X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Youn Jae Lee is a South Korean national who entered this country in 1993 and became a legal resident in May 1996. In April 1998, Lee pled guilty to a single count of trafficking in counterfeit goods or services. In addition to being ordered by the district court to pay restitution and to be on probation, the Immigration and Naturalization Service (as it was then known), began removal proceedings. In September 2001, the immigration judge sustained the charge of deportation based on the characterization of the 1998 conviction as a crime involving moral turpitude (CIMT) for which a sentence of one year or longer could be imposed. The Board of Immigrations Appeal affirmed the decision. Lee did not appeal this ruling. Instead of appealing the BIA’s ruling, Lee filed a writ of habeas with this court arguing that his 1998 conviction was not for a CIMT. He argued that the writ of habeas corpus was the proper method of appealing the BIA’s ruling because this court would otherwise not have had jurisdiction to review that ruling. The magistrate recommended dismissal of Lee’s action for lack of jurisdiction, and the district court agreed. Lee appealed. HOLDING:Affirmed. The court confirms that when the case involves an inadmissible alien, this court has held that it has no jurisdiction to review whether the alien was convicted of a crime of moral turpitude or not. However, the court points out, Lee was ordered removed under 8 U.S.C. �1227(a)(2)(A)(i), a section not addressed by this court’s previous rulings. The court agrees that Lee’s “subsumation theory” � that the prior ruling applies to this section, too � seems logical “at first blush,” but the court differentiates the two statutes. The court finds that the removal statute’s jurisdiction-stripping provisions apply only to aliens who have been convicted of multiple CIMT. “Because the order removing Lee is not included in the jurisdiction-stripping statute, the unambiguous text of the statute permitted him to seek direct review of the determination in this court.” The court finds that if Lee’s interpretation was adopted, only aliens exactly like himself would be hurt. Furthermore, the court finds that its reading of the statute supports the view that Congress rationally chose to permit direct review for aliens lawfully admitted to this country who commit a single CIMT within five years of admission, and to prohibit direct appeal only for those aliens convicted of multiple CIMT. The court rules that Lee should have filed a petition for review of the BIA’s decision with this court. Furthermore, if Lee had doubts as to whether this court would have heard such a petition, “he should have protected his rights by filing one.” If review was possible, this court would have ruled on the merits. If review was not possible, his petition would have been dismissed for lack of jurisdiction, and then a petition for habeas corpus relief would have been an appropriate next step. This would have reduced confusion and been a more efficient use of judicial resources. “To clarify, we do not hold that Congress repealed habeas jurisdiction when it passed [Illegal Immigration Reform and Immigrant Responsibility Act of 1996] . . . instead, a petitioner must exhaust available avenues of relief and turn to habeas only when no other means of judicial review exists. When a petitioner challenges whether a crime constitutes a CIMT, this court has jurisdiction to determine our jurisdiction and thus decide whether the BIA correctly considered the crime a CIMT. As Lee failed to follow this procedure, which directly derives from this court’s previous decisions, the district court properly dismissed his habeas petition.” OPINION:Edith H. Jones, J.; Garwood, Jones and Stewart, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.