Ballbe v. I.N.S.

• Decision Date: 18 October 1989
• Docket Number: No. 89-5108,89-5108
• Citation: 886 F.2d 306
• Parties: Carlos Alberto BALLBE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 306

886 F.2d 306

Carlos Alberto BALLBE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-5108

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Oct. 18, 1989.

Antoinette J. Rizzi, Washington, D.C., for petitioner.

Donald Couvillon, Office of Immigration Litigation, Washington, D.C., Allen W. Hausman, Linda W. Wendtland, Office of Immigration Litigation, Miami, Fla., for respondent.

On Petition to Review Order of the Board of Immigration Appeals.

Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and HILL, Senior Circuit Judge.

PER CURIAM:

Petitioner Carlos Alberto Ballbe appeals from the August 3, 1988 Board of Immigration Appeals' decision which dismissed Ballbe's appeal from the immigration judge's ruling that Ballbe is deportable under section 241(a)(11) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(11) (1988) and ineligible for a waiver of inadmissibility under section 212(c) of the INA, 8 U.S.C. Sec. 1182(c) (1988). Ballbe argues that the immigration judge erred in computing the seven-year period of "lawful unrelinquished domicile" in the United States required for discretionary relief under section 212(c) of the INA, 8 U.S.C. Sec. 1182(c) (1988). Ballbe further contends that the immigration judge acted arbitrarily and capriciously in ruling that even if Ballbe was eligible, he would not be entitled to a waiver of inadmissibility. For the reasons set forth below, we AFFIRM the Board of Immigration Appeals' dismissal of appeal from the decision of the immigration judge.

I. BACKGROUND

Carlos Ballbe is a native of Argentina. He has a wife, who is a United States citizen, and four resident and/or citizen children, ranging from twenty-six to twenty-eight years in age. While he resided in Argentina, Ballbe was a lawyer and a judge. On May 12, 1977, when he was 44 years old, Ballbe lawfully entered the United States as a permanent resident. Since establishing his domicile in the United States, Ballbe has owned and operated several businesses involving the importation and exportation of motor vehicles.

On May 18, 1983, a federal grand jury returned an indictment charging Ballbe with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1986). Ballbe was convicted of this crime on September 19, 1983, and was sentenced to two years incarceration followed by a special parole term of three years. He served seventeen months.

Shortly after Ballbe's conviction, on November 2, 1983, the INS issued an order to show cause charging that Ballbe's conviction subjected him to deportation under section 241(a)(11) of the INA, 8 U.S.C. Sec. 1251(a)(11) (1988). At the time the INS issued the order to show cause, Ballbe was still incarcerated. The INS mailed the order to show cause to Ballbe in care of the Federal Correctional Institution in Ashland, Kentucky. On October 19, 1984, after serving his prison term, Ballbe was released into the custody of the INS. On October 24, 1984, the order to show cause was filed with the office of the immigration judge.

On May 31, 1985, Ballbe attended a hearing in front of an immigration judge and plead not guilty to the deportation charge. He also challenged the order to show cause on jurisdictional grounds, namely improper service. The immigration judge ruled that Ballbe had adequate notice of the hearing and had adequate time to prepare his case, as Ballbe admitted to becoming aware of the order to show cause in May, 1984, and his hearing on the merits was not until June 17, 1985. The judge found further that Ballbe appeared in court with a copy of the order to show cause in hand. The BIA upheld the immigration judge's ruling.

Additionally, in the June 17, 1985 hearing, Ballbe challenged an allegation in the order to show cause which stated that Ballbe's most recent date of entry into the United States was January 8, 1983. After evidence was presented indicating that the Ballbe's last date of entry was February 1, 1983, the INS moved to make a pen and ink amendment to the order to show cause. The immigration judge denied the motion, but ruled that the INS could make a formal amendment. The amended order to show cause was issued on June 17, 1985 and contained the same allegations as the original order to show cause except for the most recent date of entry. Additionally, on June 17, 1985, Ballbe filed an application for a section 212(c) discretionary waiver of inadmissibility.

The hearing resumed on July 24, 1985, and Ballbe argued that the amended order to show cause should supersede the original order to show cause so that the section 212(c) seven-year period could be calculated from the date of the amended order to show cause. At the hearing the immigration judge ruled that the "amended order to show cause is the order to show cause that must be established for purposes of deportation and all other purposes." (R. 1-119). Shortly after this ruling, Ballbe conceded deportability under section 241(a)(11) of the INA, 8 U.S.C. Sec. 1251(a)(11) (1988), and relied exclusively on the section 212(c) waiver of inadmissibility to provide him an opportunity to remain in the United States. The immigration judge permitted both parties to present evidence regarding the section 212(c) claim for discretionary relief.

The judge's final decision stated that for purposes of section 212(c) relief, the date of issuance of the original order to show cause would control. The judge reasoned that because 8 C.F.R. Sec. 242.16(d) (1987), and the case law arising from it, provides for amendments of both the charges and the factual allegations in an order to show cause, the amendment here did not change the issuance date for purposes of calculating the requisite seven-year period. Further, the judge found that the amendment in this instance was hypertechnical and had no effect on the proceedings. The judge therefore held that Ballbe was not eligible for a waiver of inadmissibility because the original order to show cause was issued before Ballbe had maintained a lawful unrelinquished domicile in the United States for seven years.

Ballbe appealed the immigration judge's decision to the BIA, and the BIA dismissed the appeal. The BIA used much the same reasoning as the immigration judge to find that Ballbe had not fulfilled the seven-year requirement for section 212(c) discretionary relief. The BIA further held that even if Ballbe was eligible for a waiver of inadmissibility, it would deny such relief in its discretion. The BIA noted that while the evidence established strong equities in favor of Ballbe, the evidence further revealed that an exercise of discretion would not be warranted.

II. DISCUSSION

Ballbe urges us to overturn the BIA's decision on several grounds. First, Ballbe argues that because the INS failed to properly serve Ballbe with the order to show cause issued on November 2, 1983, we must use the date of issuance of the amended order to show cause (June 17, 1985), which was properly served, for purposes of determining his eligibility for section 212(c) relief. Second, Ballbe contends that the amended order to show cause superseded the original order to show cause, and therefore we must look to the date of the amended order to show cause in calculating the requisite seven-year period. Third, Ballbe asserts that because our decision in Marti-Xiques v. Immigration & Naturalization Service, 741 F.2d 350 (11th Cir.1984), was rendered after the INS issued the original order to show cause in this case, it should not be applied to Ballbe. Finally, Ballbe urges us to reconsider and re-evaluate the ruling in Marti-Xiques, to the extent that it directs us to utilize the date of issuance of the order to show cause in determining a deportable alien's eligibility for section 212(c) relief.

A. SERVICE OF THE ORIGINAL ORDER TO SHOW CAUSE

Ballbe asserts that pursuant to this court's holding in Marti-Xiques, in order for the seven-year period to toll, deportation proceedings must "commence" within the meaning of 8 C.F.R. Sec. 242.1(a) (1987). In 1983, 8 C.F.R. Sec. 242.1(a) required both issuance and service of the order to show cause for commencement of deportation proceedings. Ballbe contends that since the November 2, 1983 order to show cause was issued but not properly served, Ballbe's deportation proceedings never commenced. Hence, Ballbe argues that the June 17, 1985 order to show cause, which was issued and served, commenced the proceedings and should provide the cutoff date for his eligibility for a discretionary waiver of inadmissibility.

Ballbe's argument fails insofar as Ballbe mistakenly interprets the Marti-Xiques decision to state that we must use the date of commencement of the deportation proceedings, as contemplated by 8 C.F.R. Sec. 242.1(a), rather than the date of issuance of the order to show cause. Although the court stated that "the most viable and fair cutoff date is the date upon which the INS commences the deportation proceedings, i.e. when the order to show cause is issued," the court reasoned that "fixing the cutoff date as of the time of the issuance of the show cause order ... avoids the problem of tying the accrual of Sec. 212(c)'s seven-year period to the quirks and delays of the administrative and judicial processes." 741 F.2d at 355. The court then concluded that the date for determining an alien's eligibility for discretionary relief is the date on which the order to show cause is issued. If we infer that the Marti-Xiques panel intended the cutoff date to be the date of both issuance and service, we would be ignoring its admonition to sever the cutoff date from the procedural quirks of the judicial system. We believe that in most instances the date of issuance will be most certain, as it appears plainly on the face of the order to show cause. Furthermore, if we were to adopt Ballbe's interpretation of Marti-Xiques, we would be faced with another problem--whether to use...