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Abdel-Razek v. Immigration Nat. Serv

United States Court of Appeals, Ninth Circuit
Apr 16, 1997
114 F.3d 831 (9th Cir. 1997)

Summary

holding that jurisdictional bar of AEDPA § 440 is not dependent upon the final order of removal referring to one of the provision's enumerated offenses

Summary of this case from McAllister v. Attorney General of U.S.

Opinion

No. 95-70395

Submitted November 7, 1996 — Pasadena, California.

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir. R. 34-4.

Memorandum Filed April 16, 1997 Order and Opinion Filed June 5, 1997

Petition to Review a Decision of the Immigration and Naturalization Service.

INS No. A71-953-257.

Before: Ferdinand F. Fernandez and Michael Daly Hawkins, Circuit Judges, and William W Schwarzer, Senior District Judge.

Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.



OPINION


Tarek Mohammed Abdel-Razek petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying petitioner's application for a waiver under section 212(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(h), and ordering deportation. Petitioner came to the United States as a student visitor in 1985. Seven months later, he was arrested for stabbing a man to death. He pled guilty to voluntary manslaughter in 1989, and was sentenced to eleven years in prison. In 1994 deportation proceedings were initiated based on his manslaughter conviction. On May 1, 1995, the BIA ordered petitioner deported. On October 6, 1995, petitioner filed his petition in this court.

On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Title IV of the Act amends the INA in various respects, including judicial review of orders of deportation. We held in Duldulao v. INS, 90 F.3d 396, 398-99 (9th Cir. 1996) (petition for reh'g pending), that the effect of the AEDPA is to withdraw the jurisdiction of the courts of appeals to consider petitions filed prior to the AEDPA's enactment.

[1] Section 440(a) of the AEDPA amends 8 U.S.C. § 1105a(a)(10) to read as follows:

Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, . . . shall not be subject to review by any court.

[2] Petitioner was convicted of manslaughter for stabbing a man to death. That offense makes him deportable under section 1251(a)(2)(A)(iii). The fact that the BIA did not issue its order with reference to that section does not alter petitioner's status as a convicted felon for purposes of the availability of judicial review. We therefore lack jurisdiction.

The petition is DISMISSED.

ORDER

The memorandum disposition filed April 16, 1997, is redesignated as an authored opinion by Judge William W Schwarzer.


Summaries of

Abdel-Razek v. Immigration Nat. Serv

United States Court of Appeals, Ninth Circuit
Apr 16, 1997
114 F.3d 831 (9th Cir. 1997)

holding that jurisdictional bar of AEDPA § 440 is not dependent upon the final order of removal referring to one of the provision's enumerated offenses

Summary of this case from McAllister v. Attorney General of U.S.

holding that "[t]he fact that the BIA did not issue its order with reference to [section 1251(a)(2)(A)(iii), now section 1227(a)(2)(A)(iii), dealing with aggravated felonies] does not alter petitioner's status as a convicted felon for purposes of the availability of judicial review"

Summary of this case from Xiong v. Immigration Naturalization Service
Case details for

Abdel-Razek v. Immigration Nat. Serv

Case Details

Full title:TAREK MOHAMMED ABDEL-RAZEK, a.k.a. Parek Mohammed Abdelrazer, Petitioner…

Court:United States Court of Appeals, Ninth Circuit

Date published: Apr 16, 1997

Citations

114 F.3d 831 (9th Cir. 1997)

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