Petition/Brief for Writ of Certiorari

In The Supreme Court of the United States

October Term, 1998

OSCAR DAVID (NAME OF PETITIONER DELETED),

Petitioner,

versus

JANET RENO, as Attorney General of the United States; and ARTHUR STRAPP, District Director of the Dallas District of the Immigration and Naturalization Service,

Respondents.

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

E. VANCE WINNINGHAM, Esquire
Counsel of Record
Winningham & Stein
2200 NW 50th Street
Suite 240
Oklahoma City, Oklahoma 73112-8044
(405) 843-1037
Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Did Congress intend that § 242(a)(2)(C) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252 (a)(2)(C), divest U.S. Circuit Courts of Appeal of jurisdiction to review Final Administrative Removal Orders issued by District Directors of the U.S. Immigration and Naturalization Service ("BCIS") pursuant to INA § 238(b), 8 U.S.C. 1228(b)?

2. Did the USCIS District Director's erroneous determination and resulting failure to allow consideration of statutory relief, for which the Petitioner was eligible, violate Petitioner's procedural due process rights under the 14th Amendment of the Constitution of the United States?

3. Does the USCIS District Director's failure to consider statutory relief for which the Petitioner was eligible violate the due process rights of Petitioner and/or Petitioner's U.S. Citizen spouse and child by effectively requiring his spouse and child to either accompany the Petitioner in exile, or in the alternative, be of deprived the natural nurturing, consortium, and support a father and husband is normally expected to be able to provide? LIST OF ALL PARTIES BELOW

The caption contains the names of all parties to the proceedings in the court of appeals.

OPINIONS AND ORDERS BELOW

The March 11, 1998 order of the United States Court of Appeals denying Petitioner's motion for stay of deportation and granting Respondent's motion to dismiss Petitioner's petition for review appears in the appendix hereto, App. 1. The April 24, 1998 order denying Petitioner's motion for reconsideration appears in the appendix hereto, App. 2.

BASIS FOR JURISDICTION IN THIS COURT

The United States Court of Appeals for the Fifth Circuit granted Respondents' motion to dismiss Petitioner's petition for review and denied Petitioner's motion for stay of deportation on March 11, 1998. Subsequently, Petitioner filed in the Fifth Circuit a motion to reconsider which was denied April 24, 1998. This Court has jurisdiction to review the Fifth Circuit's dismissal of Petitioner's motion for stay of deportation and petition for review pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in this case are 8 U.S.C. § 1252(a)(2)(C), Section 242(a)(2)(C) of the Immigration and Nationality Act, which provides that:

"Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 237(a)(2)(A)(iii) [an aggravated felony], . . ."

and, 8 U.S.C. § 1228(b)(3), Section 238(b)(3) of the Immigration and Nationality Act, which provides that:

"The Attorney General may not execute any order described in paragraph (1) [a final administrative removal order charging deportability under § 237(a)(2)(A)(iii) of the Act] until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review under section 242."

and, 8 U.S.C. § 1182(h), Section 212(h) of the Immigration and Nationality Act, which provides that:

"No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United

States."

STATEMENT OF THE CASE

Petitioner appeals the decision of the court below dismissing Petitioner's motion for stay of deportation and petition for review.

The facts in this case are not in dispute. Petitioner is a native and citizen of Mexico. He is married to a U.S. citizen and has a minor U.S. citizen child born of said marriage. On March 26, 1996, Petitioner pled guilty in the District Court of Tulsa County, Oklahoma, to the misdemeanor offense of Obtaining Merchandise Under False Pretense in violation of Oklahoma Statutes. A suspended sentence of one (1) year and a $250.00 fine was imposed. Petitioner has no prior criminal record except for the foregoing misdemeanor conviction.

Petitioner subsequently applied to the U.S. Immigration and Naturalization Service ("BCIS") for permanent resident status. Petitioner's application was denied by the USCIS because of this conviction. Even though the conviction is a misdemeanor offense under Oklahoma law, it is classified as an aggravated felony pursuant to § 101(a)(43) of the Immigration and Nationality Act ("INA" or "Act"), 8 U.S.C. § 1101(a)(43). On January 6, 1998, the USCIS placed Petitioner in removal proceedings by serving him with a Notice of Intent to Issue a Final Administrative Removal Order ("Notice") pursuant to § 238(b) of the Act, 8 U.S.C. § 1228(b). This Notice charged Petitioner with deportability under § 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) which provides that an alien convicted of an "aggravated felony" is removable ("deportable") from the United States. This Notice further informed the Petitioner he "may seek judicial review of any final administrative removal order by filing a petition for review within 14 calendar days after the date such final administrative removal order is issued, . . ." (App. 3).

On February 4, 1998, the USCIS served Petitioner with a Final Administrative Removal Order ("Order") which had been signed by the USCIS Dallas District Director on January 28, 1998. This relatively new and summary administrative procedure was instituted, and the order predicated upon, the District Director's erroneous determination that Petitioner was "ineligible for any relief from removal." (App. 4). Petitioner is statutorily eligible to apply for relief from removal under § 212(h) of the Act, 8 U.S.C. § 1182(h). This erroneous determination permitted the District Director to retain exclusive administrative jurisdiction, thereby precluding Petitioner from pursuing statutory relief in, and/or administrative review by, the Executive Office of Immigration Review ("Immigration Court").

A. The Decision of the Court of Appeals

On February 17, 1998, Petitioner filed a Petition for Review pursuant to § 238(b)(3) of the Act, 8 U.S.C. § 1228(b)(3) requesting the United States Court of Appeals for the Fifth Circuit review this Administrative Order. Petitioner also requested stays of deportation from both the Fifth Circuit and the District Director pending final disposition of his judicial appeal. In particular, Petitioner requested the termination or vacation of the District Director's Administrative Removal Order and a transfer of the proceedings to the Immigration Court. This would have permitted an Immigration Judge to hear and adjudicate a waiver application by Petitioner for statutory relief for which he was and is eligible.

Without responding to Petitioner's petition for review, the Respondents: (1) moved to summarily dismiss Petitioner's petition for review asserting the Fifth Circuit lacked jurisdiction to review a final administrative removal order, (2) opposed Petitioner's motion for a stay of deportation, and (3) moved to defer filing of the administrative record. The Fifth Circuit granted Respondent's motion to dismiss Petitioner's motion for stay of deportation, and his petition for review on March 11, 1998. The court did so without the benefit of a response from Petitioner. Subsequently, Petitioner filed a motion in the Fifth Circuit to reconsider their decision which was denied on April 24, 1998.

The USCIS then denied Petitioner's separate request for an administrative stay and deported the Petitioner from the United States.

REASONS FOR GRANTING THE WRIT

The petition for writ of certiorari should be granted for the following reasons: Although Petitioner does not dispute Congress' authority to define the jurisdiction of federal courts within constitutional limits, Petitioner disagrees with the Fifth Circuit's position that § 242(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(2)(C), divests that court of jurisdiction to review the BCIS's Final Administrative Removal Order issued by the Dallas District Director in the instant case; and Petitioner further asserts that he, and by derivation, his U.S. citizen spouse and minor child, have been denied due process of law.

A. It Is Uncertain Whether Congress Intended to Preclude U.S. Circuit Courts of Appeal from Reviewing USCIS Final Administrative Removal Orders Issued by USCIS District Directors.

Congress has stated that all agency actions are presumed to be reviewable "except to the extent that . . . a statute precludes judicial review." Administrative Procedure Act, 5 U.S.C. § 701(a)(1) (1997). For a statute to preclude judicial review, there must be clear and convincing evidence Congress intended to foreclose reviewability of an agency action. Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). If the statute is ambiguous as to whether Congress intended to foreclose reviewability of an agency action, then a court should defer to the agency interpretation of the statute. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984). However, the Supreme Court has held that there is a presumption that statutes be construed to permit judicial review of agency actions. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). If the agency's interpretation of the statute is contrary to Congressional intent, then the agency's interpretation must be rejected. Chevron, 467 U.S. at 843, supra.

In the instant case, apparently because of flawed legislative draftsmanship, it is neither apparent or readily discernible Congress intended to preclude U.S. Circuit Courts of Appeal from reviewing final administrative removal orders issued by USCIS District Directors. On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009 ("IIRAIRA"), which simultaneously amended INA § 238(b)(3), and added INA § 242(a)(2)(C). Section 242(a)(2)(C) provides:

While INA § 242(a)(2)(C) indicates Congress did not intend to allow judicial review by U.S. Circuit Courts of Appeal of final removal orders, INA § 238(b)(3) clearly and unambiguously indicates a completely contrary intent by Congress to provide for judicial review of final administrative orders of removal issued by USCIS District Directors. INA § 238(b)(3) provides:

Indeed, Congress' intent to provide for judicial review under INA § 238(b)(3) by U.S. Circuit Courts of Appeal of final administrative removal orders issued by USCIS District Directors is further bolstered by the fact, INA § 238(b)(4)(E) directs the Attorney General to ensure that "a record is maintained for judicial review."

The BCIS' interpretation that INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C) divests Circuit Courts of jurisdiction to review a final administrative removal order issued by a District Director should be rejected. Otherwise, it would render meaningless the judicial review specifically granted by § 238(b)(3) of the Act. Further, the BCIS's assertion is contra to the language contained in the Notice of Intent to Issue a Final Administrative Order the USCIS served upon Petitioner. Indeed, even though the USCIS has subsequently changed its original implementing regulation, the current regulation still expressly prohibits the execution of a Warrant of Removal until at least 14 days after the District Director's final administrative order is issued. Presumably the USCIS is attempting to avoid invalidating administrative removal orders entered by District Directors from which other aliens fail to appeal should BCIS' position ultimately not prevail in this court.

It is difficult for Petitioner to ascertain exactly what the government's current position is concerning this issue because the Executive Office for United States' Attorneys in the U.S. Department of Justice ("Executive Office") published an article in 46 United States Attorney's Bulletin 9 (January 1998), which was reprinted in Bender's Immigration Bulletin, Vol. 3, No. 8 (April 15, 1998). This article contained the following representations:

The position of the Civil Division's Office of Immigration Litigation (OIL) is that the Yesil and Mojica decisions are incorrect, and that district courts now generally have no role to play in the review of immigration matters. In cases arising under AEDPA and IIRAIRA, OIL has taken the position that the AEDPA and IIRAIRA judicial review provisions do not preclude the courts of appeals from reviewing substantial constitutional challenges to orders of removal, even for criminal aliens. OIL's position is that such review easily satisfies the minimal level of judicial review required by Article 1, clause 2 of the Constitution, which prohibits suspension of the writ of habeas corpus. OIL's position relies, in part, on the canon of statutory interpretation set fort by the Supreme Court in Webster v. Doe, 486 U.S. 592 (1988), whereby the courts will not presume that Congress intended to preclude judicial review of constitutional claims absent a clear expression of Congressional intent to do so. Neither AEDPA nor IIRAIRA expressly state that a criminal alien's constitutional claims cannot be reviewed in the courts of appeals; in fact, a new provision effective for aliens placed into removal proceedings after April 1, 1997, states that "[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section."

Further, while the purpose behind INA § 242(a)(2)(C), 8 U.S.C.§1252(a)(2)(C) was apparently intended to curtail dilatory tactics which allowed deportable aliens to prolong their removal, the Fifth Circuit's refusal to review Petitioner's final administrative removal order when he is statutorily eligible for relief from removal, would nullify and render this statutory waiver provision of INA § 212(h) worthless.

B. The USCIS District Director's Refusal to Allow Petitioner to Apply for Discretionary Statutory Relief for Which He Is Eligible Violates Due Process.

The USCIS District Director violated Petitioner's due process rights when he was not allowed to apply for relief from removal. The USCIS Dallas District Director erroneously determined and made the finding in his administrative order that Petitioner was:

"ineligible for any relief from removal . . . " (App. 4).

However, Petitioner in fact was statutorily eligible for relief at the time of his deportation hearing under § 212(h) of the Act, 8 U.S.C. § 1182(h). The Executive Office for Immigration Review Board of Immigration Appeals affirmed that an alien in virtually identical circumstances was "statutorily eligible for a § 212(h) waiver." See In re Michel, Interim Decision 3335 (BIA 1998).

Petitioner was never given the opportunity to apply for INA § 212(h) relief from removal. Case law provides, "when intervening law renders an alien eligible for discretionary relief for which alien was ineligible at the time of his deportation hearing, the proper remedy is . . . for a remand to an immigration judge so that the alien may file an application [for discretionary relief]." Valderrama-Fonseca v. BCIS, 116 F.3d 853, 857 (9th Cir. 1997). Therefore, Petitioner was deprived of the procedural due process to which he was entitled. See Bustos-Torres v. BCIS, 898 F.2d 1053, 1054 (5th Cir. 1990); Reno v. Flores, 507 U.S. 292, 306 (1993); and The Japanese Immigrant Case, 189 U.S. 86, 100-101 (1903) ("it is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.").

CONCLUSION

The Fifth Circuit has jurisdiction to vacate the BCIS's administrative order and remand the proceedings to permit an immigration judge to hear and adjudicate Petitioner's eligibility for discretionary relief from deportation pursuant to § 212(h) of the Act, 8 U.S.C. § 1182(h).

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,
E. VANCE WINNINGHAM, Esquire
(Counsel of Record)
Winningham & Stein
2200 NW 50th Street
Suite 240
Oklahoma City, OK 73112-8044
(405) 843-1037
Attorney for Petitioner

In the Supreme Court of the United States

October Term, 1998

__________

No. 98-577

OSCAR DAVID (NAME OF PETITIONER DELETED)

JANET RENO, ATTORNEY GENERAL, ET AL.

__________

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________

BRIEF FOR THE RESPONDENTS IN OPPOSITION

QUESTIONS PRESENTED

1. Whether Section 242(a)(2)(C) of the immigration and Nationality Act (INA), 8 U.S.C. 1252(a)(2)(C) (Supp. III 1997), which precludes judicial review of final administrative removal orders entered in expedited removal proceedings against aliens who have been convicted of aggravated felonies, divested the court of appeals of jurisdiction to review the final administrative removal order entered against petitioner.

2. Whether the District Director of the Immigration and Naturalization Service who entered the final administrative removal order against petitioner correctly concluded that petitioner was ineligible for discretionary relief from removal.

TABLE OF CONTENTS

Opinion below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Demarest v. Manspeaker, 498 U.S. 184 (1991)

Heller v. Doe, 509 U.S. 312 1993

Johnson v. Robison, 415 U.S. 361 (1974)

Michel, In re, Int. Dec. No. 3335 (Jan. 30, 1998)

Yang v. BCIS, 109 F.3d 1185 (7th Cir.), cert.denied, 118 S. Ct. 624 (1997)

Statutes:

Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546

§ 309(a), 110 Stat. 3009-625

§321(a)(3), 110 Stat. 3009-627

§321(b), 110 Stat. 3009-628

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

8 U.S.C. 1101 (a)(43)(G)(1994)

8 U.S.C. 1182(c) (1994)

8 U.S.C. 1182(h) (Supp. III 1997)

8 U.S.C. 1227(a)(2)(A)(iii) (Supp. III 1997)

8 U.S.C. 1228 (Supp. III 1997) (§ 238)

8 U.S.C. 1228(b) (Supp. III 1997)

8 U.S.C. 1228(b)(1) (Supp. III 1997)

8 U.S.C. 1228(b)(3) (Supp. III 1997)

8 U.S.C. 1228(b)(5) (Supp. III 1997)

8 U.S.C. 1252 (Supp. III 1997) (§ 242)

8 U.S.C. 1252(a)(2)(C) (Supp. III 1997)

__________

OPINION BELOW

The order of the court of appeals (Pet. App. 1) is unreported.

JURISDICTION

The order of the court of appeals was entered on March 11, 1998. A motion for reconsideration was denied on April 24, 1998 (Pet. App.9). The petition for a writ of certiorari was filed on July 22, 1998. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, a native and citizen of Mexico, entered the United States without inspection in 1994. On March 26, 1996, petitioner was convicted in Oklahoma state court of obtaining merchandise by false pretenses. He was sentenced to a suspended sentence of one year's imprisonment and was fined $250. Pet. 2-3.

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546. Section 321(a)(3) of IIRIRA classified petitioner's criminal offense as an "aggravated felony: within the meaning of the Immigration and Nationality Act (INA). See 110 Stat. 3009-627 (amending 8 U.S.C. 1101(a)(43)(G) (1994)). Petitioner thereby became deportable based on his offense. See 8 U.S.C. 1227(a)(2)(A)(iii) (Supp. III 1997).

On January 6, 1998, the Immigration and Naturalization Service (BCIS) instituted removal proceedings against petitioner with the issuance of a Notice of Intent to Issue A Final Administrative Removal Order, on the ground that his criminal conviction made him removable. Pet.3. As petitioner's removal proceedings were commenced after April 1, 1997, the general effective date of IIRIRA (see IIRIRA § 309(a), 110 stat. 3009-625), those proceedings were governed by the provisions of IIRIRA.

IIRIRA amended the INA's provisions for expedited removal of aliens who have been convicted of committing aggravated felonies. The new expedited procedure is now codified at Section 238 of the INA, 8 U.S.C. 1228 (Supp. III 1997). That Section states, in pertinent part:

(b) Removal of aliens who are not permanent residents

(1) The attorney General may, in the case of an alien described in paragraph (2), determine the deportability of such alien under [8 U.S.C. 1227(a)(2)(A)(III)] (relating to conviction of an aggravated felony) and issue an order of removal pursuant to the procedures set forth in this subsection or [8 U.S.C. 1229(a)].

(2) An alien is described in this paragraph if the alien-

(A) was not lawfully admitted for permanent residence at the time at which proceedings under this section commenced ***.

* * * * *

(3) The Attorney General may not execute any order described in paragraph (1) until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review under section 1252.

8 U.S.C. 1228(b) (Supp. III 1997).

Petitioner did not contest that he was properly placed in expedited removal proceedings under Section 1228. He also did not contest the BCIS's allegations that he was not a citizen of the United States, that he had not been lawfully admitted for permanent residence, and that he had been convicted of the offense of obtaining merchandise by false pretenses. See USCIS Mot. to Dism. Pet. for Review, Attach. 1.

On February 4, 1998, pursuant to Section 1228(b), the USCIS served petitioner with a Final Administrative Removal Order signed by the District Director. Pet. 3. In that Order, the District Director found petitioner to be removable as charged. Pet. App. 6-7. He further found that, because petitioner was convicted of an aggravated felony, petitioner was ineligible for any form of discretionary relief from removal. The District Director ordered petitioner removed from the United States to Mexico. Ibid

2. Petitioner filed a petition for review of the final Administrative Removal Order in the United States Court of Appeals for the Fifth Circuit. Pet. 4. The USCIS moved to dismiss the petition for review for lack of subject-matter jurisdiction. The USCIS relied on 8 U.S.C. 1252(a)(2)(C) (Supp. III 1997), which provides:

Notwithstanding any other provision of law, no court shall have jurisdiction to review any final; order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, otherwise covered by section 1227(a)(2)(A)(I) of this title.

The USCIS argued that the court lacked jurisdiction over the petition because petitioner is removable under Section 1227(a)(2)(A)(iii), by reason of his criminal conviction. On March 11, 1998, the court of appeals granted the BCIS's motion to dismiss the petition for review for lack of jurisdiction. Pet. App. 1.

ARGUMENT

The court of appeals properly dismissed petitioner's petition for review of his Final Administrative Removal Order for lack of jurisdiction. Section 1252(a)(2)(C) expressly divested the court of jurisdiction over that petition for review. Further, petitioner's underlying challenge to his removal order is without merit, for he is plainly ineligible for discretionary relief from removal. Further review is therefore not warranted.

1. Petitioner was placed in removal proceedings under 8 U.S.C. 1228(b) (Supp. III 1997), which directs the attorney General to expedite the removal of aliens convicted of an aggravated felony. There is no dispute that petitioner was convicted of an aggravated felony, or that he was therefore properly placed in expedited removal proceedings under Section 1228. Further, Section 1252(a)(2)(C) divests the courts of appeals of jurisdiction over orders entered against several categories of criminal aliens, including those convicted of aggravated felonies. That Section precludes a court from exercising "jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section *** 1227(a)(2)(A)(iii)," i.e., an aggravated felony. Accordingly, the court of appeals correctly concluded that it lacked jurisdiction over the petition for review of petitioner's removal order.

Petitioner contends (Pet. 7) that Congress could not have intended to preclude judicial review of cases like his because, in 8 U.S.C. 1228(b)(3) (Supp. III 1997), Congress has provided that the Attorney General may not execute a final order of removal entered in an expedited removal case until 14 days after the order issues, so that the alien has an opportunity to apply for judicial review. Congress's inclusion of the 14-day period in which to seek judicial review does not suggest that the court of appeals had jurisdiction in this case, however, for Congress may have recognized that some judicial review might remain available under the INA to aggravated felons, even if such persons were not able to file petitions for review routinely or even frequently. Thus, for example, the courts of appeals retain jurisdiction to review whether an alien subject to a final order of removal entered in an expedited removal proceeding based on an aggravated felony is in fact an alien, and whether the alien was in fact convicted of the offense. See Yang v. BCIS, 109 F.3d 1185, 1992 (7th Cir.), cert. Denied, 118 S. Ct. 624 (1997). Also, Congress has not provided the "clear and convincing" evidence necessary to conclude that it has withdrawn the courts of appeals' authority to hear constitutional challenges to provisions of the INA itself brought by aggravated felons. Cf. Johnson v. Robison, 415 U.S. 361, 373-374 (1974). The 14-day waiting period found in Section 1228(b) allows an alien to obtain judicial review under Section 1252 in such circumstances.

The uncontested facts of this case, however, show that petitioner does not fall within any of the classes of cases for which judicial review might be available under Section 1252. Petitioner did not contest the BCIS's allegations that he was not a citizen of the United States, that he was not a lawful permanent resident of the United States, and that he was convicted of the offense of obtaining merchandise by false pretenses. The court of appeals was not presented with any issue such as whether petitioner's crime did in fact constitute an aggravated felony. Thus, the court properly concluded that it lack jurisdiction to review petitioner's final administrative removal order.

2. Petitioner also contends (Pet. 10-11) that the USCIS District Director's refusal to allow him to apply for discretionary relief from removal violated due process, and was contrary to the INA. Petitioner did not raise that claim in the court of appeals, and the court did not independently pass on the matter. It would therefore be inappropriate for this Court to address that claim in the first instance. See, e.g., Heller v. Doe, 509 U.S. 312, 319 (1993); Demarest v. Manspeaker, 498 U.S. 184, 188-189 (1991).

In any event, petitioner's claim has no merit. He contends that he was statutorily eligible to apply for discretionary relief in the form of a waiver of inadmissability under 8 U.S.C. 1182(h) Supp. III 1997). That contention is incorrect, for 8 U.S.C. 1228(b)(5) (Supp. III 1997) clearly precluded him from obtaining such discretionary relief. Section 1228(b)(5) provides: "No alien described in this [expedited removal] section shall be eligible for any relief from removal that the Attorney General may grant in the Attorney General's discretion." Petitioner was properly placed in removal proceedings under Section 1228, and he is "described" in Section 1228(b)(1), which refers to aliens convicted of an aggravated felony. Further, the waiver of inadmissibility that is available under Section 1182(h) requires the exercise of discretion by the Attorney General. Petitioner is therefore ineligible for such relief.

Petitioner erroneously relies (Pet. 11) on the Board of Immigration Appeals' decision in the In re Michel, Int. Dec. No. 3335 (Jan. 30, 1998). In that case, the Board found that, because the alien had not been "admitted" to the United States, he was technically eligible for relief under Section 1182(h), since that provision only prohibits the grant of discretionary relief to criminal aliens who have been admitted into the country. Petitioner, however, is not similarly situated to the alien in Michel. The alien in Michel was not in expedited removal proceedings and, thus, was not subject to Section 1228(b)(5)'s bar to discretionary relief. Petitioner, on the other hand, is barred from applying for a waiver of inadmissibility under Section 1182(c) because the granting of the waiver is discretionary.

As petitioner was barred from any form of discretionary relief in his removal proceedings under Section 1228(b)(5), his claim (Pet. 11) that his due process rights were violated because he was deprived of the opportunity to apply for discretionary relief is necessarily without merit. There was no relief for which petitioner was eligible, and so the District Director was not required to consider any application for relief.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

DONALD E. KEENER

ALISON R. DRUCKER

NELDA C. REYNA

Attorneys

JANUARY 1999