Lara-Ruiz, Ricardo v. INS

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2868

RICARDO LARA-RUIZ,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals

No. A17-761-237

Argued October 26, 2000--Decided March 6, 2001

Before Bauer, Posner, and Ripple, Circuit Judges.

Bauer, Circuit Judge. Ricardo Lara-Ruiz ("Lara-

Ruiz") appeals the decision of the Board of

Immigration Appeals ("BIA") which found him

removable from the United States for committing

the "aggravated felony" of "sexual abuse of a

minor," and statutorily ineligible for

discretionary relief from removal. Lara-Ruiz

argues that he did not commit sexual abuse of a

minor under 8 U.S.C. sec. 1101(a) (43)(A), and

that the application of the recently enacted

provisions of the Immigration and Nationality Act

("INA") adding sexual abuse of a minor to the

list of aggravated felonies and making Lara-Ruiz

ineligible to apply for relief from removal

violated his rights to due process and equal

protection. We find that Lara-Ruiz did commit

sexual abuse of a minor and that he fails to

raise any substantial constitutional claims.

Therefore, we dismiss his appeal for lack of

subject matter jurisdiction.

BACKGROUND

Lara-Ruiz is a Mexican national who was granted

lawful permanent residence in the United States

in 1967. In 1994, he was convicted of sexual

assault under Ill.Rev. Stat. 1991, ch. 38, para.para.

12-13(a)(1) and sec. 12-13(a)(2). Section 12-

13(a)(1) defines "sexual assault" as

"commit[ting] an act of sexual penetration by the

use of force or threat of force," and sec. 12-

13(a)(2) defines it as "commit[ting] an act of

sexual penetration and the accused knew that the

victim was unable to understand the nature of the

act or was unable to give knowing consent." The

record indicates that Lara-Ruiz’ victim was a

four-year-old girl.

On December 14, 1998, the Immigration and

Nationalization Service ("INS") issued a Notice

to Appear placing Lara-Ruiz in removal

proceedings. The INS charged him as removable

because he had been convicted of an aggravated

felony under INA sec. 237(a)(2)(A)(iii), codified

at 8 U.S.C. sec. 1227(a)(2)(A)(iii).

Specifically, the INS charged him with committing

sexual abuse of a minor, which is an aggravated

felony under sec. 101(a)(43)(A) of the INA,

codified at 8 U.S.C. sec. 1101(a)(43)(A).

On February 10, 1999, Lara-Ruiz attended a

hearing before an Immigration Judge ("IJ"),

during which he conceded alienage but denied

removability. The IJ found him removable as

charged. The IJ also concluded that because Lara-

Ruiz was an alien convicted of an aggravated

felony, he was statutorily ineligible for

discretionary cancellation of removal under 8

U.S.C. sec. 1229b(a)(3), and that he "d[id] not

appear to be entitled to any other relief from

removal." Lara-Ruiz appealed to the BIA, arguing

that his Illinois convictions for sexual assault

did not constitute sexual abuse of a minor and

that the application of amendments to the INA

which classified sexual abuse of a minor as an

aggravated felony and removed his eligibility to

apply for discretionary relief from removal was

impermissibly retroactive, and therefore violated

his due process rights. The BIA dismissed his

appeal, finding that his Illinois convictions

counted as sexual abuse of a minor, and declined

to address his constitutional claim.

Lara-Ruiz appeals the BIA’s decision,

reasserting the arguments that he made before the

BIA, and adding the contention that sec. 212(h)

of the INA violates his rights to equal

protection under the Due Process Clause of the

Fifth Amendment by making lawful permanent

resident aliens who commit aggravated felonies

statutorily ineligible to receive a waiver of

inadmissibility, while leaving illegal aliens who

commit the same offenses eligible to apply for

such relief. The INS argues that we lack

jurisdiction to hear the appeal because Lara-Ruiz

is an alien who has been ordered removed as an

"aggravated felon" and because his constitutional

claims are meritless.

DISCUSSION

A. Jurisdiction

As a preliminary matter, the government argues

that sec. 1242(a)(2)(c) of the INA, codified at

8 U.S.C. sec. 1252(a)(2) (C), strips us of

jurisdiction to hear Lara-Ruiz’ claims. That

section provides:

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

1227(a)(2)(A)(iii), (B), (C), or (D) of this

title, or any offense covered by section

1227(a)(2) (A)(ii) of this title for which both

predicate offenses are, without regard to their

date of commission, otherwise covered by section

1227(a)(2)(A)(i) of this title.

8 U.S.C. sec. 1252(a)(2)(C).

Section 1227(a)(2)(A)(iii) provides that "[a]ny

alien who is convicted of an aggravated felony at

any time after admission is deportable."

Therefore, sec. 1252(a)(2)(C) generally

eliminates our jurisdiction to review any final

order of deportation against an alien convicted

of an aggravated felony. However, we retain

jurisdiction to determine whether we have

jurisdiction--that is, to determine whether an

alien’s criminal conviction is indeed an

"aggravated felony" under the INA, thereby

triggering the jurisdictional bar of sec.

1252(a)(2)(C). See, e.g., Xiong v. INS, 173 F.3d

601, 604 (7th Cir. 1999); Yang v. INS, 109 F.3d

1185, 1192 (7th Cir. 1997). Moreover, in

addressing a similar jurisdictional bar announced

in an earlier enacted amendment to the INA, we

have held that an alien may challenge his

deportability on constitutional grounds directly

in the courts of appeals, provided that he raises

a substantial constitutional claim. See Morales-

Ramirez v. Reno, 209 F.3d 977, 980 (7th Cir.

2000); Singh v. Reno, 182 F.3d 504, 509 (7th Cir.

1999); LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th

Cir. 1998). Thus, while we honor Congress’ intent

to curtail judicial review of final deportation

orders for certain disfavored criminals, we have

retained jurisdiction over any substantial

constitutional claims raised as a "safety valve"

to prevent "bizarre miscarriages of justice." See

LaGuerre, 164 F.3d at 1040. However, we have

recognized that such direct review of

constitutional claims is an "exceptional

procedure," see Singh, 182 F.3d at 510, which is

available only when the alien raises substantial

constitutional claims. See Moralez-Ramirez, 209

F.3d at 981. Thus, in addressing Lara-Ruiz’

appeal, we must first determine whether the BIA

correctly concluded that Lara-Ruiz was "an alien

deportable by reason of having committed an

aggravated felony." If we answer that question in

the affirmative, we must then consider whether

Lara-Ruiz has nevertheless raised substantial

constitutional claims, and we may assert

jurisdiction over Lara-Ruiz’ claims only if we

find that he has./1 As both of these inquiries

are jurisdictional in nature, we review them de

novo. See, e.g., Solorzano-Patlan v. INS, 207

F.3d 869, 872 (7th Cir. 2000).

B. Sexual abuse of a minor

Lara-Ruiz argues that he is not deportable

because his state conviction for sexual assault

does not constitute the aggravated felony of

sexual abuse of a minor under sec. 101(a)(43)(A).

He notes that the crime "sexual abuse of a minor"

is defined at 18 U.S.C. sec. 2243(a) as knowingly

engaging in a sex act with a person who is at

least 12 but not yet 16, and who is at least four

years younger than the offender. He argues that

the BIA was obligated to use sec. 2243’s

definition of "sexual abuse of a minor," since

this is the only definition of that exact phrase

contained in the U.S. Code. Because Lara-Ruiz’

victim was not between the ages of 12 and 16, he

maintains that he did not commit "sexual abuse of

a minor." He also notes that the principle of

lenity, which is applicable to deportation

proceedings, see INS v. Cardoza-Fonseca, 480 U.S.

421, 449 (1987), requires us to construe sec.

101(a)(43)(A) narrowly and to resolve all matters

of doubt as to its interpretation in his favor.

He contends that the BIA violated this principle

when it found that he had committed sexual abuse

of a minor. We are not persuaded./2

The phrase "sexual abuse of a minor" is not

defined in sec. 101(a)(43)(A), either expressly

or by reference to any other statutory provision.

In attempting to determine its meaning, the BIA

began by noting that it was not obliged to adopt

any particular federal or state statutory

definition as controlling. However, the BIA went

on to note that, since removal proceedings are a

matter of federal law, "it is useful to look at

federal definitions in determining the meaning of

the language used by Congress." With this

principle in mind, the BIA turned to consider two

federal statutory provisions which it deemed

relevant. Specifically, the BIA considered 18

U.S.C. sec. 2241(c), which provides that

"[whoever] . . . knowingly engages in a sexual

act with another person who has not attained the

age of 12 years" has committed the offense of

aggravated sexual abuse, and 18 U.S.C. sec.

2246(2)(A), which defines "sexual act" as

including contact between the male and female

genitals. The BIA ruled that conduct which fell

within the meaning of these two statutory

provisions would constitute sexual abuse of a

minor under sec. 101(a)(43)(A). The BIA then

considered the "conviction documents"/3 relating

to Lara-Ruiz’ Illinois sexual assault

convictions--which established that Lara-Ruiz had

intentionally performed a sexual act upon a four-

year-old child in that he had initiated the

contact of his genitals with the genitals of the

victim--and concluded that these actions fell

within the ambit of 18 U.S.C. sec.sec. 2241(c)

and 2246(2)(A), and therefore counted as the

aggravated felony of "sexual abuse of a minor."

We find the BIA’s definition of sexual abuse of

a minor to be a reasonable construction. In

construing a statute, we start by looking to the

plain language, giving the words used their

ordinary meaning. See Pioneer Inv. Services Co.

v. Brunswick Assocs., Ltd. Partnership, 507 U.S.

380, 388 (1993); Komorowski v. Townline Mini-Mart

and Restaurant, 162 F.3d 962, 965-66 (7th Cir.

1998). The BIA’s decision referred to various

federal statutory provisions in an attempt to

construct a generic definition of sexual abuse of

a minor which was consistent with the ordinary,

common-sense meaning of that phrase. Cf. Taylor

v. United States, 495 U.S. 575 (1990). The BIA’s

conclusion that a defendant who initiates contact

between his genitals and the genitals of a four-

year-old child engages in sexual abuse of a minor

certainly comports with the ordinary meaning of

that phrase. Indeed, only the most tortured

definition of the phrase would exempt such

conduct from its reach. While there might be room

for doubt as to whether certain kinds of conduct

would count as "sexual abuse of a minor," if the

phrase has any commonly recognized meaning at

all, genital-to-genital contact between an adult

and a four-year-old child is included within that

meaning./4

However, one further point needs to be

addressed. In determining whether Congress

intended the phrase "sexual abuse of a minor" to

include conduct punished under a particular state

statute, we must generally employ a categorical

approach; that is, we consider only whether the

elements of the state offense of which the alien

was convicted--together with the language of the

indictment--constitute sexual abuse of a minor,

rather than whether the alien’s specific conduct

could be characterized as sexual abuse of a

minor. See United States v. Shannon, 110 F.3d

382, 384-85 (7th Cir. 1997). However, in this

case, the BIA looked beyond the Illinois

statutory definition of sexual assault, and

(apparently) beyond the indictment to determine

that Lara-Ruiz had sexually assaulted a minor. It

is likely that the BIA found it necessary to do

this because the statute of conviction did not

list any particular age of the victim or even the

victim’s status as a "minor" as an element of the

offense, and because the indictment for the

offenses of which Lara-Ruiz was ultimately

convicted did not mention the age of the

victim./5 Nevertheless, we find that it was not

improper for the BIA to look beyond the statutory

elements and the charging documents in this case.

First, the statute under which Lara-Ruiz was

convicted would cover conduct that was sexual

abuse of a minor and conduct that was not. In

such circumstances, sentencing courts can look to

the charging document, and if that yields no

clear answer, they can look beyond such documents

(for example, to the criminal complaint),

provided that doing so would not require

evidentiary hearings into contested issues of

fact. See Xiong, 173 F.3d at 605. Further, in his

brief to the BIA, Lara-Ruiz stated that he

admitted before the state court that he fondled

a four-year-old girl, and that he was convicted

of the "Illinois version of ’statutory rape.’" In

addition, he has not contested either the BIA’s

or the INS’ assertion that his victim was four

years old. Finally, several of his arguments to

this Court are premised on the fact that his

victim was a very young child./6 Therefore,

looking beyond the statutes of conviction and the

related indictments in this case would not

require an evidentiary hearing into any contested

issue of fact, and we find that it was proper for

the BIA to do so./7

Lara-Ruiz further argues that the BIA was

obligated to define sexual abuse of a minor by

reference to sec. 2243, because that section (and

only that section) defines the crime of "sexual

abuse of a minor." However, those of our sister

circuits that have addressed this argument have

rejected it, and with good reason. See United

States v. Zavala-Sustaita, 214 F.3d 601, 606 n.8

(5th Cir. 2000); cf. United States v. Baron-

Medina, 187 F.3d 1144, 1146 (9th Cir. 1999).

Congress did not define sexual abuse of a minor

by expressly referencing any other provision of

the U.S. Code, as it did with respect to other

terms in sec. 101(a) (43). See, e.g, 8 U.S.C.

sec. 1101(a)(43)(B), (C), (D), (E), (F), (H),

(I), (J), (K), (L), (M), (N), (O) & (P).

Congress’ decision not to limit sec.

1101(a)(43)(A) in a similar fashion is

conspicuous, and it strongly suggests that

Congress intended to give a broad meaning to the

term "sexual abuse of a minor." See Gozlon-Peretz

v. United States, 498 U.S. 395, 404 (1991)

("Where Congress includes particular language in

one section of a statute but omits it in another

section of the same Act, it is generally presumed

that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.") (internal

quotation omitted); Zavala-Sustaita, 214 F.3d at

607. Moreover, since sec. 2243 creates a

substantive federal offense, while sec.

101(a)(43)(A) merely attaches immigration

consequences to criminal acts already committed,

it would have been reasonable for Congress to

intend a broader definition for the latter

provision. See Zavala-Sustaita, 214 F.3d at 606

n.8. Finally, as the BIA noted in In re

Rodriguez-Rodriguez, Interim Dec. No. 3411, 1999

WL 731793 (BIA 1999), "sexual abuse" is defined

more broadly in 18 U.S.C. sec. 3509 than it is in

sec. 2243. This further undermines Lara-Ruiz’

argument because, even if we were to accept his

misguided premise that sec. 101(a)(43)(A)’s

definition of sexual abuse of a minor should be

exhaustively defined by reference to some other

single statutory provision, Lara-Ruiz offers no

good reason why we must refer to sec. 2243 rather

than to sec. 3509. See id. Finally, we reject

Lara-Ruiz’ argument that the rule of lenity

requires a different result. The rule of lenity

directs us to read "ambiguous" statutory

provisions narrowly in favor of the alien in

deportation proceedings. The rule applies only

when "a reasonable doubt persists about a

statute’s intended scope even after resort to the

language and structure, legislative history, and

motivating policies of the statute." Moskal v.

United States, 498 U.S. 103, 108 (1990) (internal

quotations omitted). We find that sec.

101(a)(43)(A) is not ambiguous. By considering

the ordinary meaning of the words, together with

other relevant provisions of the U.S. Code, we

conclude that Congress clearly intended the

phrase sexual abuse of a minor to cover Lara-

Ruiz’ conduct. Therefore, the rule of lenity is

inapplicable here.

Because we find that the BIA’s interpretation

of sec. 101(a) (43)(A) as applied to Lara-Ruiz’

conduct is reasonable and comports with the

ordinary meaning of the language that Congress

used in that section, we agree with the BIA that

Lara-Ruiz committed the aggravated felony of

"sexual abuse of a minor."

C. Retroactivity

At the time of Lara-Ruiz’ convictions in 1994,

sec. 212(c) of the INA gave the Attorney General

discretionary authority to grant waivers of

deportation for equitable reasons to aliens who

had lawfully resided in the United States for at

least seven years. See 8 U.S.C. sec. 1182(c)

(1994); Jideonwo v. INS, 224 F.3d 692, 695 (7th

Cir. 2000) (citation omitted). In 1996, Congress

passed AEDPA, sec. 440(d) of which limited this

authority. Specifically, sec. 440(d) amended sec.

212(c) by making aliens who had been convicted of

"aggravated felonies" ineligible to receive

discretionary waivers of deportation. Congress

subsequently repealed sec. 212(c) and replaced it

with a new form of discretionary relief called

"cancellation of removal," see IIRIRA sec.

304(a), codified at 8 U.S.C. sec. 1229b(a). This

new section mirrors AEDPA sec. 440(d) in that it

vests the Attorney General with the discretion to

grant waivers of removal, but renders aliens who

have been convicted of "aggravated felonies"

ineligible to receive such relief. Lara-Ruiz

contends that the BIA violated due process by

applying sec. 440(d) to him, thus making him

ineligible for relief. While he concedes that we

have rejected arguments challenging the

retroactive application of sec. 440(d) to aliens

previously convicted of offenses which were

classified as "aggravated felonies" at the time

of the conviction, see Turkhan v. Perryman, 188

F.3d 814, 828 (7th Cir. 1999); LaGuerre v. INS,

164 F.3d at 1041, he attempts to distinguish his

case on the ground that his offense was not

defined as an aggravated felony at the time that

he was convicted. (Sexual abuse of a minor was

added to the list of "aggravated felonies" in

IIRIRA sec. 321.)

As a preliminary matter, we must clarify a

confusion that pervades Lara-Ruiz’ retroactivity

argument. Lara-Ruiz objects to the application of

AEDPA sec. 440(d) to his case, and both parties

cite cases construing the retroactive application

of sec. 440(d) to situations wherein deportation

proceedings were pending prior to its enactment.

In this case, however, the INS began removal

proceedings against Lara-Ruiz on December 14,

1998, well after the passage of both AEDPA sec.

440(d), and IIRIRA sec. 304(a), 8 U.S.C. sec.

1229(b)(a). IIRIRA, which was passed on September

30, 1996, contained temporary transitional rules

as well as permanent provisions. IIRIRA sec. 309

set April 1, 1997 as its effective date. The

transitional rules applied during a "phase-in

period ending on IIRIRA’s effective date." See

St. Cyr v. INS, 229 F.3d 406, 422 (2d Cir. 2000)

(Walker, J., dissenting) (citation omitted).

(That is, they applied to aliens placed in

deportation proceedings prior to April 1, 1997

and whose deportation orders became

administratively final on or after October 31,

1996. Cf. Musto v. Perryman, 193 F.3d 888, 890

n.5 (7th Cir. 1999)). Under the transitional

rules, the Attorney General retained the

discretion to grant waivers of deportation under

INA sec. 212(c), as amended by AEDPA sec. 440(d).

However, IIRIRA’s permanent provisions

"repeal[ed] sec. 212(c) altogether and

consolidate[d] prior ’suspension of deportation’

relief and aspects of former sec. 212(c) relief

into a new form of relief"--namely, cancellation

of removal. Richards-Diaz, 233 F.3d at 1163; see

also 8 U.S.C. sec. 1229b(a). Therefore, since

Lara-Ruiz was placed in removal proceedings after

IIRIRA’s effective date, to address his

retroactivity argument we will have to determine

whether sec. 304(a) of IIRIRA applies, thus

barring him from receiving a cancellation of

removal.

As a lawful permanent resident, Lara-Ruiz is

entitled to due process before he may be deported

or removed. See Yang, 109 F.3d at 1196. Applying

a new law retroactively to conduct completed

before its enactment may violate due process if

it "impair[s] rights a party possessed when he

acted, increase[s] a party’s liability for past

conduct, or impose[s] new duties with respect to

transactions already completed." Landgraf v. USI

Film Prods., 511 U.S. 244, 280 (1994). Therefore,

"there is a presumption against retroactive

application of new laws absent a clear

congressional intent that the law should be

applied to past conduct." Jideonwo, 224 F.3d at

697. Landgraf prescribed a method for determining

whether provisions like IIRIRA sec. 304(a) and

AEDPA sec. 440(d) may be applied retroactively to

pending cases. Landgraf, 511 U.S. at 280. First,

we must determine "whether Congress has expressly

prescribed the statute’s proper reach." Id. at

825. If Congress has clearly indicated that the

provision is to be applied either prospectively

or retroactively, then we must apply it as

Congress directed. See Hughes Aircraft Co. v.

United States, 520 U.S. 939, 946 (1997) (ruling

that the presumption against retroactivity

applies "unless Congress has clearly manifested

its intent to the contrary"); Landgraf, 511 U.S.

at 280; see also Reyes-Hernandez v. INS, 89 F.3d

490, 492 (7th Cir. 1996). However, if we are

unable to discern Congress’ intent, then we must

resort to judicial default rules to determine

whether the statute can be applied retroactively.

Specifically, we must ask whether the statute

would have a "retroactive effect" if it were

applied to conduct which occurred prior to its

enactment (that is, whether it would "impair

rights a party possessed when he acted, increase

a party’s liability for past conduct, or impose

new duties with respect to transactions already

completed.") If so, we invoke the judicial

presumption against applying the provision

retroactively.

Under step one of the Landgraf analysis, we

find that Congress clearly intended IIRIRA sec.

304(a) to apply to all removal proceedings

brought after April 1, 1997. Section 309(a)

states that "the amendments made by [IIRIRA

sec.sec. 301-309, which include the repeal of

sec. 212(c) and the enactment of sec. 1229(b)]

shall take effect on [April 1, 1997]." While it

is generally true that "a statement that a

statute will become effective on a certain date

does not even arguably suggest that it has any

application to conduct that occurred at an

earlier date," Landgraf, 511 U.S. at 257, an

examination of IIRIRA sec. 309 reveals that

Congress included more than a mere "effective

date." Rather, Congress enacted a detailed scheme

of both transitional and permanent provisions,

which expressly "made certain provisions

applicable to certain aliens at certain times,

while simultaneously exempting other aliens from

other provisions." See Richards-Diaz v. Fasano,

233 F.3d 1160, 1164 (9th Cir. 2000). (For

example, section 309(a) expressly exempts

sec.sec. 303(b)(2), 306(c), 308(d)(2)(D), and

308(d)(5) from the general effective dates. See

id.) This carefully crafted scheme suggests that

Congress devoted a good deal of thought to the

question of precisely when the various specific

IIRIRA provisions should apply, and the fact that

it took pains to exempt certain provisions from

the general effective date suggests that it

intended that those provisions which were not

expressly exempted--such as the provision

repealing sec. 212(c) relief--should apply to

proceedings brought against an alien on and after

the effective date. We join the Ninth Circuit in

concluding that

[the] legislative scheme of transitional

provisions followed by permanent legislation can

be reduced to one essential point relevant to

IIRIRA’s repeal of sec. 212(c): Congress intended

the whole of IIRIRA’s permanent provisions to

apply to every alien as of April 1, 1997, except

where it expressly exempted those provisions that

were not meant to apply as of that date. The

provision repealing sec. 212(c) was not one of

them.

Richards-Diaz, 233 F.3d at 1164 (quoting St. Cyr,

229 F.3d at 422 (Walker, J., dissenting)).

Our conclusion that sec. 212(c) waivers of

deportation are not available to aliens against

whom removal proceedings are brought after

IIRIRA’s effective date is bolstered by the fact

that "deportation" proceedings can no longer be

brought against an alien after the enactment of

IIRIRA. As we have noted, IIRIRA abandoned the

old scheme which included both exclusion and

deportation in favor of a new unified scheme

which allows only "removal" proceedings.

Therefore, "to apply sec. 212(c)’s ’waiver of

deportation’ relief to an alien subject to an

order of removal under the new provisions would

create an ’awkward statutory patchwork sewn

together . . . from scraps of the IIRIRA and the

former INA.’" Richards-Diaz, 233 F.3d at 1164

(quoting St. Cyr., 229 F.3d at 423 (Walker, J.,

dissenting)). We agree with the Ninth Circuit

that "such [a] construction faces insurmountable

hurdles even on a linguistic level." Id. (citing

St. Cyr, id.).

We conclude that the application of IIRIRA sec.

304(a) to Lara-Ruiz’ case would not be

"retroactive." Since the INS brought removal

proceedings against Lara-Ruiz after the effective

date of sec. 304 (a), we need not determine here

whether a statutory provision can be applied to

a deportation or removal proceeding that was

brought before the provision was enacted.

Therefore, cases like Landgraf and its progeny

(e.g. LaGuerre, Reyes-Hernandez), which address

the application of newly enacted rules to pending

cases, are inapposite. In applying sec. 304(a) to

Lara-Ruiz’ case, the BIA applied the law in

effect at the time that it rendered its decision,

and therefore did not violate Lara-Ruiz’ due

process rights. See Angel-Ramos v. Reno, 227 F.3d

942, 948 (7th Cir. 2000) (citing Landgraf, 511

U.S. at 273). Put another way, because his case

was not pending before April 1, 1997, Lara-Ruiz

had no protected interest in retaining the

ability guaranteed by sec. 212(c) to apply for a

discretionary waiver of deportation. Cf. Morales-

Ramirez, 209 F.3d at 983. Therefore, his

"retroactivity" argument raises no substantial

constitutional claim.

Moreover, even if preventing Lara-Ruiz from

applying for a sec. 212(c) waiver could have some

retroactive effect (in that it might attach new

legal consequences to his past crimes), we would

not find such "retroactivity" impermissible in

this case. First, as we have noted, IIRIRA sec.

309 evidences Congress’ clear intent to apply the

bar on cancellation of removal relief (and by

implication, on the now-superseded waiver of

deportation relief as well) to all proceedings

brought after April 1, 1997. Therefore, under

Landgraf, the provision may permissibly be

applied to all such cases, regardless of the date

of the commission of the offense or the

conviction. Second, even if we were to find that

Congress’ intent regarding the application of

IIRIRA sec. 304(a) was ambiguous, Lara-Ruiz

cannot show that applying the rule to his case

has any impermissible "retroactive effect." We

have found such a retroactive effect in the

application of AEDPA sec. 440(d) to pending cases

in two rather limited circumstances: (1) where

the alien has conceded deportability, forgoing a

colorable defense to deportability, in reliance

(at least in part) on the potential availability

of sec. 212(c) relief, see Reyes-Hernandez, 89

F.3d at 493; and (2) where the alien pled guilty

to the underlying criminal offense in reliance

(at least in part) on the availability of sec.

212(c) relief. See Jideonwo, 224 F.3d at 697-701.

Neither scenario confronts us in this case. Lara-

Ruiz contested his removability before the IJ,

and as he conceded at oral argument, he fully

contested the state criminal charges and did not

enter a plea of guilty. He does not argue that

his expectation of the availability of the waiver

in any way influenced his litigation strategy

either in his state criminal proceedings or in

his removal proceedings. Indeed, he does not

argue that he performed any act or gave anything

up in reliance on the potential availability of

a sec. 212(c) waiver. The only relevant prior

conduct that could conceivably have been

influenced by such reliance is his commission of

the crimes, and we have already stated that "it

would border on the absurd" to argue that an

alien would refrain from committing crimes or

would contest criminal charges more vigorously if

he knew that after he had been imprisoned and

deported, a discretionary waiver of deportation

would no longer be available to him. See

LaGuerre, 164 F.3d at 1041. Thus, Lara-Ruiz

cannot seriously maintain that the application of

any rule barring discretionary relief from

removal or deportation would upset his settled

expectations sufficiently to trigger the

presumption against retroactivity./8

D. Equal Protection

Lara-Ruiz argues that, even if we conclude that

he has committed an aggravated felony and is

therefore removable, he should be eligible for a

waiver of inadmissibility under sec. 212(h) of

the INA, 8 U.S.C. sec. 1182(h)(1)(B). That

section allows the attorney general to waive the

application of various subsections of sec. 1182

(which classify certain aliens as ineligible for

admission to the United States for certain

approved equitable reasons.) However, it also

provides that "[n]o waiver shall be granted under

this subsection in the case of an alien who has

previously been admitted to the United States as

an alien lawfully admitted for permanent

residence if . . . since the date of such

admission the alien has been convicted of an

aggravated felony . . ." 8 U.S.C. sec.

1182(h)(2). The BIA has interpreted this latter

provision as barring consideration for sec.

212(h) relief for lawful permanent resident

aliens ("LPRs") who have been convicted of

aggravated felonies while allowing consideration

for such relief for aliens convicted of the same

offenses who have never been admitted as lawful

permanent residents. See In re Michel, Interim

Dec. No. 3335, 1998 WL 40407 (BIA 1998). Lara-

Ruiz contends that this draws an irrational and

unjustifiable distinction between LPRs and

illegal aliens which violates his right to equal

protection under the due process clause of the

Fifth Amendment.

This is a question of first impression in this

circuit./9 We begin our analysis by noting that

our review of decisions made by Congress in the

immigration context is extremely limited, and

that this is particularly true where the

challenged legislation sets criteria for the

admission or expulsion of aliens. "The power to

expel or exclude aliens [is] a fundamental

sovereign attribute exercised by the Government’s

political departments," which is "largely immune

from judicial control." Fiallo v. Bell, 430 U.S.

787, 792 (1977). "Over no conceivable subject is

the legislative power more complete than it is

over the admission of aliens." Id. (Internal

quotations omitted). In exercising its plenary

power in this area, "Congress regularly makes

rules that would be unacceptable if applied to

citizens," Congress’ decisions in this area are

"subject only to narrow judicial review." Id.

Therefore, we must uphold federal immigration

legislation which distinguishes between classes

of aliens if there is any "facially legitimate

and bona fide reason for its enactment." See

Turkhan, 188 F.3d at 828 (quotation omitted).

Under this highly deferential standard of review,

if "any reasonably conceivable state of facts" or

any "plausible reason" could provide a rational

basis for Congress’ decision to treat the classes

differently, our inquiry is at an end, see id. at

828-29, and we may not test the justification by

balancing it against the constitutional interest

asserted by those challenging the statute. See

Campos v. INS, 961 F.2d 309, 316 (1st Cir. 1992)

(citing Fiallo, 430 U.S. at 794-95).

We find that a rational basis exists for

Congress’ decision to declare only those

aggravated felons who have previously been

admitted as LPRs ineligible for sec. 212(h)

relief. One of Congress’ purposes in enacting

reforms to the INA through IIRIRA was to expedite

the removal of criminal aliens from the United

States. Eliminating the availability of sec.

212(h) relief for LPR aggravated felons would

eradicate one source of delay that might thwart

this effort. As the INS noted in its brief,

without section 1182(h)(2), an LPR who is

removable as an aggravated felon might apply to

adjust his status, and seek re-"admission" to the

United States as an LPR. If he could demonstrate

that the certain equitable considerations qualify

him for "readmission," then he could be granted

a waiver of inadmissibility, thereby evading

removal. This would subvert Congress’ intention

to make such aliens immediately removable. While

it might have been wiser, fairer, and more

efficacious for Congress to have eliminated sec.

212(h) relief for non-LPR aggravated felons as

well, the step taken by Congress was a rational

first step toward achieving the legitimate goal

of quickly removing aliens who commit certain

serious crimes from the country, and as such it

should be upheld. ("[A] legislature traditionally

has been allowed to take reform ’one step at a

time, addressing itself to the phase of the

problem which seems most acute to the legislative

mind,’ . . . and a legislature need not run the

risk of losing an entire remedial scheme simply

because it failed, through inadvertence or

otherwise, to cover every evil that might

conceivably have been attacked." McDonald v.

Board of Election Comm’rs of Chicago, 394 U.S.

802, 809 (1969) (internal quotations omitted)).

Moreover, LPRs enjoy rights and privileges by

virtue of their status which are not shared by

non-LPRs, and they typically have closer and

longer-standing ties to the United States through

employment and family relationships. Therefore,

Congress may rationally have concluded that LPRs

who commit serious crimes despite these factors

are uniquely poor candidates for relief from

removal through the "backdoor" of waiver of

inadmissibility. As the INS notes, the Purpose

and Summary of the Senate Judiciary Committee on

S. 1664 (ultimately enacted as IIRIRA) states

that

[a]liens who enter or remain in the United States

in violation of our law are effectively taking

immigration opportunities that might otherwise be

extended to others, potential legal immigrants

whose presence would be more consistent with the

judgment of the elected government of this

country about what is in the national interest."

Sen. Jud. Comm. Rep. No. 104-249 (April 10,

1996), 1996 WL 180026 at *7. In banning only LPR

aggravated felons from waiver eligibility,

Congress might well have found it significant

that, unlike non-LPR aggravated felons, such

aliens have already demonstrated that closer ties

to the United States and all of the benefits

attending LPR status were insufficient to deter

them from committing serious crimes. Therefore,

Congress might have reasoned that LPR aggravated

felons were a higher risk for recidivism, and

were generally less deserving of a second chance

than were non-LPR aggravated felons. Congress may

plausibly have concluded that, if one of these

groups should be allowed to apply for a second

chance, it should be the non-LPR aggravated

felons who did not have all of the benefits of

LPR status when they committed their crimes.

Therefore, we find that Lara-Ruiz has failed to

state a substantial equal protection claim.

CONCLUSION

We find that Lara-Ruiz committed the aggravated

felony of sexual abuse of a minor under 8 U.S.C.

sec. 1101(a)(43) (A). We find further that Lara-

Ruiz has failed to state any substantial

constitutional claims in challenging his final

order of deportation. Accordingly, we lack

jurisdiction to hear this appeal under 8 U.S.C.

sec. 1252(a)(2)(C), and Lara-Ruiz’ petition for

review is DISMISSED.

FOOTNOTES

/1 In considering whether Lara-Ruiz has stated

substantial constitutional claims, we need not

assert jurisdiction to hear the claims. Instead,

we merely assert jurisdiction to determine

whether we have jurisdiction to hear his claims.

See Morales-Ramirez, 209 F.3d at 981 n.1

(citations omitted).

/2 Lara-Ruiz also argued that finding aliens who

sexually abuse very young children removable

would be bad immigration policy because the

offenders in such cases are frequently the

victim’s parent, so deporting the offender would

often result in deporting the child victim as

well. We decline to consider this argument

because, while we have jurisdiction to review

final orders of deportation which raise

substantial constitutional issues, we do not have

jurisdiction to review such orders on policy

grounds. Moreover, even if we were to address it,

it strikes us that the child victim would be

deported in such cases only when the abusing

parent retains custody, which might well be the

exception rather than the rule.

/3 It is unclear from the record which documents the

BIA examined. The only documents in the record

which could be described as a "conviction

document" does not mention the age of the victim.

Moreover, the indictments charging Lara-Ruiz with

the offenses of which he was ultimately convicted

charge him with initiating contact between his

penis and the victim’s vagina, but do not mention

the victim’s age. The only charging documents in

the record which do mention her age are the

indictments for several offenses for which Lara-

Ruiz was never convicted. Finally, at another

point in its opinion, the BIA states that the

"record" reflects the age of the victim,

suggesting that it may have looked beyond the

charging and conviction documents to determine

the victim’s age.

/4 In addition, we note that the BIA has recently

interpreted "sexual abuse of a minor" under sec.

101(a)(43)(A) even more broadly than it did in

Lara-Ruiz’ case. See In re Rodriguez-Rodriguez,

Interim Dec. No. 3411, 1999 WL 731793 (BIA 1999)

(interpreting the phrase in reference to 18

U.S.C. sec. 3509(a)(8)’s definition of "sexual

abuse," and 18 U.S.C. sec. 3509(a)(9)(D)’s

definition of "sexually explicit conduct," and

holding that an alien committed sexual abuse of

a minor by intentionally exposing himself to a

child even though he never made physical contact

with the child).

/5 Lara-Ruiz was also charged with violating other

Illinois statutes which criminalized various

forms of sexual conduct with minors, and the

indictments for some of these charges state that

Lara-Ruiz’ victim was under thirteen years of

age. However, for reasons not explained in the

record, Lara-Ruiz was found not guilty of those

charges, so we may not consider the language in

those indictments in determining whether he

committed "sexual abuse of a minor."

/6 For example, he argues that he did not commit

sexual abuse of a minor under sec. 2243 because

his victim was not between the ages of 12 and 16.

Moreover, in urging us to interpret sec. 101(a)

(43)(A)’s definition of sexual abuse of a minor

strictly by reference to sec. 2243 on policy

grounds, he argues that it would be bad

immigration policy to deport aliens guilty of

sexually abusing "very young children," since the

abusers of such children are often parents of the

child victims, and therefore deporting the

offenders would often result in deporting the

child victims as well.

/7 While we do not decide the issue, we note that

had the INS charged Lara-Ruiz as removable for

having committed either of two alternative

"aggravated felonies" under sec. 101(a)(43)--

namely "a crime of violence" under sec.

101(a)(43)(F) or "rape" under sec. 101

(a)(43)(A)--we likely could have found him

removable without looking beyond the statutes of

conviction. However, as the INS charged him as

removable only on the ground that he committed

"sexual abuse of a minor," these issues are not

before us.

/8 Citing Turkhan and LaGuerre, Lara-Ruiz concedes

that he would have no colorable argument against

the "retroactive" application of a provision

eliminating sec. 212(c) relief if his crimes were

deportable offenses at the time he committed

them, but he argues that we should apply a

stricter presumption against retroactivity here

because the offenses of conviction were not

deportable offenses at the time they were

committed. Sexual abuse of a minor was added to

the list of deportable "aggravated felonies" in

IIRIRA sec. 321, which was enacted after Lara-

Ruiz’ conviction. Lara-Ruiz notes that, while it

might be implausible to suppose that an alien who

knows that he faces prison and deportation if

convicted would contest the charges any more

vigorously if he also knew that he would be

unable to apply for a waiver of deportation, the

matter is altogether different if the offense is

not deportable at the time of the charge. In that

case, Lara-Ruiz contends, the alien might be

inclined to plead guilty for convenience sake, in

reliance on the assumption that there would be no

adverse immigration consequences. In short, Lara-

Ruiz argues that changing the immigration

consequences after the plea is unfair "mouse

trapping." We reject this argument for three

reasons. First, it amounts to an attack on the

application of IIRIRA sec. 321 to his case, and

we foreclosed this argument in Xiong. In Xiong,

we noted that sec. 321(c) states that "the

amendments made by this section shall apply to

actions taken on or after the date of the

enactment of this Act, regardless of when the

conviction occurred," and we concluded that

"[a]ctions taken" are "actions and decisions of

the Attorney General acting through an

immigration judge or the BIA." Xiong, 173 F.3d at

607. We ruled that the BIA’s dismissal of Xiong’s

appeal, which occurred after April 1, 1997, was

an "action taken" that triggered the application

of the new definition of "aggravated felony." See

id. Therefore, as Lara-Ruiz’ appeal was dismissed

by the BIA on July 20, 1999, IIRIRA’s new

definition of "aggravated felony," which rendered

sexual abuse of a minor a removable offense,

applies in his case. Second, it has long been

recognized that Congress may deport aliens for

committing crimes which were not deportable

offenses at the time they were committed. See

Marcello v. Bonds, 349 U.S. 302, 314 (1955); Chow

v. INS, 113 F.3d 659, 667 (7th Cir. 1997)

(abrogated on other grounds) (collecting cases).

Finally, we agree with Lara-Ruiz that applying

such rules to aliens who conceded deportability

or pled guilty in reliance on the assumption that

they would not be deported might violate due

process or the presumption against retroactivity

(at least when such rules are applied

retroactively to pending removal proceedings).

However, this is not one of those cases. Lara-

Ruiz contested both the criminal charges and his

removal. He articulates nothing that he did or

refrained from doing in reliance on the

availability of the waiver. The cases forbidding

retroactive application of rules eliminating the

availability of a sec. 212(c) waiver require that

the alien actually relied on the availability of

the waiver. See, e.g., Morales-Ramirez, 209 F.3d

at 982 (citation omitted). Thus, the reliance

principle underlying the presumption against

retroactive application is not implicated here.

/9 We have previously upheld a similar distinction

created under a previous version of the INA,

which made deportable aliens ineligible to apply

for a waiver of deportation, but which left

excludable aliens convicted of the same

aggravated felonies eligible to apply for sec.

212(c) waiver of exclusion. We ruled that such a

distinction was rational because Congress may

have wanted to give alien felons who are already

in this country an extra incentive to leave on

their own initiative and expense, by giving them

the "opportunity to seek a waiver should they

seek to return to the country and by doing so

trigger exclusion proceedings." LaGuerre, 164

F.3d at 1041.