179 F.3d 776 (9th Cir. 1999), 98-50251, United States v. Estrada-Torres

Docket Nº:98-50251
Citation:179 F.3d 776
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARCELO ESTRADA-TORRES, Defendant-Appellant
Attorney:Benjamin L. Coleman, Federal Defender, San Diego, California, for the defendant-appellant. Natalie J. Villaflor and Samuel W. Bettwy, Assistant United States Attorneys, San Diego, California, for the plaintiff-appellee.
Judge Panel:Before: Procter Hug, Jr., Chief Judge, James R. Browning, Circuit Judge, and Thomas S. Zilly, [1] District Judge.
Case Date:June 07, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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179 F.3d 776 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

MARCELO ESTRADA-TORRES, Defendant-Appellant

No. 98-50251

United States Court of Appeals, Ninth Circuit

June 7, 1999

         Argued and Submitted February 4, 1999, Pasadena, California

         Appeal from the United States District Court for the Southern District of California. D.C. No. CR-97-02378-1-BTM. Barry T. Moskowitz, District Judge, Presiding.

         Benjamin L. Coleman, Federal Defender, San Diego, California, for the defendant-appellant.

         Natalie J. Villaflor and Samuel W. Bettwy, Assistant United States Attorneys, San Diego, California, for the plaintiff-appellee.

         Before: Procter Hug, Jr., Chief Judge, James R. Browning, Circuit Judge, and Thomas S. Zilly, 1 District Judge.

          OPINION

Page 777

         PER CURIAM

         Marcelo Estrada-Torres seeks dismissal of his indictment for illegally entering the United States in violation of 8 U.S.C. § 1326. Alternatively, he argues that the district court erred by imposing a sixteen-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

         I.

         Estrada-Torres entered the United States in the late 1980s and became a legal permanent resident soon thereafter. In August 1996, he pled guilty to violating Cal. Health & Safety Code § 11360(a) (unlawful transportation, importation, sale, or gift of marijuana). On October 4, 1996, he was served with an Order to Show Cause and Notice of Hearing alleging he was deportable because he had been convicted of violating a law relating to a controlled substance. See 8 U.S.C. § 1251(a)(11) (1997) (amended and transferred to 8 U.S.C. § 1227(a)(2)(B)).

         At a deportation hearing held on October 10, 1996, an immigration judge ordered Estrada-Torres deported. On May 1, 1997, Estrada-Torres was arrested by California police for drinking in public. On August 20, 1997, he was indicted as a previously deported alien found in the United States under 8 U.S.C. § 1326(a) and (b)(2). 2 He entered a conditional

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guilty plea, preserving various issues for appeal.

          On appeal, Estrada-Torres argues that (1) his underlying deportation order violated his right to equal protection, (2) use of that deportation order in his subsequent prosecution for illegal entry violated his right to due process, and (3) the district court erred in increasing his base offense level.

         II.

         Estrada-Torres argues that he was denied equal protection guaranteed by the Due Process Clause of the Fifth Amendment because legal permanent residents in deportation proceedings like himself were not permitted to apply for discretionary relief pursuant to 8 U.S.C. § 1182(c) (1997), although similarly situated legal permanent residents in exclusion proceedings were permitted to apply for such relief. 3 We disagree.

          As originally enacted, 8 U.S.C. § 1182(c) (1952) permitted discretionary relief for certain excludable aliens. However, the Board of Immigration Appeals (BIA) applied 8 U.S.C. § 1182(c) (1952) to legal permanent residents in deportation proceedings who had temporarily left the United States and returned, see Matter of G- A-, 7 I. & N. Dec. 274 (BIA July 19, 1956), although not to those who had never left the United States. See Arias-Uribe v. INS, 466 F.2d 1198, 1199-200 (9th Cir. 1972).

         The Second Circuit held there was no rational basis for treating legal permanent residents in deportation proceedings who had never left the United States differently than those who had left temporarily and sought to return. See Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976). We followed the Second Circuit, stating the statute, as interpreted by the BIA, " created a distinction that lacked a rational basis." Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir. 1981). We held that " § 1182(c) relief cannot constitutionally be denied to an otherwise eligible alien who is deportable . . . ." Id.

         In 1990, Congress amended 8 U.S.C. § 1182(c) to make discretionary relief unavailable to legal permanent residents who had been convicted of one or more aggravated felonies and served a term of imprisonment of at least five years. See 8 U.S.C. § 1182(c) (1991). The 1990 amendment made no distinction between legal permanent residents in deportation proceedings and those in exclusion proceedings.

         Effective April 24, 1996, Congress amended 8 U.S.C. § 1182(c) to make discretionary relief unavailable to legal permanent residents " who [are] deportable by reason of having committed any criminal offense covered [by various subsections of 8 U.S.C. § 1251(a)(2)]" 8 U.S.C. § 1182(c) (1997) (emphasis added). In May 1997, the BIA held that the use of the term " deportable" meant the 1996 amendment barring discretionary relief applied only to legal permanent residents in deportation proceedings, reinstating the distinction between legal permanent residents in deportation and exclusion proceedings that had been rejected uniformly by federal courts following the Francis decision fifteen years earlier. See In re Samuel Fuentes-Campos, Int. Dec. 3318

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(BIA May 14, 1997). Estrada-Torres argues that 8 U.S.C. § 1182(c), as interpreted by the BIA, violates his equal protection rights. 4

          We defer to the BIA's interpretation of immigration laws unless the interpretation is " demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute." Bui v. INS, 76 F.3d 268, 269-70 (9th Cir. 1996). With regard to 8 U.S.C. § 1182(c), we agree with a number of district courts which have found the BIA's interpretation clearly contrary to the plain meaning of that statute. See, e.g., Walters v. Reno, 16 F.Supp.2d 166, 170 (D. P.R. 1998); Vargas v. Reno, 966 F.Supp. 1537, 1545 (S.D. Cal. 1997); Jurado-Gutierrez v. Greene, 977 F.Supp. 1089, 1093 (D. Colo. 1997).

          According to 8 U.S.C. § 1251(a), which contains the criminal offenses referred to in 8 U.S.C. § 1182(c), the definition of deportable aliens includes all classes of excludable aliens. Thus, the plain language of 8 U.S.C. § 1182(c) applies both to aliens who have never left the United States as well as to aliens who have left for only a short period of time. See Vargas, 966 F.Supp. at 1545. Moreover, 8 U.S.C. § 1182 is titled " Excludable Aliens." Therefore, it makes no sense to apply 8 U.S.C. § 1182(c) to bar discretionary relief to aliens in deportation proceedings while allowing such relief to aliens in exclusion proceedings.

         We completely agree with the following analysis of the...

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