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Date: 01-19-2001
Case Style:
Jose G. Tapia Garcia v. Immigration and Naturalization Service
Case Number: 237 F.3d 1316 (10th Cir. 2001)
Judge: Tacha
Court: United States Court of Appeals for the 10th Circuit on appeal from the Board of Immigration Appeals
Plaintiff's Attorney:
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Defendant's Attorney: Marion E. Guyton
Description:
Denver, Colorado immigration lawyer represented Petitioner seeking review of the Board of Immigration Appeals decision affirming an administrative law judges ordering his removal from the country.
Petitioner Jose G. Tapia-Garcia appeals a Board of Immigration Appeals' decision affirming an immigration judge's ruling that Petitioner is removable as a result of his conviction for commission of an aggravated felony. After concluding Petitioner is an alien subject to removal for commission of an aggravated felony, we dismiss for lack of jurisdiction under section 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. 1252(a)(2)(C).
I. Factual Background
On August 4, 1998, Petitioner Jose G. Tapia-Garcia, a legal permanent resident of the United States and citizen of Mexico, was convicted in Idaho for driving under the influence (DUI) in violation of section 18-8004(5) of the Idaho Code. Although he received a sentence of five years, Mr. Tapia-Garcia served only two months in prison. The Immigration and Naturalization Service (INS) commenced removal proceedings on January 6, 1999, arguing Mr. Tapia-Garcia be removed pursuant to INA 237(a)(2)(A)(iii), 8 U.S.C. 1227(a)(2)(A)(iii), which provides for removal of an "alien who is convicted of an aggravated felony at any time after admission." The INS alleged that Idaho's DUI offense constitutes a "crime of violence," one of the categories of aggravated felonies contained in the INA's aggravated felony definition. 8 U.S.C. 1101(a)(43)(F). The immigration judge concluded that Mr. Tapia-Garcia's DUI offense satisfies the statutory definition of crime of violence, 18 U.S.C. 16(b), and ordered Mr. Tapia-Garcia removed to Mexico. On October 6, 1999, the Board of Immigration Appeals (BIA) agreed with the immigration judge and dismissed the appeal. Mr. Tapia-Garcia currently resides in Mexico.
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The above discussion of the transitional rules is relevant because, although we have not decided the extent of our jurisdictional inquiry under the permanent provision, we have addressed this question under AEDPA 440(a) and IIRIRA 309(c)(4)(G). Berehe v. INS, 114 F.3d 159 (10th Cir. 1997). In Berehe, we held that these transitional provisions foreclose all judicial review, including review of the jurisdictional facts, or conditions, upon which the jurisdictional bar is premised; that is, we decided we could not review whether an alien is removable under the relevant statutes. Id. at 161. We relied especially on the language of IIRIRA's transitional rule, which clearly forecloses appellate review: "'there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense . . " Id. (quoting IIRIRA 309(c)(4)(G) (emphasis added)). In light of this language, we held: "No judicial review of the jurisdictional issue is possible where the alien is precluded from filing an appeal." Id.
Outcome: Because Mr. Tapia-Garcia's DUI offense constitutes a crime of violence under 18 U.S.C. 16(b) and is therefore an aggravated felony under 8 U.S.C. 1101(a)(43)(F), he is deportable pursuant to 8 U.S.C. 1227(a)(2)(A)(iii). Having determined that Mr. Tapia-Garcia is an alien subject to deportation for commission of an aggravated felony, we must DISMISS the case for lack of jurisdiction under 8 U.S.C. 1252(a)(2)(C).
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