FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12933

Non-Argument Calendar

________________________

BIA No. A30-917-419

NAEL DAWUD SAMMOUR, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(February 15, 2008)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
In 2003, the INS was abolished and its enforcement functions were transferred to the 1

newly created DHS. See Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 471,

116 Stat. 2135.

2

Nael Dawud Sammour, a native and citizen of Jordan, petitions for review of

the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) order of removal and granting the Department of Homeland

Security’s (“DHS”) motion to pretermit Sammour’s application for relief, which

was filed under former INA § 212(c), 8 U.S.C. § 1182(c) (1996). After review, we

dismiss in part and deny in part the petition for review.

I. BACKGROUND

While a lawful permanent resident, Sammour was convicted of several

criminal offenses, including 1985 convictions for two counts of receiving stolen

property, a 1992 conviction for attempted receipt of stolen property and 1992

federal convictions for two counts of bank fraud. In 1992, the Immigration and

Naturalization Service (“INS”) issued an Order to Show Cause, charging 1

Sammour with deportability under former INA § 241(a)(2)(A)(ii), 8 U.S.C. §

1251(a)(2)(A)(ii), because his criminal convictions constituted two or more crimes

involving moral turpitude. In 1995, an IJ ordered Sammour deported. 

That same year, Sammour filed an application for waiver of deportation

under former INA § 212(c). In 1996, Congress passed two pieces of legislation

(“the 1996 amendments”) that significantly changed immigration law, the
Section 440(d) of AEDPA amended INA § 212(c) to expand the types of offenses that 2

could disqualify an alien for § 212(c) relief to include an alien who is deportable “by reason of

having committed any criminal offense covered in section 241(a)(2)(A)(iii) [aggravated

felonies], (B) [controlled substances convictions], (C) [certain firearm offenses], or (D)

[miscellaneous crimes], or any offense covered by section 241(a)(2)(A)(ii) [multiple criminal

convictions] for which both predicate offenses are covered by section 241(a)(2)(A)(i) [crimes of

moral turpitude].” Later, IIRIRA repealed § 212(c) altogether. See Pub. L. No. 104-208, Div. C

Title III § 304(b), 110 Stat. 3009-597.

3

Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132,

110 Stat. 1214 (1996), enacted on April 24, 1996; and the Illegal Immigration

Removal and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, Div.

C., 110 Stat. 3009-546, enacted on September 30, 1996. Among other things, the

1996 amendments eliminated § 212(c) relief for aliens convicted of certain

disqualifying offenses, including “crimes of moral turpitude.” See AEDPA

§ 440(d).2

In 1997, the IJ denied Sammour’s application because his 1985 receipt of

stolen property and 1992 bank fraud convictions were “crimes of moral turpitude”

and the 1996 amendments had rendered aliens convicted of such crimes ineligible

for § 212(c) relief. In 1998, the BIA affirmed. 

In 2001, Sammour filed with the BIA a “Special 212(c) Motion to Reopen

and Remand” based on INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293

(2001), which held that the provisions of the 1996 amendments eliminating

§ 212(c) relief could not apply retroactively to aliens who were eligible for
INA § 241 authorized the Attorney General to enter an order deporting an alien who fell 3

within certain classes of deportable aliens. Included within this list of deportable aliens were

aliens convicted of certain firearm offenses, as follows:

(C) Certain firearm offenses

Any alien who at any time after entry is convicted under any law of

purchasing, selling, offering for sale, exchanging, using, owning, possessing, or

carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange,

use own, possess, or carry, any weapon, part, or accessory which is a firearm or

destructive device (as defined in section 921(a) of Title 18) in violation of any law

is deportable.

INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1996) (currently codified at 8 U.S.C. §

1227(a)(2)(C)).

4

§ 212(c) relief at the time they pled guilty to a disqualifying offense. The BIA

granted Sammour’s motion to reopen and remanded the case to an IJ for further

proceedings.

On remand, the DHS filed a motion to pretermit Sammour’s application for

§ 212(c) relief, which was denied. The DHS filed a renewed motion to pretermit

Sammour’s § 212(c) application, charging Sammour with deportability under

another immigration statute, former INA § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C),

based on a 1982 Ohio conviction for possessing an unregistered firearm. 

3

The IJ granted the DHS’s renewed motion. The IJ concluded that the 1996

amendments’ elimination of § 212(c) relief applied to Sammour, despite St. Cyr,

because Sammour was convicted following a trial, rather than a guilty plea. 

Alternatively, the IJ concluded that Sammour was ineligible for § 212(c) relief

because his 1982 firearms offense did not have a comparable ground for exclusion,

and thus could not be waived.
Sammour argues that the IJ erred in finding that he was ineligible for § 212(c) relief 4

under St. Cyr because he was convicted after trial. However, the BIA did not adopt the IJ’s

ruling on this point. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (explaining

that we review the IJ’s reasoning only to the extent the BIA adopts it).

5

The BIA declined to adopt the IJ’s denial of § 212(c) relief based on the fact

that Sammour’s 1982 firearm conviction resulted from a jury verdict. The BIA

concluded that § 309(c) of IIRIRA and 8 C.F.R. § 1212.3(g) preserved § 212(c)

relief requests for aliens, like Sammour, who were placed in deportation

proceedings before enactment of the 1996 amendments. Thus, the BIA determined

that Sammour’s conviction by a jury, rather than a guilty plea, did not affect the

availability of § 212(c) relief. 

4

Instead, the BIA concluded that Sammour was statutorily ineligible for §

212(c) relief. However, this ineligibility was not based on the 1996 amendments,

but based on a separate ground. A former § 212(c) waiver was available to

removable lawful permanent residents only to the extent the grounds for removal

were analogous to grounds for exclusion under INA § 212(a), 8 U.S.C. § 1182(a). 

The BIA concluded that Sammour was ineligible for a § 212(c) waiver of

removability based on his 1982 firearm offense because there was no comparable

ground for exclusion under § 212(a).

Sammour filed this appeal.

II. DISCUSSION
The government filed a motion to dismiss Sammour’s petition for lack of appellate 5

jurisdiction. We review issues of subject matter jurisdiction de novo. Brooks v. Ashcroft, 283

F.3d 1268, 1272 (11th Cir. 2002).

6

As a threshold matter, we first determine whether we have jurisdiction over

Sammour’s petition for review. Bahar v. Ashcroft, 264 F.3d 1309, 1311 (11th 5

Cir. 2001). We lack jurisdiction “to review any final order of removal against an

alien who is removable by reason of having committed [certain enumerated

criminal offenses].” INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C); Moore v.

Ashcroft, 251 F.3d 919, 922-23 (11th Cir. 2001). One of the enumerated criminal

offenses is a conviction “under any law of . . . possessing . . . any weapon, part, or

accessory which is a firearm . . . .” See INA § 237(a)(2)(C), 8 U.S.C. §

1227(a)(2)(C); INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) (referencing, for the

purpose of identifying disqualifying offenses, 8 U.S.C. § 1227(a)(2)(C)). When

judicial review is limited by statutory conditions, we retain jurisdiction to

determine only whether these statutory conditions exist. Brooks v. Ashcroft, 283

F.3d 1286, 1272 (11th Cir. 2002). Thus, our review is limited to the threshold

issues of whether a petitioner is (1) an alien; (2) who is removable; (3) based on

having committed a disqualifying offense. Id.

In 1982, Sammour was convicted in Ohio of possessing an unregistered

firearm. Sammour does not dispute that his firearm conviction is a disqualifying

offense for purposes of depriving this Court of jurisdiction to review his final
Although Sammour’s deportation proceedings began before April 1, 1997, his petition 6

for review is governed by IIRIRA. Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1008 n.3 (11th

Cir. 2005) (explaining that, after the REAL ID Act, “[t]he date on which a petition is filed is no

longer important, as Congress has now directed that all petitions for review will be governed

under the permanent provisions of IIRIRA”).

7

removal order. Therefore, to the extent Sammour seeks review of his removal

order, we lack jurisdiction and dismiss his petition.

We still must consider Sammour’s § 212(c) claim for waiver of

removability. As to the discretionary aspect of that relief, we also lack jurisdiction

to review denials of discretionary relief, including waiver of removability under

INA § 212(c). See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i); see also

Camacho-Salinas v. U.S. Att’y Gen., 460 F.3d 1343, 1347-48 (11th Cir. 2006). 

However, we retain jurisdiction to review constitutional claims or questions of law. 

See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D), as amended by the REAL ID

Act of 2005, Pub. L. No. 109-13, 119 Stat. 231; Balogun v. U.S. Att’y Gen., 425

F.3d 1356, 1359-60 (11th Cir. 2005). Therefore, we have jurisdiction to review 6

the legal question of whether Sammour’s firearm conviction rendered him

ineligible for § 212(c)’s waiver of removability.

Under § 212(c), the Attorney General has the discretion to waive an alien’s

inadmissible status if the alien was a lawful permanent resident who had lived

continuously in the United States for seven years. See INA § 212(c), 8 U.S.C. §

1182(c) (1996). Although § 212(c) originally provided for a waiver of exclusion
In light of this opinion, we deny the government’s motion to dismiss as moot. 7

8

for aliens who had temporarily gone abroad, the provision was “extended to

provide relief from deportation orders as well.” Asencio v. INS, 37 F.3d 614, 616

(11th Cir. 1994). However, as already noted, the § 212(c) waiver is available to

removable lawful permanent residents only to the extent the grounds for removal

are analogous to grounds for exclusion under INA § 212(a), 8 U.S.C. § 1182(a). 

Here, the BIA concluded that Sammour was ineligible for a § 212(c) waiver

of removability based on his firearms offense because there is no comparable

ground for exclusion under § 212(a). This Court has reached the same conclusion. 

See Rodriguez-Padron v. INS, 13 F.3d 1455, 1460-61 (11th Cir. 1994) (concluding

that an alien convicted of a firearms violation is not eligible for § 212(c) relief

because there is not a comparable ground for exclusion); see also Adefemi v.

Ashcroft, 386 F.3d 1022, 1031 (11th Cir. 2004) (en banc) (same). Accordingly,

the BIA correctly concluded that Sammour’s firearm conviction rendered him

ineligible for § 212(c) relief. With respect to this issue, Sammour’s petition for

review is denied.7

PETITION DISMISSED IN PART, DENIED IN PART.