*District Judge of the Eastern District of Louisiana, sitting

by designation. 

1

United States Court of Appeals,

Fifth Circuit.

No. 96-60345.

Joan Marie WILLIAMS, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

June 6, 1997.

Petition for Review of an Order of the Immigration & Naturalization

Service.

Before DAVIS and DENNIS, Circuit Judges, and FALLON,* District

Judge.

FALLON, District Judge:

Petitioner Joan Marie Williams is a native and citizen of

Jamaica, who became a lawful permanent resident of the United

States in 1985. In 1993, petitioner was convicted of conspiracy to

launder money instruments and to structure financial instruments in

connection with an extensive drug trafficking and money laundering

operation. On May 18, 1994, the Immigration and Naturalization

Service ("INS") issued an Order to Show Cause charging petitioner

with being deportable pursuant to section 241(a)(2)(A)(iii) of the

Immigration and Nationality Act ("INA") by reason of having

committed an aggravated felony. On April 11, 1995, the Immigration

Judge found petitioner to be deportable as charged and denied her

application for relief under section 212(c) of the INA. Petitioner

appealed the denial of 212(c) relief to the Board of Immigration
 

1AEDPA § 440(a), Pub.L. No. 104-132, 110 Stat. 1214 (April 24,

1996), as amended by the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 ("IIRIRA") § 306(d), Pub.L. No. 104-208,

110 Stat. 3009 (Sept. 30, 1996). 

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Appeals ("BIA"). The BIA affirmed on April 18, 1996.

On May 16, 1996, petitioner filed the instant petition seeking

review of the BIA's decision pursuant to section 106 of the INA.

The INS has moved to dismiss the petition on grounds that section

440(a) of the Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, withdrew our

jurisdiction to review the BIA's decision in this case.

Section 440(a) amends section 106 and precludes judicial

review of "[a]ny final order of deportation against an alien who is

deportable by reason of having committed a criminal offense covered

in section 241(a)(2)(A)(iii)."1

Despite petitioner's protestations against retroactive

application, section 440(a) does apply to her petition, which was

filed several days after the effective date of April 24, 1997, and

would apply even if her petition had been pending on that date.

See Mendez-Rosas v. INS, 87 F.3d 672, 675-76 (5th Cir.1996), cert.

denied, --- U.S. ----, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997).

Williams' only remaining argument against the operation of

section 440(a) is that the provision is violative of the Due

Process Clause and the separation of powers principles encompassed

in Article III. Having carefully weighed these challenges, we join

the First, Second, Third, Seventh, Ninth, and Eleventh Circuits in
 

2See Yang v. INS, 109 F.3d 1185, 1194-97 (7th Cir.1997);

Boston-Bollers v. INS, 106 F.3d 352, 355 (11th Cir.1997); Kolster

v. INS, 101 F.3d 785, 790-91 (1st Cir.1996); Salazar-Haro v. INS,

95 F.3d 309, 311 (3d Cir.1996); Hincapie-Nieto v. INS, 92 F.3d 27,

30-31 (2d Cir.1996); Duldulao v. INS, 90 F.3d 396, 399-400 (9th

Cir.1996). In addition, the Sixth Circuit has twice dismissed

petitions under section 440(a) without addressing the

constitutional issues. See Figueroa-Rubio v. INS, 108 F.3d 110

(6th Cir.1997); Qasguargis v. INS, 91 F.3d 788 (6th Cir.1996),

cert. denied, --- U.S. ----, 117 S.Ct. 1080, 137 L.Ed.2d 215

(1997). 

 

3Yang, 109 F.3d at 1194-97. 

 

4Id. (noting that the First, Second, Third, and Ninth Circuits

have made this observation). 

 

5Id. 

 

6We note that "the IIRIRA repeals [section 106 of the INA] and

replaces it with other judicial review provisions, one of which

precludes review of decisions regarding the granting of relief

under ... section 212(c)." Pichardo v. INS, 104 F.3d 756, 760 n.

7 (5th Cir.1997) (Parker, J.) (citing IIRIRA § 306(a)(2)).

However, because we have determined that the AEDPA had divested us

of jurisdiction to hear Williams' claims even before she filed her

petition, we need not explore whether the IIRIRA might apply to

furnish an additional basis for dismissing the petition. See

IIRIRA §§ 306(c)(1)-(2), 309(a), 309(c)(1), 309(c)(4), as amended

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rejecting them.2 The Seventh Circuit, in Yang v. INS,3 has taken

particular pains to explain the inadequacies in petitioner's

arguments, and we could add little to its thorough analysis. We

likewise agree with the courts noted above that "limited

opportunity to apply for a writ of habeas corpus may remain"4—at a

minimum "the writ that Art. I § 9 cl. 2 preserves against

suspension."5 However, this case does not require us to explore

the perimeters of judicial review remaining available to criminal

aliens such as Williams.

Section 440(a) applies to foreclose judicial review in this

case.6 Therefore, Williams' petition is DISMISSED for lack of
by Pub.L. No. 104-302, 110 Stat. 3656 (October 11, 1996). 

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jurisdiction.