FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT June 27, 2003 THOMAS K. KAHN CLERK

____________________________ *Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of Missouri, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 00-15657

________________________ BIA No. A38-838 -056 BEVERLY LYN QUEE

DE CUNNINGHAM, Petitioner,
versus U. S. ATTORNEY GENERAL, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

________________________ Petition for Revie

w of a Final Dec

ision of the Board of Im

migration Appe

als

_________________________ (Jun e 27, 2003) Before WILSON and RONEY, Circuit Judges, and LIMBAUGH*, District Judge. PER CURIAM:2

Beverly Lyn Quee De Cunningham (“Lyn Q uee”) petitions this Court pursuant to 8 U.S.C. § 1252 for direct review of the Board of Immigration Appeals’ (“ BIA”)
summary affirmance

of an Imm

igration Judge’s (

“IJ”) denial of her applicati on fo r waiver of deportation procee

dings pursuant to the Im

migration and Nationality Act (“INA”) § 242 et seq. , 8 U.S.C. § 1 252 et seq, as amended in 1996 (“new INA”). Lyn Quee does not

challenge the IJ’s finding that she was deportable but instead argues that she is entitled to

apply for discretionary relie f under the pre-1996 INA § 212(c) and (h). We hold tha

t, under the facts

of this case, the r

emoval proc e edings commenced prior

to enactment

of the 1996 amendm

ents to the INA, t

hat the pre-1996 INA applies, and that Lyn Q uee is entitled to appl

y for discretionary

relief under the pre-1996 INA § 212(c) and (h).

Lyn Quee’ s Background & INS Removal Proc eedings Lyn Quee is a native an

d citizen of

Jamaica who h

as been a lawful pe

rmanent resident alien of the United States since Novembe r 1, 1984. She previously resided in the United States f

rom 1980. She ha

s two children, both

United States citi

zens, ages 14 and 15 years old. On Ma rch 9, 1990, after a jury trial, Lyn Q uee was convi cted of

possession of counterf

eit United States o

bligations and recei

pt of counterfeit

United States obliga

tions in violation of

18 U.S.C. §§ 472 and 473. She was sentenced to six

teen months’ i

mprisonmen

t.3

On January 25, 1991,

the Immigr

ati on and Naturalization Service (“INS”) iss ued a “N otice of Action” a ddressed to the “

Inmate Recor

ds” department

of the federal correctional insti

tutio n h ousing Lyn Quee . The Notice of Action stated the following, “Investigation has been initiated to det ermine wh ether this person is subject to deportation from the U.S.” It further stated , “An Orde

r to Show Cause in deportation

proceedings, a cop

y of whic h is attached, . . . WILL BE ISS UED.” It directed prison officials to notify the INS upon the release of Lyn Quee, “I T IS REQUESTED THAT YOU: Notify this office at lea st 30 days prior to release.” Attached to the Notice of Action was a letter advising the warden of the correctional institution

that “there will be no detainer lodged. We only

request that you notify our Deportation

section . . . of [

Lyn Quee’ s] forwarding

address at time

of release so

that fur the r Immigration proceedings may be initi ated.” On January 28, 1991, t he INS deliveredan Order to Show Cause (“OS C”) to thecorrectional insti tution housing Lyn Quee, where a Federal Bureau of Prisons (“BOP”) employee signed for

receipt of the Order to Show Cause. The OSC s tated, “THE COPY OF THIS ORDER SERVED UPON YOU IS EVIDENCE OF Y OUR ALIEN REGISTRATION WHILE YOU ARE UNDER DEPORTATION PROCEEDINGS
. THE LAW REQUIRES THAT IT BE CARRIED WITH YOU AT AL L TIMES.” A

dministrative r

ecords indicate that a

copy of the OSC –

the charging docum

ent – was never fil

ed with the4

immigration court. Lyn Quee was relea

sed from prison

in late 1991. The BOP relea sed her at the completion

of her federal sentence. The record is unclear, however, whether the BOP notified the INS of Lyn Quee’s release, as w as requestedby the I NS’s letter to the warden. Approximately

six years later,

Lyn Quee, f

ollowing a two-day busine ss trip to J amaica, at tempted to re- enter the United S tates at Miami

International Air

port in November

1997. Shepresented a valid U .S. perman ent resident card and a Jamaican passport to an INS office r. The INS officer, howeve r, denied her adm

ission and issued a “Notice to A

ppear” on Februar

y 24, 1998 for

removal proceedings as a result of her 1990 counterfei ting conviction s. The Notice to Appear denied he r admission into the United States because Lyn Quee was “convicted of a

crime involving moral turpitude,” and charged her with de portability under: (1 ) INA § 212(a)(2)(A)(i)(I) as
an alien convicted of a

crime involving m

oral turpitude; and

(2) INA § 212(a)(7)(A)
as an immigra

nt, who at the tim

e of application for adm

ission, was not in

possession of a valid entry document required by the INA in violation of INA § 211(a).

Lyn Quee’ s Immigra

tion Hearings Several hearings were held befo re an IJ in 1998. Lyn Quee advanced several
a rguments t o the IJ. She admitted the counterfeiting conviction but requested1 Old INA § 212( c) states in rele

vant part: Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntar

ily and not und

er an order of d

eportation, and w

ho are returning

to a lawful unrelinq

uished domicile of

seven consecuti

ve years, may be admit

ted in the discretion of the Attorney General . . .. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the disc retion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been convicted of one or more ag gravated felonies and has served for such felony or felonies a ter m of imprisonment of at 5 permiss ion to file for a wai ver of inadmiss ability under IN A § 212(c) and § 212 (h ) and for Cancellation of Removal under § 240(A)(a). She also ar gued that the counterfeiting

conviction was not an aggravated felony in the c ontext of INA § 237(a)(2)(A)(iii). Strictly applying the new INA , the IJ sustained the moral turpi tude charge for removal a

nd found that h e r crimes we re “aggravat

ed felonies.” In s o finding, the IJ pretermitted considerat ion of he r requested relief for waiver or cancellation,

ruling such relief w

as statutorily

un available to an aggr

avated felon underthe new INA. T

he IJ then ordered L

yn Q uee “re moved and deporte d” to Jamaica. L

yn Quee appeal

ed to the BIA, which the BIA summarily a ffirmed. Lyn Que e t hen timely filed a “Petition for Review” in this Court. Both j urisdictional briefing and oral arg ument have taken place. The Difference Between the Old INA and the 1996 Amended INA At the ti me that th e INS first issue d the OSC in 1991, L

yn Quee would ha

ve been entitled to apply

for a waiver under

INA § 212(c) 1 and § 212(h) 2 , and this Courtleast 5 yea rs. 8 U.S.C. § 1182(c) (1995) (repealed).

2 Old INA § 212(

h) states in relev

ant part: The Attorney General may , in his discretion, waive the application of [specified subsections] . . . (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien’s exclusion would res

ult in extreme hards

hip to the United Stat

es citizen or lawf

ully resident spouse, parent, son, or daughter of such alien; and (2) the Attorney

General, in his dis

cretion, and pur

suant to such terms , conditions and pro

cedures as he ma

y by re gulations presc

ribe, has consen

ted to the alien’s applying or reapply ing for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien

who has been conv

icted of (or who h

as admitted committi

ng acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. 8 U.S.C. § 1182(h) (1995) (repealed). 6 would have had jurisdiction of

an appeal from

a BIA order deny

ing her the right to so appl y. In the six-year pe

riod between the I

NS’s issuance of

the OSC in

1991 an d Lyn Quee’s 1997 detention at the Miami International Ai rport, m ajor changes to Immigrat ion law occurred. Congress p ass ed two pieces of le gislation: the Antite rrori sm

and Effective D eath Penalty A ct (“AEDP

A”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), enacte d on April 24, 1996; and the Illegal Im

migration Refo rm and Immigrant Respon sibili ty Act (“IIRIRA ”), Pub. L. N

o. 104-208, Div. C ., 110 Stat. 3009-546 (collect ively referred to as “the 1996 amendments ”), e n acted on7

September 30, 1996. These statutes significant ly amended the INA in two respects that arerelevant here. Under the

new INA, Ly

n Quee would lose thi s appeal for two re asons: (1) this Court would be jurisdictionally barred from review of the BIA’ s final order; and (2) in any event, no discretionary relief is available for aggravated felons under the new INA. 1. The New

INA’s Lim

itation of Federal

Courts’ Jurisdict

ion of Immi

gration Cases. The new INA substantially limited a federal court’s review of any final order against an alien who is found re

movable for ce

rtain reasons. Prior t

o the enactment of the new INA, this Court h ad jurisdiction to review all final orders o f the BIA, so long as the alien “exha

usted the adminis

trative remedies ava

ilable to him as o f right underthe immigration laws and regulations.” 8 U.S.C. § 1105a(c) (1995) (repealed). In fact , th is Court had discretionary authority to grant a stay of deportation for an aggravated felon. See 8 U.S.C. § 1105a(a)(3) (repealed). The new INA provide s no such jurisd iction for t his Court. Section 306 of IIRIRA states: ORDERS AGAINST CRIMINA L ALIENS. - - Notwithstanding

any other provisi

on of law, no court

shall have jur i sdiction to review any final order of removal agai nst an alien who is rem ovable by reason

of having8 com mitted a criminal of

fense covered in se

ction 1182( a)(2 ) or 1227(a)(2)(A)(

iii) [defining a

ggravated felony], (B), (C) , or (D) of this title, or any offense c over ed by section 1227(a)(2)(A)(

ii) for wh ich both predicate offenses are, without regard to t

he ir date of comm

ission, otherwise covered by section 1227(a)(2)(A)(i) of this title. 8 U.S.C. § 1252(

a)(2)(C) (2000) . Therefore, under then ew INA, the st atute on its face jurisd iction ally bars this C ourt fr om review of the I J’s pret ermittat ion of L yn Quee’s request

s for § 212(c) and § 212 (h) waivers. 2. Substantial Limitation of Discretionary Relief und er the New INA. Second, before AEDPA and IIRIRA, the

old INA § 212( c) s tated that an aggravatedfelony convictio n r end ered a lawful per

manent residen

t alien ineligible for a discretionary

waiver of deporta

tion only when the alien had served five or more y ears in prison for the agg ravated felony. See I.N.S. v. St. Cyr , 533 U.S. 289, 29 7 (2001); 8 U.S.C. § 1182( c) (1995 ) (repealed). A

liens with less than f

ive years in prison for an aggravated felon

y were eligi

ble for a § 212(c) di scretionary w aiver if they were “lawfu

ll y admitted for permanent residence who tem porarily proceeded abroadvoluntarily . . . and who are returning to a lawful unrelin quished domicile of
seven consecutive years.” 8 U.S.C. § 1182(c) (1995) (repealed) . Therefore, because Lyn Quee served only sixteen months’ imprisonment, lived m ore than sev e n consecutive

years in the U

nited States, and voluntarily traveled to Jam

aica for a two-9

day business trip, she would have been e ntitled to apply

for discretionary

waiver of deportation

under old INA § 212(

c). IIRIRA r

epealed § 212(c) an

d replaced it with IIRIRA § 304 (b) – 8 U.S.C. § 1229b – that removed discretionary waivers for a lawful resident alien if she was convicted of anyaggravated felony. See AlanisBustamante

v. Reno , 201 F.3d 1303, 1306- 07 n.6 (11th Cir. 2000 ); 8 U.S.C. § 1 229b. Similarly, the old INA § 212(h) could have afforded Lyn Quee discretionary relief. The old INA per mitted discret

ionary waiver

s for aliens c onvict ed of aggravatedfelonies, so long as those aliens were not convicted of “murder or criminal acts involving tortur e.” 8 U.S.C. § 1182(h) (1995) (repealed). Section 212(h) was and is available for aliens who are , among other thing s, parents “of a citizen of the UnitedStates . . . and the alien’s exclusion would re su lt in extreme ha rdship to the UnitedStates [citizen’s family.] ” Id

. § 1182(h)(1)(B). The 1996 amendm ents, however, also p recl uded § 212(h) discretionary relief for an alien who had been convicted of anyaggravated felony. See 8 U.S.C. § 1182(h) (1998). Thus, under the
new INA, Lyn Q

uee could neither

apply for § 212(c

) nor § 212(h) relief because her offense is defined as an “aggravated felony” under the new INA. Under th e old INA, however, Ly

n Quee, despite

her “aggr avated felony” conviction, would li kely have received relief. In fac

t, a substantial p e rcentage of alien s’ applications fo

r discretionary relief hav e been granted by the INS. See St. Cyr , 533 U.S. at 296
.10

The new INA also br

oadened the

old INA’s previous definition of “aggravated felony.” At the time of

both Lyn Quee’ s counterfeitin g conviction and the 1991 issuance of the OSC, the old INA did not enum erate counterfeiting as an “aggravated felony.” The new INA e xpanded the definition

of “aggravate

d felony” so as to include counterfeiting and m andated application o f

the new definition regardle ss of whether the convic

tion was entered before, on, or aft er the date of enactm

ent of the
new INA. 8 U.S. C. § 1101(a)(43) ( West Supp. 2000).Procedurally , the 1996 amendme nts a lso replaced the O SC with a “noti ce to appear” as th

e charging document for removal proceedi ngs. Alanis-Bustamante, 201 F.3d at 1305 n. 5. The Pre-1996 INA Applies Thus, both the jurisdi ction of this appeal, and the availability

of the right to apply for a waiver turn on which version of the IN A applies. Th is Court must determine which INA applie s because it is the fundament

al issue to our

jurisdiction. Even under the new INA , this Cour

t wo uld have jurisdicti

on to determine its jurisdiction. “To determine this

Court’s jurisdiction to review the BIA’s decisio n, we must decide what version of the INA applies to Petit ioner’s appeal. To answer this ques tion, we must determine when proceedin gs commenced against Petitio ner.” Oguejiofor

v. Attorney General of U.S. , 277 F.3d 1305, 1308 (11th Cir. 2002). The11

“generalrule” is that the 1996 amendment s do not apply

to aliens who are in deportation

proceedings prior to

April 1, 1997. As

such, IIRIRA st

ates that “the proceedings(including judicial review thereof) shall continue to be conducted without regar d to such amendm

ents.” IIRIRA

§ 309(c)(1)(B). This issue turns on whether the deport

ation proceedings com

menced upon ser

vice of the OSC in 1991,
or upon filing a Notice to Appear on Novem ber 25, 1997 with the imm igration court. The 1996 amendm

ents, however, apply

to any proceedings

“comm enced” after Ap

ril 1, 1997. Oguejiofor , 277 F.3d at 1308. Th ey do not apply

in this case if Lyn Quee ’s deportation proceed

ings “comm

enced” before Ap

ril 1, 1997. Thus, the c ontr olling issue turns on whe n the deportation proc eedings
commence

d. These are the

relevant dates and actions: 1980 : Since which Lyn Quee has resid ed in the United State s. N ovember

1, 1984 : Since which Lyn Quee has been a lawful permanent residen t alien of the United

States. March 9 , 1990 : After a jury trial, Lyn Q

uee was convicted o f possession of counte rfeit

United States obliga

tions and receipt of counterfeit Unite d State s obligations in violation of 18 U.S.C. § § 472 and 473. January 25, 1991 : INS issued a “

Notice of Action” addressed

to the “Inm

ate Records” department of the federal co rrectional institu tion housing Lyn Quee.12

January 28, 1991 : The INS delive red an OSC to the

correctional insti

tution housing Lyn Quee, w

here a Federal B

ureau of Prisons em

ployee signed for

receipt. Late 1991 : Lyn Quee w

as released from

prison. April 24, 1996 : AEDPA was e nacted. September 30,

1996 : IIRIRA was enacted. November

1997 : Lyn Quee at

tempted to re- enter the

Unite d Stat es at M iami International Air

port. She was denied adm

ission by an INS official and was issued a “Notice to A

ppear” on Februar

y 24, 1998. 1998 : Several hearings on removal proceedings as a re sult of her 1990 counterfeiting convictions were he

ld before an IJ. This Court has held

that “for purpo ses of determi ning the applicability

of the 1996 amendment

s to the INA, removal

proceedings against an alien have begun when the INS has served him

with an orde

r to s how cause and has lodg ed a warrant of detainer against him.” Alanis-Bustamante, 201 F.3d at 1304. In Alanis-Bustamante, Bustamante, a resident alien, lawfully ente

red the United Sta

tes in 1969. In 1994, he
was convicted of a federal drug charge and sentenced to thirty- three months’ imprisonmen

t and four years’ probation. In 1995, while still incarcerated for that fede ral drug c onviction, the INS served Bustamante with an OSC. Shortly before then, the INS also issued a warrant of detainer notifying prison authorities that13

Bustamante

was to be turned over to the INS after the co mpletion of his sentence. The OSC informe

d Bustamante

that the INS intended to init iate removal p

roceedings ag ainst him and indicated that he was removable under the INA for comm itting an “aggravated

felony,” as de

fined by INA § 241(a)(2)(A)( iii) and § 241 (a)(2)(B) (i), which authorizes removal of an alien convic ted of a controlled s ubstance crime. The INS, however, failed to file the O SC with the im migration court. After I

IRIRA and AEDPA were enacted in 1996 but befo re Bustamante completed his sen tence, the INS issued Bustamante a “

notice to ap pear” and filed tha t notice with the im

migration court. At Bustamante ’s removal h earing, he adm

itted the allegations

set out in the notice to appear, conced ed that he was rem

ovable, but requeste

d a waiver

of deportation

pursuant to pre-1996

amendment INA § 212(c). Applying the new INA , the IJ determined that because Bustamante was convicted of an “aggravat ed felony,” he was not eligible for

cancellation of re

moval, which was the IIRIRA equiv alent of the pre-amen

dment INA § 21 2(c) waiver of de portation. The BI

A affirmed
. Bust amante

then filed a habeas

corpus petition in fed

eral district cou

rt , arguingthat the BIA had er roneousl y dete rmined that he was ineligible for a pre1996 amendment INA § 212(c) waiver of d epor tation. The distri

ct court did not reach the merits of t

his claim, how

ever, because

it held that IIRIRA

had stripped it of jurisdiction

on all matters related to removal proceedings. This Court reversed,14

holding that for purposes of determining the applicability of

the 1996 amendm

ents to the INA, removal proce edin gs against an alien have begun when the INS has servedhim with an order

to show cause and has

lodged a warrant o f

detainer against him. Alanis-Bustamante, 201 F.3d at 1304. This Court reasoned that, although an OSC – the pre-1996 am endments charg

ing document – wa

s never fil e d in the immigrati on court, Bustamante still received the OSC and a detainer w as lodged against him prior to the enactment of t he 1996 amendm

ents. This Court reason ed that the proceedings “commence d” because Bust amante was “ subject to the author

ity of the INS and to possible removal.” Id. at 1309; see also Wallace v. Re no , 194 F.3d 279, 287 (1st Cir. 1999) (

holding that service of

OSC alone is

adequate toeffectively
commenc e I NS deportation proceedings). This Cou rt noted that “a

s of June 28, 1995, Bustamante w

as clearly subj ect to the authority of the INS, wa

s unlikely to be released without more be

ing done, and faced e ventual removal proceedings.” Alanis-Bustama nt e , 201 F.3d at 1310. Th is Court further ex

plained, “Bust

amante
was eligible for conside ration of an IN A § 212(c) discret ionary waiver

, and he continued to be eligible

until April

24, 1996, the effective date of AEDPA – which came almost 10 months after the INS served the order .” Id. Here, the INS sent an OSC to the federal correct ional i nstitu tion h ousin g Lyn Quee in 1991, putting Ly

n Quee on notice of de

portation proceedings and

asserting15

its jurisdiction

over her. Like Alanis-Bustamante, the INS faile d to file an OSC with the immigration court. B ut unlik e Alanis-Bustamante, the INS never lodged a detainer against Lyn Qu

ee upon her release from the federal correctional institution. This is understandable. The January 25 , 1991 letter to the warden of the correctional institution

housing Lyn Quee suggested that the INS never intended t o lodge a detainer against Lyn Qu

ee. The INS therefore

did everything

it had planned to assert jurisdiction and commence proceedings over Lyn Quee. Becausethe INS issued the OSC to Lyn Quee and it never intended to lodge
a warrant of detainer against Lyn Quee, we hold, in accord wi th Alanis-Bustamante, that she was “subject to the authority of the I NS and a possible” remov al from the country in 1991, and, as such,

th e pre-1996 am ended INA applies . She was thus impermissibly

denied the opportunity to apply for § 212(c) or § 212(h) relief under the pre-1996 amend

ments by the

IJ. cf. St. Cyr , 533 U.S. at 326 (holding that § 212(c) relief

remain ed ava ilabl e for a liens whose depo rtati on or r emoval comm ence d after the enactment

of the new INA b

utwho pled guilty to an aggravated felo ny prior to the new Act); but see Morales-Ramirez v. Reno , 209 F.3d 977, 983 (7 th Cir. 2000) (rejecting argument that the I

NS’s failure to com

mence procee

dings prior to enact me ntof the new Act “cost him the opportunity to apply for discretionary waiver” because proceeding s did not commence until the INS filed theappropriate16

charging document with the immigration court). BecauseLyn Quee’ s counterfeiting conviction and deporta tion proceedings
were effecti vely commen ced bef ore the new INA, t he old I NA appli es. Acco rdingl y,
we grant Lyn Quee’s petition and va cate the IJ’s deci sion and t he subseq uent BIA’s aff irmance. On remand, we direct the IJ to app ly the immigration law i n effect i n 1991, upon issuance of the 1991 OSC. That is, whatever rem

edies or admini strative applicationsthat would

have been available to L

yn Quee upon issua

nce of the 1991 OSC, including § 212(

c) and § 212(h) discr

etionary relie

f, must be made available to Lyn Quee at those proceeding s. Having granted reli ef on this ground, we need not consider the rem

aining constitutional is sues presented. PETITION GRANT ED; REMAND ED FOR FURTHE R CONSIDERATION.