Henry v. I.N.S.

• Citation: 8 F.3d 426
• Decision Date: 15 October 1993
• Docket Number: Nos. 91-2252,92-2801 and 92-3104,92-1476,s. 91-2252
• Parties: Elston A. HENRY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Nikola AKRAP, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 426

8 F.3d 426

62 USLW 2249

Elston A. HENRY, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nikola AKRAP, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 91-2252, 92-1476, 92-2801 and 92-3104.

United States Court of Appeals,

Seventh Circuit.

Argued April 27, 1993.

Decided Oct. 15, 1993.

Royal F. Berg (argued), Kenneth Y. Geman, Chicago, IL, for Elston A. Henry.

Mary L. Sfasciotti (argued), Chicago, IL, for Nikola Akrap.

Fred Foreman, U.S. Atty., Crim. Div., Chicago, IL, Richard Evans (argued), William J. Howard, Lori L. Scialabba, David J. Kline, Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Washington, DC, A.D. Moyer, I.N.S., Chicago, IL, for I.N.S.

Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Two of the four petitions for review before us today present a common question of law--whether Elston Henry and Nikola Akrap, both of whom are subject to final administrative orders of deportation resulting from narcotics convictions, may seek to reopen their previously-denied applications for a discretionary waiver of deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), to present evidence of changed circumstances. The Board of Immigration Appeals (the "Board" or "BIA") said no as a matter of law because an alien can no longer satisfy section 212(c)'s lawful permanent residency requirement after a final order of deportation has been entered. The circuits have disagreed in reviewing this interpretation of the statute, and we align ourselves today with those that have rejected it. We accordingly grant two of the petitions for review and remand each case to the Board for further proceedings.

I. BACKGROUND

A. Elston A. Henry

Henry is a native and citizen of Antigua, West Indies who was admitted into the United States as a lawful permanent resident on August 6, 1976. Almost ten years later, on April 21, 1986, Henry was convicted by a jury of distributing less than ten grams of a substance containing cocaine, a felony under Illinois law. He was sentenced to a short period of work release and four years probation. The judge also imposed a fine and required Henry to resume paying child support. ¹ Henry subsequently was charged with possessing with the intent to deliver between one and fifteen grams of cocaine, a violation of his probation. The judge therefore revoked Henry's probation and sentenced him to five years in prison. ²

Before Henry's probation was revoked, however, the Immigration and Naturalization Service ("INS") had commenced deportation proceedings pursuant to INA section 241(a)(11), 8 U.S.C. § 1251(a)(11), because of his conviction for a drug offense. ³ Henry conceded deportability but moved for a discretionary waiver of deportation pursuant to section 212(c), 8 U.S.C. § 1182(c). ⁴ The Immigration Judge ("IJ") denied the application, and the Board dismissed Henry's subsequent appeal in an opinion dated December 7, 1990. The Board concluded that Henry had failed to show the unusual or outstanding equities required for section 212(c) relief from a deportation order based on a serious drug offense. The Board noted that Henry had not lived in the United States for long, that he did not have a close relationship with his two children, that he was substantially in arrears on his child support obligations and that he had not resumed payments until ordered to do so as part of his original sentence on the cocaine conviction, that his deportation would not cause extreme hardship for his children or girlfriend, and that his parents and two siblings still lived in Antigua. The Board also emphasized that Henry had shown no signs of rehabilitation, particularly in view of the second cocaine charge, which had resulted in the revocation of his probation. Henry petitioned for review of the Board's dismissal of his appeal (No. 92-2252), which we consider below in Part II. A.

After retaining new counsel, Henry filed two motions to reopen his section 212(c) application pursuant to 8 C.F.R. § 3.2. ⁵ The first, filed on December 9, 1991, asserted that Henry had received ineffective assistance of counsel in presenting his section 212(c) application. Henry complained that his counsel had presented no witnesses other than Henry himself at the original hearing and that he had not filed a brief in support of Henry's appeal to the Board, so that the Board had dismissed the appeal without the benefit of written argument on Henry's behalf. The motion to reopen was accompanied by a number of affidavits from friends and family members attesting to Henry's good character and indicating that they would have testified on Henry's behalf at the initial hearing if they had been asked to do so. Henry also submitted a marriage certificate reflecting his recent marriage to a United States citizen, a receipt reflecting a child support payment, and a letter from Henry's church. The Board found that Henry had failed to comply with its requirements for asserting an ineffectiveness claim. But the Board also considered the claim on its merits and rejected it, finding that Henry had received a full and fair hearing, that his counsel had presented substantial evidence in his favor, and that the additional evidence would have been largely cumulative. The Board also found that Henry was ineligible for section 212(c) relief in any event because his status as a lawful permanent resident had terminated with entry of the Board's final administrative order of deportation. Henry petitioned for review of the Board's denial of this motion to reopen (No. 92-1476), which we consider in Part II. C.

Henry filed a second motion to reopen on June 5, 1992, this time attempting to supplement his section 212(c) application with facts that arose after the first motion had been filed. Henry asked the Board to consider that his father recently had died, that his mother and sister had emigrated from Antigua to the United States, and that his mother had cancer. Henry argued that he retained eligibility to supplement his application because his appeal of the Board's final order of deportation was still pending here. The Board this time denied Henry's motion solely on the ground that he was statutorily ineligible to seek section 212(c) relief. The Board concluded that a final order of deportation had been entered December 7, 1990, when it dismissed Henry's appeal of the IJ's denial of section 212(c) relief, and that the finality of the deportation order was unaffected by Henry's petition for review of that order. Henry then petitioned for review of this final denial (No. 92-2801), which we address in Part II. B.

B. Nikola Akrap

Akrap, meanwhile, became subject to a final administrative deportation order on July 2, 1991, and we denied a petition for review of that order on June 26, 1992. Akrap v. INS, 966 F.2d 267 (7th Cir.1992). ⁶ Like Henry, Akrap is subject to deportation for a cocaine conviction in Illinois state court, and both the IJ and the Board denied his application for a section 212(c) waiver of deportation.

Akrap also filed two motions to reopen. The first, submitted on August 2, 1991, requested that the Board consider supplemental evidence relating to the deteriorating health of Akrap's father and to the political unrest in Yugoslavia and Croatia. The Board denied the motion, finding that Akrap had become statutorily ineligible for section 212(c) relief when the Board entered its final order of deportation. Because Akrap did not petition for review of that denial, it is not before us. ⁷ Instead, Akrap filed a second motion to reopen requesting two types of relief: (1) that the Board designate Croatia (rather than Yugoslavia) as the country of deportation because Croatia recently had declared its independence from Yugoslavia and Akrap had been born there; and (2) that the Board consider supplemental evidence relating to his father's death, to the civil war between Serbia and Croatia, and to the deteriorating conditions that he and his family would face if forced to return to Croatia. The Board redesignated Croatia as Akrap's country of deportation but denied the motion to reopen in all other respects. The Board also refused to reconsider its earlier ruling that Akrap was statutorily ineligible for section 212(c) relief in light of Vargas v. INS, 938 F.2d 358 (2d Cir.1991), which had reversed a finding of statutory ineligibility in similar circumstances. The Board explained that it did not agree with Vargas and would not follow that decision outside the Second Circuit. The Board thus refused to consider Akrap's supplemental evidence, and he now asks that we review that decision. We do so in Part II. B.

We have jurisdiction over all four petitions for review pursuant to 8 U.S.C. § 1105a(a)(1).

II. DISCUSSION

A. Denial of Henry's Request for Section 212(c) Relief

In his first petition, Henry challenges the Board's dismissal of his appeal of the IJ's denial of a discretionary waiver of deportation under section 212(c). Henry specifically contests the Board's requirement that he show "unusual or outstanding equities." We review the Board's decision for an abuse of discretion; we may reverse only if the decision " 'was made without a rational explanation, ... inexplicably departed from established policies, or rested on an impermissible basis.' " Cortes-Castillo v. INS, 997 F.2d 1199, 1203 (7th Cir.1993) (quoting Espinoza v. INS, 991 F.2d 1294, 1297 (7th Cir.1993)); see also Akinyemi v. INS, 969 F.2d 285, 288 (7th Cir.1992). Based on the evidence of record from Henry's deportation hearing, the Board did not abuse its discretion in denying Henry's application for a waiver of deportation.

In considering a section 212(c) application, the Board must balance "the social and humane considerations in the alien's favor against any adverse factors that demonstrate his or her...