### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk
July 30, 1997

TO: All recipients of the captioned opinion
RE: 97-9502, Berehe v. INS June 3, 1997
Please be advised of the following correction to th e captioned decision: In the first full paragraph on page three, the textnow states: “Although most of its provisions apply only to proc eedings commenced on or after April 1, 1997, it also adopted transitional r ules which apply to cases in which the deportation proceedings are pending at the time IIRIRA was enacted (September 30, 1996), but the final deportation ord er is entered more than thirty days after its enactment. See IIRIRA § 309(c)(4). The transitional rules state in relevant part that, “there shall be no appeal permi tted in the case of an alien who is inadmissable or deportable by reason of having c ommitted a criminal offense covered in" the enumerated sections, including fire arm offenses. IIRIRA § 309(c)(4)(G). Because Berehe's deportation proceed ings were pending on September 30, 1996 and the final order of deportati on was entered after October 30, 1996, the transitional rules apply to Berehe, a nd preclude him from filing a petition for review.” These sentences should be revised to read: “Although most of its provisions apply only to proc eedings commenced on or after April 1, 1997, it also adopted transitional r ules which apply in the case of analien who is in exclusion or deportation proceeding s before IIRIRA’s effective

date, April 1, 1997, but the final order of exclusi on or deportation is entered more than thirty days after IIRIRA’s September 30, 1996 date of enactment. See IIRIRA § 309(c)(4). The transitional rules state i n relevant part that, “there shall be no appeal permitted in the case of an alien who is inadmissable or deportable by reason of having committed a criminal offense co vered in” the enumerated sections, including firearm offenses. IIRIRA § 309 (c)(4)(G). Because Berehe's deportation proceedings commenced before April 1, 1 997, and the final order of deportation was entered after October 30, 1996, th e transitional rules apply to Berehe, and preclude him from filing a petition fo r review.” Please make the indicated revisions. A corrected v ersion is attached for your convenience. Thank you. Very truly yours, Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk encl.

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 3 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

NEGUSE BEREHE,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 97-9502

ORDER
Before PORFILIO, BALDOCK, and HENRY, Circuit Judges

.

The Immigration and Naturalization Service (INS) mo ves to dismiss the petition for review of a decision of the Board of I mmigration Appeals filed by petitioner Neguse Berehe, contending the Antiterror ism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 1 10 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibi lity Act of 1996 (IIRIRA), Division C of Pub. L. No. 104-208, 110 Stat. 3009, divest this court of jurisdiction over petitioner’s petition. We agree.1 8 U.S.C. § 1105a(a) was subsequently repealed by II RIRA. Provisions

relating to judicial review of immigration orders f iled after enactment of IIRIRA now appear at 8 U.S.C. § 1252, as amended by IIRIRA

. -2- Berehe is a citizen of Ethiopia who entered the Uni ted States as a refugee in 1981. In 1989, he pled guilty to assault in the first degree in violation of Colo. Rev. Stat. § 18-3-202, which is a crime of violence with a deadly weapon under Colo. Rev. Stat. § 16-11-309. In 1995, the INS charged Berehe as deportable under 8 U.S.C. § 1251(a)(2)(C) (redesignated as 8 U .S.C. § 1227(a)(2)(c) (Apr. 1, 1997)), under which an alien convicted of certain firearm offenses is deportable. Berehe challenged his deportability, a nd sought discretionary relief under 8 U.S.C. § 1182(c), which was denied by the i mmigration judge (IJ). Berehe appealed to the Board of Immigration Appeals (BIA). He challenged the characterization of his conviction as a firearms of fense and the IJ’s finding that he was not eligible for discretionary relief under 8 U.S.C. § 1182(c). The BIA affirmed the IJ’s decision on January 15, 1997. Be rehe filed a petition for review with this court on February 3, 1997. The INS filed a motion to dismiss the petition for review for lack of jurisdiction, contending AEDPA § 440(a) and IIRIRA § 309(c)(4)(G) divest this court of jurisdiction over Berehe’s petition for re view. AEDPA § 440(a) amended 8 U.S.C. § 1105a(a)(10) 1 to state that “[a]ny final order of deportation ag ainst an alien who is deportable by reason of having committ ed” certain specified criminal-3-

offenses, including certain firearm offenses, “shal l not be subject to review by any court.” We recently held that AEDPA § 440(a) applies to petitions for review pending on or after the date of AEDPA's enactment. Fernandez v. INS , Nos. 95- 9550 and 96-9504, 1997 WL 240965 (10th Cir. May 12, 1997). Therefore, it applies to Berehe’s petition for review, filed in F ebruary 1997. IIRIRA was enacted on September 30, 1996. Althoughmost of its provisions apply only to proceedings commenced on o r after April 1, 1997, it also adopted transitional rules which apply in the case of an alien who is in exclusion or deportation proceedings before IIRIRA’s effectiv e date, April 1, 1997, but the final order of exclusion or deportation is entered more than thirty days after IIRIRA’s September 30, 1996 date of enactment. See IIRIRA § 309(c)(4). The transitional rules state in relevant part that, “th ere shall be no appeal permitted in the case of an alien who is inadmissable or deportable by reason of having committed a criminal offense covered in” the enumer ated sections, including firearm offenses. IIRIRA § 309(c)(4)(G). Because Berehe's deportation proceedings commenced before April 1, 1997, and the final order of deportation was entered after October 30, 1996, the transitiona l rules apply to Berehe, and preclude him from filing a petition for review. In addition, AEDPA § 440(d) amends 8 U.S.C. § 1182( c) so that discretionary relief from deportation is no longer available to aliens who are-4-

deportable by reason of having committed the enumer ated crimes, including firearm offenses. Similarly, IIRIRA’s transitional rules provide that, “there shall be no appeal of any discretionary decision under [8 U.S.C. § 1182(c)]. . .” IIRIRA § 309(c)(4)(E). Berehe contends that the court retains jurisdictionunder AEDPA and IIRIRA to examine whether he is in fact validly dep ortable for a firearms offense. Berehe contends that if he is not validly deportabl e for a listed crime, then AEDPA’s and IIRIRA’s bans on judicial review do notapply. He has argued before the IJ and the BIA that use of a firearm was not an essential element of his conviction for assault with a deadly weapon, and, t herefore, that he is not validly deportable for a firearms offense. The BIA ruled t hat the facts of his indictment demonstrate that he committed the deadly assault wi th a firearm, and that the INS may look to the indictment and the facts of the cri me to make the deportation decision. The Seventh Circuit has concluded that the language of AEDPA does permit judicial review of the merits, although a co nclusion that the alien is deportable under one of the listed crimes brings th e proceedings to an end. Yang
v. INS , 109 F.3d 1185, 1192 (7th Cir. 1997) (“court may ( indeed, must) determine for itself whether the petitioner is (i) an alien ( ii) deportable (iii) by reason of a criminal offense listed in the statute”). The court in Yang noted that AEDPA did-5-

not preclude review if the Attorney General finds an alien is deportable by reason of having committed a listed crime, but instead say s review is precluded in the case of an alien who is deportable for such a reason. Id. It reasoned, “[w]hen judicial review depends on a particular fact or leg al conclusion, then a court may determine whether that condition exists.” Id. We decline to adopt the Yang holding. We find that the language of AEDPA § 440(a) and IIRIRA § 309(c)(4)(G) does not p ermit the court to review the merits of whether an alien is validly deportabl e by reason of having committed one of the enumerated criminal offenses. In particular, IIRIRA’s transitional rules, which were not applicable in Yang , clearly and unambiguously state that, “there shall be no appeal permitted” in the case of an alien who is deportable by reason of committing one of the enume rated crimes. IIRIRA § 309(c)(4)(G). No judicial review of the jurisdic tional issue is possible where the alien is precluded from filing an appeal. We are not persuaded that only Article III courts c an make the determination that an alien is deportable by reason of having committed one of the enumerated offenses. Berehe argued before the IJ and the BIA that a firearms offense was not an essential element of his convict ion; thus, the factual and legal conclusion that he is deportable by reason of havin g committed one of the enumerated offenses has been made by the IJ and rev iewed by the BIA. As we-6-

explained in Fernandez with respect to AEDPA § 440(a), and as is true with IIRIRA § 309(c)(4)(G), these provisions banning jud icial review do “not alter the petitioners’ underlying defenses to deportation or claims for relief; [they] merely change[ ] the locus of their final appeal -- from a n Article III court to the Board of Immigration Appeals . . . .” 1997 WL 240965, at*1. The Seventh Circuit’s holding is also unpersuasive because it is not consistent with the legislative intent. “[T]he leg islative history [of AEDPA] indicates that Congress sought to eliminate judicia l review, and expedite deportation, for all criminal aliens, regardless of when (or whether) a petition for review had been filed.” Fernandez , 1997 WL 240965, at *2 (citing S. Rep. No. 104-48, at 2 (1995) (bemoaning the presence of at l east “450,000 criminal aliens in the United States who are currently incarcerated or under some form of criminal justice supervision”)). The legislative h istory of IIRIRA reflects the same intent. See S. Rep. No. 104-249, at 2 (1996) (the legislation “is intended . . . [to] expedit[e] the removal of exclu dable and deportable aliens, especially criminal aliens . . .”) and id. at 7 (“Aliens who violate U.S. immigration law should be removed from this countryas soon as possible.”). To permit judicial review into the validity of the INS ’s determination that an alien is deportable by reason of having committed one of the listed crimes, in the guise of making a determination as to the court’s jurisdicti on, is to permit review of the-7-

very fact or condition that the statute appears on its face to be precluding from review. We conclude that such review is contrary t o Congress’s intent to expedite deportation of criminal aliens. Accordingly, the INS’s motion to dismiss is grantedand the petition for review is dismissed for lack of subject-matter juri sdiction.