United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2269

___________ Jose Mendez-Morales, * * Petitioner, * * Petition for Review of an v. * Order of the Board of * Immigration Appeals. Immigration and Naturalization Service, * * [PUBLISHED] Respondent. *

___________ Submitted: March 19, 1997 Filed: July 17, 1997

___________ Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

___________ PER CURIAM. Jose Me ndez-Morales seeks review of a Board of Immigration Appeals orde r denying adjustment of status and waiver of inadmissibility, relief that would spar e Mendez-Mo rales from deportation because of his 1992 conviction for first degre e sexual assault of a 13 year-old victim. We dismiss for lack of jurisdiction.
Inresponse to an Immigration and Naturalization Service order to show cause why he should not be deported, Mendez-Morales conceded that he is deportable and an excludable alien because he has been convicted of a crime involving moral turpitude. See8 U. S.C. §§ 1182(a)(2)(A)(i), 1251(a)(2)(A)(i). Mendez-Morales then sought to avoid deportation through an adjustment of status. See 8 U.S.C. § 1255(a). ThatThe amendment in question is found in Title IV of the Antiterrorism an d 1 Effect iveDeath Penalty Act. In holding § 440(a) of that Act retroactive, Mendez

Rosas applied the presumpt ion of jurisdictional retroactivity articulated in Landgraf v. USI Film Products , 511 U.S. 244, 274 (1994). Although the Supreme Court recently held a portion of Title I of the Act non-retroactive, declining to apply Landgraf ’ s “default rule,” the Court noted that Title I “stands more or less independent of th e Act’s other titles.” Lindh v. Murphy , 65 U.S.L.W. 4557, 4558 (U.S. Jun. 23, 1997). Because Lindh

turned upon the drafting peculiarities of Title I, we apply the Landgraf rule to § 440(a). In addition, because this case involves “the applicability of the new provisio ns to criminal convictions or criminal acts that occurred before the Act wa s passed,” Reyes-Hernandez v. INS , 89 F.3d 490, 493 (7th Cir. 1996), is distinguishable. See Yang v. INS , 109 F.3d 1185, 1191 (7th Cir. 1997). -2- requi res a waiver of inadmissibility, which is an exercise of the Attorney General’ s discretion under 8 U.S.C. § 1182(h). When the Board denied that relief on April 12, 1966, w e had jurisdiction to review its decision under 8 U.S.C. § 1105a. Th e jurisdictional issue we now consider arises from two s ubsequent congressional actions. First, on April 14, 1996, Congress amended 8 U .S.C. § 1105a to add subsection (a) (10), which provides: “Any final order of deportation against an alien who i s de portable by reason of having committed a criminal offense covered in [8 U.S.C

. 1251(a)(2)(A)(iii)] shall not be subject to review by any court.” Pub. L. No. 104-132, § 44 0(a), 110 Stat. 1214, 1276-77 (1996). We agree with the Fifth Circuit that thi s ame ndment

is jurisdictional in nature and therefore must be applied retroactively, i n other words , to cases such as this that were pending on its date of enactment. Se e Mende z-Rosas v. INS , 87 F.3d 672 (5th Cir. 1996), cert. denied , 117 S. Ct. 69 4 (1997 ). Therefore, if Mendez-Morales is deportable “by reason of” a crimina l

1 c o nviction for an “aggravated felony” as that term is used in § 1251(a)(2)(A)(iii), we have no jurisdiction. “Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43). The second relevant enactment occurred on September 30, 1996. In § 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) , Congress altered the definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43) t o include sexual abuse of a minor. Pub. L. No. 104-208, Div. C, 110 Stat. 3 009-546, 627IIRIRA also repealed 8 U.S.C. 1105a in its entirety. However, this repealer is 2 not relevant here be cause it applies only to “final orders of deportation . . . filed on or after the date of the enactment.” Pub. L. No. 104-208, Div. C, § 306(c), 110 Stat

. 3009-546, 612 (1996). -3- (1 996). Addressing the question of retroactivity specifically, Congress provided that this definitional amendment applies to convictions entered before enactment and “t o actions taken on or after the date of the enactment.” IIRIRA §§ 321(b), (c), 110 Stat. at 3009-6 28. Mendez-Morales was convicted of committing an aggravated felony as defined in the IIRIRA amendment to § 1101(a)(43). He is deportable “by reason of” that conviction under 8 U.S.C. §§ 1105a(a)(10) and 1251(a)(2)(A)(iii). Becaus e 2 jud icial review by this court would be an “action taken” for purposes of IIRIR A § 321(c), we have no jurisdiction to hear his appeal. We reject Mendez-Morales’ s contention that this lack of judicial review deprives him of due process. See Yang , 109 F.3d at 1194-97. Accordingly, the appeal is dismissed for lack of jurisdiction. A true copy.
Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.