[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 21, 2003
No. 02-13539 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A36-109-126
JOSELITO DEL PILAR,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION SERVICE,
Respondents.
___________________________
Petition for Review of a Final Decision
of the Board of Immigration Appeals
___________________________
(February 21, 2003)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Joselito Del Pilar petitions for review of a decision of the Board of
Immigration Appeals (BIA), reversing the immigration judge’s (IJ’s) grant of a
waiver of inadmissibility pursuant to former section 212(c) of the Immigration and
Nationality Act (INA),
8 U.S.C. § 1182(c) (repealed 1996). In response, the
government filed a motion to dismiss, arguing that we lack jurisdiction to review
Del Pilar’s petition, because (1) there is no final order of removal; and (2) Del
Pilar falls within the class of criminal aliens for which
8 U.S.C. § 1252(a)(2)(C)
explicitly prohibits judicial review of removal orders. As we agree that we do not
have jurisdiction, we dismiss Del Pilar’s petition.
BACKGROUND
Del Pilar, a native and citizen of the Philippines, was admitted to the United
States as an immigrant in January of 1977. On April 24, 1992, he pled guilty to
three counts of taking indecent liberties with children in violation of section 14-
202.1 of the North Carolina Statutes and was sentenced to ten years of
imprisonment. Based upon Del Pilar’s criminal convictions, on February 15,
2001, the Immigration and Naturalization Service (INS) commenced removal
proceedings against him, charging him with removability under
8 U.S.C. §
1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. Although the IJ
found Del Pilar removable as charged, he granted Del Pilar’s application for a
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waiver of inadmissibility under former section 212(c).1 The INS appealed,
however, and the BIA reversed the IJ’s grant of the waiver and remanded the case
for the sole purpose of allowing Del Pilar to designate a country of removal.
Thereafter, Del Pilar filed a petition with this Court for review of the BIA’s
decision. In response, the government filed a motion to dismiss Del Pilar’s
petition.
DISCUSSION
I.
As the removal proceedings against Del Pilar were commenced after April
1, 1997, the date the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) became effective, we apply “the permanent provisions of
[the] INA as amended by IIRIRA,
8 U.S.C. § 1252” to this case. Oguejiofor v.
Attorney Gen.,
277 F.3d 1305, 1308 (11th Cir. 2002) (per curiam). “[Section]
1252(a)(1) . . . vest[s] the courts of appeals with the authority to consider petitions
challenging final orders commanding the removal of aliens from the United
States.” Brooks v. Ashcroft,
283 F.3d 1268, 1272 (11th Cir. 2002); see
8 U.S.C. §
1
In INS v. St. Cyr,
533 U.S. 289, 326 (2001), the Supreme Court held that, although it was
repealed in 1996, section 212(c) discretionary relief is available to aliens “whose convictions
were obtained through plea agreements and who, notwithstanding those convictions, would have
been eligible for § 212(c) relief at the time of their plea under the law then in effect.” As Del
Pilar pled guilty in February of 1992, he was eligible to apply for section 212(c) relief.
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1252(a)(1). Yet, “[our] review of all questions of law and fact . . . arising from
any action taken or proceeding brought to remove an alien from the United States
under this subchapter” is limited to “judicial review of a final order.”
8 U.S.C. §
1252(b)(9) (emphasis added). An order of deportation becomes “final” upon a
determination by the BIA or the expiration of the time within which an alien may
seek review from the BIA. See
8 U.S.C. § 1101(a)(47)(B)(i)–(ii).
Here, the BIA’s order reversing the IJ’s decision to grant Del Pilar section
212(c) relief amounted to an order that Del Pilar be removed. Although this Court
has no binding authority addressing whether the BIA’s remand for the limited
purpose of permitting Del Pilar to designate a country of removal rendered the
removal order nonfinal, two of our sister circuits provide some guidance. See
Castrejon-Garcia v. INS,
60 F.3d 1359, 1361–62 (9th Cir. 1995) (finding that a
BIA order reversing an IJ’s grant of suspension of deportation and remanding the
case “for a determination of voluntary departure in lieu of deportation” was a final
order of deportation under former INA section 106a(a), 8 U.S.C. § 1105a(a) as
nothing was pending before the BIA and “the petitioner had no reason or basis for
appealing the [IJ’s] decision in his favor”); Perkovic v. INS,
33 F.3d 615, 618–19
(6th Cir. 1994) (finding that a BIA order reversing an IJ’s grant of asylum and
remanding the case was a final order of deportation under § 1105a(a) and noting
4
that it was not “aware of [any] authority for the proposition that a [BIA] order
rejecting an asylum application is not a final order unless a formal order of
deportation has already been issued”). As all of the issues presented to us were
subject to a final order by the BIA and there is nothing remaining for Del Pilar to
appeal as the only thing left for the IJ to determine is the country to which Del
Pilar will be removed, we find that the BIA’s order constitutes a final order of
removal.
II.
Although the BIA’s order is a final order of removal under § 1252(a)(1), our
review of Del Pilar’s petition is severely limited under § 1252(a)(2)(C). Brooks,
283 F.3d at 1272. Indeed, § 1252(a)(2)(C) precludes us from exercising
“jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed” certain enumerated criminal offenses,
including those covered in § 1227(a)(2)(A)(iii).
8 U.S.C. § 1252(a)(2)(C).
Therefore, our review of Del Pilar’s petition is limited to “whether [he] is (1) an
alien (2) who is removable (3) based on a conviction for an aggravated felony.”
Bahar v. Ashcroft,
264 F.3d 1309, 1311 (11th Cir. 2001) (per curiam).
Here, it is uncontested that Del Pilar is an alien. Moreover, he is removable
under § 1227(a)(2)(A)(iii) as an “alien who [wa]s convicted of an aggravated
5
felony.”
8 U.S.C. § 1227(a)(2)(A)(iii); see
id. § 1101(a)(43)(A) (defining the
phrase “aggravated felony” as including the “sexual abuse of a minor”).2
Therefore, we are precluded from reviewing the BIA’s decision.
CONCLUSION
Accordingly, we do not have jurisdiction to review Del Pilar’s petition.
Thus, the government’s motion to dismiss is hereby GRANTED.
DISMISSED.
2
We previously have held “that the term ‘sexual abuse of a minor’ encompasses the North
Carolina offense of taking indecent liberties with children.” Bahar,
264 F.3d at 1313.
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