Hamama v. I.N.S.

• Decision Date: 07 March 1996
• Docket Number: No. 94-4088,94-4088
• Citation: 78 F.3d 233
• Parties: Usama J. HAMAMA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 233

78 F.3d 233

Usama J. HAMAMA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-4088.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1996.

Decided March 7, 1996.

On Petition for Review of an Order of the Board of Immigration Appeals.

Charles S. Owen, Gatto, Bennett & Owen, Southfield, MI, for petitioner.

David J. Kline, Brenda E. Ellison, U.S. Dept. of Justice, Immigration Litigation, Civ. Div., Washington, DC, Edmund A. Sargus, Jr., U.S. Atty. Columbus, OH, for respondent.

Before: BROWN, SILER, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Usama J. Hamama petitions for review of a decision of the Board of Immigration Appeals affirming a deportation order issued by an immigration judge. We deny the petition.

I

Usama J. Hamama is an Iraqi citizen who has been a lawful resident of the United States since 1974. In 1988 a jury in Michigan state court found Hamama guilty of felonious assault, possession of a firearm in the commission of a felony, and carrying a pistol in a vehicle. The court sentenced him to two years imprisonment on the possession charge and suspended his other sentences.

In 1992 the Immigration and Naturalization Service (the "INS") served notice on Hamama of deportation proceedings against him, based on his having been convicted of a firearms offense. At the deportation hearing, an immigration judge found that Hamama was not deportable because his conviction had occurred before the statute that authorized deportation of aliens convicted of firearms offenses had taken effect. The Board of Immigration Appeals (the "BIA" or "Board") reversed and remanded, finding that the new statute applied to any deportation proceeding for which notice was provided to the alien on or after March 1, 1991, regardless of the date of the firearms conviction.

On remand, Hamama applied for asylum and other relief from deportation, but the immigration judge denied the requests on various grounds. The BIA agreed with the immigration judge's decision and dismissed Hamama's appeal. This petition followed.

II

We first address several constitutional claims. Hamama contends that the deportation order violates his Fifth Amendment rights to due process and equal protection and the Ex Post Facto Clause of Article I, Section 9 of the Constitution. These assertions present questions of law, which we review de novo. Kabongo v. INS, 837 F.2d 753, 756 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 564 (1988).

A

Hamama argues that the immigration judge's order violates his constitutional right to due process because the statute authorizing deportation of aliens convicted of firearms offenses had not taken effect at the time of his conviction. Hamama's conviction did in fact take place before passage of the relevant provision; he was convicted in 1988, and the immigration judge ordered Hamama deported under 8 U.S.C. § 1251(a)(2)(C), which Congress enacted two years later in section 602(a) of the Immigration Act of 1990 (the "1990 Act"). See Pub.L. No. 101-649, § 602(a), 1990 U.S.C.C.A.N. (104 Stat.) 4978, 5077-80 (mandating deportation of aliens convicted of crimes involving firearms). Nevertheless, we hold that the INS may apply the 1990 legislation to Hamama's conviction.

The Supreme Court has repeatedly upheld the constitutionality of deportation proceedings that apply new law to past criminal conduct. See, e.g., Lehmann v. United States, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024-25, 1 L.Ed.2d 1122 (1957) (allowing deportation based on convictions that, because of conditional pardon, were not grounds for deportation when they occurred); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 763-64, 99 L.Ed. 1107 (1955) (allowing deportation based on conviction that was not grounds for deportation when it occurred). With the recent enactment of new deportation laws, this and other circuits have had occasion to reemphasize the Supreme Court holdings. See, e.g., Campos v. INS, 16 F.3d 118, 122 (6th Cir.1994); De Osorio v. INS, 10 F.3d 1034, 1042 (4th Cir.1993); Ignacio v. INS, 955 F.2d 295, 298 (5th Cir.1992); United States v. Bodre, 948 F.2d 28, 32 (1st Cir.1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1487, 117 L.Ed.2d 628 (1992). Neither the instant case nor any of the recent circuit decisions offers a basis for this court to depart from the Supreme Court's longstanding willingness to allow application of new immigration law to prior criminal conduct. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (explaining exceptionally limited nature of judicial examination of immigration legislation).

Hamama cites Landgraf v. USI Film Products, --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), in support of his due process argument. Landgraf recognized that the retroactive application of legislation can raise due process concerns: "The Due Process Clause ... protects the interests in fair notice and repose that may be compromised by retroactive legislation...." Id. at ----, 114 S.Ct. at 1497. We find Hamama's Landgraf argument unpersuasive for two reasons. First, it is unclear that Hamama's deportation implicates the kind of retroactivity issues addressed in Landgraf. See Campos, 16 F.3d at 122 ("[A] statute is not made retroactive merely because it draws upon antecedent facts for its operation." (internal quotations omitted)). Second, the Supreme Court in Landgraf did not exhibit an intent to overrule such cases as Lehmann and Marcello or to prescribe a new approach to reviewing the application of immigration law to previous criminal conduct. In fact, Landgraf involved statutory interpretation, not constitutional scrutiny.

In United States v. Yacoubian, 24 F.3d 1 (9th Cir.1994), the Ninth Circuit reviewed a due process challenge to the INS's application of section 1251(a)(2)(C) to an alien who, like Hamama, had been convicted of a firearms offense before the passage of the statute. Borrowing the "rational basis" test from a Supreme Court case involving review of retroactive economic legislation, the Yacoubian court upheld the constitutionality of the INS's action. Id. at 7-8 (citing Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 729-30, 104 S.Ct. 2709, 2717-18, 81 L.Ed.2d 601 (1984)). We agree that the requirements of due process are satisfied if retroactive application of federal immigration legislation is rationally related to a legitimate government purpose; the courts have deferred in the past to immigration legislation at least as much as they have deferred to economic legislation. Compare Pension Benefit, 467 U.S. at 729, 104 S.Ct. at 2717 (discussing "strong deference accorded legislation in the field of national economic policy"), and Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15-18, 96 S.Ct. 2882, 2891-94, 49 L.Ed.2d 752 (1976) (discussing presumption of constitutionality of retroactive economic legislation), cited in Landgraf, --- U.S. at ----, 114 S.Ct. at 1497, with Almario v. Attorney Gen., 872 F.2d 147, 150 (6th Cir.1989) (noting that "Congress' unfettered discretion over the admission or expulsion of aliens 'is a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.' " (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 627-28, 97 L.Ed. 956 (1953))). In the present case, the government clearly has a legitimate interest in protecting society from the illegal use of dangerous weapons, and legislation that deports aliens who commit or have committed crimes involving firearms is a rational means of furthering that interest.

Of course, the fact that Congress can apply new deportation law to past criminal conduct does not mean that it intended to do so in every instance. Here, however, the legislative intent is clear: the 1990 Act specifically authorizes application of its provisions to all aliens, "notwithstanding that ... the facts, by reason of which an alien is [deportable under new law], occurred before the date of the enactment of this Act." See Pub.L. No. 101-649, § 602(c), 1990 U.S.C.C.A.N. (104 Stat.) 4978, 5081-82. Had Congress wished to prohibit the application of the statute to past criminal conduct, it could easily have done so. See, e.g., Anti-Drug Abuse Act of 1988, Pub.L. 100-690, § 7348(b), 1988 U.S.C.C.A.N. (102 Stat.) 4181, 4473 (limiting application of new deportation law to aliens subsequently convicted). Instead, the bill's only restriction was that "[t]he amendments ... shall not apply to deportation proceedings for which notice has been provided to the alien before March 1, 1991." See Pub.L. No. 101-649, § 602(d), 1990 U.S.C.C.A.N. (104 Stat.) 4978, 5082. The application of 8 U.S.C. § 1251(a)(2)(C) to prior criminal conduct is therefore in accordance not only with due process restrictions on retroactivity but also with Congress's intent.

B

Although Hamama uses only the term "due process" in his constitutional argument, his brief implies that the deportation order also violates his equal protection rights. See, e.g., Appellant's Br. at 9 (claiming that section 602 of the 1990 Act "arbitrarily insulates one category of aliens from deportation"); see also Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976) (noting that federal government has equal protection obligations under Fifth Amendment similar to those imposed on states under Fourteenth Amendment); Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 694-95, 98 L.Ed. 884 (1954) (same). Hamama seems to be arguing that the 1990 Act unconstitutionally differentiates between those aliens who received notice of deportation proceedings before March 1, 1991, and those who, like Hamama, received notice after that date. Under section 602(d), only the latter are subject to the 1990 Act's new grounds for deportation. See Pub.L. No. 101-649, § 602(d), 1990 U.S.C.C.A.N. (104 Stat.) 4978,...