Cabasug v. I.N.S.

• Decision Date: 27 May 1988
• Docket Number: No. 86-7451,86-7451
• Citation: 847 F.2d 1321
• Parties: George Simeon CABASUG, also known as Simeon Salum Cabasug, Jr., Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1321

847 F.2d 1321

George Simeon CABASUG, also known as Simeon Salum Cabasug, Jr., Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-7451.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 9, 1987.

Decided Jan. 26, 1988.

As Amended on Denial of Rehearing

and Rehearing En Banc May 27, 1988.

Marc Van Der Hout and Adria-Ann McMurray, Redwood City, Cal., for petitioner.

David J. Kline and Linda S. Wendtland, Dept. of Justice, Washington, D.C., for respondent.

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

Before WALLACE and POOLE, Circuit Judges, and KLEINFELD, ^* District Judge.

KLEINFELD, District Judge:

Petitioner seeks review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an immigration judge's deportation order and denial of discretionary relief under Sec. 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1182(c) (1982). The main issue in the case, below and here, was applicability of Sec. 1182(c), set forth below. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a (1982). We determine that the immigration judge's order was valid and dismiss the petition.

Mr. Cabasug, a citizen of the Philippines, was admitted to the United States as a permanent resident in 1968. In 1983, he was convicted in the California Superior Court of carrying a sawed-off shotgun, while on probation for assault with a deadly weapon. He was later judged deportable, under Sec. 241(a)(14) of the Act, 8 U.S.C. Sec. 1251(a)(14) (1982), which provides for deportation of persons convicted of carrying a sawed-off shotgun or machine gun. Mr. Cabasug's brothers and sisters, parents, wife and children all reside in the United States. The immigration judge denied discretionary relief under Sec. 1182(c) and ordered him deported. The BIA held that discretionary relief under Sec. 1182(c) is not available to a person deported under Sec. 1251(a)(14).

The issue in this petition for review is whether Sec. 1182(c), which provides for discretionary relief from exclusion, applies to deportation under Sec. 1251(a)(14). This issue appears to be one of first impression in this circuit. The Fifth Circuit summarily rejected petitioner's position in Zinnanti v. INS, 651 F.2d 420, 422 (5th Cir. Unit A 1981) (per curiam).

Persons who are not citizens of the United States may be excluded on a number of grounds when they attempt to enter the United States. The Attorney General has discretion to waive grounds for exclusion in certain circumstances. Aliens who are already in the United States may be deported on numerous grounds. A much more restrictive discretionary relief statute applies to deportations. In some circumstances, deportations have been treated by the Immigration and Naturalization Service as though they were exclusions, and the discretionary relief available for exclusions has been applied. Petitioner would have this court deem the statute unconstitutional unless it is construed to mean that the discretionary relief for exclusion applies to the ground at issue for deportation.

Section 1251(a)(14) provides:

Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who--

.... (14) at any time after entry, shall have been convicted of possessing or carrying in violation of any law any weapon which shoots or is designed to shoot automatically or semi-automatically more than one shot without manual reloading, by a single function of the trigger, or a weapon commonly called a sawed-off shotgun.

The Department of Labor, then in charge of immigration law enforcement, characterized the proposal for enactment of this provision as authority to "get after some of these racketeers who are not otherwise deportable." Crime to Prevent Overthrow of Government: Hearing Before a Subcommittee of the Committee on the Judiciary, United States Senate, on H.R. 5138, 76th Cong., 3d Sess. 35 (1940). The language was apparently taken from the National Firearms Act. Id. at 26. The prohibited kinds of weapons have been characterized in a decision regarding the Firearms Act as "weapons used principally by persons engaged in unlawful activities." Haynes v. United States, 390 U.S. 85, 87, 88 S.Ct. 722, 725, 19 L.Ed.2d 923 (1968). Congress originally considered discretionary relief under the deportation statute, and decided, when it added the firearms ground, not to permit discretionary relief from deportation on that ground and certain others applying to "aliens ... likely to be undesirable residents." H.R.Conf.Rep. No. 2683, 76th Cong., 3d Sess. 9 (1940). In the 1952 Act, however, Congress decided to grant limited discretionary relief to aliens convicted of firearms offenses, which it later expanded by amendment. 8 U.S.C. Sec. 1254(a)(2).

A separate exclusion statute, 8 U.S.C. Sec. 1182, provides for exclusion of certain aliens seeking entry into the United States. The exclusion statute states:

Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States.

8 U.S.C. Sec. 1182(a) (1982). The statute describes 32 excludable classes. Aliens convicted of weapons offenses are not among these excludable classes.

Examination of the language of the exclusion and deportation statutes discloses an elaborate and complex scheme. Any alien excludable at the time of entry is deportable under 8 U.S.C. Sec. 1251(a)(1) (1982). Many grounds for exclusion are involuntary, however, and are not grounds for deportation if they come into existence after lawful admission into the United States. For example, an alien "shall be excluded" if "afflicted with any dangerous contagious disease" under 8 U.S.C. Sec. 1182(a)(6) (1982), but is not deportable if the disease was contracted after admission into the United States. An alien is excludable for existing insanity under 8 U.S.C. Sec. 1182(a)(2), (3) (1982); but if not then barred by insanity, the analogous deportation statute requires that he be institutionalized at public expense within five years after entry "because of mental disease, defect, or deficiency, unless the alien can show that such disease, defect or deficiency did not exist prior to his admission." 8 U.S.C. Sec. 1251(a)(3) (1982).

Numerous other differences exist between exclusion and deportation. Aliens who are "paupers, professional beggars, or vagrants" are excludable under 8 U.S.C. Sec. 1182(a)(8) (1982); but if not then so classified, they are not deportable for these reasons unless, within five years after entry, in the Attorney General's opinion they have "become a public charge from causes not affirmatively shown to have arisen after entry." 8 U.S.C. Sec. 1251(a)(8) (1982). Polygamy is a ground for exclusion under 8 U.S.C. Sec. 1182(a)(11) (1982), but polygamy after entry is not listed as a separate ground for deportation.

Some grounds for exclusion cannot logically apply to deportation, such as attempted entry of a stowaway, and reapplication for admission without the Attorney General's consent within one year of deportation. 8 U.S.C. Sec. 1182(a)(16), (18) (1982). Likewise, some grounds for deportation cannot logically apply to exclusion, such as failure of a registered resident alien to keep the Attorney General notified of his address. 8 U.S.C. Sec. 1251(a)(5) (1982).

Other provisions are similar but not identical. For example, conviction of a "crime involving moral turpitude" before admission is a ground for exclusion, with exceptions for "purely political" and certain juvenile offenses. 8 U.S.C. Sec. 1182(a)(9) (1982). The analogous deportation ground does not include the "purely political offense" exception, and adds an exception for crimes where the sentence was for less than one year of confinement. 8 U.S.C. Sec. 1251(a)(4) (1982).

Certain narcotics and marijuana offenses are grounds both for exclusion and deportation. 8 U.S.C.A. Sec. 1182(a)(23), Sec. 1251(a)(11) (West Supp.1987). These drug subsections are among the most nearly identical sections of the exclusion and deportation statutes.

Section 1182(c), providing for discretionary relief in the exclusion statute, is the basis of Mr. Cabasug's appeal. He claims a right under this provision to be considered for discretionary relief from deportation. The statutes, however, do not make discretionary relief equally available in deportation and exclusion cases. The discretionary relief subsection for exclusion cases provides:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a) of this section. Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title.

8 U.S.C. Sec. 1182(c) (1982).

On its face, the statute has no application in the case before us. Mr. Cabasug faces deportation, not exclusion. Mr. Cabasug has not "temporarily proceeded abroad voluntarily," as required by the statute. Nor is Mr. Cabasug applying to be "admitted," as the statute requires. He has made no "entry" to which the exclusion could apply.

We have no reason to doubt that Congress intended exactly what it accomplished when it put this discretionary provision only in the exclusion and not the deportation statute. Congress wrote a separate statute for discretionary relief from deportation, 8 U.S.C. Sec. 1254(a). This statute is explicitly made applicable to persons deportable under the sawed-off shotgun and machine gun subsection. 8 U.S.C. Sec. 1254(a)(2) (1982). Mr. Cabasug did not apply for relief under this section. We...