Cantu-Delgadillo v. Holder

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Per Curiam
• Citation: Cantu-Delgadillo v. Holder, 584 F.3d 682 (5th Cir. 2009)
• Decision Date: 01 October 2009
• Docket Number: No. 08-60122.,08-60122.
• Parties: Teodulo CANTU-DELGADILLO, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

584 F.3d 682

Teodulo CANTU-DELGADILLO, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 08-60122.

United States Court of Appeals, Fifth Circuit.

October 1, 2009.

Lisa S. Brodyaga, Refugio de Rio Grande, San Benito, TX, for Petitioner.

Shelly R. Goad, Thomas Ward Hussey, Director, Barry Joseph Pettinato, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, Sandra M. Heathman, U.S. Citizenship & Immigration Services, Houston, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before GARWOOD, OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:

Teodulo Cantu-Delgadillo petitions this court for review of an order from the Board of Immigration Appeals (BIA) denying his request for administrative closure and dismissing his appeal. We deny the petition.

I

Cantu-Delgadillo, a native and citizen of Mexico, entered the United States as a lawful permanent resident on or about July 5, 1978. On November 27, 1996, Cantu-Delgadillo pleaded guilty in Texas state court to possessing more than fifty pounds and less than 2000 pounds of marijuana. He received deferred adjudication and was placed on probation for ten years. On January 31, 1997, the Immigration and Naturalization Service (INS) issued an Order to Show Cause, charging Cantu-Delgadillo as being deportable because he was an alien convicted of a controlled substance violation and an aggravated felony.

Cantu-Delgadillo appeared before an immigration judge (IJ) and denied all of the factual allegations and charges of deportability. The IJ found all of the factual allegations and charges to be true, determined that Cantu-Delgadillo was ineligible for any type of relief, and ordered him deported. The BIA agreed with the IJ that Cantu-Delgadillo was deportable based upon his controlled substance violation but held that Cantu-Delgadillo was not deportable as an aggravated felon. However, in 1998, the BIA administratively closed the proceedings pending the publication of a new regulation by the Attorney General to implement a procedure, known as "repapering," for terminating deportation proceedings for certain lawful permanent residents.

In 2001, the BIA reinstated the proceedings against Cantu-Delgadillo at the request of the INS. The BIA then dismissed Cantu-Delgadillo's appeal from the IJ's order. In the order of dismissal, the BIA agreed with the IJ that Cantu-Delgadillo was deportable because of his controlled substance conviction and also because he was an aggravated felon. The BIA further determined that Cantu-Delgadillo was ineligible for discretionary relief under former Immigration and Nationality Act (INA) § 212(c).

Cantu-Delgadillo filed a federal habeas corpus petition challenging the BIA's findings, and his petition was consolidated with other similar petitions. The district court denied the consolidated petitions, and all of the petitioners appealed. This court dismissed the claims challenging the BIA's decision and affirmed the dismissal of the petitioners' habeas petitions. However, the Supreme Court vacated this court's opinion and remanded for further proceedings in light of Lopez v. Gonzales.¹ On remand, this court vacated the district court's judgment as to Cantu-Delgadillo and remanded the matter to the BIA for further consideration in light of Lopez.

On remand, the Department of Homeland Security (DHS) withdrew the aggravated felon charge but maintained that Cantu-Delgadillo's conviction of a controlled substance offense rendered him both deportable and ineligible for discretionary relief under former INA § 212(c). Cantu-Delgadillo requested that his case be administratively closed pending issuance of the repapering regulations or, in the alternative, that his case be remanded so that he could apply for suspension of deportation under former 8 U.S.C. § 1254(a)(2) (1996). He also argued that the timing of the proceedings and the combination of provisions applicable to him violated his rights to equal protection and due process. The DHS opposed Cantu-Delgadillo's request for administrative closure.

The BIA denied Cantu-Delgadillo's request for administrative closure on the ground that such a request could not be granted if opposed by either party. The BIA determined that Cantu-Delgadillo was ineligible for suspension of deportation and that it lacked jurisdiction to consider Cantu-Delgadillo's facial constitutional challenges. Accordingly, the BIA dismissed Cantu-Delgadillo's appeal. Cantu-Delgadillo filed a timely petition for review in this court.

II

Under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),² this court lacks jurisdiction to review the final order of removal against Cantu-Delgadillo.³ However, this court retains jurisdiction to consider Cantu-Delgadillo's arguments to the extent he raises constitutional claims or questions of law.⁴ We review questions of law de novo but "accord deference to the BIA's interpretation of immigration statutes unless the record reveals compelling evidence that the BIA's interpretation is incorrect."⁵

III

A

Cantu-Delgadillo argues that, despite the DHS's opposition to administrative closure, the BIA should have administratively closed his case to await the repapering regulations because the denial was unfair to him and because the DHS's opposition was unjustified and contrary to internal DHS policy. The BIA held in In re Gutierrez-Lopez that "[a] case may not be administratively closed if opposed by either of the parties."⁶ Because the DHS opposed the administrative closure, the BIA had no discretion to administratively close the case.⁷ Accordingly, the BIA properly denied Cantu-Delgadillo's request for administrative closure and his alternative request for an abeyance.⁸

B

Cantu-Delgadillo also contends that the BIA's denial of his request for administrative closure and the timing of his deportation proceedings each resulted in the violation of his due process rights. To the extent that Cantu-Delgadillo also argues that the BIA erred by misconstruing his "as applied" constitutional claims as facial challenges, any error was harmless because the BIA lacked jurisdiction to consider those challenges.⁹

However, as noted, this court has jurisdiction to consider Cantu-Delgadillo's constitutional issues. "To establish a substantive due process violation, a plaintiff must first both carefully describe that right and establish it as `deeply rooted in this Nation's history and tradition.'"<sup>10</sup> "If the right is so deeply rooted—if it is fundamental—we subject it to more exacting standards of review. If it is not, we review only for a rational basis."<sup>11</sup> Additionally, "[t]his court has long held that `[a]liens enjoy some constitutional protections, regardless of their status,' but it has also long held that `this protection is limited by Congress's broad powers to control immigration.'"¹²

Cantu-Delgadillo asserts that, as a lawful permanent resident, he has a fundamental liberty interest in being able to reside with his children and work in the United States. We have previously rejected a similar argument in a related context. In Malagon de Fuentes v. Gonzales,¹³ the petitioner, a lawful permanent resident and mother of four natural-born United States citizens, was convicted of theft of property in a welfare fraud and subsequently left the country for a day.¹⁴ On return to the United States, the INS charged her as an "arriving alien" inadmissible under the INA.¹⁵ On appeal from an order of removal, the petitioner argued that her liberty interests in staying in the United States and being with her children were violated.¹⁶ We affirmed, holding that the petitioner had "no `right' to be admitted to the United States" and, therefore, "the government needs only a rational basis to enforce a law that bars her admission."¹⁷ Because "Congress'[s] choice to disfavor the admission of aliens who have committed offenses is not irrational,"¹⁸ this court held that the petitioner's "predicament d[id] not constitute a deprivation of substantive due process."¹⁹

Similar to the petitioner in Malagon de Fuentes, Cantu-Delgadillo does not have a fundamental liberty interest in being able to live and work in the United States.²⁰ Congress's choice to disfavor the retention of aliens who have been convicted of controlled substance violations is not irrational. Therefore, Cantu-Delgadillo's substantive due process claim fails.

C

Cantu-Delgadillo further asserts an equal protection claim. He argues that the BIA's refusal to close his case administratively impermissibly differentiated him from similarly-situated lawful permanent residents who have received the benefit of administrative closure, and that the results of his deportation proceedings would have been different had the timing occurred according to three alternative scenarios.

Cantu-Delgadillo alleges that his case is the only known instance in which the BIA refused to administratively close a case to await the repapering regulations when unusually adverse factors did not exist. Although Cantu-Delgadillo cites to various cases in support of that assertion, none of the cited cases specifically involves the BIA granting administrative closure to a lawful permanent resident to await the repapering regulations in the face of DHS opposition. In fact, the BIA recently noted in an unpublished decision that it has never administratively closed a case for the purpose of repapering "over the objection of the DHS."²¹ Cantu-Delgadillo has failed to show that the BIA's decision regarding administrative closure in his case was different from the BIA's decisions in other cases involving lawful permanent residents in which the DHS opposed administrative closure. Cantu-Delgadillo has therefore failed to establish an equal protection claim on this basis.²²

In support of the second ground of his equal protection claim, Cantu-Delgadillo asserts that, under...