Campos v. I.N.S.

• Decision Date: 10 October 1991
• Docket Number: No. 91-1427,91-1427
• Citation: 961 F.2d 309
• Parties: Andres Antonio CAMPOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 309

961 F.2d 309

Andres Antonio CAMPOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-1427.

United States Court of Appeals First Circuit.

Heard Oct. 10, 1991.

Decided April 13, 1992.

Rhonda Berkower, P.A.I.R. Project, with whom Daniel Kanstroom, P.A.I.R. Project, Carroll Lucht, New Haven, Conn., The Jerome N. Frank Legal Services Organization, Yale Law School, Kristina Michelsen, Rhona Silverbush and Marc Bruner were on brief, for petitioner.

Harvey Kaplan, Kaplan, O'Sullivan & Friedman, Monica Conyngham, George Lester and Foley, Hoag & Eliot, Boston, Mass., on brief for American Immigration Lawyers Ass'n and the Nat. Immigration Project of the Nat. Lawyers Guild, amici curiae.

Charles E. Pazar, Office of Immigration Litigation, Civil Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Civil Div., and Robert Kendall, Jr., Asst. Director, Washington, D.C., were on brief for respondent.

Before CAMPBELL, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BOWNES, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Petitioner, Andres Antonio Campos ("Campos"), petitions for review of a final deportation order entered by the Board of Immigration Appeals ("BIA"). Petitioner argues that the Board erred in determining that he was ineligible to apply for relief from deportation pursuant to § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c). Finding no reversible error, we deny his petition for review.

Background

Campos is a native and citizen of the Dominican Republic. He had been a lawful permanent resident of the United States since August 11, 1981. From 1981 until March 1988, Campos lived in Puerto Rico. Campos then moved to Providence, Rhode Island.

While residing in Rhode Island, Campos was convicted on February 6, 1989 in the state court for carrying a .22 caliber Bernadelli pistol, without a license, in violation of § 11-47-8 of the General Laws of Rhode Island. Campos was sentenced to 24 months imprisonment, with two months to serve, 22 months suspended, and a probation term of 22 months. Shortly thereafter, on February 16, 1989, Campos was again convicted in the state court, this time for possession of heroin with intent to distribute and possession of cocaine in violation of Rhode Island law. For these latter offenses, he was sentenced to a total of 36 months, with four months to be served concurrently with the two months previously imposed for the unlawful possession of a handgun. The remaining 36 months of the sentence were suspended, with Campos to be on probation for that period.

On June 8, 1990, the Immigration and Naturalization Service ("INS") issued an order requesting Campos to show cause why he should not be deported from the United States. In its order, the INS asserted that Campos was deportable under provisions of the Immigration and Nationality Act "INA". Campos' state convictions for possession of cocaine and of heroin with intent to distribute allegedly made him deportable under both § 241(a)(4)(B), ¹ (aggravated felony), 8 U.S.C. § 1251(a)(4)(B) [recodified as 8 U.S.C. § 1251(a)(2)(A)(iii) (1991) ] and § 241(a)(11), ² (controlled substances violation) 8 U.S.C. § 1251(a)(11) [recodified as 8 U.S.C. § 1251(a)(2)(B)(i) and (ii) (1991) ] of the INA.

A deportation hearing was held on June 29, 1990 before an immigration judge. Appearing pro se, Campos admitted he was deportable on the grounds enumerated in the order to show cause. However, he expressed a desire to apply for relief from deportation under § 212(c) of INA, a statute giving the Attorney General discretion to admit returning aliens which has, over the years, been expanded to allow relief to aliens facing deportation. See infra. At that time, ³ § 212(c), codified at 8 U.S.C. § 1182(c), read as follows:

(c) Nonapplicability of subsection (a)(1) to (25), (30) and (31).

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 subsection.

Following Campos' request for § 212(c) relief, INS General Attorney Richard Neville amended the show cause order to include an additional charge of deportability under § 241(a)(14) for his conviction for carrying a pistol without a license. ⁴ The INS then took the position that the addition of this ground of deportability removed Campos from any possibility of § 212(c) relief. The INS based this position on the fact that § 212(c) only granted the Attorney General discretion to waive certain designated grounds of alien exclusion, namely paragraphs (1) through (25) and paragraphs (30) and (31) of § 212(a), listing excludable aliens. Grounds for deportation were designated separately in § 241(a) of the INA, 8 U.S.C. § 1251(a). The INS thus contended that § 212(c) relief was available in deportation proceedings only if the ground of deportation was also one of the grounds of exclusion referenced in § 212(c). As the possession of a firearm without a license was a ground of deportation as to which there was no corresponding ground of exclusion referenced in § 212(c), the immigration judge denied the relief requested. Campos thereupon appealed from the decision of the immigration judge to the BIA.

In his appeal to the BIA, Campos did not challenge the immigration judge's findings of deportability. Satisfied that deportability had been established by clear, unequivocal and convincing evidence as required by Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) and 8 C.F.R. § 242.14(a), the BIA dismissed Campos' appeal on April 26, 1991. Like the immigration judge, the BIA ruled that Campos was not eligible to seek discretionary § 212(c) relief, as the Attorney General only had discretion to waive the deportation of aliens deportable under a ground of deportability for which there was a comparable referenced ground of excludability.

The present petition for review of the BIA was brought to this court pursuant to INA § 242(b), 8 U.S.C. § 1252(b). We have jurisdiction to review this final deportation order pursuant to INA § 106(a)(1), 8 U.S.C. § 1105a(a)(1); Hazzard v. INS, 951 F.2d 435 (1st Cir.1991).

Before this court, Campos makes essentially two arguments. First, he contends that Congress never intended to deprive aliens convicted of illegal possession of a firearm of the possibility of seeking § 212(c) relief. Second, he urges that even if Congress intended to render this class of deportable alien ineligible for § 212(c) relief, such denial would violate Campos' right to equal protection of the law as secured by the Fifth and Fourteenth Amendments.

Because there are no contested factual issues in this case and we decide solely a question of law, our review is plenary. Ardestani v. U.S. Department of Justice, INS, 904 F.2d 1505, 1508 (11th Cir.1990).

I.

A. Whether § 212(c) Authorizes the Granting of Discretionary Relief to Aliens Convicted of Possession of a Firearm without a License.

1) Relief from deportation pursuant to § 212(c).

Both as applicable to Campos in 1990, and as since amended, § 212(c) applies expressly only to permanent resident aliens who have voluntarily traveled abroad temporarily and, upon seeking to return to their lawful unrelinquished domicile here, would be excludable under certain listed provisions, i.e. in the earlier version, the provisions of paragraphs (1) through (25) and paragraphs (30) and (31) of subsection (a). ⁵ Section 212(c) authorizes the Attorney General, in his discretion, to disregard these grounds of exclusion and readmit the aliens into the United States.

Although codified and written so as to apply solely to exclusion proceedings directed against returning aliens, § 212(c)'s scope has been significantly, and confusingly, expanded through judicial and administrative decisions so as to apply to deportation as well. In 1976, the Second Circuit decided in Francis v. INS, 532 F.2d 268 (2d Cir.1976) that the limitation of the availability of § 212(c) relief solely to aliens returning to the United States after a temporary absence was irrational and, therefore, unconstitutionally discriminatory. The Second Circuit held that the Constitution required the Attorney General's statutory waiver power to be made equally available in the cases of resident aliens who had never left the United States but had become the subject of deportation proceedings under the sometimes different criteria set out in § 241(a), 8 U.S.C. § 1251(a). This generous interpretation of § 212(c) was accepted by the INS in Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976) and Matter of Hom, 16 I. & N. Dec. 112 (BIA 1977). This Circuit, like others, has come to accept that the right to seek discretionary § 212(c) relief may be employed in deportation proceedings by resident aliens as well as in the narrower circumstances addressed in the statutory language. Joseph v. INS, 909 F.2d 605, 606 n. 1 (1st Cir.1990); Lozada v. INS, 857 F.2d 10, 11 n. 1 (1st Cir.1988).

Although willing to follow the Second Circuit's lead and extend § 212(c) relief to deportable aliens, the BIA steadfastly ruled prior to 1990 that § 212(c) could not be utilized to waive all grounds of deportability, but only those grounds of deportability having a corresponding ground of excludability as specifically referenced in the statute. Matter of Granados, 16 I. & N. Dec. 726 (1979); see also 3 Gordon & Mailman, Immigration Law and Procedure § 74.02[b] at 74-42. ⁶ Thus, in that respect, the BIA continued to insist on following the statute as written. However, even as to this aspect, the BIA finally threw in the sponge in Matter of Hernandez-Casillas, (BIA, January 11, 1990) (Hernandez-Casillas I). In that case, the BIA reversed...