Arauz v. Rivkind

• Decision Date: 16 May 1988
• Docket Number: No. 86-5415,86-5415
• Citation: 845 F.2d 271
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: Nemrod Jose ARAUZ, a/k/a Arauz-Acuna, Petitioner-Appellee, v. Perry RIVKIND, District Director, U.S. Immigration & Naturalization Service, District VI, Respondent-Appellant.

Page 271

845 F.2d 271

Nemrod Jose ARAUZ, a/k/a Arauz-Acuna, Petitioner-Appellee, v. Perry RIVKIND, District Director, U.S. Immigration &amp Naturalization Service, District VI, Respondent-Appellant.

No. 86-5415.

United States Court of Appeals Eleventh Circuit.

May 16, 1988.

Leon B. Kellner, U.S. Atty., Esmeralda Cabrera, Sp. Asst. U.S. Atty., Miami, Fla., Donald A. Couvillon, Washington, D.C., for respondent-appellant.

James G. Roth, Miami Beach, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.

ON PETITION FOR REHEARING

(Opinion Dec. 31, 1987, 11th Cir., 1987, 834 F.2d 979).

HATCHETT, Circuit Judge:

The government appeals an order of the district court partially reversing a decision of the Board of Immigration Appeals (BIA) and remanding the alien/appellee's political asylum application to the Immigration and Naturalization Service (INS) for a full administrative hearing, even though the appellee had been convicted of "a particularly serious crime." We affirm.

The appellant, Nemrod Jose Arauz, is a native and citizen of Nicaragua. In 1979, shortly after the fall of the Samoza government, Arauz decided to leave Nicaragua and sign on as a crewman with an American vessel. On November 1, 1979, after obtaining a non-immigrant crewman's visa, he departed Nicaragua and entered the United States. Upon entry, immigration officials inspected and admitted him as a crewman for a period not to exceed twenty-nine days.

Arauz did not leave the United States with the ship, and at some later time, his wife, mother, and five brothers joined him, all without immigration status in the United States. On August 12, 1983, the United States Coast Guard Cutter Sea Hawk intercepted Arauz at sea while he was aboard a United States fishing vessel. The Coast Guard officers intercepted the vessel in international waters and found in excess of 4,000 pounds of marijuana aboard. Consequently, the officers arrested Arauz, took him to Key West, Florida, and paroled him into the United States for prosecution pursuant to 8 C.F.R. Sec. 212.5(a)(3).

On August 16, 1983, the government charged Arauz, along with the other crewmen arrested aboard the vessel, with conspiracy to distribute and with possession with intent to distribute a controlled substance while aboard an American vessel, in violation of 21 U.S.C. Secs. 955a and 955c. After being indicted on the same charges, Arauz pleaded guilty to conspiracy to possess with intent to distribute marijuana, in violation of section 955c, and the district court sentenced him to twenty months imprisonment.

On or about June 28, 1985, Arauz was released from prison into the custody of INS officials and served with a notice of referral to exclusion proceedings to determine whether he was entitled to enter the United States or would be excluded and deported. Following several appearances in court, the immigration judge determined that Arauz was properly in exclusion proceedings and that he was excludable pursuant to section 212(a)(23) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(a)(23). ¹ In addition, the immigration judge considered Arauz's application for political asylum. Pursuant to federal regulation, the immigration judge also considered application for political asylum as a request for withholding of exclusion or deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C.

Sec. 1253(h). ²

Because Arauz's narcotics conviction was a "particularly serious crime, [which made him] a danger to the community of the United States," the immigration judge concluded that Arauz was statutorily ineligible for withholding of deportation under section 243(h) of the Immigration and Nationality Act. See 8 U.S.C. Sec. 1253(h)(2)(B). Additionally, the immigration judge refused to consider Arauz's request for political asylum, reasoning that Arauz did not warrant asylum in the exercise of the immigration judge's discretion based on his 1984 narcotics conviction. On appeal, the Board of Immigration Appeals (BIA) dismissed Arauz's appeal, and affirmed the immigration judge's denial of Arauz's request for asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. Secs. 1158(a) and 1253(h).

On January 27, 1986, immigration officials directed Arauz to appear at the INS offices for deportation to Nicaragua on February 10, 1986. Arauz then filed the present petition for habeas corpus in district court, seeking review of the BIA's order of exclusion. Finding that the immigration judge acted arbitrarily and capriciously by failing to conduct a full evidentiary hearing on the asylum application, the district court remanded the case to the INS for a full hearing on the asylum application. In all other respects, the BIA's decision was affirmed. This appeal followed. ³

The sole issue involves the district court's remand for an evidentiary hearing on the asylum claim in light of the conviction for a serious crime.

DISCUSSION

The Immigration and Nationality Act contains two provisions whereby an alien may resist deportation to a country where he believes his life or freedom would be threatened on account of his political opinion. One is 8 U.S.C. Sec. 1158 (1982), governing asylum requests ⁴; the other is 8 U.S.C. Sec. 1253(h) (1982), governing requests for withholding of deportation. ⁵ While the distinction between political asylum and withholding of deportation has been somewhat muddled in this court's prior decisions, we note that sections 1253(h) and 1158 are separate and distinct provisions requiring different proceedings.

We agree with the district court that review of the record unequivocally shows that Arauz is statutorily ineligible for withholding of deportation. Title 8, U.S.C. Sec. 1253(h)(2)(B) provides that withholding of deportation or return shall not apply if the Attorney General determines that the alien, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States...." As we said in Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir.1986), "th[is] statute ... does not connect its two clauses with a conjunction; rather the statute set forth a cause and effect relationship: the fact that the alien has committed a particularly serious crime makes the alien dangerous within the meaning of the statute." Crespo-Gomez, 780 F.2d at 934; see also Zardui-Quintana v. Richard, 768 F.2d 1213, 1222 (11th Cir.1985) (Vance, J., concurring in result). Thus, we concluded then, as we do today, that "the only finding required by section 1253(h)(2)(B) is that the alien has been convicted of a 'particularly serious crime.' " Crespo-Gomez, 780 F.2d at 934-35.

The narcotics offense of which Arauz was convicted is clearly a serious crime which, in turn, makes him a danger to the United States within the meaning of section 1253(h)(2)(B). Since Arauz's 1984 narcotics conviction was in the record, the immigration judge did not have to consider additional information concerning Arauz's request for deportation, because no amount of evidence would have negated the fact of Arauz's statutory ineligibility for withholding of deportation. Consequently, we hold that the immigration judge's decision to deny withholding of deportation is supported by substantial evidence. Chavarria v. United States Department of Justice, 722 F.2d 666, 670 (11th Cir.1984) (adopting "substantial-evidence" standard of review for withholding of deportation requests).

Arauz next contends that the Board of Immigration Appeals, as well as the immigration judge, abused its discretion in pretermitting his request for political asylum by failing to conduct a full evidentiary hearing on his asylum application. The government argues that while the right to request asylum generally carries with it the concomitant right to be heard on the application, the immigration judge acted well within his discretion. The government argues that no useful purpose would have been served by allowing the petitioner to introduce evidence because the immigration judge found in his discretion that Arauz did not warrant asylum.

As indicated in the decision of the Board of Immigration Appeals, the grounds for statutory ineligibility for the withholding of deportation are not applicable to asylum requests pursuant to 8 U.S.C. Sec. 1158. As stated previously, although the procedures are closely related, asylum applications are filed pursuant to 8 U.S.C. Sec. 1158, while withholding petitions are filed pursuant to 8 U.S.C. Sec. 1253(h). Significantly, the language of section 1158 does not provide that the granting of a withholding of deportation petition is a necessary prerequisite to the granting of an application for political asylum.

The government correctly notes that the district director of the Immigration and Naturalization Service may deny a request for asylum if he determines that "the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States...." 8 C.F.R. Sec. 208.8(f)(IV). ⁶ We have previously acknowledged that "though the regulations do not specifically delineate the factors to be taken into account by the immigration judge in denying asylum requests, it can be assumed that they are identical to those applicable to district directors." Zardui-Quintana, 768 F.2d at 1218.

This is not to suggest, however, that an immigration judge is no longer obliged to entertain the merits of an asylum application once it has been determined that the alien has been convicted of a particularly serious offense. Even in that situation, the regulations still provide that the alien "may present evidence for the record in the exclusion or deportation proceedings." 8 C.F.R. Sec. 208.10(c). ⁷ Notwithstanding the...