The petitioner in this case, a Mr. Alberto-Gonzalez, came to the U.S. in 1965, when he was four years old.  In 1986 he was convicted of burglary and placed in deportation proceedings. An immigration judge subsequently granted him a waiver of deportation under INA section 212(c).  In 1991 Alberto-Gonzalez was convicted of receipt of stolen property, but the record in this case did not establish the term of incarceration, if any, to which he was sentenced. In 1994 he was convicted of burglary and received a sentence of 79 days.  In 1994 the INS initiated deportation proceedings against him for having been convicted of two crimes of moral turpitude.  At Alberto-Gonzalez’s deportation hearing in May 1996, the IJ denied his application for a 212(c) waiver.  In 1997, the BIA dismissed his appeal of the waiver denial, finding that the enactment of the AEDPA (with its restrictions on 212(c) waivers) made Alberto-Gonzalez ineligible for that relief.  Alberto-Gonzalez filed a petition for review of that decision with the court of appeals.

On appeal, the court first noted that under Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), the BIA’s reliance on the AEDPA restrictions in denying Alberto-Gonzalez’s 212(c) application was clearly wrong because he was placed in deportation proceedings before the April 24, 1996, enactment of the statute (see "Ninth Circuit Finds Habeas Jurisdiction Survives AEDPA and IIRIRA; Pending Cases Unaffected by AEDPA Restrictions on 212(c) Relief," Immigrants’ Rights Update, Feb. 11, 2000, p. 4).  However, the court first had to determine whether it retained jurisdiction over the petition before it could correct the BIA’s error.

Towards that end, the court examined whether Alberto-Gonzalez’s criminal convictions subject him to the bars to appellate jurisdiction contained in IIRIRA section 309(c)(4)(G).  One of these applies to individuals who are deportable for having been convicted of two or more crimes of moral turpitude, provided that either of the two convictions would, by itself, constitute a deportable offense under the ground of deportability for a single crime of moral turpitude.  Prior to the AEDPA, the "single crime of moral turpitude" ground required both a conviction for a crime of moral turpitude and a sentence of confinement, or actual confinement, for one year or longer.  The AEDPA expanded this ground to apply to individuals convicted of a crime of moral turpitude "for which a sentence of one year or longer may be imposed."  However, the AEDPA expressly limited this expanded definition to apply only to deportation proceedings initiated after the law’s enactment.  The court therefore concluded that since Alberto-Gonzalez was sentenced only to 79 days’ incarceration for the burglary conviction the bar to jurisdiction triggered by the commission of two crimes of moral turpitude does not apply to him.

Section 309(c)(4)(G) of the IIRIRA also bars individuals convicted of an aggravated felony from obtaining appellate court review of any deportation order entered against them.  The definition of "aggravated felony" includes a "theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." INA § 101(a)(43)(G).  In this case, the government contended that the statute’s reference to "term of imprisonment" should be interpreted to mean the potential sentence that the judge in the criminal case could have imposed.  The court rejected this argument, holding that the relevant term of imprisonment is the actual sentence imposed.  The court found that this interpretation is supported by IIRIRA section 322, which provides that any reference to a "term of imprisonment" in the statute "is deemed to include the period of incarceration or confinement ordered by a court of law, regardless of any suspension of the imposition or execution of that imprisonment or sentence."

Moreover, in some other subsections of the INA’s aggravated felony definition, Congress expressly refers to certain convictions for which a sentence of a particular length "may be imposed."  The court reasoned that had Congress intended the reference to the term of imprisonment for theft and burglary offenses in section 101(a)(43)(G) to apply to potential sentences, Congress would have so indicated, as it did in these other subsections.

The court concluded that Alberto-Gonzalez’s burglary conviction is not an aggravated felony because his actual sentence was only 79 days.  As for his conviction for receipt of stolen property, the record did not indicate the length of the sentence that was imposed, although the maximum sentence for such a conviction was exactly one year.  However, the Ninth Circuit noted that in this case, the government had withdrawn its contention that Alberto-Gonzalez was an aggravated felon because of his conviction for receipt of stolen property.  Concluding that in the absence of any evidence to the contrary neither conviction constituted an aggravated felony, the court affirmed its jurisdiction over the petition for review.  As noted above, the court then remanded the case to the BIA to consider Alberto-Gonzalez’s application for a 212(c) waiver.

Alberto-Gonzalez v. INS, __ F.3d __, No. 97-70473 (9th Cir. June 6, 2000).