Wayne A. SMITH, A34-470-066, Petitioner, v. John ASHCROFT, Attorney General of the United States; Kevin Rooney, acting Commissioner of the Immigration and Naturalization Service; Louis D. Crocetti, Jr., as Baltimore, Maryland District Director of the Immigration and Naturalization Service; U.S. Immigration & Naturalization Service, Respondents.
No. 01-2004.
United States Court of Appeals, Fourth Circuit.
Argued May 6, 2002. Decided July 1, 2002.
425
Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), presented somewhat similar conditions. There, the parties stipulated in advance on the amount of the damages due respondents contingent upon a favorable ruling. If the decision was unfavorable, respondents would not be entitled to any relief. The Supreme Court concluded that the agreements did not deprive it of jurisdiction. Havens Realty Corp., 455 U.S. at 370-71, 102 S.Ct. 1114.
In Keefe, 203 F.3d at 222, the parties stipulated that if it prevailed on appeal, defendant would pay plaintiff a certain sum. If the Court did not decide the controverted issue, then defendant would pay a greater sum. If plaintiff were successful on appeal, then defendant would pay yet a higher amount. The damage issue, therefore, was settled and the stipulation eliminated the need for any further litigation in the district court. Only the ministerial act of entering judgment remained. That being so, we concluded that the consent judgment was final. Keefe, 203 F.3d at 224.
In contrast, the parties’ stipulation in the case before us covers only one possible outcome of the appeal — an affirmance by this Court. According to the stipulation, if this Court should decide to reverse, then the matter would return to the District Court for a full trial. Similarly, if this Court declined to decide the propriety of the pretrial ruling, the case would be remanded to the District Court.
Therefore, unlike Keefe or Bethel, only one possible ruling by this Court would effectively end the District Court‘s work. Left open is the possibility of two other dispositions, either a reversal or a dismissal for lack of appellate jurisdiction, that would require further adjudication by the District Court, namely, a full trial. Thus, the stipulation does not create finality in the consent judgment and, in the absence of that element, this Court lacks jurisdiction.
Accordingly, the appeal will be dismissed for lack of jurisdiction.
Affirmed by published opinion. Senior Judge BEAM wrote the opinion, in which Judge NIEMEYER and Judge GREGORY joined.
OPINION
BEAM, Senior Circuit Judge.
Wayne Ancil Smith, a citizen of Trinidad, contends that he was denied procedural due process in violation of the Fifth Amendment in the course of his deportation proceedings in 1998. We disagree and affirm the district court‘s dismissal of his
I.
Smith entered the United States in 1967 as the dependent of a diplomatic visa holder, and became a lawful permanent resident in 1974. This was his status in March 1992 when he entered a plea of guilty to felony drug charges. Based on that conviction, in March 1996, pursuant to the Immigration and Naturalization Act,
In the administrative deportation proceedings, Smith applied for a waiver of deportation under the former section 212(c) of the Act,
Smith timely appealed the immigration judge‘s ruling to the BIA, which denied the appeal on August 24, 1998. Like the immigration judge, the BIA also concluded that application of AEDPA‘s amendments to section 212(c) precluded Smith from presenting his case for or obtaining, on the merits, a discretionary waiver. On November 9, 1998, Smith challenged the BIA‘s adjudication by filing a petition for writ of habeas corpus in the United States District Court for the District of Maryland. The district court ruled that it did not have jurisdiction over an “appeal” of a BIA adjudication and transferred the case to this Circuit pursuant to
Smith illegally reentered the United States through Detroit in January 1999, and returned to his home in Maryland. He remained there undiscovered until he was pulled over for a traffic stop a few years later. The government immediately moved to reinstate the deportation order under
II.
We first address the issue of jurisdiction. The government argues that we have no jurisdiction because Smith is not currently “in custody,” but instead has been deported and is out of the country. However, Smith needed only to be “in custody” at the time the petition was filed to avoid a jurisdictional challenge based on the “in custody” requirements of the habeas statute. Chong v. INS, 264 F.3d 378, 382-83 (3d Cir.2001) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). In Carafas, the Supreme Court held that where the petitioner was in custody at the time the petition was filed, his release from prison before the petition for certiorari was filed did not moot the case because petitioner could still suffer “serious disabilities because of the law‘s complexities and not because of his fault, if his claim that he has been illegally convicted is meritorious.” Carafas, 391 U.S. at 239; cf. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (petitioner who was incarcerated at the time the petition was filed satisfies “in custody” requirement of
Smith was in custody at the time the petition was filed, and though Smith is no longer in the United States, he is unmistakably affected by the legal implications of our decision. If he prevails, there is a possibility he can beneficially unravel his untoward immigration status. Thus, because Smith was in custody at the time he filed the petition, we have not lost jurisdiction over this appeal.
In St. Cyr, prior to ruling on whether AEDPA retroactively applied to bar discretionary section 212(c) relief, the Supreme Court addressed the initial question of habeas jurisdiction. The government had argued that the jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) left no judicial forum available. The Court reasoned that because Congress did not make a plain statement revoking habeas jurisdiction and because there was no other available forum to adjudicate the purely legal question at issue, habeas jurisdiction was appropriate in the district court. 533 U.S. at 314, 121 S.Ct. 2271. The Court also determined that construing the IIRIRA provisions to preclude court review of a “pure question of law” would lead to “substantial constitutional questions.” Id. at 300, 121 S.Ct. 2271. Therefore, habeas jurisdiction was made available to the petitioner. Id. at 314, 121 S.Ct. 2271.
Although this case is in a somewhat different procedural posture than St. Cyr, its principles are applicable here. As in St. Cyr, the Act bars direct judicial consideration of Smith‘s claim. Smith contends that his Fifth Amendment right to due process was violated by the 1998 deportation proceedings because he was not given court review of the BIA ruling that he was not entitled to discretionary relief. The Act currently prohibits direct judicial review of this claim because it implicates the validity of a prior order of removal. The Act,
The government argues that Smith‘s claim is distinguishable from St. Cyr because Smith was afforded a full opportunity to litigate this claim in the prior proceeding. However, that is not quite correct. As the government admits in its brief, the procedure for appealing the August 1998 BIA decision was not entirely clear at the time. Smith filed a petition for habeas corpus with the district court, which the district court construed as a petition for direct review and transferred to this court. This court dismissed for lack of jurisdiction, likely because the IIRIRA, which had become effective in April 1997, precluded judicial review for denials of discretionary relief and for aliens removable because they have committed a criminal offense. See
Subsequently, this court held in Bowrin v. INS, 194 F.3d 483, 489 (4th Cir.1999) (per curiam), that the district court had habeas juris to review questions of law relating to the administrative denial of 212(c) relief. Obviously, then, Smith‘s petition for habeas consideration, filed prior to Bowrin in 1998, simply fell between the judicial cracks. Thus, we disagree with the government‘s argument that St. Cyr‘s jurisdictional ruling is distinguishable from this case. Accordingly, the district court had habeas jurisdiction over Smith‘s claim.2
Smith argues that the Due Process Clause of the Fifth Amendment was violated in 1998 by the lack of meaningful review of the immigration judge‘s refusal to grant him section 212(c) relief and suspend deportation. In order to advance a due process claim, Smith must first establish that he had a property or liberty interest at stake. Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir.1993); Jamil v. Secretary, Dep‘t of Defense, 910 F.2d 1203, 1209 (4th Cir.1990). Smith cannot meet this initial burden, because he has no property or liberty interest in the “right” to discretionary section 212(c) relief.
In order for a statute to create a vested liberty or property interest giving rise to procedural due process protection, it must confer more than a mere expectation (even one supported by consistent government practice) of a benefit. Mallette v. Arlington County Employees’ Supplemental Ret. Sys. II, 91 F.3d 630, 635 (4th Cir.1996). There must be entitlement to the benefit as directed by statute, and the statute must ““act to limit meaningful-
On many occasions this circuit has held that discretionary statutory “rights” do not create liberty or property interests protected by the Due Process Clause. For instance, the discretionary right to suspension of deportation does not give rise to a liberty or property interest protected by the Due Process Clause. Appiah v. INS, 202 F.3d 704, 709 (4th Cir.), cert. denied, 531 U.S. 857, 121 S.Ct. 140, 148 L.Ed.2d 92 (2000). In Appiah, petitioners were challenging the constitutionality of IIRIRA‘s new “stop time” provisions,3 and the case was before this court on direct judicial review under the Act. The court held that because suspension of deportation is discretionary, it does not create a liberty or property interest protected by the Due Process Clause. Id. “This is true even where the state ‘frequently’ has granted the relief sought.” Id. See, e.g., Ashki v. INS, 233 F.3d 913, 921 (6th Cir.2000) (discretionary right to suspension of deportation is not an interest protected by the Due Process Clause); Tefel v. Reno, 180 F.3d 1286, 1301 (11th Cir.1999) (same).
Similarly, this circuit held that because the Army had discretion to discharge enlisted personnel, a service member had no property interest in continued employment with the Army. Guerra v. Scruggs, 942 F.2d 270, 278 (4th Cir.1991). On the other hand, in Mallette, the court noted that under the county disability retirement ordinance, once an employee had met particularized eligibility standards, the Retirement System‘s Board did not have discretion to deny the employee benefits. Mallette, 91 F.3d at 635. Thus, the county employees who met the requirements had a claim of entitlement in disability retirement benefits protected by due process. Id. at 636.
Former section 212(c) did not in any way limit the discretion of the Attorney General to admit otherwise deportable aliens. This statute in no way created an entitlement to a waiver of deportation, as it “grant[ed] the Attorney General broad discretion to admit excludable aliens.” St. Cyr, 533 U.S. at 294-95, 121 S.Ct. 2271 (emphasis added). The Act likewise did not limit whatsoever the Attorney General‘s discretion to waive deportability. Accordingly, Smith had no protected liberty or property interest in discretionary 212(c) relief, a circumstance fatal to his due process claim.
Smith cites United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), for the proposition that, without regard to liberty or property interests, his due process rights were violated in 1998 by a lack of meaningful review in a judicial forum. We disagree with this contention. In Mendoza-Lopez, the question before the court was whether a defendant who was being criminally pros-
Thus, while the Mendoza-Lopez Court admittedly espoused judicial review of administrative actions, the Court reasoned that review is essential when the outcome of the administrative proceeding is used as an element for criminal conviction. Id. at 839, 107 S.Ct. 2148. It is an overly expansive, and in fact, an incorrect, reading of Mendoza-Lopez to suggest that the Constitution requires “meaningful review” of any and all administrative procedures.4
III.
For the foregoing reasons, we hold that, while the district court did have jurisdiction over Smith‘s habeas corpus petition, because Smith has no liberty or property interest in a discretionary waiver of deportability, the petition must be denied on the merits.
AFFIRMED.
C. Arlen BEAM
Senior Circuit Judge