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. e du/thir dc ir c uit_1998/105Filed 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 w hich was first filed on May 12, 1995, by Eleazar Jose Mo rel, a native and citizen of the Dominican Republic. The Immigration and Naturalization Service (INS) asks u s to set aside our original opinion in this case in which we granted

2Morel's petition challenging the Board of Immigrati on

Appeals' (BIA) construction of S 212(c) of the Immi gration 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), ap plies here to foreclose our ability to entertain this pet ition and grant the relief Morel requests. Because we agree, we now vacate our original opinion. Consequently, the deci sion of the BIA affirming the immigration judge's denial of the applicability of S 212(c) to Morel from which appea l was taken to this Court, is final.

Although the limited factual record has already bee n set out in our previous opinion, we nonetheless provide a detailed procedural history because of the signific ance of the timing of the events leading up to this reheari ng. These
events were set in motion when Morel was arrested i n New Jersey on August 24, 1991, and charged with possess ion 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 a n Order to Show Cause and Notice of Hearing by the IN S. 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 heari ng held on January 17, 1994, Morel conceded that he had bee n convicted of a deportable offense, but sought discr etionary relief pursuant to INA S 212(c). The immigration ju dge denied Morel's request, finding that he had accumul ated insufficient residency to be eligible for discretio nary relief and ordered him deported to the Dominican Republic. On April 10, 1995, the BIA affirmed the order and dism issed Morel's appeal.

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

3On 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 is sued an opinion in which we concluded that the INS had erre d 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 creditin g 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 b eing taken before the agency, the INS submitted a Petiti on 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 revi ew. We ordered additional briefing and granted reargument to address this serious jurisdictional concern.

We agree that AEDPA divests this Court of jurisdict ion.3

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

3. Although the enactment of AEDPA pre-dated thefil ing 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 go vernment now candidly confesses that the failure to raise the is sue sooner was an oversight on its part.

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

[N]o action of the parties can confer subjec t-matter jurisdiction

upon a federal court. Thus, the consent of the pa rties is irrelevant, principles of estoppel do not apply, and a p arty does not waive the requirement by failing to challenge jurisdic tion early in the proceedings. . . . [A] court, including an a ppellate court, will
raise lack of subject-matter jurisdiction on its o wn motion. "[T]he rule, springing from the nature and limits of the judicial power of the
United States is inflexible and without exce ption, which requires this court, of its own motion, to deny its j urisdiction, and, in
the

4In the case of aliens convicted of certain criminal offenses,

AEDPA S 440(a) removes from us jurisdiction to revi ew a claim of legal error in deportation proceedings.4 M orel does

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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 B auxites 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. No rth Carolina v. Rice, 404 U.S. 244, 246 (1971) ("the question of mootness is one . . . which a federal court must resolve before it assumes juri sdiction"); Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992) ("Art icle 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 cont roversy ceases to exist the court must dismiss the case for lack of jurisdi ction.").

Thus, in keeping with these precepts, the past prac tice of this Court and others has been to entertain jurisdictional cha llenges even when not advanced until a petition for rehearing is filed. S ee In re Texas E. Transmission Corp. PCB Contamination Ins. Coverage Litig., 15 F.3d 1230, 1234 (3d Cir. 1994) (addressing jurisdictiona l issues not raised until petition for panel rehearing); see also Franc hise Tax Bd. of the

State of Calif. v. Construction Laborers Vacation Trust f or S. Calif., 463 U.S. 1, 7 (1983) (same); Seatrain Shipbuilding Corp. v. She ll 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 ch allenge to subject matter jurisdiction in decision refusing to grant p etition for panel rehearing); Kelly v. Hartford Accident & Indemnity Co., 294 F.2d 400, 409 (5th Cir. 1961) (same). We therefore do not hes itate to take on this
issue here.

4. AEDPA S 440(a) amends INA S 106(a), 8 U.S.C. S 1 105a(a), which formerly designated the Courts of Appeals as the ex clusive fora for "judicial review of all final orders of deportation " except to the extent
that limited additional judicial review was available vi a habeas corpus proceedings, see INA S 106(a)(10). AEDPA S 440(a) s upplants existing paragraph (10) of Subsection (a) of INA S 106(a) wi th the following language:

Any final order of deportation against an al ien who is deportable by reason of having committed a criminal offens e covered in section5not dispute that he was convicted of a deportable c riminal

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 Artic le 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 o f constitutional proportion. The INS concedes that S 440(a) does not preclude Article III court review of claim s of "substantial Constitutional error." Resp. Supp. Br. at 20.
Morel's claim here is not such a claim -- he has so ught review of a question of law as we set out in our pr ior opinion, see Morel v. INS, 90 F.3d 833 (3d Cir. 199 6), 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 c an get credit for the accumulated residency of one's paren t who preceeded one in the United States. Additionally, r elevant Supreme Court authority does not mandate judicial r eview

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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 t his 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 r etroactively has already been settled in this Circuit. In Salazar-Ha ro 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-exi sting rights,
withdrawal of jurisdiction, although realistically disrupting settled expectations,
does not preserve pending litigation." Id. at 311.

6by an Article III court of questions of law underly ing

legislatively-created public rights such as immigra tion. See Crowell v. Benson, 52 S.Ct. 285 (1932) (drawing a distinction between public and private rights and l isting 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 Tradi ng Commission v. Schor, 106 S. Ct. 3245 (1986).

To conclude, because Congress has divested us of jurisdiction to review matters falling within the p urview 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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