1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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 
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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. 

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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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