Camins v. Gonzales, 05-70291.

• Decision Date: 28 August 2007
• Docket Number: No. 05-70291.,05-70291.
• Citation: 500 F.3d 872
• Parties: Rodolfo CAMINS, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

500 F.3d 872

Rodolfo CAMINS, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 05-70291.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 12, 2007.

Filed August 28, 2007.

Zachary Miller Nightingale, Beth Feinberg, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, CA, for the petitioner.

Allen W. Hausman, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A92-868-926.

Before: PROCTER HUG, JR. and WILLIAM A. FLETCHER, Circuit Judges, and H. RUSSEL HOLLAND,^* District Judge.

WILLIAM A. FLETCHER, Circuit Judge:

Prior to passage of § 301(a)(13) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), a lawful permanent resident ("LPR") who pled guilty to an offense making him "inadmissible" retained the right under former § 101(a)(13) of the Immigration and Nationality Act ("INA"), as interpreted by Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), to make "innocent, casual, and brief" overseas trips without being classified as seeking "entry" upon return and thus being exposed to a charge of being inadmissible. In this petition for review, we must decide two questions. First, we must decide whether IIRIRA § 301(a)(13) abrogated the old INA § 101(a)(13) and the Fleuti doctrine. If so, an LPR who has been convicted of, or who has admitted to, commission of an offense making him inadmissible cannot travel overseas, even for an innocent, casual, and brief trip, without being exposed to a charge of inadmissibility upon return to the United States. Second, if IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13) and the Fleuti doctrine, we must decide whether this provision may be applied retroactively to LPRs who acted in reasonable reliance on the old INA § 101(a)(13), as interpreted by Fleuti. We hold that IIRIRA § 301(a)(13) did abrogate the old INA § 101(a)(13) and the Fleuti doctrine, but that the new law cannot be applied retroactively to LPRs who acted in reasonable reliance on the old law prior to IIRIRA's effective date.

I. Background

Rodolfo Camins is a fifty-five-year-old national of the Philippines who has lived in the United States since 1978. Camins was granted temporary resident status in 1988 and has been an LPR since 1991. He resides in California with his wife and seventeen-year-old daughter, who are both United States citizens. Camins has a steady job, pays taxes, and provides financial support and health insurance for his family.

In January 1996, Camins pled guilty to sexual battery under California Penal Code § 243.4. He was convicted and sentenced to a term of one year, of which he served eight months. Following his release from prison, Camins was given sex offender treatment for three and a half years.

On January 2, 2001, Camins was taken into custody by agents of the Immigration and Naturalization Service (now the Department of Homeland Security) at the San Francisco International Airport, when he returned with his wife and daughter from a three-week trip to visit his ailing mother in the Philippines. While in custody, Camins was served with a Notice to Appear placing him in removal proceedings as an LPR seeking admission under INA § 101(a)(13)(C)(v), 8 U.S.C. § 1101(a)(13)(C)(v). The Notice to Appear charged that he was inadmissible under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), because his conviction was for a crime involving moral turpitude.

At a hearing in September 2001, Camins conceded removability, designated the Philippines as the country of removal, and requested relief from removal under former INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996). The Immigration Judge ("IJ") denied Camins' application for § 212(c) relief. Camins appealed to the Board of Immigration Appeals ("BIA"), contending that his order of removal was invalid because he should not have been charged with inadmissibility. He pointed out that under the old INA § 101(a)(13), 8 U.S.C. § 1101(a)(13), and Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), an LPR who travels outside the United States for a brief period for a legitimate purpose could not be classified as seeking "entry," and thus subjected to a charge of inadmissibility, upon his return. He contended that the old INA § 101(a)(13), and the Fleuti doctrine, should be applied to him. Camins also argued that the IJ had applied an incorrect legal standard for relief from removal. The BIA affirmed the IJ's order of removal and denial of relief from removal. Camins now petitions for review by this court.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D), as amended by the REAL ID Act of 2005, to review the constitutional claims and questions of law raised in Camins' petition. See Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 586-87 (9th Cir.2005), adopted by 466 F.3d 1121, 1124 (9th Cir.2006) (en banc). We review questions of law de novo. See Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.2006); see also Toro-Romero v. Ashcroft, 382 F.3d 930, 935 (9th Cir. 2004).

II. Discussion

Under the immigration laws, individuals coming into the United States must undergo inspection by immigration officials before entering the country. See 8 C.F.R. § 1235.1. In the case of an alien seeking "admission" (that is, "lawful entry") to the United States, an immigration official may (1) authorize admission, (2) determine the alien is inadmissible, or (3) if the alien cannot "establish to the satisfaction of the examining immigration officer that he or she" is not subject to removal, charge the alien as inadmissible and detain or parole him. Id. § 1235.3; see also 8 U.S.C. § 1101(a)(13)(A). When Camins returned from the Philippines in January 2001, immigration officials concluded, based on his January 1996 conviction, that he was an alien seeking admission, detained him, and charged him with inadmissibility. Invoking the so-called Fleuti doctrine, Camins contends that as an LPR who made only a short trip outside the country for a legitimate purpose he should not have been classified as seeking admission, and thus subjected to a charge of inadmissibility, upon his return.

A. Fleuti Doctrine

Prior to the effective date of IIRIRA, 110 Stat. 3009 (1996), April 1, 1997, INA § 101(a)(13) provided:

The term "entry" means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary[.]

8 U.S.C. § 1101(a)(13) (repealed 1996). In Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), the Supreme Court held that an LPR who made an "innocent, casual, and brief" trip across an international border did not "intend[]" a "departure" within the meaning of INA § 101(a)(13). Id. at 461, 83 S.Ct. 1804. Because the LPR was thus not an alien seeking "entry" to the United States upon his return, he was not subject to a charge of inadmissibility. Id.

Fleuti, a Swiss national who had attained LPR status in October 1952, visited Mexico for about two hours in August 1956. In 1959, Fleuti was ordered deported on the ground that at the time he returned from Mexico in 1956, he was excludable (now "inadmissible") based on his homosexuality. Id. at 450-51, 83 S.Ct. 1804. The Supreme Court vacated Fleuti's deportation order, holding that Congress did not intend "to exclude aliens long resident in this country after lawful entry who have merely stepped across an international border and returned in `about a couple hours.'" Id. at 461, 83 S.Ct. 1804. The Court explained that under INA § 101(a)(13), only a resident alien who "inten[ds] to depart in a manner which can be regarded as meaningfully interruptive of the alien's permanent residence" is subject to entry requirements, and possible exclusion, when he returns to the United States. Id. at 462, 83 S.Ct. 1804. In contrast, an alien who makes "an innocent, casual, and brief excursion ... outside this country's borders may not have ... `intended' ... a departure disruptive of his resident alien status and therefore may not [be] subject ... to the consequences of an `entry' into the country on his return." Id. The Court articulated three non-exclusive factors for deciding whether a trip is innocent, casual, and brief: first, "the length of time the alien is absent"; second, "the purpose of the visit" and whether it is to "accomplish some object" contrary to the policy of the immigration laws; and third, whether the alien had to "procure any travel documents in order to make [the] trip," a fact that might "cause the alien to consider more fully the implications involved in ... leaving the country." Id.

Applying the Fleuti doctrine, we held, in Jubilado v. United States, 819 F.2d 210 (9th Cir.1987), that an LPR who visited the Philippines for more than three months for the purpose of bringing his family to the United States did not intend departure, and therefore was not subject to exclusion proceedings upon his return. Id. at 214. In Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir.1979), a case involving the continuous presence requirement for suspension of deportation rather than entry under the old INA § 101(a)(13), we considered the Fleuti factors in holding that an LPR who left the United States for a month during the "Christmas semester `break'" to visit his "gravely ill" mother in Thailand did not intend to relinquish "the...