Abudu v. I.N.S., s. 84-7686

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation802 F.2d 1096
Docket NumberNos. 84-7686,86-7075,s. 84-7686
PartiesAssibi ABUDU, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
Decision Date14 October 1986

Dorthy A. Harper, Popkin, Shamir & Golan, Los Angeles, Cal., for petitioner-appellant.

Marshall T. Golding, Dept. of Justice, Washington, D.C., for respondent-appellee.

Appeal from the Board of Immigration Appeals Pasadena, California.

Before ANDERSON, PREGERSON and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Petitioner, Dr. Assibi L. Abudu, a native and citizen of Ghana, petitions for review of two decisions of the Board of Immigration Appeals (BIA). First, the BIA held that because of a California conviction of an unlawful attempt to obtain a controlled substance (demerol) by fraud under Cal. Health & Safety Code Sec. 11173(a), Dr. Abudu is deportable under Immigration and Nationality Act Sec. 241(a)(11), 8 U.S.C. Sec. 1251(a)(11) (an alien shall be deported who has been convicted of a violation of law relating to the illicit possession of a narcotic drug). We affirm the Board's holding that Dr. Abudu is deportable. Second, the BIA denied reopening and thus precluded Dr. Abudu from pursuing his prohibition against deportation and asylum claims. We reverse the BIA on this issue and remand for an evidentiary hearing.

FACTS

Dr. Assibi L. Abudu is a forty-one year old licensed physician, a native and citizen of Ghana, married to a United States citizen. He entered this country on a student visa on July 27, 1973, with authority to remain until February 6, 1976. On April 7, 1981, Dr. Abudu pleaded guilty in state court to unlawfully obtaining or attempting to obtain a controlled substance (demerol) by fraud. See Cal.Health and Safety Code Sec. 11369. He was given a suspended sentence of one year's imprisonment and placed on probation for three years. On the basis of this conviction, the INS issued an order to show cause on August 7, 1981, charging that he was deportable under Immigration and Nationality Act Sec. 241(a)(11), 8 U.S.C. Sec. 1251(a)(11).

Deportation proceedings commenced November 3, 1981. At the November 10, 1981 proceeding Dr. Abudu expressed an intent to file an application for asylum and prohibition against deportation. On January 11, 1982, Dr. Abudu denied deportability on the narcotics conviction, but conceded deportability on an overstay of visa charge. Dr. Abudu requested adjustment of status based on his marriage to a United States citizen. On April 29, 1982, counsel stated he would not file for asylum and prohibition against deportation. The final deportation proceeding was conducted July 1, 1982.

On July 1, 1982, the immigration judge decided that Dr. Abudu's conviction, being on bifurcated charges, obtaining and attempting to obtain a controlled substance, must be construed as a conviction on the lesser attempt charge. The judge determined that obtaining a controlled substance is a deportable offense under Immigration and Nationality Act Sec. 241(a)(11), and that an attempt to commit a deportable offense renders an alien equally deportable. Thus, he concluded, the conviction which rendered Dr. Abudu deportable under Immigration and Nationality Act Sec. 241(a)(11) created a non-waivable ground of excludability under Immigration and Nationality Act Sec. 212(a)(23), 8 U.S.C. 1182(a)(23), and precluded adjustment of status. On appeal, the Board affirmed the decision of the immigration judge. In addition, the Board rejected Dr. Abudu's argument that the order to show cause was defective, finding that the order reasonably informed him of his alleged violation and the ground for his deportability with sufficient precision to allow him properly to defend himself.

On February 1, 1985, while the petition to review the original deportation order was pending before us, Dr. Abudu filed a motion to reopen to enable him to apply for asylum and prohibition against deportation. In the affidavits and materials that were filed in support of his motion, the following facts are alleged to be true: Dr. Abudu is closely associated with at least two exiled enemies of the present Ghana regime, a military dictatorship headed by Flight Lt. Jerry Rawlings. Rawlings initially came to power on June 4, 1979 and was subsequently arrested by the Limann government. On December 31, 1981, Rawlings regained power in a military coup. Dr. Abudu's brother is an economist who was connected with the now deposed Achaenpny government and also with the now deposed Limann government. In Ghana, Dr. Abudu's brother's house was surrounded by government The Board denied reopening on two grounds. First, it found that the considerations upon which Dr. Abudu relied in making his asylum and prohibition against deportation claims were in existence at the time he made the determination not to apply for such relief. Second, the Board concluded that Dr. Abudu's "mere assertions of possible threats are lacking in specific, objective detail and do not constitute a prima facie showing of eligibility for either asylum or prohibition against deportation."

troops, but he escaped and now lives in hiding. Dr. Abudu's lifelong friend is Lt. Col. Joshua Hamidu, who was declared by Ghana's present dictator Rawlings to be the number one enemy of the government. In May and June of 1983 there were two coup attempts which involved dissidents from abroad. In 1984 Dr. Abudu was visited in the United States by a highly placed Rawlings government official, who attempted to acquire knowledge about the whereabouts of Rawlings' enemies and to persuade Dr. Abudu to return to Ghana.

DISCUSSION
I. DEPORTATION ORDER

The Board's determination of deportability must be sustained if it is supported by "reasonable, substantial and probative evidence." Woodby v. INS, 385 U.S. 276, 281, 87 S.Ct. 483, 485, 17 L.Ed.2d 362 (1966). The interpretation of a statute is a question of law subject to de novo review. Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983). A reviewing court will generally defer to an agency's interpretation if it is consistent with congressional intent and supported by substantial evidence. Oregon Dept. of Human Resources v. Dept. of Health and Human Services, 727 F.2d 1411, 1413 (9th Cir.1983).

Dr. Abudu contends he was denied due process because the order to show cause was defective. He further contends his state conviction for attempting to obtain a controlled substance by fraud does not fall within the immigration statute at all because the conviction does not relate to illicit possession. He also claims the conviction is more akin to a use violation and that a use violation does not constitute a deportable offense.

A function of the order to show cause is to advise an alien of his alleged violation with sufficient precision to allow him to defend himself, Matter of Chen and Hasan, 15 INS 80. As the Board found, the order to show cause, which cites the correct provision of the statute, Immigration and Nationality Act Sec. 241(a)(11), 8 U.S.C. Sec. 1251 (a) (11), reasonably informed Dr. Abudu of his alleged violation and the ground for deportability. Despite the failure to include the precise phrase of the immigration statute which relates to illicit possession of a narcotic drug and the inclusion instead of a closely related but inapplicable clause, the citation to the appropriate section of the statute and the reference to the offense was sufficient to allow Dr. Abudu properly to defend himself.

Section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251 renders deportable and Sec. 212(a)(23) of that Act makes ineligible for adjustment of status, any alien who is convicted of a violation of "any law ... relating to the illicit possession of ... narcotic drugs." That provision requires that a conviction relate to illicit possession. A conviction for attempted illicit possession renders an alien as deportable as does a conviction for actual illicit possession. See Bronsztejn v. INS, 526 F.2d 1290, 1291 (2d Cir.1975). We conclude also that unlawfully obtaining narcotics falls within the prohibition against unlawfully possessing such drugs. Thus, Dr. Abudu's conviction for violation of section 11173(a) of the Cal.Health and Safety Code, attempting to obtain demerol (a narcotic drug), falls within the immigration statute and constitutes a deportable offense.

II. ASYLUM AND PROHIBITION AGAINST DEPORTATION
A. Standard of Review

The Supreme Court recently reiterated that the Board has wide discretion to deny a petition by an alien seeking reopening. Such denials are reviewed for abuse of discretion. See INS v. Rios-Pineda, 471 U.S. 444, 105 S.Ct. 2098, 2101, 85 L.Ed.2d 452 (1985). Here, however, the sole issue is whether petitioner presented a prima facie case for reopening. "When the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review." Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir.1985). See also Federal Power Commission v. Texaco Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 2326, 41 L.Ed.2d 141 (1974) ("[A]n agency's order must be upheld, if at all, 'on the same basis articulated in the order by the agency itself.' ") (citation omitted).

Our obligation as a reviewing court is to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A). Recently, an en banc panel of this court held that "the Board's refusal to grant reopening in the exercise of its administrative discretion [is to] be reviewed independently of the correctness of the Board's ruling on the question of statutory eligibility." Gonzalez Batoon v. INS, 791 F.2d 681, 684 (9th Cir.1986). Here, we are not faced with...

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