King Sang Chow v. Reno
Opinion of the Court
Appellant King Sang Chow is a native of Hong Kong and a citizen of the United Kingdom who entered the United States in 1971 as a lawful permanent resident alien. In 1992, an Immigration Judge (“IJ”) found Chow deportable based on convictions for controlled substance and firearms violations and denied Chow’s petition for relief pursuant to § 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1182(c) (1994). The facts of the case are set forth in our previous opinion, Chow v. INS, 113 F.3d 659 (7th Cir. 1997) (“Chow I”), and we will not restate them
The district court did not have the benefit of LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998) (reh’g & reh’g en banc denied Apr. 9, 1999), which governs this case. In LaGuerre, we held that AEDPA § 440(a) generally eliminated habeas corpus jurisdiction for aliens covered by the section, id. at 1037-38, which would compel the conclusion that the district court in the present case lacked subject matter jurisdiction. However, LaGuerre does recognize a safety valve whereby deportees can seek direct review of substantial constitutional claims in the court of appeals. Id. at 1040. Furthermore, we noted in LaGuerre that in rare cases, “if for reasons beyond the alien’s control he could not have raised his substantial constitutional issue in this court by seeking review here directly under section 440(a), he may be able to proceed in the district court under 28 U.S.C. § 2241.” Id. As noted above, in Chow I, Chow attempted to raise his constitutional claims in this court, but we concluded that we did not have jurisdiction under AEDPA § 440(a) to hear them. In dismissing his petition, we asserted that alternate avenues of judicial relief existed and mentioned the possible availability of habeas corpus review in the district court. Chow I, 113 F.3d at 669-70. Given these circumstances and our recent decision in Turkhan v. Perryman, 188 F.3d 814 (7th
While we find the district court had jurisdiction to consider Chow’s claims, we nevertheless must reverse. The district court granted Chow’s petition for habeas corpus because it found that AEDPA § 440(d) violated equal protection. Assuming the district court correctly reached the merits of Chow’s equal protection claim, we rejected an identical equal protection argument in LaGuerre. LaGuerre, 164 F.3d at 1041. Chow’s constitutional claims lack merit, and, under AEDPA § 440(d), he is statutorily ineligible for a discretionary waiver of deportation under INA § 212(c).
The decision of the district court is REVERSED, and the case is Remanded to the district court for further proceedings consistent with this opinion.
. AEDPA § 440(a) amended INA § 106(a) to provide ''[a]ny final order of deportation against an alien who is deportable by reason of having committed a [covered] criminal offense ... shall not be subject to review by any court.” Section 306 of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA”), Pub.L. No. 104-208, Div. C, 110 Stat. 3009, repealed the judicial review process set out in INA § 106(a) as amended by AEDPA § 440(a) and replaced it with a new section, INA § 242(a); however, under IIRIRA § 309, INA § 242(a) is not applicable to aliens who were involved in deportation proceedings as of April 1, 1997. Turkhan v. Perryman, 188 F.3d at 820 n. 5 (7th Cir. 1999). Since Chow was involved in deportation proceedings as of that date, his petition is subject to the judicial review provisions of INA § 106(a) as amended by AEDPA § 440(a). As we noted in Chow I, the record clearly supports the finding by the IJ and the Board of Immigration Appeals that Chow's firearm and controlled substance violations fall under AEDPA §§ 241(a)(2)(B)(i) and 241(a)(2)(C) and, therefore, constitute covered criminal offenses under AEDPA § 440(a). Chow I, 113 F.3d at 663.
. AEDPA § 440(d) amended INA § 212(c) by adding certain offenses, including the offenses for which Chow was convicted, to the list of deportable offenses which make criminal aliens ineligible for discretionary waivers of deportation. Section 212(c) has since been "repealed and replaced by a new, but basically similar, section, § 240A(b), 8 U.S.C. § 1229b(b).” LaGuerre v. Reno, 164 F.3d 1035, 1037 (7th Cir. 1998) (reh’g & reh’g en banc denied Apr. 9, 1999). This change has no substantive effect on Chow’s eligibility for discretionary relief.
Reference
- Full Case Name
- King Sang CHOW, Jasmine Chow, and Anthony Chow v. Janet RENO, Attorney General of the United States, Doris Meissner, Commissioner of the Immigration and Naturalization Service, Brian Perryman, as District Director of the Chicago Immigration and Naturalization Service District Office, John B. Caplinger, as District Director of the New Orleans Immigration and Naturalization Service District Office, Immigration And Naturalization Service, and the Board of Immigration Appeals
- Cited By
- 1 case
- Status
- Published