2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-2007

Debeato v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3235

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 05-3235

____________

LUZ MARTINA FELIZ DEBEATO

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

 Respondent 

____________

 Initially docketed as an Appeal from the

United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 04-cv-0603)

District Judge: Honorable Cynthia M. Rufe

Converted to a Petition for Review from the

Board of Immigration Appeals

Pursuant to the REAL ID Act of 2005

(Board No. A 41 943 418)

Immigration Judge: Honorable Bruce Michael Barrett

____________
 The Honorable A. Wallace Tashima, Senior Circuit Judge *

for the United States Court of Appeals for the Ninth Circuit,

sitting by designation. 

2

Argued May 23, 2007

Before: CHAGARES, HARDIMAN and TASHIMA ,

Circuit Judges.

*

(Filed: October 9, 2007 )

Jonathan Feinberg, Esq. (Argued)

Kairys, Rudovsky, Messing & Feinberg

718 Arch Street

Suite 501 South

Philadelphia, PA 19106

Attorneys for Petitioner

Richard M. Bernstein, Esq. (Argued)

Dennis M. Abraham, Esq.

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorneys for Respondent

____________

OPINION OF THE COURT
3

____________

HARDIMAN, Circuit Judge.

This immigration case began as a petition for writ of

habeas corpus, but is before us now as a petition for review. For

the reasons that follow, we will deny the petition.

I.

Petitioner Luz Martina Feliz-Debeato (Debeato), a

Dominican national, first came to the United States in 1988.

Two years later, she pleaded guilty to drug possession,

distribution, and conspiracy-related offenses in the Court of

Common Pleas of Lehigh County, Pennsylvania. After serving

three years of a six-year sentence, she was paroled. 

Following Debeato’s release from prison, the INS

commenced deportation proceedings, alleging that she was

deportable as an “aggravated felon” within the meaning of the

Immigration and Nationality Act (INA). The immigration judge

(IJ) found her subject to deportation as charged — and ineligible

for discretionary relief under Section 212(c) of the INA — on

the ground that she had not lived in the United States

continuously for seven years. Accordingly, Debeato was

ordered deported to the Dominican Republic.

The Board of Immigration Appeals (BIA) affirmed the

decision of the IJ, finding both that Debeato did not have seven

years of unrelinquished domicile in the United States and that

she was ineligible for Section 212(c) relief because she was an
4

“aggravated felon” for purposes of Section 440(d) of the AntiTerrorism and Effective Death Penalty Act of 1996 (AEDPA).

Although Debeato left the United States in 1998, she was

apprehended at her husband’s home in Reading, Pennsylvania

in 2000 after having returned surreptitiously. Debeato was

charged with one count of illegal reentry in violation of 8 U.S.C.

§ 1326(a) & (b)(2) and was sentenced to forty-six months in

prison after entering a guilty plea to that charge.

On August 1, 2003, Debeato filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 requesting

cancellation of her removal order and adjustment of her status.

Debeato claimed that her prior deportation was invalid because

the immigration court erred when it deemed her ineligible for a

Section 212(c) waiver of deportation. Six months later — while

Debeato remained incarcerated — the Department of Justice

issued a Form I-871, Notice of Intent/Decision to Reinstate Prior

Order under INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (Form I871). The Form I-871 summarily reinstated the October 1993

order of deportation.

II.

The REAL ID Act, Pub. L. 109-13, Div. B, Title I §

106(c), requires us to treat Debeato’s habeas petition as a

petition for review under § 242 of the INA. See Bonhometre v.

Gonzales, 414 F.3d 442, 446 (3d Cir. 2005); see also Kamara v.

Attorney Gen., 420 F.3d 202, 210 (3d Cir. 2005). But first we

must ascertain whether we have jurisdiction over the petition for

review despite the parties’ agreement that jurisdiction lies in this
5

Court. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

95, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998); see also Soltane

v. U.S. Dept. of Justice, 381 F.3d 143, 146 (3d Cir. 2004).

Before 2005, we lacked jurisdiction over any petition

brought by an alien who had been convicted of one of the

offenses listed in 8 U.S.C. § 1252(a)(2)(C). Debeato concedes

that she is an alien, and admits that she was convicted of one of

the enumerated offenses set forth in § 1252(a)(2)(C). Thus,

under the precursor to the REAL ID Act, we would have lacked

jurisdiction over Debeato’s petition. See Papageorgiou v.

Gonzales, 413 F.3d 356, 357 (3d Cir. 2005). However, “[t]he

jurisdictional framework for aliens convicted of certain

enumerated offenses was restructured by Congress and the

President on May 11, 2005,” when the REAL ID Act was

enacted into law. Id. at 357-58.

The REAL ID Act divested all courts of jurisdiction over

denials of discretionary relief and orders against criminal aliens,

including those challenged through a habeas corpus petition.

See 8 U.S.C. §§ 1252(a)(2)(B) and (C). However, in a new

subparagraph captioned “Judicial Review of Certain Legal

Claims,” Congress restored a portion of the jurisdiction it took

away in subparagraphs (B) and (C). That subparagraph reads,

in pertinent part:

Nothing in subparagraph (B) or (C), or in any

other provision of this Act (other than this

section) which limits or eliminates judicial

review,shall be construed as precluding review of

constitutional claims or questions of law raised
6

upon a petition for review filed with an

appropriate court of appeals in accordance with

this section.

8 U.S.C. § 1252(a)(2)(D). In Papageorgiou, we quoted that

same subparagraph, and interpreted it as follows:

With this amendment, Congress evidenced its

intent to restore judicial review of constitutional

claims and questions of law presented in petitions

for review of final removal orders. This now

permits all aliens, including criminal aliens, to

obtain review of constitutional claims and

questions of law upon the filing of a petition for

review with an appropriate court of appeals. We

reach this conclusion because Congress has

provided that nothing in 8 U.S.C. § 1252(a)(2)(B),

(C), or any other provision of the INA shall

preclude judicial review of such orders, unless

such review is barred by some other provision of

8 U.S.C. § 1252. For this reason, we believe that,

with passage of the Act, Congress has repealed all

jurisdictional bars to our direct review of

constitutional claims and questions of law in final

removal orders other than those remaining in 8

U.S.C. § 1252 ( e.g., in provisions other than

(a)(2)(B) or (C)) following the amendment of that

section by the Act.

413 F.3d at 358. As Debeato concedes, Papageorgiou did not

decide whether the grant of jurisdiction in § 1252(a)(2)(D)
7

extended to orders reinstated pursuant to 8 U.S.C. § 1231(a)(5).

But we see no reason why Papageorgiou should not apply with

equal force to reinstated orders.

On this point, we find persuasive the reasoning of

Ramirez-Molina v. Ziglar, 436 F.3d 508 (5th Cir. 2006), in

which the Court of Appeals for the Fifth Circuit found

jurisdiction over a challenge to a reinstated order. In so doing,

the Fifth Circuit explained:

The REAL ID Act has in fact removed one barrier

to our jurisdiction that might otherwise have

existed. Title 8 U.S.C. § 1231(a)(5) specifies that

when the Attorney General reinstates an order of

removal after an alien re-enters the United States

in violation of that order, the order “is not subject

to being reopened or reviewed.” . . . In addition to

carving out exceptions to the jurisdictionstripping provisions of § 1252 for constitutional

and legal claims, § 1252(a)(2)(D) states that “[no]

other provision of this chapter . . . which limits or

eliminates judicial review, shall be construed as

precluding constitutional claims or claims of

law.” Section 1231 is in the same chapter as §

1252. Because § 1231(a)(5) limits judicial

review, § 1252(a)(2)(D) prevents its operation in

cases, such as this one, in which the validity of an

underlying order is questioned on constitutional or

legal grounds.

Id. at 513-14. We find the foregoing reasoning consistent with
 Although the Sixth Circuit found jurisdiction lacking in these 2

circumstances in Tilley v. Chertoff, 144 F. App’x 536 (6th Cir.

2005), and although Tilley was decided after the REAL ID Act

became law, it — unlike Ramirez-Molina — reached its result

by relying on pre-REAL ID caselaw and made no effort to

reconcile that result with the language of § 1252(a)(2)(D). For

that reason, and because we cannot square Tilley with our

reading of the REAL ID Act that we advanced in Papageorgiou,

we decline to follow Tilley on this point of law.

8

our statement that § 1252(a)(2)(D) “repeal[ed] all jurisdictional

bars to our direct review of constitutional claims and questions

of law in final removal orders.” Papageorgiou, 413 F.3d at 358.

Our confidence in this conclusion is reinforced by our

observation in another post-REAL ID Act case, in which we

noted that “an order reinstating a prior removal order is the

functional equivalent of a final order of removal.” Dinnall v.

Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005) (citation and

internal quotation marks omitted).

After Papageorgiou and Dinnall, there is no principled

reason for reading § 1252(a)(2)(D) as permitting jurisdiction to

review a final removal order, yet denying jurisdiction to review

a reinstatement of that very same order. Accordingly, we 2

conclude that the REAL ID Act, specifically § 1252(a)(2)(D),

permits us to exercise jurisdiction over legal and constitutional

challenges to final orders of removal, including those final

orders that the Attorney General has reinstated pursuant to §

1231(a)(5).
9

III.

Having established jurisdiction, we must ascertain the

appropriate standard of review. “Although [Debeato’s] habeas

corpus petition has now been converted to a petition for review,

our standard of review remains the same.” Silva-Rengifo v.

Attorney Gen., 473 F.3d 58, 63 (3d Cir. 2007); see also Kamara,

420 F.3d at 210-11. Thus, we review Debeato’s constitutional

and legal questions de novo, see id., but defer to the BIA’s

reasonable interpretations of the statutes it is charged with

administering. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424,

119 S. Ct. 1439, 143 L. Ed. 2d 590 (1999); see also Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984).

Although the foregoing standard of review plainly applies

on direct review of an original removal order, we recognize that

Debeato has brought a collateral attack on a removal order for

which the Fifth Circuit required a showing of “a gross

miscarriage of justice sufficient to allow [consideration of] the

merits of a petitioner’s collateral attack on a removal order.”

Ramirez-Molina, 436 F.3d at 514. Debeato characterizes this as

a “requirement unique to the Fifth Circuit,” and we agree with

her to a point. Insofar as Ramirez-Molina characterized the

“gross miscarriage of justice” requirement as jurisdictional, see

436 F.3d at 514-15, we decline to follow it. But we have

required petitioners bringing collateral challenges to orders of

deportation or exclusion to show a “gross miscarriage of justice”

— not as a jurisdictional showing, but as a prerequisite to relief.

See McLeod v. Peterson, 283 F.2d 180, 184 (3d Cir. 1960) (as

amended). Accordingly, we will apply the “gross miscarriage”
10

standard not as did the Fifth Circuit in Ramirez-Molina, but

rather as a facet of the standard of review of collateral

challenges to removal orders.

IV.

Having established our jurisdiction, and having

ascertained the appropriate standard of review, we reach the

merits of the petition. Debeato challenges the BIA’s April 1,

1997 order, which held, in pertinent part:

[Debeato] is seeking relief from deportation under

section 212(c) of the Immigration and Nationality

Act, 8 U.S.C. § 1182(c). At the time of the

hearing, the Immigration Judge properly denied

that relief because [Debeato] did not then have the

7 years lawful unrelinquished domicile required

for the waiver. Moreover, [she] is now statutorily

ineligible for such relief as an “alien who is

deportable by reason of having committed any

criminal o ff en se co vered in section

241(a)(2)(A)(iii), (B), (C), or (D), or any offense

covered by section 241(a)(2)(A)(ii) for which

both predicate offenses are covered by section

241(a)(2)(A)(I).” See Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (“AEDPA”), § 440(d); Matter of

Soriano, Interim Decision 3289 (A.G., Feb. 21,

1997).

Debeato argues that the BIA incorrectly determined that she had
11

not met the domicile requirement, and that it erred in applying

AEDPA to her case. She acknowledges that these issues are not

of “constitutional dimension.” Instead, she characterizes her

claim as presenting a “question of law” reviewable under §

1252(a)(2)(D).

The government concedes the foregoing points, and

rightly so. We have held that an alien’s lawful permanent

resident status ends with the entry of a final administrative order

of deportation. See Katsis v. INS, 997 F.2d 1067, 1071 (3d Cir.

1993); see also Tipu v. INS, 20 F.3d 580, 583 (3d Cir. 1994). As

to the second point, we have held that § 440(d) of AEDPA did

not apply retroactively to cases pending in 1996. See Sandoval

v. Reno, 166 F.3d 225, 242 (3d Cir. 1999) (abrogating Matter of

Soriano). Accordingly, both of the reasons the BIA offered for

affirming the IJ’s 1993 order of deportation were, with the

benefit of hindsight, incorrect.

Given our conclusion that the BIA’s 1997 order was

erroneous as a matter of law in both respects, the question then

becomes whether these errors resulted in a gross miscarriage of

justice. Like the Fifth Circuit, we have yet to describe the

contours of the “gross miscarriage” standard. See RamirezMolina, 436 F.3d at 514. Where, as here, a petitioner’s

collateral attack on a removal order raises only a “question of

law” within the meaning of § 1252(a)(2)(D), the Seventh Circuit

has observed that a gross miscarriage of justice has been found

only when “the individual should not have been deported based

on the law as it existed at the time of the original deportation.”

See Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 682 n.13 (7th

Cir. 2003) (emphasis added) (declining to find a gross
12

miscarriage of justice where a petitioner “seeks to have applied

to him an interpretation of the law made subsequent to the time

of the original deportation decision, namely [INS v.] St. Cyr[,

533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001)].”)

(citing Matter of Farinas, 12 I. & N. Dec. 467 (BIA 1967), and

Matter of Malone, 11 I & N Dec. 730, 731-32 (BIA 1966)

(finding a “gross miscarriage of justice” when “on the basis of

judicial and administrative decisions existing at the time of the

original proceeding, no order of deportation should have been

entered”)). We find this approach persuasive and consistent

with our more general formulation of the standard. See McLeod,

283 F.2d at 184 (finding a gross miscarriage of justice where the

“error was so obvious and so clear that counsel should have

been quick to appeal”).

Under this approach, it is clear that the BIA’s 1997

decision affirming the IJ’s order of deportation was not grossly

unjust. The first ground the BIA cited in support of its decision

— namely, that Debeato was deportable because she had not

met the seven-year domiciliary requirement at the time of her

1993 hearing before the IJ — was demonstrably wrong, even in

1997. See Katsis, 997 F.2d at 1071; see also Tipu, 20 F.3d at

583. But the BIA’s final decision was not based on that ground

alone. As noted above, it also was based on the conclusion that

AEDPA § 440(d) applied retroactively and barred certain felons,

including Debeato, from § 212(c) relief. In Sandoval, we held

that this retroactive application of AEDPA § 440(d) was

improper and the Supreme Court reached a similar decision in

St. Cyr. But Sandoval was not decided until 1999, and St. Cyr

was decided in 2001. Thus, under the Attorney General’s

interim decision in Matter of Soriano — “the law as it existed at
 On this point, we decline to follow the Sixth Circuit’s 3

unpublished opinion in Tilley v. Gonzales, 228 F. App’x 585

(6th Cir. 2007). In Tilley, the court vacated a 1997 order of

deportation — which had depended upon a retroactive

application of the AEDPA — on the ground that it was

“contrary to” Pak v. Reno, 196 F.3d 666, 676 (6th Cir. 1999),

which in turn established that AEDPA did not apply

retroactively in these circumstances. See Tilley, 228 F. App’x

at 587 (citing Pak). This approach is problematic. Although the

Sixth Circuit has applied the “gross miscarriage” standard, see

Palma v. INS, 318 F.2d 645, 647 (6th Cir. 1963), it has not done

so since well before the enactment of the REAL ID Act and the

Sixth Circuit made no mention of it in Tilley. In any event,

Tilley involved a direct, not a collateral, challenge to a removal

order. 

 13

the time of the original deportation,” Robledo-Gonzales, 342

F.3d at 682 n.13 — the BIA’s determination that Debeato was

deportable pursuant to AEDPA § 440(d) was not a gross

miscarriage of justice.3

For all of the aforementioned reasons, and after careful

consideration of the record and the parties’ contentions, we will

deny Debeato’s petition for review.