Kofa v. U.S. I.N.S.

• Decision Date: 27 July 1995
• Docket Number: Nos. 92-1246,92-2522,s. 92-1246
• Citation: 60 F.3d 1084
• Parties: Lorenzo KOFA, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Washington Lawyers' Committee For Civil Rights Under Law; American Immigration Lawyers Association; Legal Action Center of the American Immigration Law Foundation; National Immigration Project of the National Lawyers Guild, Amici Curiae. Jorge Samuel MORENO, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1084

60 F.3d 1084

Lorenzo KOFA, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Washington Lawyers' Committee For Civil Rights Under Law;

American Immigration Lawyers Association; Legal Action

Center of the American Immigration Law Foundation; National

Immigration Project of the National Lawyers Guild, Amici Curiae.

Jorge Samuel MORENO, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Nos. 92-1246, 92-2522.

United States Court of Appeals,

Fourth Circuit.

Argued March 8, 1994.

Decided July 27, 1995.

ARGUED: Margaret Gleason, Catholic Legal Immigration Network, Washington, DC, for petitioner. Joel Alan Fischman, Dickstein, Shapiro & Morin, Washington Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges. ^*

DC, for amici curiae. Frank S. Holleman, III, Civ. Div., U. S. Dept. of Justice, Washington, DC, for respondent. ON BRIEF: Stuart M. Gerson, Asst. Atty. Gen., David J. Kline, Asst. Director, Office of Immigration Litigation, Civ. Div., U. S. Dept. of Justice, Washington, DC, for respondent. Justin D. Simon, Amy M. Nice, Alison N. Davis, Dickstein, Shapiro & Morin, Washington, DC, Lory D. Rosenberg, American Immigration Law Foundation, Washington, DC, for amici curiae.

Petitions for review denied by published opinion. Judge WIDENER wrote the majority opinion, in which Judges RUSSELL, WILKINSON, WILKINS, NIEMEYER, LUTTIG, and WILLIAMS joined. Judge HAMILTON wrote a dissenting opinion, in which Chief Judge ERVIN and Judges HALL, MURNAGHAN, and MICHAEL joined.

OPINION

WIDENER, Circuit Judge:

The sole issue in these consolidated cases is whether 8 U.S.C. Sec. 1253(h)(2)(B), ¹ which authorizes withholding of deportation, requires a separate determination of dangerousness to the community in the case of an aggravated felon. We answer that question in the negative and deny each of the petitions for review.

I

Case Number 92-1246 concerns Lorenzo Nma Kofa, who is a twenty-three year old citizen of Liberia who has lived in the United States since 1980. He faces deportation to Liberia because of his two 1990 Maryland state law convictions for possession of cocaine with intent to distribute the same, and for distribution of cocaine. Both of these convictions are aggravated felonies. See 8 U.S.C. Sec. 1101(a)(43).

On November 9, 1990, the Immigration and Naturalization Service (INS) issued an order to show cause why Kofa should not be deported because of those drug convictions. At a hearing held on April 26, 1991, the Immigration Judge determined that despite the fact that he had been convicted of a particularly serious crime, Kofa could apply for withholding of deportation if he could prove that he was not a danger to the community of the United States. The Immigration Judge held an evidentiary hearing on the issue of danger to the community on May 10, 1991 and found that Kofa was remorseful and there was insufficient evidence to show that he continued to be a danger to the community of the United States. A hearing was then scheduled to determine the merits of his application for withholding of deportation.

Following the Immigration Judge's decision and an unsuccessful motion for reconsideration, the INS filed an interlocutory appeal to the Board of Immigration Appeals, taking the position that because he had been convicted of a particularly serious crime, Kofa was statutorily ineligible under 8 U.S.C. Sec. 1253(h)(2)(B) to apply for withholding of deportation. The Board of Immigration Appeals agreed and remanded the case with instructions to the Immigration Judge, Matter of K______, Interim Dec. No. 3163 (B.I.A. Nov. 5, 1991), who then ordered Kofa's deportation to Liberia. Kofa petitions for review of the Board's decision.

Case Number 92-2522 concerns Jorge Samuel Moreno-Duran (Moreno), who is a native of El Salvador and a citizen of Panama who describes himself as a "citizen allegedly of El Salvador and Panama." Moreno entered the United States as a nonimmigrant student on January 6, 1981. Because of his marriage to a United States citizen, Moreno was classified as a lawful permanent resident of the United States beginning on September 23, 1987.

On February 11, 1988 Moreno was convicted in the Circuit Court of Fairfax County, Virginia, of possession of cocaine with intent to distribute. On June 12, 1992, the INS issued an order to show cause why Moreno should not be deported because of his drug conviction. A hearing on the order to show cause was held on August 4, 1992. The Immigration Judge determined that because of his drug conviction Moreno was deportable under 8 U.S.C. Sec. 1251(a)(2)(B)(i). The Immigration Judge further found that he was statutorily ineligible to apply for withholding of deportation or asylum. The Immigration Judge then ordered him deported to Costa Rica or, if Costa Rica would not accept him, to Panama.

Moreno appealed the Immigration Judge's decision to the Board. In a per curiam order, the Board dismissed the appeal without oral argument, finding that Moreno is ineligible for asylum or withholding of deportation because of his drug conviction. ² Moreno filed his petition for review.

II

The language of Section 1253(h)(2)(B) was enacted on March 17, 1980. Refugee Act of 1980, Pub.L. No. 96-212, Sec. 203(e), 94 Stat. 104 (1980). Subsection (h) of 8 U.S.C. Sec. 1253 provides:

(h) Withholding of deportation or return

(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that--

....

(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States; ....

The Board of Immigration Appeals has interpreted subsection (B) to mean that if it determines that the alien has been convicted of a particularly serious crime, the alien is, necessarily, a danger to the community of the United States and is therefore ineligible for withholding of deportation. Matter of U-M-, Interim Dec. No. 3152, slip op. at 5 (B.I.A. June 5, 1991); Matter of Carballe, 19 I. & N.Dec. 857, 860 (1986), modified in part on other grounds, Matter of Gonzalez, 19 I. & N.Dec. 682, 685 & n. 3 (1988).

On November 29, 1990, subsection (h)(2) was amended to add the following language:

For purposes of subparagraph (B), an alien who has been convicted of an aggravated felony shall be considered to have committed a particularly serious crime.

Immigration Act of 1990, Pub.L. No. 101-649, Sec. 515(a)(2), 104 Stat. 5053 (1990). We are asked in this case to determine whether an alien who has been convicted of an aggravated felony (and therefore, by statute, convicted of a particularly serious crime) is entitled to a separate determination of whether the alien is a danger to the community or whether, as the Board of Immigration Appeals maintains, such an alien is statutorily ineligible for withholding of deportation.

A

When an agency has construed a statute that we later are asked to construe, the Supreme Court has made plain our task:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (footnotes omitted).

Petitioners urge us to look at the legislative history surrounding, and some written even after, the passage of the 1990 Amendments to Section 1253(h)(2) to determine what Congress meant when it enacted the amendment to the language of Section 1253(h)(2)(B). However, the first place where we must look to see if Congress has spoken to the issue with which we are concerned and whether Congressional intent in that regard is clear is on the face of the statute. Statutory construction must begin with the language of the statute. Norfolk & W. Rwy. v. American Train Dispatchers Ass'n, 499 U.S. 117, 128, 111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991); Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980); United States v. Sheek, 990 F.2d 150, 152 (4th Cir.1993). To do otherwise would assume that Congress does not express its intent in the words of statutes, but only by way of legislative history, an idea that hopefully all will find unpalatable. See Continental Can Co. v. Chicago Truck Drivers, Helpers & Warehouse Workers Union (Indep.) Pension Fund, 916 F.2d 1154, 1157-58 (7th Cir.1990) ("The text of the statute, and not the private intent of the legislators, is the law.... So the text is law and legislative intent a clue to the meaning of the text, rather than the text being a clue to legislative intent.") (citing In re Sinclair, 870 F.2d 1340 (7th Cir.1989)).

If the statute is silent or ambiguous on the question, we next turn to the agency's interpretation. We uphold it if it is permissible even if it is not the interpretation we would have given to the...