Ayala-Chavez v. U.S. I.N.S.

• Decision Date: 20 September 1991
• Docket Number: AYALA-CHAVE,P,No. 91-70262,91-70262
• Citation: 945 F.2d 288
• Parties: Antonio Rauletitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 288

945 F.2d 288

60 USLW 2210

Antonio Raul AYALA-CHAVEZ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 91-70262.

United States Court of Appeals Ninth Circuit.

Submitted May 14, 1991.

Decided Sept. 20, 1991.

Jay W. Stansell, Northwest Immigrant Legal Services, Seattle, Wash., for petitioner Antonio Raul Ayala-Chavez.

Norah Ascoli Schwarz, U.S. Dept. of Justice, Civil Div., Washington, D.C., for respondent I.N.S.

Motion for Stay of Deportation Pending Petition for Review from the Immigration and Naturalization Service.

Before TANG, REINHARDT and THOMPSON, Circuit Judges.

REINHARDT, Circuit Judge:

Petitioner seeks a stay of deportation pending disposition of his petition for review of the Bureau of Immigration Appeals' denial of relief. Prior to 1990, petitioners in his position were ordinarily entitled to an automatic stay of deportation pending such review. See 8 U.S.C. § 1105a(a)(3) (1988). ¹ That year, however, Congress amended § 1105a(a)(3) to eliminate the automatic stay for aliens who have been convicted of "aggravated felonies." Immigration Act of 1990 ("1990 Act"), Pub.L. No. 101-649, sec. 513(a) (Nov. 29, 1990). ² The term "aggravated felony" was first defined in the Anti-Drug Abuse Act of 1988 ("ADAA"), Pub.L. No. 100-690, sec. 7342 (Nov. 18, 1988) (codified as amended at 8 U.S.C.A. § 1101(a)(43) (Supp.1991)). Petitioner was convicted of drug-related crimes prior to the enactment of the 1988 statute. Accordingly, we must resolve an issue of first impression: whether the 1990 amendment denying an automatic stay to aliens convicted of an aggravated felony applies to persons convicted of felonious conduct prior to November 18, 1988. We hold that it does not, and that petitioner is entitled to an automatic stay.

BACKGROUND

Petitioner is a Mexican citizen who has resided in this country as a legal permanent resident since 1972. He has lived in Washington State with his parents, siblings, and other family members since he was eight years old, and has been married to a U.S. citizen for nine years. Several of his relatives are U.S. citizens. He has three children, all of whom are U.S. citizens because they were born in this country. He has a steady employment record and has received high praise from his current employer, who testified on his behalf in the immigration proceedings. He supports his parents as well as his wife and children.

In January of 1988, petitioner was arrested on two occasions for referring a police informant to a person who sold the informant cocaine with an aggregate value of $70. In May 1988, he was convicted on two counts of complicity in the sale of cocaine. He was sentenced to 27 months in prison, of which he served 18 before his early release based on good behavior. He received high praise from the warden for his conduct in prison, where he worked as a janitor, volunteered as a translator for inmates, and served as a volunteer fire fighter.

Upon the petitioner's release from prison, the Immigration and Naturalization Service ("Service") commenced deportation proceedings against him pursuant to 8 U.S.C. § 1251(a)(11), based on his convictions. Petitioner conceded deportability and sought discretionary relief from deportation under 8 U.S.C. § 1182(c). ³ The Immigration Judge agreed that petitioner demonstrated statutory eligibility for such relief in that he had been lawfully admitted as a permanent resident alien and had resided in this country for more than seven years. She further found that petitioner had demonstrated good character in his history of steady employment and family loyalty, and that his family, many of whom are U.S. citizens, would suffer extreme hardship if he were deported.

The Immigration Judge declined to exercise her discretion to grant relief from deportation, however, based on her finding that petitioner had not demonstrated sufficient rehabilitation since his convictions. Petitioner appealed to the Bureau of Immigration Appeals ("BIA"), which dismissed his appeal and upheld the decision of the Immigration Judge. The petition for review in this court followed.

Petitioner filed an emergency motion for a stay of deportation, arguing that the recent elimination of the automatic stay is not applicable to him because his convictions occurred prior to the enactment of the ADAA, or, in the alternative, that we should grant a discretionary stay under the standards established in Lopez v. Heckler, 713 F.2d 1432 (9th Cir.), rev'd in part on other grounds, 463 U.S. 1328, 104 S.Ct. 10, 77 L.Ed.2d 1431, 464 U.S. 879, 104 S.Ct. 221, 78 L.Ed.2d 217 (1983). ⁴ We granted a stay pending further order of this court. We now hold that petitioner is entitled to an automatic stay pending final disposition of his petition for review.

ANALYSIS

Petitioner was convicted of drug-related offenses six months prior to the enactment of the ADAA. That statute amended the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1101 et seq., by providing, in part, that an alien convicted of an aggravated felony would be subject to various immigration-related consequences. See ADAA, secs. 7343-7349. It defined the term "aggravated felony" in a manner that included the type of conduct for which petitioner had been convicted. See ADAA, sec. 7342. In the 1990 Act, Congress added further consequences that flow from a conviction of an aggravated felony. Among them is the provision we consider here: Persons convicted of aggravated felonies are deprived of the statutory right to obtain automatic stays of deportation pending determination of their petitions for review. See 1990 Act, sec. 513(a).

Petitioner argues that because his conviction for drug-related offenses occurred prior to the enactment of the ADAA, he is not subject to the 1990 amendment eliminating the automatic stay of deportation for persons convicted of an "aggravated felony". The 1990 Act does not specify whether automatic stays are eliminated in the case of persons whose convictions occurred prior to the effective date of the ADAA. The language and legislative history of the provision in question are silent on that point. ⁵ Moreover, the other provisions of the 1990 Act which deal with related questions shed little light on the issue. The parties before us largely ignore those other provisions and urge us instead to conduct our analysis with reference to the related provisions of the ADAA. ⁶ They are right to do so. Because the 1990 Act simply adds additional provisions to the terms of the underlying statute, the ADAA, and must be interpreted in pari materia with it, we look to the ADAA in order to determine whether the 1990 amendment at issue here applies in petitioner's case. Fortunately, the ADAA tells us clearly when amendments of this type before us are retroactive and when they are prospective, and an analysis of that Act provides us with a clear answer to the question we must decide.

The structure of the ADAA plainly demonstrates that in the case of deportation proceedings Congress intended to apply the consequences that flow from an aggravated felony conviction only to persons who are convicted of such conduct on or after the effective date of the statute. The treatment of persons subject to deportation is the direct opposite of that afforded persons seeking reentry. In the latter case, the ADAA provides that the consequences that flow from conviction of the type of felonious conduct covered by the statute apply regardless of the date of conviction.

The relevant portion of the ADAA begins with a definition of "aggravated felony." See ADAA, sec. 7342. That definition does not state whether the term only covers convictions occurring on or after the date of enactment, or whether it also covers convictions occurring prior to the date of enactment. Instead, the temporal scope of the term is determined in the substantive sections that follow the definition--the sections providing for a variety of consequences that attach upon the conviction of an aggravated felony. See ADAA, secs. 7343-7349. Each consequence is listed in its own section, and each section contains an applicability provision which specifically states whether the conviction for the aggravated felony must have occurred on or after the date of enactment.

Of the seven substantive sections that were enacted in the 1988 legislation, four expressly provide, in applicability subsections, that the consequence involved applies only to persons convicted of an aggravated felony on or after the date of enactment, and three provide, necessarily though implicitly, that the consequence also applies to persons convicted prior to that time. The provisions stating that the conviction must have occurred on or after the date of enactment are the provisions that relate to the deportation of persons in the United States: sec. 7343 (governing deportation of aliens committing aggravated felonies, and eliminating the option of voluntary departure for such aliens), sec. 7344 (providing that conviction for an aggravated felony shall constitute a ground for deportation), sec. 7347 (providing expedited procedures for deportation of aliens convicted of committing aggravated felonies), and sec. 7348 (governing deportation for weapons violations). The applicability subsection of each of these sections states, with only minor variations in language, that it "shall apply to any alien who has been convicted, on or after the date of the enactment of this Act, of an aggravated felony."

By contrast, the applicability subsections that provide for the inclusion of convictions that occurred prior to the date of enactment are all parts of sections that relate to reentry by persons previously deported. Section 7345, which provides criminal penalties for the reentry of aliens who were deported subsequent to the conviction of an aggravated felony, states that it "shall apply to any alien who enters, attempts to enter, or is found in, the...