Choeum v. I.N.S.

• Decision Date: 09 May 1997
• Docket Number: Nos. 96-1446,97-1552,s. 96-1446
• Citation: 129 F.3d 29
• Parties: Ran CHOEUM, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 29

129 F.3d 29

Ran CHOEUM, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 96-1446, 97-1552.

United States Court of Appeals First Circuit.

Heard May 9, 1997.

Decided Nov. 5, 1997.

Richelle S. Kennedy, Boston, MA, with whom Steven W. Hansen and Bingham, Dana & Gould LLP, were on brief, for petitioner.

David V. Bernal, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, Department of Justice, Washington DC, with whom Philemina McNeill Jones, Assistant Director, and Frank Hunger, Assistant Attorney General, Civil Division, Department of Justice, were on brief, for respondent.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

The difficulty of wending through this country's immigration laws--for the immigrants involved, for the courts, and even for the federal agencies charged with enforcing the laws--is illustrated by this case. For the courts, what is involved is properly ascertaining congressional intent in light of constitutional guarantees in decision of cases. For this Cambodian immigrant, Ran Choeum, what is involved is whether she will be deported, possibly back to that war-torn land she left when she was a child. She petitions for review of two decisions of the Board of Immigration Appeals ("BIA"), one dated February 9, 1996, denying her applications for asylum and withholding and for discretionary waiver, and one dated April 22, 1997, denying her motions to reopen.

In the interim, the complexity of the immigration laws was enhanced by two new statutes. On April 24, 1996, the Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), was signed into law. On September 30, 1996, (the same day Choeum moved to reopen before the BIA) the Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"), was signed into law. Both statutes contain jurisdiction-stripping provisions removing from the federal circuit courts of appeals their previous jurisdiction over certain categories of final orders of deportation.

This case was originally argued on May 9, 1997. In a decision dated July 2, 1997, we upheld the decisions of the BIA on reasoning which rejected particular arguments by both sides. Each party filed petitions for rehearing. The Immigration and Naturalization Service (INS), in its rehearing petition, for the first time raised a new argument that this court lacked jurisdiction to review both of the BIA orders because AEDPA § 440(a) precludes jurisdiction over deportations for "aggravated felonies" under IIRIRA § 321.

It would have been vastly preferable, of course, for the INS to have asserted this jurisdictional argument initially, and we have some concern about the government's burdening of immigrants with the obligation to respond to new-found statutory interpretations by the INS after a case has been heard and decided. ¹ Nonetheless, because rehearing was timely sought and parties may not waive issues of subject matter jurisdiction, ² we granted rehearing on particular issues. We withdraw our earlier opinion and restate in this opinion those of our earlier conclusions which remain pertinent. We conclude that we have jurisdiction to review the first decision of the BIA, which requires deportation, and sustain that decision on its merits. We conclude that we lack jurisdiction over the second BIA decision, denying Choeum's petition to reopen.

I.

Ran Choeum, an immigrant from Cambodia, pleaded guilty in New York state court to charges of burglary and kidnapping. The charges stemmed from a crime in which Choeum's boyfriend, seeking to settle a family grievance, murdered two elderly relatives of his sister's fiance. Choeum, who left the scene before the murders took place, pleaded guilty to burglary and kidnapping in order to avoid a possible murder conviction under the felony murder rule. While Choeum was in prison, deportation proceedings against her commenced.

Choeum seeks review of the BIA order of deportation of April 24, 1996. She argues that AEDPA changes the standard for determining whether an alien is eligible for withholding of deportation. She also argues that the Attorney General's regulation under which her application for asylum was denied exceeds the authority delegated to the Attorney General by Congress. Finally, she contends that the BIA abused its discretion in failing to grant her discretionary relief from deportation. She also petitions for review of the BIA's decision of April 22, 1997, denying her motion to reopen.

The INS, for its part, argues that, under AEDPA, this court lacks jurisdiction to review Choeum's petitions. The jurisdictional argument comes in two parts. First, the INS argues that this court has no jurisdiction over either petition for review because AEDPA § 440(a), 8 U.S.C. § 1105a(a)(10), removes jurisdiction over deportations for "aggravated felonies" as that term is more broadly defined in IIRIRA § 321(a), 8 U.S.C. § 1101(a)(43). In light of the effective date provided in IIRIRA § 321(c), we agree that there is no jurisdiction over the second petition on this ground, but the first petition survives this attack. Second, the INS argues there is still no jurisdiction over the first petition for review because she is an alien who has committed a firearms offense under 8 U.S.C. § 1251(a)(2)(C), in this case, burglary, and AEDPA § 440(a) does not permit review of deportations based on such grounds. We hold that judicial review remains available because in the agency deportation proceedings, Choeum was charged with deportability based only on her kidnapping offense, which is a crime of moral turpitude under 8 U.S.C. § 1251(a)(2)(A)(i), and not with a firearms offense.

We further hold that the INS may not substitute alternative grounds for deportation at this stage in the proceedings, and that its argument fails both as a matter of statutory construction and because it raises due process concerns under the Constitution. Therefore, AEDPA does not deprive this court of jurisdiction to hear Choeum's first petition. Choeum's legal arguments, however, while ably made, do not convince us that the BIA erred in denying Choeum the various forms of relief sought. Accordingly, the BIA's decision is affirmed.

II.

Ran Choeum was born in a small Cambodian village in 1969. She was one of twelve children; her father was a soldier and her mother supported the family by rice farming. In 1973, her father was killed. The Khmer Rouge came to power in the area in 1975, and Choeum's mother, fearing retaliation for her husband's military activities, fled with her children to another village. Choeum's mother died in 1978 of starvation and illness. In 1979, Choeum's oldest sister brought Choeum and two other sisters, the only surviving members of the family, to a refugee camp in Thailand; they lived in various camps for the next five years.

On March 27, 1985, Choeum and her sisters were admitted to the United States as refugees; Choeum was later granted permanent resident status, retroactive to that date. The Choeums' sponsors helped them to obtain welfare and housing. Choeum, who was fifteen at the time, had never been to school in Cambodia and spoke no English. Choeum briefly attended high school in Brooklyn, but dropped out when she became pregnant by her boyfriend, a Cambodian immigrant named Lak Ling. Choeum's son Wicky was born on January 2, 1987. At Lak Ling's request, Choeum and her son moved to Philadelphia to live with his relatives.

In June 1988, Lak Ling, Choeum and the baby travelled to New York for Ling's sister's engagement party. When they arrived at Ling's parents' house, they learned that the sister, who was only fourteen, and her fiance, a twenty-eight year old Cambodian man, had disappeared and that the fiance's family had not paid the $2,000 dowry owed Ling's family.

The next night, June 5, Choeum went outside to buy ice cream for her son. She saw Ling in a car with three Chinese men she did not know. Ling told her to get in the car, and told her that they were going to get his sister. When they arrived at a large apartment house on Ocean Avenue, Brooklyn, they all went upstairs and Ling told Choeum to knock on the door of the apartment where Ling's sister's fiance's parents lived. No one answered. After driving around, they returned to the house and the Chinese men knocked on the door. One of the men was carrying a paper bag.

This time, the door was opened. The men went in, and Choeum followed. The Chinese men began searching the apartment, while Ling talked to his sister's fiance's parents. The Chinese men began piling up money and jewelry on the floor in front of the parents. One of the Chinese men brought two young children into the room. Ling instructed them to tie the children up. Ling assured Choeum that he was just trying to scare the parents into revealing where his sister was. The men brought the children into another room, took out a knife, cut the telephone cord, and bound the children with it. One of the children says that Choeum helped tie up the children and put tape on their mouths. According to Choeum, she merely watched, and then she noticed that her boyfriend was holding a gun. Choeum asserts that she became scared, went back into the other room, and untied the children; the Immigration Judge, however, did not credit this testimony. One of the men yelled at her to get out when he saw her near the children. All four men then screamed at Choeum to leave and wait in the car. She went outside and waited. When the men returned to the car fifteen minutes later, she asked if anything had happened; Ling assured her that everything was fine. Choeum returned to Ling's parents' house.

The next morning, Choeum was arrested. It was then that she learned that the two adults at the Ocean Avenue apartment had been murdered. She was charged with a variety...