quoting
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.
102, 108 (1980)).

        In this case, we are called upon to analyze whether the
definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(N)
includes the federal misdemeanor Biskupski committed. If, as
here, “a statute includes an explicit definition, we must follow that
definition, even if it varies from that term’s ordinary meaning.”



       9
         Biskupski lampoons the government’s argument by
quoting a passage from a well-known Lewis Carroll work: “‘When
I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it
means just what I choose it to mean – neither more nor less.’”
Through the Looking Glass, in The Complete Works of Lewis
Carroll 196 (1939).




                                  9
Stenberg v. Carhart, 530 U.S. 914, 942 (2000); see also Meese v.
Keene, 481 U.S. 465, 484 (1987) (recognizing “the respect we
normally owe to the Legislature’s power to define the terms that it
uses in legislation”); Lawson v. Suwannee Fruit & S.S. Co., 336
U.S. 198, 201 (1949) (“Statutory definitions control the meaning
of statutory words . . . .”). Where a definition informs what a
particular term “means,” that definition will include whatever
express meanings follow. See Colautti v. Franklin, 439 U.S. 379,
392 n.10 (1979) (“As a rule, [a] definition which declares what a
term ‘means’ . . . excludes any meaning that is not stated.”)
(quotation marks and citation omitted) (alterations in original),
overruled in part on other grounds by Webster v. Reproductive
Health Servs., 492 U.S. 490 (1989).

        By placing the term “aggravated felony” in quotations
followed by “means” Congress made absolutely clear that
“aggravated felony” is a term of art defined by the subsections that
follow. We must apply the definition of that term provided by
Congress. Congress plainly and unambiguously included the
offenses described in 8 U.S.C. § 1324(a)(1)(A) and (2) as part of
the definition of “aggravated felony” in § 1101(a)(43)(N).
Accordingly, we reject Biskupski’s argument that Congress meant
to “fall back” to the time-honored, one-year distinction between
felonies and misdemeanors. It is neither our task nor our
prerogative to rewrite the definition that Congress provided,
especially considering the traditional deference we accord to
Congress when it legislates in the area of immigration. See
Escobar v. Gonzales, 417 F.3d 363, 368 (3d Cir. 2005).           Our
holding today is consistent with our decision in United States v.
Graham, supra, which applied the § 1101(a)(43) definition of
“aggravated felony” as incorporated into the sentencing guidelines,
see U.S.S.G. § 2L1.2(b)(1)(B), to determine increases to base
offense levels in the sentencing context. In Graham, the Court
considered “whether a misdemeanor can be an ‘aggravated felony’
under a provision of federal law even if it is not, technically
speaking, a felony at all.” 169 F.3d at 788. We answered that
question in the affirmative and determined that a misdemeanor
theft could be an aggravated felony under 8 U.S.C. §




                                10
1101(a)(43)(G).10

       In sum, we hold that Biskupski’s misdemeanor conviction
for aiding and abetting alien smuggling under 8 U.S.C. §
1324(a)(2) constitutes an “aggravated felony,” as that term is
defined in 8 U.S.C. § 1101(a)(43)(N).

                                 B.

       We turn now to the issue of retroactivity and the dispute
over the meaning of “actions taken” in section 321(c) of IIRIRA.

        The first question in determining whether a civil statute
applies retroactively is whether Congress has expressly provided
for retroactive application. Landgraf v. USI Film Prods., 511 U.S.
244, 280 (1994). Section 321(b) of IIRIRA is a clear expression of
Congress’s intent to apply the definition of “aggravated felony” in
§ 1101(a)(43)(N) retroactively. See INS v. St. Cyr, 533 U.S. 289,
318-19 (2001); accord Garrido-Morato v. Gonzales, 485 F.3d 319,
323 (5th Cir. 2007); Mohammed v. Ashcroft, 261 F.3d 1244, 1250
(11th Cir. 2001). Just as clearly, section 321(c) limits the
applicability of the new definitions of aggravated felony to “actions
taken” on or after September 30, 1996. The focus of section 321(c)



       10
         Other courts of appeals have followed this Court’s lead in
determining that certain misdemeanors may constitute aggravated
felonies under the definition set forth in § 1101(a)(43). See, e.g.,
United States v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004) (per
curiam) (misdemeanor assault); United States v. Gonzalez-
Tamariz, 310 F.3d 1168 (9th Cir. 2002) (misdemeanor battery);
United States v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir. 2002)
(misdemeanor child abuse); United States v. Urias-Escobar, 281
F.3d 165 (5th Cir. 2002) (misdemeanor assault); Guerrero-Perez v.
INS, 242 F.3d 727 (7th Cir. 2001) (misdemeanor sexual abuse of
a minor); United States v. Christopher, 239 F.3d 1191 (11th Cir.
2001) (misdemeanor theft offense); United States v. Pacheco, 225
F.3d 148 (2d Cir. 2000) (misdemeanor domestic assault, theft);
Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000) (misdemeanor
sexual battery).

                                 11
is prospective, not retrospective. Biskupski argues on appeal that
although the definition of “aggravated felony” may apply
retroactively to his 1994 conviction, the crucial issue is whether the
language “actions taken” in section 321(c) should be interpreted
with a look backwards to preclude the application of the changes
effected by IIRIRA to cases, like his, that commenced pre-IIRIRA.

       Although we have not yet addressed the meaning of the
phrase “actions taken,” several of our sister circuits have examined
the issue. Indeed, an argument similar to Biskupski’s was raised
in Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997). The
Court of Appeals for the Ninth Circuit described the issue as
follows:
              [W]hile it is clear that it doesn’t matter
              when the conviction occurred if the
              IIR IR A “aggravated felony”
              amendments apply, it is not clear that
              those amendments apply. It is clear
              enough that they apply to “actions
              taken” after September 30, 1996, but
              neither the text nor the legislative
              history defines the “actions” that, if
              “taken,” trigger the applicability of
              IIRIRA § 321.

Id. at 856. In Valderrama-Fonseca, the alien was convicted of
burglary in 1985. Id. at 854. The INS initiated deportation
proceedings in October 1989. Id. at 855. In 1992, the IJ
determined that Valderrama was deportable for having been
convicted of a crime of moral turpitude and denied his request for
discretionary relief from deportation. Id. Valderrama appealed to
the BIA, which affirmed the IJ’s decision in June 1995. Id.

       Prior to oral argument, AEDPA and IIRIRA took effect,
barring judicial review of final orders of deportation against
aggravated felons. The question before the court of appeals was
whether the IIRIRA “aggravated felony” amendments were
applicable to Valderrama’s case. The answer turned, as it does
here, on the meaning of the phrase “actions taken” in section
321(c).

                                 12
       The Valderrama-Fonseca court examined three possible
meanings of “actions taken” that could potentially trigger the
applicability of section 321:

              One is to say that “actions taken”
              refers to orders and decisions issued
              against an alien by the Attorney
              General acting through the BIA or
              Immigration Judge.         This makes
              logical and practical sense, as “actions
              taken” is easily understood to
              encompass things done by an agency
              to an alien. . . . Another possibility is
              that “actions taken” refers to steps by
              the alien, such as applying for
              discretionary relief or petitioning for
              review of the BIA's decision. . . . A
              third possibility is the INS's preferred
              construct that “actions taken” means
              any action by anyone, including this
              court. While the suggestion is not
              untenable, as courts do act, it seems
              implausible; it would mean that our
              jurisdiction would depend on when we
              got around to hearing a particular
              petition and to taking the action that
              would be an “action taken” within the
              meaning of § 321(c).

Id. at 856.

        Ultimately, the Court of Appeals for the Ninth Circuit
applied the first definition – that the phrase “actions taken” refers
to orders and decisions of the IJ and BIA. Because the decisions
of the IJ and the BIA pre-dated September 30, 1996, the effective
date of IIRIRA, the court concluded that “the gateway to IIRIRA’s
aggravated felony amendments ha[d] not been opened.” Id. at 857;
see also Xiong v. INS, 173 F.3d 601, 607 (7th Cir. 1999) (applying
the same definition of “actions taken” and holding that “the BIA’s
dismissal of Xiong’s appeal on August 21, 1999 was an action

                                 13
taken that triggered the new definition of ‘aggravated felony’”);
Choeum v. INS, 129 F.3d 29, 37 (1st Cir. 1997) (“The first
definition is the strongest and most sensible: that ‘actions taken’
refers to actions and decisions of the Attorney General.”).

       In Garrido-Morato v. Gonzales, 485 F.3d 319 (5th Cir.
2007), the INS commenced deportation proceedings in March 1996
against Garrido-Morato, a native Mexican who entered the United
States in 1986, charging her with overstaying her 72-hour visitor
visa. Id. at 320-21. The following events took place prior to the
enactment of IIRIRA: Garrido-Morato pled guilty to one count of
harboring aliens; a judgment of conviction was entered against her;
and she was sentenced to three years of probation. Id. at 321. On
September 10, 1996, she applied for suspension of deportation
under section 244 of the INA. Id. As in Biskupski’s case, her
actions of pleading guilty and filing for relief from deportation
predated the enactment of IIRIRA on September 30, 1996.

         The crux of Garrido-Morato’s argument, like Biskupski’s,
was whether section 321(c) of IIRIRA applied to bar her eligibility
for suspension of deportation or whether application of section 321
was impermissibly retroactive. See id. at 323 (“The most favorable
argument to be made is that § 321(c) is the effective date provision
for the entire section: § 321(c) states to what and when the statute
itself (not merely its definitions) is to be applied; the statute is to be
applied to (1) ‘actions’ that are ‘taken’ (2) on and after the date of
enactment.”). After reviewing the possible meanings of “actions
taken,” the Court of Appeals for the Fifth Circuit applied the
definition espoused in Valderrama-Fonseca, specifically rejecting
Garrido-Morato’s position that “actions taken” refers to the actions
she took in pleading guilty and applying for hardship relief. The
court stated, in pertinent part:

               Although “actions taken” may be
               more inclusive, we fully agree that the
               term includes actions and decisions of
               the Attorney General acting through
               an immigration judge or the BIA. But
               it is also clear to us that “actions
               taken” are actions taken under the

                                   14
              statute. Indeed, “actions taken” must
              refer only to such actions taken under
              the statute because § 321(c) is an
              effective date provision for § 321 and
              it thus only speaks to “actions” that
              are “taken” under that section, such as
              d e te rm in in g t h e m e a n in g o f
              “aggravated felony” and thus the
              availability of discretionary hardship
              relief to such felons. It does not speak
              to “actions” that are not taken
              pursuant to the statute.

Id. at 324 (quotation marks and citation omitted). The IJ denied
Garrido-Morato’s hardship relief in March 1997. “[B]ecause that
ruling, i.e., ‘action taken,’ occurred after September 30, 1996, §
321(c) compelled the IJ to utilize the retroactive definition and find
Garrido’s conviction to be an aggravated felony.” Id.

       In Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006), the Court
of Appeals for the Sixth Circuit reached a different interpretation
of section 321(c). The Tran court reasoned:

              Section 321(c) explicitly limits the
              application of the revised definition of
              “aggravated felony” to proceedings
              initiated after September 30, 1996.
              Section 321(c) is a restriction on
              Section 321(b). As the agency itself
              has held, even though § 321(b)
              established that the revised definition
              of an aggravated felony can
              encompass any conviction regardless
              of when it occurred, “Section 321(c) .
              . . limit[s] the definition . . . by stating
              that the amendments will apply only to
              ‘actions taken’ after the date of the
              IIRIRA’s enactment, September 30,
              1996.” Matter of Truong, 22 I. & N.
              Dec. 1090, 1096 (BIA 1999). We

                                  15
              need not go through a lengthy
              statutory analysis to conclude that §
              321(c) is not retroactive since the
              language of the section speaks for
              itself. Section 321(c) explicitly limits
              the expanded definition of
              “aggravated felony” to prospective
              deportation proceedings. The problem
              with Tran’s position is that this
              proceeding began in December 2000,
              well after § 321(c)’s temporal
              limitation.

Id. at 941 (emphasis added) (alterations in original). Biskupski’s
deportation proceedings were initiated in January 1994, well before
the changes effected by IIRIRA. Understandably, Biskupski relies
heavily on Tran.

        The Tran court eschewed critical analysis of the meaning of
the phrase “actions taken,” instead substituting in its place the
phrase “proceedings initiated.” We can find no support for this
interpretation either in case law or statutory text. Even the case
cited for support, Matter of Truong, supra, applied the Valderrama-
Fonseca definition of “actions taken.” Accordingly, we decline to
follow Tran.

        We adopt the definition of “actions taken” articulated by the
Garrido-Morato court. Specifically, the definition of “aggravated
felony,” as amended by AEDPA § 440(e) and IIRIRA § 321(a), is
applicable to “actions taken,” which we hold to mean orders or
decisions of the IJ or BIA which apply the “aggravated felony”
definitions and thus determine the availability of discretionary
hardship relief to such felons. This definition of “actions taken”
makes sense considering that until a final agency order is issued by
either an IJ or the BIA, an alien remains the subject of
administrative adjudication “and has . . . not established any right
to the benefit he is seeking to obtain by his application.” Ortiz v.
INS, 179 F.3d 1148, 1156 (9th Cir. 1999) (quotation marks
omitted). In the present case, the BIA determined that Biskupski
was ineligible for suspension of deportation as an aggravated felon

                                 16
on March 7, 2006, well after the IIRIRA amendments took effect.
The BIA must apply the law existing at the time of its review, id.,
and we conclude that there was no impermissible retroactive effect
in doing so.

                                IV.

        Because we hold that Biskupski’s federal misdemeanor
conviction constitutes an “aggravated felony” within the meaning
of 8 U.S.C. § 1101(a)(43)(N) and because we conclude that the
statute is not impermissibly retroactive as applied to Biskupski, we
will deny the petition for review.




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