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Nguyen v. INS - 117 F.3d 206 (5th Cir. 1997)

Rule:

Section 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act, 110 Stat. 3009-1700, completely forecloses the court's jurisdiction to review decisions of the Board of Immigration Appeals, including jurisdiction to consider motions for stays of deportation. 

Facts:

Nguyen, a Vietnamese citizen, became a lawful permanent resident of the United States in 1982. In August 1990, he was convicted of embezzlement by a Virginia state court and in September 1990, he was convicted of making false statements in a passport application. After serving his sentences, he traveled to Canada and was convicted of a serious crime there. Following the completion of his Canadian sentence, he was delivered to the custody of the Immigration and Naturalization Service ("INS"), which commenced deportation proceedings in June 1995. An immigration judge found Nguyen deportable under § 241(a)(2)(A)(ii) of the Immigration and Naturalization Act ("INA"), which provided for deportation of aliens who had been convicted of two or more crimes involving moral turpitude. Nguyen applied for a waiver of deportation under INA § 212(c), which was denied on the ground that he had abandoned his lawful permanent resident status during his stay in Canada. On May 19, 1997, the Bureau of Immigration Appeals (BIA) found him independently ineligible for § 212(c) relief on account of § 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996, which denied such relief to aliens who had committed certain criminal offenses. The BIA, thus, entered a final order of deportation. Nguyen brought the instant petition to stay the deportation order, arguing that the AEDPA and the IIRIRA violated the Due Process Clause of U.S. Const. amend. V and the separation of powers principles in U.S. Const. art. III by restricting judicial review.

Issue:

Did the AEDPA and the IIRIRA violate the Due Process Clause and the separation of powers principles of the Constitution?

Answer:

No.

Conclusion:

The court found the statutes were constitutional because criminal deportees retained the right to apply for writs of habeas corpus. The court then found it had no jurisdiction to review the decision and accordingly dismissed the petition, holding that applicable immigration law, which did not violate due process or separation of powers principles, deprived it of jurisdiction to review decisions of the Board of Immigration Appeals.

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