Chong v. Quarantillo

• Citation: 264 F.3d 378
• Decision Date: 01 December 2000
• Docket Number: No. 00-1428,00-1428
• Parties: (3rd Cir. 2001) LEE MOI CHONG, APPELLANT v. DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE, ANDREA QUARANTILLO Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 378

264 F.3d 378 (3rd Cir. 2001)

LEE MOI CHONG, APPELLANT v. DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE, ANDREA QUARANTILLO

No. 00-1428

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: December 1, 2000

Filed September 5, 2001

On Appeal from the United States District Court for the District of New Jersey District Judge: William G. Bassler (D.C. No. 99-CV-03466) [Copyrighted Material Omitted]

Stanley H. Wallenstein, Esq. (Argued) 41-43 Beekman Street 3rd Floor New York, NY 10038, Counsel for Appellant

John M. McAdams, Jr., Esq. (Argued) David W. Ogden, Assistant Attorney General Terri Jane Scadron, Senior Litigation Counsel U.S. Department of Justice Civil Division Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, D.C. 20044, Counsel for Appellee

Before: Becker, Chief Judge, Rendell, and MAGILL,^* Circuit Judges

OPINION OF THE COURT

Magill, Senior Circuit Judge.

Lee Moi Chong appeals the District Court's denial of her habeas petition seeking relief from a final order of removal by the Board of Immigration Appeals (the "Board"). Chong argues that the Board violated her due process rights, the Immigration and Nationality Act (the "INA"), and Immigration and Naturalization Service (the "INS") regulations in determining that she is ineligible for withholding of removal. We affirm.

I.

Chong, a Malaysian citizen, became a permanent resident of the United States in 1991. In May 1997, a federal district court convicted Chong of conspiracy to distribute heroin and possession of heroin with intent to distribute, in violation of 21 U.S.C. SS 846 and 841(b). The district court sentenced Chong to time served, which amounted to two years imprisonment. The court departed downward from the minimum seventy-month sentence due to Chong's cooperation with the government.

Based on Chong's drug convictions, the INS commenced removal proceedings. The INS claimed that it could remove Chong because her convictions constituted aggravated felonies and related to a controlled substance. See 8 U.S.C. S 1227(a)(2)(A)(iii) (2000); id. at S 1227(a)(2)(B)(i). In August 1998, Chong conceded removeability and an immigration judge (the "IJ") ordered Chong deported to Malaysia.

Chong subsequently filed a motion with the IJ requesting a hearing to determine her eligibility for withholding of removal. The INA provides that "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. S 1231(b)(3)(A) (2000). Chong claimed that the Malaysian government would prosecute her for her American drug convictions because she is ethnic Chinese. The government argued that Chong was ineligible for withholding of removal because her drug convictions constitute a "particularly serious crime." Id. at S 1231(b)(3)(B)(ii). An exception to S 1231(b)(3)(A) applies if

the alien, having been convicted by a final judgment of a particularly serious crime[,] is a danger to the community of the United States.... [A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least five years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of the sentence imposed, an alien has been convicted of a particularly serious crime.

Id. at S 1231(b)(3)(B).

After granting Chong a stay of removal, the IJ denied Chong an individualized hearing, reasoning that her drug convictions constitute per se "particularly serious crimes." The IJ certified his decision to the Board. Subsequently, the Board issued two opinions that hold that determining whether an alien convicted of an aggravated felony and sentenced to less than five years imprisonment has been convicted of a "particularly serious crime" requires an individualized examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. In re L-S-, Interim Decision 3386, 1999 WL 219344 (BIA Apr. 16, 1999); In re S-S-, Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21, 1999). Interpreting the Board's opinions to require an individualized hearing, the IJ sent a letter to the Board requesting it to remand Chong's case for a hearing. Chong also requested that the Board remand her case to the IJ so the IJ could make an individualized examination of her conviction.

On July 12, 1998, the Board modified, but affirmed, the IJ's decision. The Board held that Chong was ineligible for withholding of removal because she had committed a "particularly serious crime." The Board noted that although Chong's two-year sentence is below the five-year term that the INA requires to be considered a per se "particularly serious crime," the district court departed from the minimum sentence due to Chong's assistance to the government. The Board stated: "This is different from a sentence reduction due to a minor role in the offense or other mitigating factors." The Board also examined the complaint against Chong and asserted that "over several years, [Chong] handled money derived from selling drugs and arranged telephonic connections for people involved in the conspiracy to promote the distribution of large amounts of heroin." Alternatively, the Board held that Chong failed to show that a return to Malaysia would threaten her freedom due to her Chinese ethnicity.

Chong then filed a habeas petition in the District Court under 28 U.S.C. S 2241, arguing that the Board violated her due process rights and erred in determining that she was ineligible for withholding of removal. On September 3, 1999, while Chong's habeas petition was pending in the District Court, the INS deported her to Malaysia. The District Court denied Chong's petition on February 29, 2000. The District Court held that neither due process nor the INA required the Board to provide Chong with an individualized hearing to determine whether she committed a "particularly serious crime." The District Court also held that the Board did not violate Chong's due process rights because the Board: (1) provided Chong with adequate notice; (2) did not deprive Chong of an opportunity to be heard; and (3) based its decision on a permissible interpretation of the INA under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).¹ Chong appeals, claiming that the Board violated (1) her due process rights, (2) the INA, and (3) INS regulations.

II.

A. Jurisdiction

We initially must examine a number of jurisdictional issues to determine whether we can entertain Chong's appeal. First, the Supreme Court recently resolved a circuit split by holding that neither the Antiterrorism and Effective Death Penalty Act of 1996 nor the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 repeal district courts' jurisdiction to review aliens' habeas petitions filed under 28 U.S.C. S 2241(c). INS v. St. Cyr, 121 S. Ct. 2271, 2287 (2001); accord Liang v. INS, 206 F.3d 308, 317 (3d Cir. 2000). Second, S 2241(c)'s admonition that "habeas corpus shall not extend to a prisoner unless" the prisoner is "in custody" does not deprive us of jurisdiction to review Chong's petition. 28 U.S.C. S 2241(c) (2000). Chong filed her habeas petition on July 22, 1999. On September 3, 1999, while Chong's petition was pending in the District Court, the INS deported her to Malaysia. The District Court denied Chong's petition on February 29, 2000. We hold that Chong is "in custody" within the meaning of S 2241(c) notwithstanding her removal, because we measure custody at the time Chong filed her petition. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975) ("The `in-custody' jurisdictional requirement is determined as of the date the petition is filed in the district court.").

Finally, we must determine whether an Article III, S 2 case or controversy continues to exist despite Chong's deportation. Regardless of whether an Article III,S 2 case existed during the District Court proceedings, Chong must show the subsistence of a case or controversy in this Court. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990). Although the parties did not raise the case or controversy issue in their original briefs, we must resolve the issue because it implicates our jurisdiction. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978); Rogin v. Bensalem Township, 616 F.2d 680, 684 (3d Cir. 1980) ("Inasmuch as mootness would divest us of jurisdiction to consider this appeal, we are obligated to address this issue as a threshold matter.") (footnote omitted).

We acknowledge that we previously have suggested that it is within our discretion to consider a mootness question not raised by the parties. See, e.g., Jersey Cent. Power & Light Co. v. Lacey, 772 F.2d 1103, 1107 n.8 (3d Cir. 1985) ("As mootness is a jurisdictional question, we may consider it sua sponte.") (emphasis added). However, the Supreme Court has held that courts must decide Article III standing issues, even when not raised by the parties, before turning to the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90 (1998) (stating that " `a court is bound to ask and answer [a jurisdictional question] for itself, even when not otherwise suggested' ") (citation omitted); see also Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001) ("Although neither party argues that Steele's appeal is moot, we are required to raise issues of standing sua sponte if such issues exist."). Therefore, we proceed to examine whether Chong's deportation renders her appeal moot.

Initially, we...