Solis-Muela v. I.N.S., SOLIS-MUEL
| Citation | 13 F.3d 372 |
| Decision Date | 30 December 1993 |
| Docket Number | P,SOLIS-MUEL,No. 92-9567,92-9567 |
| Parties | Rauletitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Daniel M. Kowalski, Denver, CO, for petitioner.
Stuart E. Schiffer, Acting Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, and Philemina McNeill Jones, Attorney, Dept. of Justice, Washington, DC, for respondent.
Before SEYMOUR, ANDERSON, and EBEL, Circuit Judges.
Raul Solis-Muela petitions for review of a decision of the Board of Immigration Appeals ("BIA") determining that Solis-Muela was deportable under section 241(a)(1) of the Immigration and Nationality Act ("Act"), 8 U.S.C. Sec. 1251(a)(1). We deny the petition for review and affirm the decision of the BIA.
Solis-Muela, a native and citizen of Mexico, was admitted to the United States in 1987. In 1988, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause ("OSC") charging him with deportability under section 241(a)(1) of the Act on the ground that he was an alien: (1) excludable at the time of entry under section 212(a)(9) of the Act because he had been convicted of a crime involving moral turpitude; and (2) excludable under section 212(a)(19) of the Act because he had procured a visa or other documentation by fraud or misrepresentation of a material fact.
These charges were based on the fact that in 1986, Solis-Muela had been arrested and convicted by a Wyoming state court of disposing of stolen property in violation of Wyo.Stat. Sec. 6-3-403(a). The Wyoming state court imposed the following sentence on Solis-Muela:
IT IS THE SENTENCE OF THE COURT that the defendant, Raul Solis, be incarcerated in the Wyoming State Penitentiary ... for a period of not less than 1 year nor more than 5 years.... IT IS FURTHER ORDERED that all but 365 days of said sentence are hereby suspended. The defendant shall be incarcerated in the Campbell County Detention Center for a period of 365 days with credit to be given for 107 days already served....
. . . . .
IT IS FURTHER ORDERED that if the defendant voluntarily submits to deportation IT IS FURTHER ORDERED that if the defendant is deported the defendant may not return illegally to the United States.
the defendant may be released from the Campbell County Detention Center immediately.
State v. Solis, Crim. No. 2191 (Dist.Ct.Wyo.), Admin.R. at 93. Solis-Muela elected to voluntarily submit to deportation, and he was immediately released from the county jail after serving 107 days, from where he returned to Mexico.
In March 1987, Solis-Muela applied for admission to the United States as an immigrant and received his immigrant visa. In so doing, he filled out an application for immigrant visa and alien registration, without the assistance of an attorney, in which he indicated he did not belong to any of the classes of aliens who are not admissible into the United States, including those convicted of a crime involving moral turpitude. He testified at his deportation hearing that he did not understand the meaning of the phrase "crime involving moral turpitude." Tr. of Hr'g, Admin.R. at 58. He further testified that when the consular officer asked him if he had been in jail, he stated that he had served 107 days in the county jail, that he did not have a court document with him, but that he did have a police certificate. Id. at 58-59. The police certificate which he showed to the officer states:
There is no record in this department that Raul Solis has ever been handled by reason for any violation or infraction of the law or ordinances of this city or county nor is any civil or criminal action pending against him at this time.
Police Clearance Letter, Admin.R. at 98. However, the following was typed in the lower left corner, beneath the notarization seal: "This person does have an arrest record through our department." Id.
Solis-Muela was thereafter issued a "green card" and entered the United States as a lawful resident alien until the OSC was issued in June 1988.
At his deportation hearing, Solis-Muela argued that he was not deportable under either charge. As to the first charge--having been convicted of a crime involving moral turpitude--he argued that his prior conviction for receiving stolen property fell within the so-called "petty offense" exception to deportability contained in section 212(a)(9). As to the second charge, he argued he did not obtain his visa by fraud or misrepresentation because he told the consular officer that he had been arrested and served 107 days in the county jail and he never attempted to hide the fact of his prior conviction.
After a hearing stretching over several days, an Immigration Judge ("IJ") found him deportable under both sections, and concluded he was ineligible for voluntary departure. The BIA affirmed the decision of the IJ and Solis-Muela filed this petition for review.
Solis-Muela argues the BIA erred in finding him deportable under section 241(a)(1), because his offense fell within the "petty offense" exception to excludability contained in section 212(a)(9), 8 U.S.C. Sec. 1182(a)(9). Under section 212(a) as it was written at the time of Solis-Muela's hearing in July, 1988:
(a) Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
(9) Aliens who have been convicted of a crime involving moral turpitude.... An alien who would be excludable because of the conviction of an offense for which the sentence actually imposed did not exceed a term of imprisonment in excess of six months ... may be granted a visa and admitted to the United States if otherwise admissible....
8 U.S.C. Sec. 1182(a)(9). 1 Solis-Muela argues that the "sentence actually imposed" for purposes of the statute was the 107 days he served on the condition that he voluntarily depart the United States, and he therefore qualifies for exception to deportation because that sentence did not exceed six months.
The IJ and the BIA rejected that argument. The BIA held that In re Solis-Muela, In Deportation Proceedings at 5 (citing Matter of Castro, 1988 WL 235473, 1988 BIA LEXIS 32, 19 I & N Dec. 692 (BIA 1988)). In this case, the BIA concluded that the Wyoming court "convicted the respondent of a crime involving moral turpitude, namely disposing of stolen property, and sentenced him to between one and five years imprisonment but suspended execution of all but one year of his sentence." In re: Solis-Muela, In Deportation Proceedings at 6. Thus, the BIA concluded that the " 'sentence actually imposed' in [Solis-Muela's] case was between one and five years imprisonment so that the respondent does not qualify for relief under the exception in section 212(a)(9) of the Act." Id. We agree with the BIA.
The government in deportation proceedings must establish its allegations by "clear, unequivocal, and convincing evidence." Woodby v. INS, 385 U.S. 276, 285, 87 S.Ct. 483, 488, 17 L.Ed.2d 362 (1966). We review the BIA's legal conclusions de novo. Kapcia v. INS, 944 F.2d 702, 705 (10th Cir.1991). Factual findings must be supported by substantial evidence. Rivera-Zurita v. INS, 946 F.2d 118, 120 (10th Cir.1991). Here, our task is to determine if the BIA correctly determined that Solis-Muela was deportable under a particular statutory provision. As the First Circuit has recently observed:
If the statutory language makes the intent of Congress clear and unambiguous, we give full effect to that intent; if the statute is "silent or ambiguous with respect to the specific issue," however, we do not simply impose our own construction on the statute, but give due deference to the BIA's interpretation of the INA [Immigration and Nationality Act] unless it is arbitrary, capricious, or manifestly contrary to the statute.
Mosquera-Perez v. INS, 3 F.3d 553, 555 (1st Cir.1993) (citing Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984)). Since the exact meaning of the phrase "sentence actually imposed"--i.e., whether it means, as Solis-Muela urges, the time actually served or whether it means, as the BIA found, the sentence imposed, regardless of whether the execution of the sentence is suspended and regardless of actual time served--is ambiguous, we must defer to the BIA's interpretation unless it is "arbitrary, capricious, or manifestly contrary to the statute." Mosquera-Perez, 3 F.3d at 555.
We cannot say that the BIA's interpretation is anything other than sensible and reasonable. It followed its earlier decision, Matter of Castro, 1988 WL 235473, 1988 BIA LEXIS 32, 19 I & N Dec. 692 (BIA 1988), in which the BIA reasoned that "when imposition of the sentence is suspended, no sentence has been actually imposed," whereas "where the execution of the sentence is suspended, a sentence has actually been imposed, even though probation may also be granted." 1988 WL 235473, 1988 BIA LEXIS 32 at * 6-7 (emphasis added). It gave two reasons for that conclusion. First, to hold otherwise would "ignore the plain meaning" of the term "sentence actually imposed." 1988 WL 235473, 1988 BIA LEXIS 32 at * 8. Second, the BIA observed that the previous version of the statute defined the "petty offense" exception by reference to the "punishment actually imposed" instead of the "sentence actually imposed." Cases interpreting that previous version had held that no "punishment" was imposed where execution of the sentence was...
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