Sikiru Balogun is a 50 year-old Nigerian male who lived in this country approximately 20 years before he was deported in December of 2000. Prior to his deportation (or “removal” in the terminology of the current law), proceedings were underway at the Immigration and Naturalization Service (INS) to designate Balogun as a *1305 legal resident. In 1998, Balogun obtained an INS clearance, known as an “advance parole,” to travel to Nigeria for Ms mother’s funeral. Balogun believed that the advance parole dоcument would guarantee his reentry into the U.S. However, upon his return, Balogun was apprehended by the INS. The agency claimed that Balo-gun’s criminal record made him ineligible for the immigration status he was requesting. In subsequent proceedings, an immigration judge ruled that Balogun was an inadmissible alien subject to immediate removal. This decision was then affirmed by the Board of Immigration Appeals (BIA). Shortly after he filed his appeal in this court, Balogun’s removal order was carried out and he was returned to Nigeria. Appointеd counsel is now litigating this matter on behalf of Balogun.
A provision of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), codified at 8 U.S.C. § 1252(a)(2)(C), precludes judicial review of removal orders entered against certain aliens like Balogun who have committed a crime of moral turpitude. The first issue in this case is therefore whether § 1252(a)(2)(C) applies to Balogun’s removal order, thereby depriving this court of jurisdiction to hear his appeal. However, even if § 1252(a)(2)(C) applies, appellate review оf Balogun’s order may still be appropriate if he raises a “substantial constitutional” challenge to his removal.
Brooks v. Ashcroft,
I.
At first glance, this case presents us with a relatively straightforward jurisdictional question. However, in order to obtain our review of his removal order, Balo-gun argues that the events leading to his removal raise substantial issues of constitutional law: specifically, whether he received сonstitutionally adequate notice from the INS officials regarding the legal implications of his advance parole. An important subsidiary issue is whether certain changes in U.S. immigrant law brought about by the IIRIRA are imper-missibly retroactive. Therefore, our background discussion necessarily refers to some of the relevant legal authorities that Balogun must invoke, or distinguish, to make his constitutional challenge.
A.
Sikiru Balogun was born in Nigeria in 1952. He entered this country for the first time in 1981 as a legal, non-immigrant visitor. Balogun subsequently settled in Staten Islаnd, New York, where he resided for the next 18 years. While overstaying his visitor status, Balogun eventually ran afoul of the law. In March 1987, he was arrested on a state criminal charge of sale of a controlled substance; he pleaded guilty in February 1988 and received a sentence of one to three years. In August 1990, Balogun was arrested for petit larceny; in April 1991, he pleaded guilty and was sentenced to conditional discharge. He served no time in prison for the larceny offense.
Although Balogun may not have beеn aware of this fact at the time, these two offenses drastically altered his immigration status. Under the version of the Immigration and Nationality Act (INA) then in effect, any alien convicted of certain controlled substance violations was subject to immediate deportation. See 8 U.S.C. *1306 § 1251(a)(11) (1988). Similarly, under the version of the INA in effect in 1991, “Any alien who at any time after entry is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor ... is deport-able.” 8 U.S.C. § 1251(a)(2)(A)(ii) (Supp. III 1991), now recodified at 8 U.S.C. § 1227(a)(2)(A)(ii). Therefore, after 1988, if the INS commenced deportation proceedings against Balogun, his only hope of staying in this country was to obtain a form of discretionary relief, commonly known as § 244(a)(2) of the INA, which was then available under U.S. immigration law. 1 Section 244(a)(2), which has since been repealed by the IIRIRA, reads in relevant part:
[T]he Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the сase of an alien ... who ... has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act ... constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parеnt, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1254(a)(2) (1988) (repealed by Pub.L. 104-208, § 304(b), 100 Stat. 3009-597 (1996)).
After his brush with the law in 1991, Balogun appeared to turn his life around. In 1994, Balogun married his present wife, Victoria Balogun, who became a U.S. citizen in 1996. The couple are now the parents of three children. Prior to his removal, Balogun was active in his church and volunteered in an organization that benefits mentally retarded children.
B.
On September 30, 1996, Congress passed the IIRIRA. This legislation contained аt least three major changes in U.S. immigration law that ultimately affect Bal-ogun’s case. The first change was the adoption of the term “removal,” which essentially eliminated a distinction that formerly existed between “deportation” proceedings and “exclusion” proceedings.
See Calcano-Martinez v. INS,
A second change was an amendment to 8 U.S.C. § 1252, which defines our authority to review removal orders issued by the Board of Immigration Appeals (BIA). Although under the new version of the law we retain our ability “to consider petitions challenging ‘final orders’ commanding the ‘removal’ of aliens from the United States,” the new law also eliminated our jurisdiction “to review аny final order of removal against any alien who is removable by reason of a conviction for certain criminal offenses,” including any offense encompassed by 8 U.S.C. § 1182(a)(2).
Calcano-Martinez,
The third, and perhaps most significant change, was the repeal of § 244(a)(2), formerly codified at 8 U.S.C. § 1254(a)(2), providing for certain discretionary relief from deportation (or removal, under the terminology of the current law). Although Balogun had not yet satisfied the requirement of ten years of continuous physical presence in this country following the commission of his last criminal offense in 1991 (as required by § 244(a)(2)), the discretionary relief available under § 244 represented Balogun’s only hope of remaining in this country in the event the INS commenced removal proceedings against him.
C.
During the same period that Congress was revising U.S. immigration law, Balo-gun was pursuing conventional avenues of immigration relief. In 1997, the INS issued Balogun an approved 1-130 Immediate Relаtives Immigrant Visa, which permitted Balogun to apply for permanent resident status. A meeting regarding Bal-ogun’s adjustment of status application was scheduled to take place on August 24, 1999.
However, it is important to note that adjustment of Balogun’s immigration status was not possible for Balogun unless he could demonstrate that he was “admissible” to the United States as a permanent resident. 8 U.S.C. § 1255(a)(2). As noted, Balogun was plainly inadmissible under the terms of § 1182(a)(2), and the only form of discretionary relief, § 244(a)(2) of the INA, had been repealеd. 3 Therefore, *1308 prior to his departure for Nigeria in 1998, Balogun had only one plausible route to obtain permanent resident status. Balo-gun committed his petit larceny offense some time before August 1990. 4 Therefore, assuming that (a) the continuous presence requirement of former § 244(a)(2) was not interrupted by the trip to Nigeria, and (b) discretionary relief under former § 244(a)(2) would still be available to him because he had entered into a plea agreement prior to the enactment of the IIRIRA, it is not implausible that Bal-ogun would hаve been eligible for relief under former § 244(a)(2) at some point during the year 2000.
Balogun might have actually remained in the United States until this date had he received better legal advice. Instead, when his mother passed away in the fall of 1998, Balogun applied for and received an “advance parole.” The term “advance parole” is an administrative procedure governed by § 212(d)(5) of the INA, codified at 8 U.S.C. § 1182(d)(5). A 1998 BIA opinion provides the following useful description:
“Advance parole” is a mechanism by which a district director can, as a humanitarian measure, advise an alien who is in this country, but who knows or fears that he will be inadmissible if he leaves and tries to return, that he can leave with assurance that he will be paroled back into the United States upon return, under prescribed conditions, if he cannot establish that he is admissible at that time [e.g., by presenting a valid immigration visa].
In re G-A-C-, 22 I. & N. Interim Dec. 3354, at 7 (BIA 1998) (en banc). However, as the BIA goes on to note, an alien is not “paroled” upon the approval of his advance parole аpplication. Instead, “the alien is advised in advance of a departure that, if he meets certain conditions, he will be paroled into the United States when he returns.” Id. at 7 n. 3 (emphasis added).
In this case, Balogun apparently did not fully understand that his successful parole into the United States was only guaranteed if he was prima facie eligible for adjustment of his immigration status. He claims that he was led to believe that the issuance of the advanced parole would permit his “unhindered return into the U.S.” Nevertheless, Balogun’s one-page advanced parole letter (INS Form 1-512), which he was required to present at thе border upon his reentry, reads, “the holder of this authorization is an applicant for adjustment of status under the Immigration and Nationality Act.... Contingent upon his or her prima facie eligibility, the holder of this document shall be paroled into the United States,” pursuant to the authority of the INS district director (emphasis added). Unfortunately, Balogun was not prima facie eligible for adjustment of his immigration status; at a minimum, his two criminal offenses under § 1182(a)(2) made him an inadmissible alien.
*1309 That said, Balogun’s entire constitutional claim reduces to this: The INS, and, specifically, the advance рarole letter itself, failed to provide him with adequate notice of the potential consequences of his departure for Nigeria; these consequences included loss of his opportunity to complete the ten-year continuous presence requirement and thereafter to make his appeal for relief under the former § 244(a)(2) (incorporating his argument that the repeal of this section cannot be applied retroactively to him) in a context other than a remоval proceeding.
D.
With a copy of his advance parole document in hand, Balogun traveled to Nigeria and stayed for a period of four weeks. Upon his attempted return on January 23, 1999, Balogun was immediately detained and served with a Notice to Appear. As noted, Balogun’s prior drug and larceny charges made him an “inadmissible” alien. Pursuant to 8 U.S.C. § 1229a, the INS commenced removal proceedings. After a prolonged period of confusion over whether Balogun was proceeding pro se or with the assistance of counsel, Balogun was given the opportunity to submit various documents to block his removal. However, in the course of these proceedings, Balogun admitted on the record that he had committed the drug and larceny offenses. The immigration judge therefore ruled that Balogun was removable as charged.
Balogun appealed this decision to the BIA. On April 21, 2000, the BIA sustained all the findings of the immigration judge, explicitly rejecting Balogun’s argument that he had been denied a fair hearing. The BIA also rejected Balogun’s argument, based on representations made to Balogun when he obtained his advance parole, that the INS should be barred from carrying out a removal order against him. Since the BIA’s decision, the course of Balogun’s case has been downhill. On May 11, 2000, Balogun filed an appeal with this court and requested a stay of removal. On May 24, 2000, the INS filed a motion to dismiss the appeal for lack of jurisdiction. On August 19, 2000, we ordered that the motion to dismiss be heard with the merits. On September 19, 2000, we denied Balogun’s request fоr a stay of removal. Balogun was then deported on December 9, 2000. However, after the INS filed its answering brief in the underlying appeal, this court appointed counsel for Balogun and allowed counsel to file a supplemental brief. We are now ready to rule on the jurisdictional issue under 8 U.S.C. § 1252(a)(2)(C), including Balogun’s purported constitutional claims.
II.
Our jurisdiction to review final orders of removal issued by the BIA is defined by 8 U.S.C. § 1252(a). Because Balogun’s removal proceedings commenced after April 1, 1997, which is the effeсtive date of the IIRIRA, this case is covered by the permanent provisions of the INA, as amended by the IIRIRA, including the current version of § 1252(a).
See Oguejiofor,
Although 8 U.S.C. § 1252(a) vests this court with general authority to review final orders directing the removal of an
*1310
alien from the United States, it also strips us of jurisdiction to review certain types of removal orders. Section 1252(a)(2)(C) reads in pertinent part: “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 [various other crimes specified in section 1227(a)(2) ].” We are without jurisdiction to review a removal order if the petitioner is (1) an alien (2) who is removable (3) because he committed a criminal offense enumerated in the statute.
See Fernandez-Bernal v. Attorney General,
Obviously anticipating this result, Balogun claims that we nonetheless retain jurisdiction to hear his appeal because he has raised a substantial constitutional challenge to his removal. As previously notеd, several of our precedents have acknowledged such a possibility.
See, e.g., Brooks,
Here, Balogun claims that his due process rights under the Fifth Amendment were violated when the INS conveyed to him the false impression that the grant of advance parole would permit him an unhindered return to the United States. Although Balogun, as an inadmissible alien, is ineligible fоr an adjustment of his immigration status to that of a permanent resident,
see 8
U.S.C. § 1255(a)(2), he asserts that he would have eventually been eligible for discretionary relief under the now-repealed § 244(a)(2) but for the inadequate notice provided by the INS and, in particular, by the advance parole document. Citing the Supreme Court’s decision in
INS v. St. Cyr,
*1311 Balogun’s argument is a longshot, and we believe that it fails for at least two reasons. First, the only prejudice suffered by Balogun is that he has lost the possibility of discretionary relief at some point in the future. As the government correctly points out, even before Balogun departed for Nigeria under the false impression that his advance parole letter provided him with some sort of safe haven from U.S. immigration law, he was a deportable alien subject to removal proceedings at any time. See 8 U.S.C. § 1227(a)(2)(A)(ii) (“Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, is deportable.”); 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony [including a drug offense under § 1101(a)(43)(B) ] at any time after admission is deportable”). While Balogun’s departure to Nigeria and attempted reentry transformed him from a “deportable” to an “inadmissible” alien, this is ultimately a distinction without a difference; both categories of aliens are subject to identical removal proceedings. 6 See 8 U.S.C. § 1229a(a). The only mechanism that could possibly help him was § 244(a)(2) discretionary relief, which the IIRIRA did away with.
In this circuit, “an alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.”
Oguejiofor,
*1312
The second reason why Balogun’s constitutional challenge fails is that the INS has no duty, constitutional or otherwise, to provide legal advice to aliens who petition the agency for a grant of advance parole.
See Dimenski v. INS, 275
F.3d 574, 578 (7th Cir.2001) (holding that neithеr the due process requirement of the Fifth Amendment nor the immigration statutes “requireG the INS to give legal advice, let alone to put that advice in tiny type on forms”). Balogun’s only support for his argument comes from
Navarro-Aispura v. INS,
In summary, Balogun’s immigration problems were far too complex to be adequately counseled by INS boilerplate, and there is no constitutional duty that requires the agency even to try. Moreover, there is nothing in the record to suggest that INS officials did anything improper, much less engaged in the type of deliberate misconduct that could raise the specter of a due process violation. It is nonetheless the unfortunate fact that Balogun might have been much better off had hе not demonstrated his familial piety by traveling to his mother’s funeral in Nigeria.
III.
Because Balogun has committed two crimes that trigger the jurisdiction-stripping provisions of 8 U.S.C. § 1252(a)(2)(C), we do not have statutory authority to review the final order of the BIA. Further, Balogun’s removal does not raise any substantial issues of constitutional law. Therefore, this case is DISMISSED for lack of jurisdiction.
Notes
. Section 244(a)(2) was a form of discretionary relief that was available to aliens who were
seeking
permanent resident status. In contrast, § 212(c) of the INA, formerly codified at.8 U.S.C. § 1182(c)(2) (1994) and also repealed by the IIRIRA, was a similar type of discretionary relief that was only available to deportable aliens who had previously obtained permanent resident status. In
INS v. St. Cyr,
. Section 1182(a)(2)(A)(i), which applies to both the drug and larceny offenses, reads in pertinent part:
[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of — (I) a crime involving moral turpitude (other than a purely political offense) ... (II) a violation of ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), is inadmissible.
Balogun is also inadmissible under § 1182(a)(2)(C), which appliеs to aliens who have been illicit traffickers in a controlled substance.
. After the passage of the IIRIRA, the Attorney General could cancel removal of "inadmissible” or "deportable” aliens under certain limited conditions; however, these conditions specifically excluded any alien
*1308
convicted of an aggravated felony.
Brooks,
. Under the statutory text of § 1252(a)(2)(C), the focus is on the
commission
rather than the
conviction
of criminal offenses.
See Fernandez-Bernal v. Attorney General,
.
The issue of retroactivity is not necessarily Balogun’s most formidable hurdle. In
St. Cyr,
the Supreme Court held that the repeal of § 212(c) of the INA, which had permitted a form of discretionary relief similar to the repealed § 244, did not apply retroactively to aliens “whose convictions were obtained through plea agrеements 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.”
Nonetheless, in
Jimenez-Angeles v. Ashcroft,
. Under the pre-IIRIRA version of the INA, use of advance parole to leave the country and then reenter automatically meant that an alien could be subject to “exclusion” rather than “deportation” proceedings, with a corresponding loss in due process safeguards and ineligibility for certain forms of discretionary relief.
See Landon v. Plasencia,