Armendariz-Montoya v. Sonchik

• Decision Date: 30 May 2002
• Docket Number: No. 01-16029.,01-16029.
• Parties: Hugo ARMENDARIZ-MONTOYA, Petitioner-Appellee, v. Roseanne C. SONCHIK, District Director, Immigration and Naturalization Service, Respondent-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

291 F.3d 1116

Hugo ARMENDARIZ-MONTOYA, Petitioner-Appellee, v. Roseanne C. SONCHIK, District Director, Immigration and Naturalization Service, Respondent-Appellant.

No. 01-16029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2002.

Filed May 30, 2002.

Shelly Goad, Department of Justice, Office of Immigration Litigation, Washington, D.C., argued the cause for the respondent-appellant. Robert D. McCallum, Jr., Assistant Attorney General, Stuart E. Schiffer, Acting Assistant Attorney General, David J. Kline, Principal Deputy Director, and Hugh G. Mullane, Office of Immigration Litigation, Washington D.C.; Paul K. Charlton, United States Attorney and Cynthia Parsons, Assistant United States Attorney, Phoenix, Arizona, were on the briefs.

Vikram K. Badrinath argued the cause for the petitioner-appellee.

Appeal from the United States District Court for the District of Arizona; Roger G. Strand, Jr., District Judge, Presiding. D.C. No. CV-00-00422-RGS.

Before O'SCANNLAIN and TALLMAN, Circuit Judges, and KING^*, District Judge.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether deportation proceedings commence with the service of an order to show cause upon the alien or with the filing of such an order with the Immigration Court.

I

In 1972, Hugo Armendariz-Montoya ("Armendariz") entered the United States without inspection from Mexico when he was three years old. In 1978, he adjusted his status to that of a lawful permanent resident. He has resided in the United States since his entry.

In 1994, the state of Arizona indicted Armendariz for possession of cocaine with the intent to distribute. Armendariz pleaded not guilty, electing a jury trial. In September 1995, he was convicted and sentenced to five years, eight months imprisonment. His subsequent appeals were unsuccessful.

On September 22, 1995, the Immigration and Naturalization Service ("INS") lodged a detainer on Armendariz with the Arizona Department of Corrections. On April 5, 1996, the INS issued an order to show cause ("OSC"), charging Armendariz as deportable for having committed a qualifying controlled substance offense and an aggravated felony. See 8 U.S.C. § 1251(a)(2)(A)(iii), (B)(i) (1994) (current version at 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i)). On April 22, 1996, the INS served the OSC upon Armendariz and on December 19, 1996, it filed the order with the Immigration Court.

In April 1997, an Immigration Judge ("IJ") conducted a deportation hearing. Armendariz conceded deportability, but sought a discretionary waiver of inadmissibility under INA § 212(c). Section 440(d) of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which was enacted on April 24, 1996, categorically negates § 212(c) relief for those aliens deportable for having committed a qualifying controlled substance offense or an aggravated felony.¹ Pub.L. 104-132, 110 Stat. 1214, 1277. The IJ determined that AEDPA § 440(d) applied to Armendariz who was thus ineligible for a § 212(c) waiver.

Armendariz appealed to the Board of Immigration Appeals ("BIA"), which affirmed. He subsequently filed a petition for review with this court, but we dismissed for lack of jurisdiction. See Armendariz-Montoya v. INS, No. 97-71305(9th Cir. Feb. 29, 2000); see also IIRIRA § 309(c)(4)(G), 100 Stat. at 3009-626 to 627 (reprinted at 8 U.S.C. § 1101, Historical and Statutory Notes) (stripping jurisdiction over claims on direct review for aliens deportable for certain grounds).

In March 2000, Armendariz filed a habeas petition with the district court. See INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that neither AEDPA nor IIRIRA repealed habeas jurisdiction under 28 U.S.C. § 2241). He argued that AEDPA § 440(d) is inapplicable to his deportation proceedings. Alternatively, he claimed that § 440(d) violates the Equal Protection Clause.

The magistrate judge recommended that the court grant the petition based on his conclusion that Armendariz's deportation proceedings commenced with the service, not with the filing, of the OSC. Since the INS served the OSC two days before the enactment of AEDPA, the magistrate concluded that § 440(d) was inapplicable and thus he was eligible to seek a § 212(c) waiver. The magistrate declined to address Armendariz's contention that § 440(d) violates equal protection.

The district court adopted the magistrate's recommendation without comment. The INS noted a timely appeal.

II

Whether AEDPA § 440(d) applies, depends, of course, on the date Armendariz's deportation proceedings commenced. Cortez-Felipe v. INS, 245 F.3d 1054 (9th Cir. 2001) tells us that deportation proceedings commence with the filing of the OSC with the Immigration Court. In Cortez, the alien suspected that the INS would initiate deportation proceedings. IIRIRA was set to take effect on April 1, 1997. However, by late March 1997, the INS had not taken any action. In the hope of avoiding IIRIRA's amendments, the alien contacted the INS to request initiation of deportation proceedings before April 1. On March 27, the INS served the OSC, but did not file it until after IIRIRA became effective.

In holding that proceedings commenced with the filing of the OSC, we relied upon INS regulations to this effect. See 8 C.F.R. § 3.14(a) ("[P]roceedings ... commence when a charging document is filed with the Immigration Court by the Service."); id. § 239.1(a) ("Every ... proceeding... to determine the deportability... of an alien is commenced by the filing of a notice to appear with the Immigration Court...."); id. § 240.55 ("A deportation proceeding is commenced by the filing of [the OSC] with the Immigration Court, and an alien is considered to be in deportation proceedings only upon such filing...."). We also stressed that our previous decisions have uniformly stated that deportation proceedings commence with the filing of the OSC. See El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 749 (9th Cir.1991) ("A deportation proceeding commences with the filing of an order to show cause."); Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir.1990) ("[A] proceeding to determine the deportability of the alien is commenced by an immigration official who issues and files an order to show cause with the Office of the Immigration Judge."); see also Matter of Sanchez, 20 I. & N. Dec. 223, 225 (BIA Sept. 21, 1990) ("Jurisdiction vests and proceedings commence before an immigration judge when a charging document is filed with the Office of the Immigration Judge....").

Nevertheless, Armendariz argues that Cortez is distinguishable because it arose in the context of IIRIRA, not AEDPA. Armendariz also claims that Cortez is distinguishable because the INS lodged a detainer in this case. We take up his contentions in turn.

A

Armendariz correctly notes that the First Circuit has drawn a distinction between IIRIRA and AEDPA in determining when deportation proceedings commence. Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999), presented materially identical circumstances to this case, i.e., the applicability of AEDPA § 440(d) turned on whether deportation proceedings commenced with the service or with the filing of the OSC. Id. at 287. The court held that deportation proceedings commenced with the service of the OSC. The court refused to accord any deference to the relevant INS regulations. The court stated,

In this case we are not concerned with the INS's internal time tables, starting points, due dates, and the like but with the judicial question of retroactivity. [The] question turns on ... the realities of reasonable reliance or settled expectations on the part of litigants.... [W]e think that when an order to show cause is served on the alien, the deportation process has effectively begun and expectations properly form, even if there is no actual reliance. Id.

In other words, Wallace held that § 440(d)'s potential retroactive effect militates against holding that proceedings commence with the filing of the OSC.

Wallace was followed by Costa v. INS, 233 F.3d 31(1st Cir.2000). Costa presented the identical circumstances present in Cortez; the applicability of IIRIRA's permanent amendments turned on whether deportation proceedings commenced with the service or with the filing of the OSC. The court held that deportation proceedings commenced with filing and distinguished Wallace on the ground that the potential retroactive effect of AEDPA § 440(d) is greater than that of IIRIRA's permanent amendments. Id. at 35-36. It also stressed that Wallace arose in the context of habeas, while Costa involved a petition for review. Id. at 36. According to Costa, courts owe greater deference to INS regulations in direct review cases. Id. As such, Costa owed more deference than Wallace to the INS regulations providing that deportation proceedings commence with the filing of the OSC.

We decline to follow the First Circuit's distinction between AEDPA and IIRIRA in determining when deportation proceedings commence. Cortez does not allow it, and states in sweeping terms that deportation proceedings commence with the filing of the OSC. 245 F.3d at 1056-57. Cortez accorded great weight to the relevant INS regulations, which do not allow for a different outcome depending upon whether a particular section of AEDPA or IIRIRA is involved. See 8 C.F.R. § 3.14(a); id. § 239.1(a); id. § 240.55.

In any event, we find the First Circuit's distinction unpersuasive. Wallace inappropriately considered the potential retroactive effect of § 440(d) in determining when deportation proceedings commence. A determination of when deportation proceedings commence stands apart from a consideration of § 440(d)'s potential retroactive effect. As will be discussed shortly, even though deportation proceedings commence with filing, § 440(d) does not apply if its application would result in an a retroactive effect. Finally, we are also...