Angulo-Dominguez v. Ashcroft

• Decision Date: 21 May 2002
• Docket Number: No. 00-15767.,00-15767.
• Citation: 290 F.3d 1147
• Parties: Reynaldo ANGULO-DOMINGUEZ, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

290 F.3d 1147

Reynaldo ANGULO-DOMINGUEZ, Petitioner-Appellant, v. John ASHCROFT, Attorney General, Respondent-Appellee.

No. 00-15767.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2001.

Filed May 21, 2002.

Vikram K. Badrinath, Vikram K. Badrinath, P.C., Tucson, AZ, for petitioner-appellant Reynaldo Angulo-Dominguez.

David W. Ogden, John J. Andre, John S. Hogan, United States Department of Justice, Washington, DC, for respondent-appellee John Ashcroft.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CV-00-254-TUC-RCC.

Before: PREGERSON and RAWLINSON, Circuit Judges, and WEINER, District Judge.^*

WEINER, Senior District Judge.

I.

Reynaldo Angulo-Dominguez appeals the district court's order denying his application for a writ of habeas corpus under 28 U.S.C. § 2241. Angulo-Dominguez contends that his deportation order violated the Constitution and the Immigration and Nationality Act ("INA"), because he was erroneously denied eligibility for relief under the Registry Statute ("Registry Statute"). INA § 249, 8 U.S.C. § 1259. Following the parties' initial briefing, we ordered additional briefing, in light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), directed to the question whether Angulo-Dominguez qualified for a discretionary waiver of deportation under the prevailing interpretation of INA § 212(c), 8 U.S.C. § 1182(c), at the time of his 1990 conviction. We affirm the district court's conclusion that Angulo-Dominguez is not eligible for relief under the Registry Statute. We remand the balance of this case to the district court to consider in light of the Supreme Court's ruling in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

II.

Angulo-Dominguez is a native and citizen of Mexico. He entered the United States at Nogales, Arizona with his parents on September 16, 1967 shortly after his birth. He has lived in the United States continuously since his arrival. Angulo-Dominguez has been convicted of three drug offenses, and was sentenced to sixteen weekends incarceration, two and one half years incarceration, and ninety-six months incarceration, respectively.

Angulo-Dominguez was served with an Order to Show Cause on May 11, 1994, charging him with deportability pursuant to INA § 241(a)(2)(A)(iii), as an alien convicted of an aggravated felony, and § 241(a)(2)(A)(iii), as an alien convicted of controlled substance violations. An additional charge was later added for entering the United States at a place other than as designated by the Attorney General pursuant to INA § 241(a)(1)(B).

During his deportation proceedings, Angulo-Dominguez sought relief under the Registry Statute but was denied such relief because he did not satisfy the statutory requirements. The IJ determined that Angulo-Dominguez failed to meet the conditions of the statute since he was convicted of at least two crimes of moral turpitude, specifically his 1987 and 1990 marijuana trafficking convictions, and because he was ineligible for citizenship by virtue of his convictions for possession of a controlled substance. It is unclear in the record whether, at his immigration hearing, Angulo-Dominguez also sought a discretionary waiver from deportation under INA § 212(c).¹

The BIA affirmed the IJ's order, finding that Angulo-Dominguez was not eligible for relief under the Registry Statute by virtue of having a record of his lawful entry, and was not eligible for relief under INA § 212(c) by virtue of having been convicted of an aggravated felony for which he served more than five years incarceration.² Angulo-Dominguez's direct appeal to this court was dismissed for want of jurisdiction pursuant to § 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA").

Angulo-Dominguez then filed his habeas petition pursuant to 28 U.S.C. § 2241, arguing that his deportation order is in violation of the Constitution and the INA because he was erroneously denied relief under the Registry Statute. The district court denied the habeas petition, finding that Angulo-Dominguez was ineligible for relief under the Registry Statute by virtue of having a record of his lawful entry and by virtue of his convictions for controlled substance violations. Angulo-Dominguez appeals the district court's denial of his habeas petition.

III.

The district court's decision to grant or deny a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is reviewed de novo. See Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir.2000). While IIRIRA has merged deportation and exclusion proceedings into a broader category called "removal proceedings," it did not repeal the statutory habeas remedy provided by § 2241. See Sulit v. Schiltgen, 213 F.3d 449, 453 (9th Cir.2000).

IV.

The Registry Statute provides that a "record of lawful admission for permanent residence may, in the discretion of the Attorney General ... be made in the case of any alien, as of the date of the approval of his application or, if entry occurred prior to July 1, 1924, as of the date of such entry, if no such record is otherwise available and such alien shall satisfy the Attorney General that he is not inadmissible under section 1182(a)(3)(E) of this title or under section 1182(a) of this title insofar as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens...." 8 U.S.C. § 1259. The statute further provides that such relief is available only to an alien who: (1) entered the United States prior to January 1, 1972; (2) has had his residence in the United States continuously since such entry; (3) is a person of good moral character; and (4) is not ineligible for citizenship and not deportable under 8 U.S.C. § 1227(a)(4)(B). 8 U.S.C. § 1259.

A. "No Record" Requirement.

Angulo-Dominguez first argues that the Registry Statute's requirement that "no such record is otherwise available" applies only to aliens who entered the country prior to 1924. The district court was correct in finding that the plain language of the statute refutes appellant's argument. The Registry Statute is a "remedial provision designed to regularize the status of long-resident aliens legally in the country" by creating a legal record of entry for those who have none. Beltran-Tirado v. INS, 213 F.3d 1179, 1183 (9th Cir.2000) (quoting Mrvica v. Esperdy, 376 U.S. 560, 569, 84 S.Ct. 833, 11 L.Ed.2d 911 (1964) (Goldberg, J. dissenting)). Those for whom there is a record of entry have no need to "regularize" their status.

Moreover, the BIA has interpreted the "no record" requirement to apply to aliens who entered the United States after 1924. See Matter of M-P, 9 I & N Dec. 747, 1962 WL 12890 (BIA 1962)(alien who entered the country in 1925 and for whom there is a record of admission is not eligible for relief under the Registry Statute). We "defer to the BIA's interpretation of immigration laws unless the interpretation is `demonstrably irrational or clearly contrary to the plain and sensible meaning of the statute.'" United States v. Estrada-Torres, 179 F.3d 776, 779 (9th Cir.1999) (quoting Bui v. INS, 76 F.3d 268, 269-70 (9th Cir.1996)). The BIA's construction is not demonstrably irrational. Its interpretation is consistent with the holding of Mrvica, that the registry is a remedial device to create a record of entry where none exists, as well as with the legislative history. The Report of the Senate Committee on Immigration makes clear that the Registry Statute's purpose was to "authorize[ ] the Commissioner of Naturalization to issue new naturalization papers where they have become lost, mutilated, or destroyed." S.Rep. No. 70-1504 at 5 (1929).

Accordingly, we find that the district court did not err when it concluded that relief under the Registry Statute is only available to aliens who do not have a record of entry. Because Angulo-Dominguez cannot satisfy this "no record" requirement, he is ineligible for relief under this statute.

B. Controlled Substance Violations.

In addition, Angulo-Dominguez does not meet the Registry Statute's conditions for eligibility. The statute provides that an alien is ineligible for registry, inter alia, if he is inadmissible under 8 U.S.C. § 1182(a) because of a conviction for a violation relating to a controlled substance offense.

Angulo-Dominguez's three marijuana convictions are controlled substance offenses as defined in 21 U.S.C. § 802 and, therefore, he is inadmissible under § 1182(a)(2)(A)(i). In addition, § 1182(a)(2)(B) provides that any alien convicted of multiple offenses for which the aggregate sentences of confinement were five years or more is inadmissible. Angulo-Dominguez's aggregate sentences on his three convictions totaled ten years, six months and thirty-two days and, therefore, he is inadmissible under § 1182(a)(2)(B).

C. Equal Protection Challenge.

Angulo-Dominguez next argues that the denial of relief under the Registry Statute to an alien who has a record of entry, while allowing such relief to an alien who does not have a record of entry, violates equal protection. Classifications involving aliens are subject to only a "rational basis" equal protection analysis. Tapia-Acuna v. INS, 640 F.2d 223, 225 (9th Cir.1981). We find the statutory scheme Congress created in enacting the Registry Statute meets the rational basis test.

The rationality of creating a special registry for those with no record of entry, but denying the same for those who entered the country legally, is manifestly apparent. One who entered legally has an actual record of admission; there is no need to create one. A lawful permanent resident already has the benefit the registry statute was designed to confer on those who did not enter legally, but have long-standing residence: a record of the alien's lawful entry. This provides the...