990 F.2d 939 (7th Cir. 1993), 91-3692, Leal-Rodriguez v. I.N.S.

Docket Nº:91-3692.
Citation:990 F.2d 939
Case Date:April 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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990 F.2d 939 (7th Cir. 1993)

Miguel Angel LEAL-RODRIGUEZ, Petitioner,



No. 91-3692.

United States Court of Appeals, Seventh Circuit

April 6, 1993

Argued Sept. 23, 1992.

As Amended April 19, 1993.

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Robert E. Lehrer, Legal Assistance Foundation of Chicago, Susan Compernolle (argued), Legal Assistance Foundation, Douglas Schoppert, Coursey & Schoppert, Chicago, IL, for petitioner.

Fred Foreman, U.S. Atty., Office of the U.S. Atty., Criminal Div., Chicago, IL, Mark C. Walters, Lori L. Scialabba, Joseph F. Ciolino (argued), Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, DC, A.D. Moyer, Michael L. Harper, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, for respondent.

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Miguel Leal-Rodriguez ("Leal") brings this appeal from an order of deportation affirmed by the Board of Immigration Appeals (BIA). An immigration judge ordered Leal deported on two grounds: as an alien convicted of a controlled substance violation, see 8 U.S.C. § 1251(a)(11) (1988), and as an alien who entered into the United States without submitting to inspection, see 8 U.S.C. § 1251(a)(2) (1988). 1 Under the current immigration regime, aliens found deportable for violations of the inspection requirements do not receive equitable hearings to decide whether deportation should be suspended. Accordingly, Leal brings a two-pronged attack on this judgment. First, he contends that his return to the United States did not constitute an "entry" within the meaning of section 101 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 (1988) et seq., as construed by Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), so that he cannot be expelled for "entering" this country without inspection. In the alternative, he argues that he should be eligible for equitable relief from deportation under INA § 212(c) even though he was found deportable for entry without inspection. The issues raised by this case are complex and unusually difficult to decide because the original statutory texts, now overlaid with four decades of judicial rulings, administrative interpretations, and congressional amendments, have become "an untidy patchwork, even, one might say, a mess." Campos v. INS, 961 F.2d 309, 315 (1st Cir.1992). Nevertheless, we hold that Leal did make an entry subjecting him to deportation for failure to present himself for inspection, and that he is not entitled to an equitable hearing under section 212(c) of the INA.

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We begin with a reprise of the events that ultimately led to Leal's order of deportation. We accept the BIA's factual findings as supported by reasonable, substantial, and probative evidence. See 8 U.S.C. § 1105a(a)(4) (1988); Woodby v. INS, 385 U.S. 276, 281-83, 87 S.Ct. 483, 485-87, 17 L.Ed.2d 362 (1966); Zalega v. INS, 916 F.2d 1257, 1259 (7th Cir.1990).

Leal was born in Mexico in 1949. He entered the United States in 1970 and married Irma Montenegro, an American citizen, one year later. After the birth of the couple's first daughter in 1974, Leal became a lawful permanent resident alien of the United States. Except for the one trip discussed below, Leal has lived continuously in this country since his first arrival in 1970.

In 1980, Leal was convicted in the Northern District of Illinois of possession with intent to distribute heroin. He was sentenced to six months work-release as part of a five-year period of probation. While on probation, Leal planned a short trip to Mexico to visit his ailing grandfather and to sell a piece of land that he owned there. Before leaving, he consulted his probation officer and obtained written permission to travel. 2 Leal crossed into Mexico by car on December 21, 1982; he attempted to return through the Immigration and Naturalization Service's (INS) inspection point at Eagle Pass, Texas, on January 6, 1983.

At Eagle Pass, Leal presented himself for inspection, seeking readmission as a returning resident alien. While they were checking his baggage, immigration officers found the letter from Leal's probation officer, which alerted them to his 1980 drug conviction. After verifying this information, the officers determined that Leal should not be admitted into the United States. They then took several actions. The officers accepted a sworn and signed statement by Leal describing the nature and circumstances of his drug violation. See CR 200. They also served him with a Form I-122, an immigration document that advised Leal that he was not presently entitled to enter the United States because of his drug conviction, but that he would be notified by mail (to be sent to an address in Mexico that Leal provided) of the time and place of his exclusion hearing before an immigration judge. See CR 170. Finally, the officers confiscated his "green" or alien registration card.

Before the immigration judge and the BIA, Leal complained that the officials at Eagle Pass did not inform him that he was entitled to receive a formal exclusion hearing. Both courts found this testimony incredible. See CR 3, 37-41. The immigration judge noted that Leal claimed he did not remember receiving any documentation at Eagle Pass, even though only one week later he handed his attorney in Chicago the Form I-122, which stated his right to present his case before an immigration judge. See CR 38. The judge found more believable the rebuttal testimony of Inspector Charles E. Cunningham, the supervisory immigration inspector who signed the Form I-122. According to Cunningham, INS follows a standard procedure in all cases involving denials of entry. An immigration officer advises the alien of the charge of excludability against him and of his right to appear before an immigration judge. The officer also provides him with a list of legal aid attorneys, including their addresses and phone numbers. See CR 105-06, 122. Finally, a returning resident alien is told to return during hours when a supervisor is present who can determine whether he may be permitted to enter under the Fleuti doctrine. See CR 106, 112. Cunningham confirmed that all aliens are told their rights in Spanish--in fact, he testified that he and the two other inspectors who witnessed Leal's written statement speak Spanish. See CR 121-22. Leal's individual

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file, Cunningham stated, indicated that all proper steps had been taken in his case. See CR 105-06.

Leal, however, neither waited for his exclusion hearing to be scheduled, nor returned to see an immigration supervisor, nor called any lawyer on the legal aid list. Instead, he took a bus that same day from Eagle Pass to the port of entry near Laredo, Texas, and crossed the border by wading through the Rio Grande. He then walked for some twenty hours until being picked up by a traveler and taken to Chicago. According to later testimony, Leal felt he needed to return quickly because his oldest daughter was hospitalized. Upon his return to Chicago, Leal contacted his attorney, Consuela Bedoya, who moved to terminate the exclusion proceedings in Texas since her client had already entered the country.

Leal testified that he had been told the wait for his exclusion hearing could last indefinitely--that it "could take a day, could take a week, could take a month, could take a year or two years." 3 CR 69. In fact, INS sent a letter to Leal's address in Mexico on March 17, 1983, scheduling his exclusion hearing for April 19, 1983. After receiving Bedoya's letter, INS administratively closed its exclusion case. On June 15, 1983, INS charged Leal with deportability under 8 U.S.C. § 1251(a)(2) and (11) based on his entry without inspection and his drug conviction. On March 18, 1986, the immigration judge found Leal deportable and denied his consideration for a section 212(c) waiver. On October 25, 1991, the BIA dismissed his appeal. 4


The first issue before us involves the BIA's ruling that Leal is properly deportable for entering the United States without inspection. Leal contends that the BIA's interpretation of the INA does not deserve deference because it violates Supreme Court precedent.


Immigration law features two parallel statutory schemes for regulating the movements of non-citizens. One involves exclusion, or the process of excluding people who seek to enter the United States, while the other involves deportation, or the process of expelling people who are already present in the country. Section 212 of the INA sets forth thirty-three grounds upon which an alien may be excluded. See 8 U.S.C. § 1182(a) (1988). Section 244 lists twenty grounds supporting deportation. See id. § 1251(a). The grounds for exclusion largely overlap with those for deportation, although they are not identical. Some grounds for exclusion have no counterpart among the deportation grounds. See, e.g., id. § 1182(a)(4), (6), (11) (exclusion based on sexual deviance, contagious disease, or polygamy). Likewise, there are two grounds for deportation that have no analog within the exclusion provisions. See id. § 1251(a)(2), (14) (deportation based on possession of illegal firearms or entry without inspection). Failure to submit to inspection upon entry into the United States is the main issue in this case. 5

One of the more venerable principles of immigration law is the "entry" or "reentry doctrine," under which an alien is subject to possible exclusion every time he seeks to be readmitted to this country after a trip abroad. Even if the alien's inadmissibility is not detected at the time of admission, he can still be placed in deportation proceedings

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anytime thereafter under a catch-all section of the deportation provisions. See 8 U.S.C. § 1251(a)(1) (1988). It was the harshness of the reentry doctrine that led the...

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