Biskupski v. Atty Gen USA

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

9-25-2007

Biskupski v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-1887

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 06-1887

____________

DARIUSZ BISKUPSKI,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

____________

On Review of a Decision of the

Board of Immigration Appeals

(Agency No. A73-081-356)

Immigration Judge: Alberto J. Riefkohl

Argued: June 19, 2007

Before: McKEE, FISHER, and CHAGARES, Circuit Judges.

____________

(Filed: September 25, 2007)

Thomas E. Moseley, Esq., Argued

One Gateway Center, Suite 2600

Newark, NJ 07102

Attorney for Petitioner

James E. Grimes, Esq., Argued

William C. Minick, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box. 878

Ben Franklin Station

Washington, DC 20044

Attorney for Respondent

OPINION OF THE COURT

CHAGARES, Circuit Judge.

This case presents an issue of first impression in this Circuit

and requires us to interpret the meaning of “actions taken” in

section 321(c) of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110

Stat. 3009-546. For the reasons expressed below, we hold that

“actions taken” refers to orders and decisions of an immigration

judge (IJ) or the Board of Immigration Appeals (BIA) which apply

the “aggravated felony” definitions in 8 U.S.C. § 1101(a)(43) to

determine the availability of hardship relief. Because the BIA’s

final order denied petitioner Dariusz Biskupski relief on this basis,

we conclude that the order was an “action taken” within the

contemplation of section 321(c). As such, the expanded definition

in 8 U.S.C. § 1101(a)(43) for aggravated felonies applied to

Biskupski. Accordingly, the petition for review will be denied.

I.

In December 1988, at age twenty nine, Biskupski left his

native Poland and entered the United States. His visa allowed him

to remain until June 20, 1989. However, Biskupski overstayed his

visa. As of January 23, 1994, Biskupski worked as a taxi driver

and dispatcher for a company in Clifton, New Jersey. During his

off hours, he moonlighted as a chauffeur, making trips to the local

airports and occasionally to points beyond such as Washington

D.C., Philadelphia, and areas within New England. He advertised

2

his services almost exclusively within the local Polish community.

After returning home from work on or about January 22, his

then-girlfriend told Biskupski she had received a call to pick up

several Polish people in upstate New York and bring them to New

Jersey. Biskupski and his girlfriend departed, their destination

being a gas-station/restaurant called the Bear’s Den on Route 37,

which is in the middle of the Akwesasne Indian Reservation

bordering Canada in upstate New York. They arrived shortly after

midnight on January 23 and met the intended passengers.

Approximately eleven miles into the return trip, Biskupski

encountered a routine Driving While Intoxicated roadblock. State

police stopped Biskupski, and, after questioning him and his

passengers, the police surmised that Biskupski was transporting

illegal aliens. Although Biskupski maintained that he did not know

his passengers had illegally entered the United States, Biskupski

was arrested and charged with aiding and abetting alien smuggling,

a misdemeanor violation of 8 U.S.C. § 1324(a)(2)(A). He pleaded

guilty and, on January 31, 1994, he was sentenced to thirty days’

imprisonment and a $250 fine.

On January 25, 1994, the Immigration and Naturalization

Service (INS) 1 placed Biskupski in deportation proceedings by

serving him with an Order to Show Cause (OTSC). In the OTSC,

the government alleged that Biskupski was deportable under 8

U.S.C. § 1251(a)(1)(B) (remaining in the United States longer than

permitted), 8 U.S.C. § 1251(a)(1)(C)(i) (failing to maintain or

comply with the conditions of nonimmigrant status under which he

was admitted), and 8 U.S.C. § 1251(a)(1)(E)(i) (knowingly

assisting, aiding, or abetting another alien to enter illegally, within

1

On March 1, 2003, Congress transferred the INS’s

functions to the Bureau of Immigration and Customs Enforcement

(ICE) and the U.S. Customs and Immigration Service (USCIS) of

the United States Department of Homeland Security (DHS).

Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451

& 471, 116 Stat. 2135, 2192, 2195-97 & 2205 (codified at 6 U.S.C.

§§ 251, 271 & 291); see also Zheng v. Gonzales, 422 F.3d 98, 103

n.2 (3d Cir. 2005) (citing Knapik v. Ashcroft, 384 F.3d 84, 86 n.2

(3d Cir. 2004)).

3

five years of his entry into the United States).2 The government

subsequently withdrew the allegation that Biskupski was

deportable under 8 U.S.C. § 1251(a)(1)(E)(i), because the events

supporting his conviction occurred more than five years after

Biskupski’s 1988 admission into the United States.

At an immigration hearing in Newark, New Jersey on

December 19, 1996,3 the IJ found that the government had

established Biskupski’s prior conviction by clear and convincing

evidence. The IJ accepted Biskupski’s application for suspension

of deportation, but queried, in light of the passage of IIRIRA,

whether Biskupski’s conviction for alien smuggling would render

him statutorily ineligible for suspension of deportation. The IJ

heard testimony from Biskupski and his witnesses in support of his

application for relief. However, the hearing was continued to

permit the parties to address the legal issue of eligibility for

suspension. For reasons that are not clear, Biskupski’s case was

not reconvened until July 25, 2000. The proceedings were again

continued until the final hearing on August 11, 2003.

On April 20, 2005, the IJ issued a written decision,

superceding a prior oral decision. The IJ ruled that Biskupski’s

conviction for alien smuggling rendered him ineligible for

suspension of deportation and denied that application. The IJ also

denied Biskupski’s applications for asylum, withholding of

deportation and protection under the Convention Against Torture

(CAT). 4 Biskupski appealed the IJ’s decision to the BIA.

2

Section 1251 of Title 8 of the United States Code was

redesignated as § 1227 by the passage of IIRIRA in 1996. IIRIRA,

Pub. L. No. 104-208, § 305, 110 Stat. 3009-546, 3009-598 (1996).

3

Biskupski’s case was transferred from Boston,

Massachusetts to Newark, New Jersey on February 28, 1996.

4

United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,

1984, 1465 U.N.T.S. 85, implemented in the United States by the

Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.

105-277, § 2242, 112 Stat. 2681-761, 2681-822 (codified at 8

4

On March 7, 2006, the BIA dismissed the appeal, ruling that

Biskupski’s prior conviction under 8 U.S.C. § 1324(a)(2)(A) barred

eligibility for relief under former section 244 of the of the

Immigration and Nationality Act (INA), 8 U.S.C. § 1254 (1993).5

Under former section 244, an alien qualifies for discretionary

suspension of deportation by demonstrating both physical presence

in the United States for a continuous period of not less than seven

years immediately preceding the date of application for such relief

and good moral character. 8 U.S.C. § 1254(a)(1) (1993).

However, an alien “who at any time has been convicted of an

aggravated felony (as defined in subsection (a)(43) of this section)”

cannot demonstrate the requisite good moral character. 8 U.S.C.

§ 1101(f)(8). Here, the BIA found that Biskupski’s conviction was

for an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(N).

Therefore, Biskupski could not show the good moral character

necessary to be eligible for suspension of deportation. This petition

for review followed.

II.

Biskupski pleaded guilty to 8 U.S.C. § 1324(a)(2), which

states in pertinent part:

Any person who, knowing or in

reckless disregard of the fact that an

alien has not received prior official

authorization to come to, enter, or

reside in the United States, brings to

or attempts to bring to the United

States in any manner whatsoever, such

U.S.C. § 1231).

5

On appeal to the BIA, Biskupski did not raise any

challenges to the denial of his applications for asylum, withholding

of deportation or protection under CAT and, likewise, does not

raise any such challenges to this Court.

5

alien, regardless of any official action

which may later be taken with respect

to such alien shall, for each alien in

respect to whom a violation of this

paragraph occurs--

(A) be fined in accordance with Title

18 or imprisoned not more than one

year, or both[.]

This statute has been interpreted to include transporting illegal

aliens from one place to another within the United States. See,

e.g., Gavilan-Cuate v. Yetter, 276 F.3d 418, 419 n.1 (8th Cir. 2002)

(citing Matter of Ruiz-Romero, 22 I & N Dec. 486 (BIA 1999)).

When Congress added the “aggravated felony” provision to

the INA, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as

amended at 8 U.S.C. §§ 1101-1537) with the enactment of the

Anti-Drug Abuse Act of 1988, Pub L. No. 100-690, § 7347, 102

Stat. 4181, 4471 (1988), the statutory definition of “aggravated

felony” in 8 U.S.C. § 1101(a)(43) did not include offenses under 8

U.S.C. § 1324(a)(1)(A) or (2). In 1994, when the INS commenced

deportation proceedings against Biskupski, his crime of conviction

was still not among those constituting an “aggravated felony”

within the meaning of the INA.

It was not until 1996 that Congress enacted legislation

making certain changes significant to Biskupski’s situation.

Specifically, Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), in which it amended the

definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(N) to

include “an offense described in paragraph (1)(A) or (2) of section

274(a) [codified at 8 U.S.C. § 1324(a)] (relating to alien

smuggling) for which the term of imprisonment is at least 5 years.”

AEDPA, Pub. L. No. 104-132, § 440(e)(3), 110 Stat. 1214, 1278

(1996).

Shortly thereafter, Congress enacted IIRIRA, further

amending § 1101(a)(43)(N) by striking the minimum five-year term

6

of imprisonment requirement.6 IIRIRA, § 321(a)(8), 110 Stat. at

3009-628 (1996). Congress expressly mandated that the changes

made to the term “aggravated felony” in 8 U.S.C. § 1101(a)(43)

“applie[d] regardless of whether the conviction was entered before,

on, or after the date of enactment of this paragraph.” IIRIRA, §

321(b), 110 Stat. at 3009-628 (emphasis added). Congress dictated

that “[t]he 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.” IIRIRA, § 321(c), 110 Stat. at

3009-628 (emphasis added).

The term “actions taken” is not defined anywhere in

IIRIRA. Biskupski argues that the term relates to such “actions”

as the initiation of deportation proceedings against him in 1994 or

the submission of his application for suspension of deportation on

August 16, 1996.7 Because these “actions” occurred pre-IIRIRA,

Biskupski contends that the pre-IIRIRA definitions of aggravated

felony should apply, which did not encompass the crime for which

he was convicted. At the other end of the temporal spectrum, the

government argues that “actions taken” means final orders and

decisions of the IJ or the BIA in adjudicating Biskupski’s case.

The government asserts that because the BIA issued its final

decision on March 7, 2006, the IIRIRA amendments to the

definition of aggravated felony apply to render Biskupski ineligible

for suspension relief.

6

By the same amendment, Congress created an exception in

the case of a first offense where the alien affirmatively

demonstrated that he or she “committed the offense for the purpose

of assisting, abetting, or aiding only the alien’s spouse, child or

parent . . . .” IIRIRA, § 321(a)(8), 110 Stat. at 3009-628. This

exception does not apply to Biskupski.

7

We reject Biskupski’s argument that the IJ in Boston made

a ruling that he was eligible for suspension relief. The IJ’s passing

observation that Biskupski might be eligible for suspension of

deportation was not an “action taken” within the meaning of

section 321.

7

III.

We lack jurisdiction to review final orders of removal

against an alien removable as an aggravated felon. 8 U.S.C. §

1252(a)(2)(C); Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001).

We nonetheless retain jurisdiction to review questions of law, 8

U.S.C. § 1252(a)(2)(D), and we have jurisdiction to determine our

jurisdiction, United States v. Ruiz, 536 U.S. 622, 628 (2002).

Whether a statute has retroactive application and issues of statutory

construction are questions of law over which we exercise plenary

review. See Park v. Attorney General, 472 F.3d 66, 70-71 (3d Cir.

2006).

A.

Before turning to the issue of retroactivity, we will address

Biskupski’s argument that his conviction for a federal

misdemeanor was a crime insufficiently serious to be considered an

“aggravated felony” in this context.8 See Pet. Reply Br. at 13.

According to Biskupski, the word “felony” has one defining

characteristic, namely an offense subject to a sentence of one year

or more, see United States v. Graham, 169 F.3d 787, 792 (3d Cir.

1999) (“[U]nder federal law, a felony is defined as a crime that has

a maximum term of more than one year.”), which should be held to

inhere in every aggravated felony provision in § 1101(a)(43) unless

Congress evinces a contrary intent. Biskupski argues that

Congress’s removal of the five-year sentence requirement from §

1101(a)(43)(N) by IIRIRA demonstrates its intent to “fall[] back .

. . on the general requirement that an ‘aggravated felony’ be a

felony.” Pet. Reply Br. at 15.

Biskupski points to Lopez v. Gonzales, ___ U.S. ___, 127

S. Ct. 625 (2006), for the proposition that interpreting

8

We find no merit to Biskupski’s waiver and law of the case

arguments. Biskupski withdrew his argument that the present

aggravated felony definition does not include aiding and abetting

offenses. Letter from Thomas E. Moseley, Esq. to Marcia

Waldron, Clerk of the Court (April 25, 2007).

8

misdemeanor to mean felony is “just what the English language

tells us not to expect,” id. at 630, so Biskupski’s misdemeanor

conviction should not be held to constitute an aggravated felony.

The government responds that where Congress defines a term of art

like “aggravated felony” to mean something particular, as here –

alien smuggling defined by 8 U.S.C. § 1324(a)(2) – then alien

smuggling is an aggravated felony, even if technically only a

misdemeanor under federal law. Compare 18 U.S.C. § 3559(a)(6)

(classifying an offense with a maximum term of imprisonment of

one year or less but more than six months as a Class A

misdemeanor) with 8 U.S.C. § 1324(a)(2)(A) (providing a

maximum of one year imprisonment).9

Our analysis begins with the statutory text. If the text of the

statute is plain and unambiguous, then our analysis also ends there.

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). This

is so because our role “is to give effect to the will of Congress, and

where its will has been expressed in reasonably plain terms, ‘that

language must ordinarily be regarded as conclusive.’” Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982) (quoting

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.

102, 108 (1980)).

In this case, we are called upon to analyze whether the

definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(N)

includes the federal misdemeanor Biskupski committed. If, as

here, “a statute includes an explicit definition, we must follow that

definition, even if it varies from that term’s ordinary meaning.”

9

Biskupski lampoons the government’s argument by

quoting a passage from a well-known Lewis Carroll work: “‘When

I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it

means just what I choose it to mean – neither more nor less.’”

Through the Looking Glass, in The Complete Works of Lewis

Carroll 196 (1939).

9

Stenberg v. Carhart, 530 U.S. 914, 942 (2000); see also Meese v.

Keene, 481 U.S. 465, 484 (1987) (recognizing “the respect we

normally owe to the Legislature’s power to define the terms that it

uses in legislation”); Lawson v. Suwannee Fruit & S.S. Co., 336

U.S. 198, 201 (1949) (“Statutory definitions control the meaning

of statutory words . . . .”). Where a definition informs what a

particular term “means,” that definition will include whatever

express meanings follow. See Colautti v. Franklin, 439 U.S. 379,

392 n.10 (1979) (“As a rule, [a] definition which declares what a

term ‘means’ . . . excludes any meaning that is not stated.”)

(quotation marks and citation omitted) (alterations in original),

overruled in part on other grounds by Webster v. Reproductive

Health Servs., 492 U.S. 490 (1989).

By placing the term “aggravated felony” in quotations

followed by “means” Congress made absolutely clear that

“aggravated felony” is a term of art defined by the subsections that

follow. We must apply the definition of that term provided by

Congress. Congress plainly and unambiguously included the

offenses described in 8 U.S.C. § 1324(a)(1)(A) and (2) as part of

the definition of “aggravated felony” in § 1101(a)(43)(N).

Accordingly, we reject Biskupski’s argument that Congress meant

to “fall back” to the time-honored, one-year distinction between

felonies and misdemeanors. It is neither our task nor our

prerogative to rewrite the definition that Congress provided,

especially considering the traditional deference we accord to

Congress when it legislates in the area of immigration. See

Escobar v. Gonzales, 417 F.3d 363, 368 (3d Cir. 2005). Our

holding today is consistent with our decision in United States v.

Graham, supra, which applied the § 1101(a)(43) definition of

“aggravated felony” as incorporated into the sentencing guidelines,

see U.S.S.G. § 2L1.2(b)(1)(B), to determine increases to base

offense levels in the sentencing context. In Graham, the Court

considered “whether a misdemeanor can be an ‘aggravated felony’

under a provision of federal law even if it is not, technically

speaking, a felony at all.” 169 F.3d at 788. We answered that

question in the affirmative and determined that a misdemeanor

theft could be an aggravated felony under 8 U.S.C. §

10

1101(a)(43)(G).10

In sum, we hold that Biskupski’s misdemeanor conviction

for aiding and abetting alien smuggling under 8 U.S.C. §

1324(a)(2) constitutes an “aggravated felony,” as that term is

defined in 8 U.S.C. § 1101(a)(43)(N).

B.

We turn now to the issue of retroactivity and the dispute

over the meaning of “actions taken” in section 321(c) of IIRIRA.

The first question in determining whether a civil statute

applies retroactively is whether Congress has expressly provided

for retroactive application. Landgraf v. USI Film Prods., 511 U.S.

244, 280 (1994). Section 321(b) of IIRIRA is a clear expression of

Congress’s intent to apply the definition of “aggravated felony” in

§ 1101(a)(43)(N) retroactively. See INS v. St. Cyr, 533 U.S. 289,

318-19 (2001); accord Garrido-Morato v. Gonzales, 485 F.3d 319,

323 (5th Cir. 2007); Mohammed v. Ashcroft, 261 F.3d 1244, 1250

(11th Cir. 2001). Just as clearly, section 321(c) limits the

applicability of the new definitions of aggravated felony to “actions

taken” on or after September 30, 1996. The focus of section 321(c)

10

Other courts of appeals have followed this Court’s lead in

determining that certain misdemeanors may constitute aggravated

felonies under the definition set forth in § 1101(a)(43). See, e.g.,

United States v. Cordoza-Estrada, 385 F.3d 56 (1st Cir. 2004) (per

curiam) (misdemeanor assault); United States v. Gonzalez-

Tamariz, 310 F.3d 1168 (9th Cir. 2002) (misdemeanor battery);

United States v. Saenz-Mendoza, 287 F.3d 1011 (10th Cir. 2002)

(misdemeanor child abuse); United States v. Urias-Escobar, 281

F.3d 165 (5th Cir. 2002) (misdemeanor assault); Guerrero-Perez v.

INS, 242 F.3d 727 (7th Cir. 2001) (misdemeanor sexual abuse of

a minor); United States v. Christopher, 239 F.3d 1191 (11th Cir.

2001) (misdemeanor theft offense); United States v. Pacheco, 225

F.3d 148 (2d Cir. 2000) (misdemeanor domestic assault, theft);

Wireko v. Reno, 211 F.3d 833 (4th Cir. 2000) (misdemeanor

sexual battery).

11

is prospective, not retrospective. Biskupski argues on appeal that

although the definition of “aggravated felony” may apply

retroactively to his 1994 conviction, the crucial issue is whether the

language “actions taken” in section 321(c) should be interpreted

with a look backwards to preclude the application of the changes

effected by IIRIRA to cases, like his, that commenced pre-IIRIRA.

Although we have not yet addressed the meaning of the

phrase “actions taken,” several of our sister circuits have examined

the issue. Indeed, an argument similar to Biskupski’s was raised

in Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997). The

Court of Appeals for the Ninth Circuit described the issue as

follows:

[W]hile it is clear that it doesn’t matter

when the conviction occurred if the

IIR IR A “aggravated felony”

amendments apply, it is not clear that

those amendments apply. It is clear

enough that they apply to “actions

taken” after September 30, 1996, but

neither the text nor the legislative

history defines the “actions” that, if

“taken,” trigger the applicability of

IIRIRA § 321.

Id. at 856. In Valderrama-Fonseca, the alien was convicted of

burglary in 1985. Id. at 854. The INS initiated deportation

proceedings in October 1989. Id. at 855. In 1992, the IJ

determined that Valderrama was deportable for having been

convicted of a crime of moral turpitude and denied his request for

discretionary relief from deportation. Id. Valderrama appealed to

the BIA, which affirmed the IJ’s decision in June 1995. Id.

Prior to oral argument, AEDPA and IIRIRA took effect,

barring judicial review of final orders of deportation against

aggravated felons. The question before the court of appeals was

whether the IIRIRA “aggravated felony” amendments were

applicable to Valderrama’s case. The answer turned, as it does

here, on the meaning of the phrase “actions taken” in section

321(c).

12

The Valderrama-Fonseca court examined three possible

meanings of “actions taken” that could potentially trigger the

applicability of section 321:

One is to say that “actions taken”

refers to orders and decisions issued

against an alien by the Attorney

General acting through the BIA or

Immigration Judge. This makes

logical and practical sense, as “actions

taken” is easily understood to

encompass things done by an agency

to an alien. . . . Another possibility is

that “actions taken” refers to steps by

the alien, such as applying for

discretionary relief or petitioning for

review of the BIA's decision. . . . A

third possibility is the INS's preferred

construct that “actions taken” means

any action by anyone, including this

court. While the suggestion is not

untenable, as courts do act, it seems

implausible; it would mean that our

jurisdiction would depend on when we

got around to hearing a particular

petition and to taking the action that

would be an “action taken” within the

meaning of § 321(c).

Id. at 856.

Ultimately, the Court of Appeals for the Ninth Circuit

applied the first definition – that the phrase “actions taken” refers

to orders and decisions of the IJ and BIA. Because the decisions

of the IJ and the BIA pre-dated September 30, 1996, the effective

date of IIRIRA, the court concluded that “the gateway to IIRIRA’s

aggravated felony amendments ha[d] not been opened.” Id. at 857;

see also Xiong v. INS, 173 F.3d 601, 607 (7th Cir. 1999) (applying

the same definition of “actions taken” and holding that “the BIA’s

dismissal of Xiong’s appeal on August 21, 1999 was an action

13

taken that triggered the new definition of ‘aggravated felony’”);

Choeum v. INS, 129 F.3d 29, 37 (1st Cir. 1997) (“The first

definition is the strongest and most sensible: that ‘actions taken’

refers to actions and decisions of the Attorney General.”).

In Garrido-Morato v. Gonzales, 485 F.3d 319 (5th Cir.

2007), the INS commenced deportation proceedings in March 1996

against Garrido-Morato, a native Mexican who entered the United

States in 1986, charging her with overstaying her 72-hour visitor

visa. Id. at 320-21. The following events took place prior to the

enactment of IIRIRA: Garrido-Morato pled guilty to one count of

harboring aliens; a judgment of conviction was entered against her;

and she was sentenced to three years of probation. Id. at 321. On

September 10, 1996, she applied for suspension of deportation

under section 244 of the INA. Id. As in Biskupski’s case, her

actions of pleading guilty and filing for relief from deportation

predated the enactment of IIRIRA on September 30, 1996.

The crux of Garrido-Morato’s argument, like Biskupski’s,

was whether section 321(c) of IIRIRA applied to bar her eligibility

for suspension of deportation or whether application of section 321

was impermissibly retroactive. See id. at 323 (“The most favorable

argument to be made is that § 321(c) is the effective date provision

for the entire section: § 321(c) states to what and when the statute

itself (not merely its definitions) is to be applied; the statute is to be

applied to (1) ‘actions’ that are ‘taken’ (2) on and after the date of

enactment.”). After reviewing the possible meanings of “actions

taken,” the Court of Appeals for the Fifth Circuit applied the

definition espoused in Valderrama-Fonseca, specifically rejecting

Garrido-Morato’s position that “actions taken” refers to the actions

she took in pleading guilty and applying for hardship relief. The

court stated, in pertinent part:

Although “actions taken” may be

more inclusive, we fully agree that the

term includes actions and decisions of

the Attorney General acting through

an immigration judge or the BIA. But

it is also clear to us that “actions

taken” are actions taken under the

14

statute. Indeed, “actions taken” must

refer only to such actions taken under

the statute because § 321(c) is an

effective date provision for § 321 and

it thus only speaks to “actions” that

are “taken” under that section, such as

d e te rm in in g t h e m e a n in g o f

“aggravated felony” and thus the

availability of discretionary hardship

relief to such felons. It does not speak

to “actions” that are not taken

pursuant to the statute.

Id. at 324 (quotation marks and citation omitted). The IJ denied

Garrido-Morato’s hardship relief in March 1997. “[B]ecause that

ruling, i.e., ‘action taken,’ occurred after September 30, 1996, §

321(c) compelled the IJ to utilize the retroactive definition and find

Garrido’s conviction to be an aggravated felony.” Id.

In Tran v. Gonzales, 447 F.3d 937 (6th Cir. 2006), the Court

of Appeals for the Sixth Circuit reached a different interpretation

of section 321(c). The Tran court reasoned:

Section 321(c) explicitly limits the

application of the revised definition of

“aggravated felony” to proceedings

initiated after September 30, 1996.

Section 321(c) is a restriction on

Section 321(b). As the agency itself

has held, even though § 321(b)

established that the revised definition

of an aggravated felony can

encompass any conviction regardless

of when it occurred, “Section 321(c) .

. . limit[s] the definition . . . by stating

that the amendments will apply only to

‘actions taken’ after the date of the

IIRIRA’s enactment, September 30,

1996.” Matter of Truong, 22 I. & N.

Dec. 1090, 1096 (BIA 1999). We

15

need not go through a lengthy

statutory analysis to conclude that §

321(c) is not retroactive since the

language of the section speaks for

itself. Section 321(c) explicitly limits

the expanded definition of

“aggravated felony” to prospective

deportation proceedings. The problem

with Tran’s position is that this

proceeding began in December 2000,

well after § 321(c)’s temporal

limitation.

Id. at 941 (emphasis added) (alterations in original). Biskupski’s

deportation proceedings were initiated in January 1994, well before

the changes effected by IIRIRA. Understandably, Biskupski relies

heavily on Tran.

The Tran court eschewed critical analysis of the meaning of

the phrase “actions taken,” instead substituting in its place the

phrase “proceedings initiated.” We can find no support for this

interpretation either in case law or statutory text. Even the case

cited for support, Matter of Truong, supra, applied the Valderrama-

Fonseca definition of “actions taken.” Accordingly, we decline to

follow Tran.

We adopt the definition of “actions taken” articulated by the

Garrido-Morato court. Specifically, the definition of “aggravated

felony,” as amended by AEDPA § 440(e) and IIRIRA § 321(a), is

applicable to “actions taken,” which we hold to mean orders or

decisions of the IJ or BIA which apply the “aggravated felony”

definitions and thus determine the availability of discretionary

hardship relief to such felons. This definition of “actions taken”

makes sense considering that until a final agency order is issued by

either an IJ or the BIA, an alien remains the subject of

administrative adjudication “and has . . . not established any right

to the benefit he is seeking to obtain by his application.” Ortiz v.

INS, 179 F.3d 1148, 1156 (9th Cir. 1999) (quotation marks

omitted). In the present case, the BIA determined that Biskupski

was ineligible for suspension of deportation as an aggravated felon

16

on March 7, 2006, well after the IIRIRA amendments took effect.

The BIA must apply the law existing at the time of its review, id.,

and we conclude that there was no impermissible retroactive effect

in doing so.

IV.

Because we hold that Biskupski’s federal misdemeanor

conviction constitutes an “aggravated felony” within the meaning

of 8 U.S.C. § 1101(a)(43)(N) and because we conclude that the

statute is not impermissibly retroactive as applied to Biskupski, we

will deny the petition for review.

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