UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANK SOLIS,

Petitioner,

v.

No. 98-2415

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an

Order of the Board of Immigration Appeals.

(A23-726-210)

Argued: January 25, 1999

Decided: July 19, 1999

Before ERVIN, NIEMEYER, and KING,

Circuit Judges.

_________________________________________________________________

Dismissed by unpublished opinion. Judge Ervin wrote the opinion, in

which Judge Niemeyer and Judge King joined.

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COUNSEL

ARGUED: Douglas Allen Anderson, Alexandria, Virginia; Elizabeth

Hutton McGrail, Washington, D.C., for Petitioner. H. Bradford Glassman, Office of Immigration Litigation, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney General, David M. McConnell, Assistant Director, Papu Sandhu, Trial
Attorney, Office of Immigration Litigation, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

ERVIN, Circuit Judge:

Petitioner Frank Solis appeals a final order of deportation issued by

the Bureau of Immigration Appeals ("BIA"). Solis was ordered to be

deported because of a burglary conviction. On that basis, the BIA

found him ineligible for the discretionary relief for which he petitioned. Because we determine that Solis is an alien convicted of a

deportable criminal offense, the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

§ 309(c)(4)(G), 110 Stat. 3009-546, 3009-626 to -627 (1997)

("IIRIRA"), divests this Court of subject matter jurisdiction to hear

his case and we must therefore dismiss this petition.

I.

Solis, a native of Nicaragua, is a lawful permanent resident who

first came to the United States as a nonimmigrant visitor in September, 1978. In April, 1994, Solis pled guilty to burglary, for which he

was sentenced to five years imprisonment. On December 5, 1995, the

INS issued a show cause order charging Solis with deportability due

to his conviction for an aggravated felony under the Immigration and

Nationalization Act ("INA") § 241(a)(2)(A)(iii). See 8 U.S.C.A.

§ 1227(a)(2)(A)(iii) (West 1999) (previously codified at 8 U.S.C.A.

§ 1251(a)(2)(A)(iii)).

At his first hearing before the appointed immigration judge on

April 24, 1996, Solis conceded deportability due to his criminal con-

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viction and informed the judge that he would seek relief from deportation under INA § 212(c), 8 U.S.C.A. § 1182(c) (West 1999)

(repealed by IIRIRA § 304(b), Pub. L. No. 104-208, 110 Stat. 3009-

597). The INS was unprepared and unable to locate Solis' file, so the

immigration judge recalendared the case. Solis appeared before the

immigration judge again on May 29 and June 26, 1996. Each time the

INS was unprepared and eventually the case was administratively

closed.

Subsequently, Solis moved to have the proceedings recalendared

and appeared before the immigration judge on October 15, 1996, at

which point he repeated his request for relief from deportation under

INA § 212(c) and added a plea for relief under INA § 212(h). Again,

the INS did not have Solis' file and the case was continued until

October 30, 1996. Finally, a hearing was held on October 30, 1996.

There the immigration judge ruled that Solis' burglary conviction rendered him ineligible for relief pursuant to INA§§ 212(c) or (h), and

ordered him deported.

Solis appealed the denial of his application for relief to the BIA,

alleging that, had the INS been prepared to go forward on the original

hearing date, he would not have been precluded from applying for

INA §§ 212(c) or (h) relief. He argued that, because of the INS'

delay, the AEDPA was retroactively applied to him in violation of the

Due Process Clause.1 He also argued that, because the applicable regulations distinguish between excludable and deportable aliens, the

regulations treat similarly situated aliens unequally in violation of the

Equal Protection Clause.

On August 27, 1998, the BIA affirmed the immigration judge's

decision. The BIA found that INA § 212(h), as amended by the

IIRIRA § 348, made Solis ineligible for discretionary relief from

deportation because of his felony conviction. Further, the court noted

that it was well-established practice that the BIA does not examine

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1 This references the fact that the Anti-Terrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214

(1996)("AEDPA"), which narrowed the requirements for relief under

INA § 212(c), became effective on April 24, 1996, the same date as

Solis' first scheduled hearing before the immigration judge.

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the constitutionality of the regulations that it administers. Finally, the

court mentioned in a footnote that Solis' criminal conviction also

made him ineligible for INA § 212(c) discretionary relief. Solis

appeals the BIA's ruling.

The facts of the case are not in dispute and thus, this Court reviews

this case solely for errors of law. Questions of law are subject to a de

novo review. See Plyler v. Moore, 129 F.3d 728, 734 (4th Cir. 1997).

II.

As a threshold matter, we must consider whether the IIRIRA

removes our jurisdiction over Solis' appeal. Prior to the passage of the

IIRIRA, our jurisdiction over criminal deportation cases was controlled by INA § 106, as amended by the AEDPA. After the passage

of the IIRIRA on September 30, 1996, INA § 106 was repealed and

replaced with new rules governing our review of all direct appeals

from the BIA. See IIRIRA § 309. Even though most of these changes

did not take effect until April 1, 1997, the IIRIRA also included transitional rules intended to apply to aliens involved in deportation proceedings prior to the Act's effective date and whose deportation order

was entered more than thirty days after September 30, 1996. See

IIRIRA §§ 309(c)(1), (4). Because Solis was in deportation proceedings before April 1, 1997 and his deportation order did not become

final until August 27, 1998, the transitional rules apply in this case.

The transitional rules provide that:

there shall be no appeal permitted in the case of an alien

who is inadmissible or deportable by reason of having committed a criminal offense covered in section 212(a)(2) or

section 241(a)(2)(A)(iii), (B), (C), or (D) of the Immigration

and Nationality Act (as in effect as of [September 30,

1996]).

IIRIRA § 309(c)(4)(G). As of September 30, 1996, INA

§ 241(a)(2)(A)(iii) required that "[a]ny alien who is convicted of an

aggravated felony at the time after admission [to the United States]

is deportable." 8 U.S.C.A. § 1227(a)(2)(A)(iii) (previously codified at

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8 U.S.C.A. § 1251(a)(2)(A)(iii)). The INS insists that based on these

provisions, the IIRIRA divests this Court of its jurisdiction in this

case.

We addressed this same issue in Hall v. INS, 167 F.3d 852 (4th Cir.

1999). There we held that the "IIRIRA removes our jurisdiction over

the appeals of those aliens who are deportable by reason of their conviction of certain offenses." 167 F.3d at 854. We limited our ruling

in Hall, however, concluding that these jurisdiction-limiting procedures are only triggered when certain jurisdictional facts are present;

the petitioner must be (1) an alien, (2) who has been convicted of one

of the statutorily enumerated offenses requiring deportability. See id.

at 855. Our jurisdiction turns on proof of these facts. If we find that

Solis' case presents these jurisdictional facts, we must dismiss his

petition. See id.

III.

Solis conceded deportability due to his criminal conviction in his

first master calendar hearing before the immigration judge. In doing

so, he acquiesced that he is an alien deportable because of his conviction of one of the specified offenses. He indicated nothing to the contrary in his briefs or at oral argument. Further, because the offense for

which Solis was convicted is clearly enumerated within the text of

IIRIRA § 309(c)(4)(G), there is no dispute that his crime renders him

deportable.

IV.

Because Solis is an alien who committed an offense that renders

him deportable under INA § 241(a)(2)(A)(iii), IIRIRA § 309(c)(4)(G)

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removed this Court's jurisdiction over his appeal. 2 Accordingly, this

petition is

DISMISSED.

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2 In Hall, we also held that denying a criminal alien's direct appeal of

a final BIA decision of deportability on jurisdictional grounds did not

offend the Constitution's Due Process Clause. See 167 F.3d at 856-57.

In that case, as here, this Court found that when a petitioner has notice

of the charges against him, an opportunity to be heard before an immigration judge, and appellate review in the BIA and in an Article III court,

he "has received all of the process that the Constitution requires--

perhaps more." Id. at 857.

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