Aguilera-Montero v. Mukasey

• Citation: 548 F.3d 1248
• Decision Date: 01 December 2008
• Docket Number: No. 06-72956.,06-72956.
• Parties: Pedro AGUILERA-MONTERO, Petitioner, v. Michael B. MUKASEY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

548 F.3d 1248

Pedro AGUILERA-MONTERO, Petitioner, v. Michael B. MUKASEY, Respondent.

No. 06-72956.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2008.

Filed December 1, 2008.

Russell W. Pritchett, Pritchett & Jacobson, Bellingham, WA, for petitioner-appellant Pedro Aguilera-Montero.

M. Jocelyn Lopez Wright and Kristin K. Edison (argued), Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for respondent-appellee Michael Mukasey.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A29-677-298.

Before: SUSAN P. GRABER and JOHNNIE B. RAWLINSON, Circuit Judges, and OTIS D. WRIGHT II,^* District Judge.

RAWLINSON, Circuit Judge:

Appellant Pedro Aguilera-Montero (Aguilera-Montero) petitions for review of the Board of Immigration Appeals' (BIA) dismissal of his appeal of a denial of his application for adjustment of status. Aguilera-Montero asserts that he is entitled to a waiver of deportability pursuant to 8 U.S.C. § 1227 because of a full and unconditional state pardon.

Additionally, Aguilera-Montero maintains that the availability of a pardon-based waiver pursuant to 8 U.S.C. § 1227 violates the equal protection rights of inadmissible aliens, who are not entitled to such a waiver under 8 U.S.C. § 1182.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and we deny the petition for review.

I. BACKGROUND

Aguilera-Montero has a long history of illegal presence in this country. His original illegal entry was in September, 1986. On August 17, 1991, he was granted voluntary departure, but failed to depart. On June 19, 1992, he was apprehended and became the subject of deportation proceedings. On August 25, 1992, an immigration judge (IJ) granted him voluntary departure, and he again failed to depart. On February 20, 1993, he was deported, and he re-entered illegally on March 1, 1993. On October 13, 1993, deportation proceedings were commenced against Aguilera-Montero. On January 26, 1994, he was granted voluntary departure and failed to depart yet again. He was "encountered by the U.S. Border Patrol on January 3, 1995, while working illegally." Although he was deported on January 11, 1995, Aguilera-Montero re-entered the country illegally "on or about April 15, 1995."

On February 4, 1993, Aguilera-Montero pled guilty to unlawful possession of cocaine. On April 30, 2001, he filed an application for adjustment of status to permanent resident due to his marriage to a United States citizen. Aguilera-Montero's application was denied by the District Director, Citizenship and Immigration Services, Department of Homeland Security, for two reasons: 1) Aguilera-Montero was inadmissible for status as a permanent resident due to his second removal within a ten-year period; and 2) Aguilera-Montero was inadmissible for status as a permanent resident due to his conviction for violating a law relating to a controlled substance, i.e., his 1993 guilty plea to unlawful possession of cocaine.¹

The denial included a Notice to Appear before an IJ for removal proceedings. Aguilera-Montero was charged with being subject to removal pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii) (providing for removal of an inadmissible alien who has been ordered removed more than once and who seeks admission within twenty years of the last removal), and pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II) (providing for removal of an inadmissible alien who has been convicted of a crime relating to a controlled substance).

Prior to his removal hearing, the Governor of the State of Washington granted Aguilera-Montero a "Full and Unconditional Pardon." At the removal hearing, Aguilera-Montero conceded removability. During the continued removal proceedings, Aguilera-Montero requested a waiver of the controlled substance inadmissibility charge, which would permit him to adjust his status to that of a lawful permanent resident. The IJ rejected Aguilera-Montero's request for a waiver, reasoning that although a waiver is available for aliens who have been admitted into this country, no comparable waiver is available for aliens who have not been admitted into the country.

The BIA affirmed the IJ's ruling, reiterating that 8 U.S.C. § 1227(a)(2)(A)(v) "expressly provides that certain enumerated criminal grounds of deportability become inapplicable where the alien receives a full and unconditional executive pardon ... but section 212 of the Act [8 U.S.C. § 1182] contains no equivalent waiver provision pertaining to the criminal grounds of inadmissibility." (second emphasis in the original).

Aguilera-Montero filed a timely petition for review of the BIA decision.

II. STANDARDS OF REVIEW

"[W]hen the BIA conducts a de novo review and issues its own decision, we review the BIA's decision rather than the IJ's." Urzua Covarrubias v. Gonzales, 487 F.3d 742, 747 n. 2 (9th Cir.2007) (citation omitted).

"We review constitutional and legal issues de novo." Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1040 (9th Cir.2007) (citations omitted).

III. DISCUSSION

A. Aguilera-Montero's State Pardon As Removing The Legal Consequences of His Controlled Substance Conviction

Relying on Ex parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866), and its progeny,² Aguilera-Montero asserts that a state pardon, like a Presidential pardon, obviates the legal consequences of his conviction.

Pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II)(2006), "any alien convicted of, or who admits having committed, ... a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ..., is inadmissible."

In contrast, 8 U.S.C. § 1227, applicable to deportable aliens, explicitly provides a waiver of deportability to aliens who committed crimes of moral turpitude, had multiple criminal convictions, committed an aggravated felony, or engaged in high speed flight from an immigration checkpoint "if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States." 8 U.S.C. § 1227(a)(2)(A)(vi)(2006).

Contrary to Aguilera-Montero's argument that a state pardon removes all legal consequences of a conviction, Aguilera-Montero's state pardon does not entitle him to a waiver that is not listed in 8 U.S.C. § 1182(a)(2)(A)(i)(II). In Yuen v. I.N.S., 406 F.2d 499, 500 (9th Cir.1969), we addressed the effect of a state pardon on statutory waivers of deportation. The petitioner, who was convicted of a state narcotics offense, asserted that his full and unconditional pardon entitled him to relief pursuant to section 249 of the Immigration and Nationality Act, which allows a record of lawful admission to be made under certain circumstances. Id. at 499. The petitioner "allege[d] that the Board ... attached a disability to him on the basis of the conviction even though the conviction should be considered as wiped out by the act of the Governor in pardoning petitioner for the offense." Id. at 501 (internal quotation marks omitted). We rejected the petitioner's argument based on Ex parte Garland:

We do not regard this as a sufficient ground for invalidating the federal statute which commands such a result. It is true that, in Ex parte Garland, upon which petitioner heavily relies for his authority on the effect of a pardon, there is broad language to the effect that Congress cannot fix punishment beyond the reach of executive clemency, or consequences which attach to a conviction beyond the reach of executive clemency. But the Court was there speaking of federal executive clemency, not state.

Moreover, Garland and like cases deal with the effect of a pardon in releasing an offender from punishment. Accepting as true the premise that a pardon, full and unconditional, federal or state, exempts the convicted person from punishment, it does not thereby exempt such person from deportation.... It is well settled that deportation, while it may be burdensome and severe for the alien, is not punishment.

Yuen, 406 F.2d at 501-02 (citations and internal quotation marks omitted). Our reasoning, therefore, undermines Aguilera-Montero's argument premised on Ex parte Garland.³

We have not extensively addressed the dichotomy between inadmissible and deportable aliens in the context of a state pardon. However, the Eleventh Circuit explicitly explored this issue at length in Balogun v. United States Attorney General, 425 F.3d 1356, 1358 (11th Cir.2005), where the petitioner asserted that his "full and unconditional" state pardon entitled him to waiver of inadmissibility pursuant to 8 U.S.C. § 1227(a)(2)(A)(v). The Eleventh Circuit rejected this argument, observing that:

Balogun is not a deportable alien. He is an inadmissible alien under section 1182(a)(2)(A)(i)(I), a wholly different provision authorizing his removal. This separate classification of inadmissibility applies to those aliens who, for one reason or another, are ineligible to enter or re-enter the United States in the first place....

Section 1182 does not have a pardon provision like section 1227 does, and we believe that if Congress had intended to extend the pardon waiver to inadmissible aliens, it would have done so ...

Id. at 1362-63 (citations, alteration, and internal quotation marks omitted).

We agree with the Eleventh Circuit that the basic tenets of statutory construction preclude us from inferring a waiver under the provisions of 8 U.S.C. § 1182(a). See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir.), cert. denied ___ U.S. ___, 129 S.Ct. 254, ___ L.Ed.2d ___ (2008) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (citations omitted). We are persuaded by the reasoning of...