Bedoya-Valencia v. I.N.S.

• Decision Date: 24 September 1993
• Docket Number: D,No. 1158,BEDOYA-VALENCI,P,1158
• Citation: 6 F.3d 891
• Parties: Luis Albertoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ocket 92-4219.
• Court: U.S. Court of Appeals — Second Circuit

Page 891

6 F.3d 891

Luis Alberto BEDOYA-VALENCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 1158, Docket 92-4219.

United States Court of Appeals, Second Circuit.

Argued Feb. 18, 1993.

Decided Sept. 24, 1993.

Mary T. Rogan, New York City (John Savastano, of counsel), for petitioner.

Ping C. Moy, Asst. U.S. Atty., S.D.N.Y., New York City (Roger S. Hayes, U.S. Atty C. Millman, Asst. U.S. Atty., S.D.N.Y., of counsel), for respondent.

Before: OAKES, ALTIMARI, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Petitioner Luis Alberto Bedoya-Valencia petitions for review of an order of the Board of Immigration Appeals ("BIA") dated October 30, 1992 that dismissed his appeal from a deportation order issued June 18, 1992 by Immigration Judge Robert D. Weisel (the "IJ"). The IJ held, and the BIA agreed, that Bedoya-Valencia was ineligible for relief under Sec. 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1182(c) (Supp. III 1991), ¹ because a ground upon which his deportation is based, entry without inspection, is not also a ground for exclusion. In so ruling, the BIA followed the decision of the Attorney General, reversing a divided BIA, in In re Hernandez-Casillas, Interim Decision No. 3147, 1990 WL 385764 (BIA Jan. 11, 1990; Att'y Gen. Mar. 18, 1991), aff'd mem., 983 F.2d 231 (5th Cir.1993).

We vacate and remand, directing the BIA to exercise its discretion regarding Bedoya-Valencia's application for Sec. 1182(c) relief.

Background

The facts in this case are uncontested. Bedoya-Valencia, a native and citizen of Colombia, first entered the United States as a lawful permanent resident in 1976. In 1983, he was convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), and sentenced to four years imprisonment and six years special parole. In February 1984, the Immigration and Naturalization Service ("INS") issued an order to show cause charging Bedoya-Valencia as deportable under Sec. 241 of the INA, 8 U.S.C. Sec. 1251(a)(11), ² for having been convicted of a narcotics offense.

At his deportation hearing in September 1986, Bedoya-Valencia conceded deportability and applied for discretionary relief from deportation under Sec. 1182(c). ³ See Francis v. INS, 532 F.2d 268, 272-73 (2d Cir.1976) (applying Sec. 1182(c) to waiver of deportation as well as exclusion). The parties consented to an adjournment of the proceedings until March 1987 to allow Bedoya-Valencia an opportunity to present evidence concerning his Sec. 1182(c) application. In conjunction with this initial proceeding, Bedoya-Valencia's alien registration card was retained by the INS.

In November 1986, while his deportation proceedings were pending, Bedoya-Valencia departed the United States and went to Colombia. Assertedly because the INS still retained Bedoya-Valencia's documentation as to his resident alien status, he evaded inspection upon his return to the United States in early 1988, and illegally reentered the country. Upon learning of Bedoya-Valencia's illegal reentry, the INS lodged an additional charge of deportability against him on October 11, 1991 for unlawful entry without inspection in violation of Sec. 1251(a)(1)(B). At his continued deportation hearing, Bedoya-Valencia conceded his deportability on the new charge and submitted a new application for Sec. 1182(c) relief.

The IJ found that Bedoya-Valencia was statutorily ineligible for Sec. 1182(c) relief. He based that determination upon the Attorney General's decision in Hernandez-Casillas, stating that "[t]he Attorney General unequivocally determined that entry without inspection, a conceded charge of deportability, is not waiveable by application for relief pursuant to [Sec. 1182(c) ]" because entry without inspection has no comparable ground of excludability under Sec. 1182(a).

Bedoya-Valencia appealed the IJ's decision to the BIA. He did not challenge the IJ's findings of deportability, but argued that the IJ erred in finding him ineligible for Sec. 1182(c) relief because: (1) the ground for deportation stated in Sec. 1251(a)(1)(B), entry without inspection, is analogous to the ground for exclusion stated in Sec. 1182(a)(7)(A), seeking admission without proper documentation; and (2) in any event, fundamental fairness requires that Sec. 1182(c) relief should be available to aliens charged with any ground for deportation or exclusion other than those specifically excepted by statute. ⁴

The BIA rejected Bedoya-Valencia's arguments. It viewed Hernandez-Casillas as having ruled that an alien deportable under Sec. 1251(a)(1)(B) is ineligible for Sec. 1182(c) relief because: (1) there is no ground of exclusion comparable to entry without inspection; (2) the limitation of Sec. 1182 waiver relief imposed by Hernandez-Casillas is consistent with constitutional guarantees of equal protection; and (3) a contrary ruling would unduly disrupt the statutory scheme. The BIA accordingly affirmed the decision of the IJ and dismissed Bedoya-Valencia's appeal.

Bedoya-Valencia now seeks review of the BIA's decision before this court pursuant to 8 U.S.C. Sec. 1105a (1988 & Supp. III 1991).

Discussion

Bedoya-Valencia argues on appeal that: (1) the deportation ground of entry without inspection is analogous to the exclusion ground of seeking admission without proper documentation, and he is accordingly eligible for Sec. 1182(c) relief; (2) if the statutory analogy is rejected, the case should be remanded for initial discretionary consideration of his claim for waiver of the narcotics ground of deportation, whose resolution might avoid any need to consider the constitutional issue otherwise presented by this appeal; and (3) in any event, due process and equal protection require that Sec. 1182(c) relief be available for an alien deportable on any ground other than those specifically precluded by Sec. 1182(c). See supra note 4.

These issues are solely questions of law, and thus our review is plenary. See Campos v. INS, 961 F.2d 309, 312 (1st Cir.1992); Ardestani v. INS, 904 F.2d 1505, 1508 (11th Cir.1990), aff'd, --- U.S. ----, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991); De los Santos v. INS, 690 F.2d 56, 59 (2d Cir.1982). In conducting that review, however, deference must be accorded to the views of the Attorney General, who is charged with the administration of the INA and whose rulings with respect to questions of immigration law are controlling within the executive branch. See 8 U.S.C. Sec. 1103(a) (1988); Leal-Rodriguez v. INS, 990 F.2d 939, 950 (7th Cir.1993); De los Santos, 690 F.2d at 59.

A. Entry Without Inspection as Analogous to a Ground for Exclusion.

Bedoya-Valencia first contends that he is entitled to a Sec. 1182(c) hearing because entry without inspection is analogous to a ground for exclusion, failure to present proper documents for admission. We disagree.

Section 1182(a)(7)(A)(i) provides:

Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission--

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 1181(a) of this title, or

(II) whose visa has been issued without compliance with the provisions of section 1153 of this title,

is excludable.

In contrast, section 1251(a)(1)(B) provides:

Any alien who entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or any other law of the United States is deportable.

The issue is to be determined by a standard of "substantial[ ] equivalen[ce]." Campos, 961 F.2d at 313 n. 6 (citing In re Salmon, 16 I. & N.Dec. 734 (1978)); cf. Cabasug v. INS, 847 F.2d 1321, 1324 (9th Cir.1988) ("crime involving moral turpitude" category "similar but not identical" under deportation and exclusion statutes). This standard is not satisfied by a comparison of these provisions. See Hernandez-Casillas, 1990 WL 385764 at * 25 n. 4 (according to Attorney General, illegal entry is one of two grounds for deportation that have no analogue in the grounds for exclusion); In re M--, 5 I. & N.Dec. 642, 647 (BIA 1954) (entry without inspection is ground of deportation but not exclusion); In re T--, 5 I. & N.Dec. 389, 390 (BIA 1953) (same). Entry without inspection involves a calculated avoidance of the admission procedure; it is hardly equivalent to an invocation of that procedure that is undermined by faulty documents.

Bedoya-Valencia argues that he did not present himself for inspection when he returned to the United States because he lacked proper admission documents. That may be true, but it does not render the resulting illegal entry substantially equivalent, as a matter of statutory definition, to the motivating lack of documentation.

B. Remanding the Case for a Sec. 1182(c) Hearing.

Bedoya-Valencia next contends that this court should decline to address the merits of his claim at this time and remand the case for a determination of whether he would be granted Sec. 1182(c) discretionary relief on his drug offense ground for deportation, thus avoiding the constitutional issue presented by this appeal in the event of an adverse discretionary ruling on remand by the BIA. He cites Gutierrez v. INS, 745 F.2d 548 (9th Cir.1984), in support of this procedure. In Gutierrez, as here, the alien was charged with both entry without inspection and a narcotics offense. Unlike the present case, however, the immigration judge in Gutierrez had ruled that the alien should not be accorded discretionary relief on the narcotics ground, in addition to ruling that discretion could not be exercised...