Carranza v. Immigration & Naturalization Serv

• Decision Date: 04 December 2001
• Docket Number: No. 00-2365,00-2365
• Citation: 277 F.3d 65
• Parties: (1st Cir. 2002) EDOVIDIO R. CARRANZA, Petitioner, Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellant. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 65

277 F.3d 65 (1st Cir. 2002)

EDOVIDIO R. CARRANZA, Petitioner, Appellee, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent, Appellant.

No. 00-2365

United States Court of Appeals For the First Circuit

Heard Dec. 4, 2001

Decided January 17, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Robert E. Keeton, U.S. District Judge

Robert M. Loeb, Attorney, Appellate Staff, Civil Division, U.S. Dep't of Justice, with whom Stuart E. Schiffer, Acting Assistant Attorney General, Donald K. Stern, United States Attorney, and Daniel L. Kaplan, Attorney, Appellate Staff, were on brief, for appellant.

Andrew Nathanson, with whom Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. was on brief, for appellee.

Before Selya, Circuit Judge, Stahl, Senior Circuit Judge, and Lynch, Circuit Judge.

SELYA, Circuit Judge.

This appeal presents the issue of whether an alien who was convicted of an aggravated felony after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208 (1996) (codified in scattered sections of 8 U.S.C.) (IIRIRA), may obtain habeas relief on the ground that the Immigration and Naturalization Service (INS) failed to exercise discretion when it initiated deportation proceedings against him. The district court found this issue lurking in the penumbra of the case; deemed it a sufficient basis to grant relief in favor of petitioner-appellee Edovidio R. Carranza; and therefore ordered further consideration of the petitioner's situation by the Board of Immigration Appeals (BIA). See Carranza v. INS, 89 F. Supp. 2d 91, 95-97 (D. Mass. 2000) (Carranza I); see also Carranza v. INS, 111 F. Supp. 2d 60, 64 (D. Mass. 2000) (Carranza II) (denying Rule 59(e) motion). We reverse.

I. BACKGROUND

The petitioner is a Guatemalan national who entered this country over two decades ago. He lived in Maine with his common-law wife and children, but worked in Boston. On March 23, 1996, police officers in that city arrested him after he engaged in a violent dispute with his mistress. On October 1, 1997, the petitioner entered a guilty plea in state court to reduced charges (assault with a dangerous weapon and unlawful possession of a firearm). The court imposed a three-year incarcerative sentence.

Roughly ten weeks later, the INS commenced deportation proceedings by issuing a notice to appear before an immigration judge (IJ). The IJ held a removal hearing on March 5, 1998. The petitioner appeared pro se. The hearing was not completed on that date, and the petitioner filed an application for suspension of deportation, citing family and economic concerns. When the hearing resumed (June 2, 1998), the petitioner admitted to the assault conviction. He would not take responsibility for the firearms conviction, however, adamantly asserting that the weapon was not his.

The IJ found that the INS had sustained its burden of showing removability pursuant to 8 U.S.C. § 1227(a)(2)(C); took the firearms conviction at face value; and held that the petitioner, as a firearms offender who had committed an aggravated felony, see id. § 1101(a)(43)(F), was ineligible for cancellation of removal (the IIRIRA's equivalent of suspension of deportation). The petitioner appealed, and the BIA upheld the decision.

The petitioner essayed a court challenge to the BIA's decision. He filed papers in this court in which he effectively conceded both his aggravated felon status and his ineligibility for the cancellation of removal process established under 28 U.S.C. § 1229b. Citing the bar to direct review contained in 8 U.S.C. § 1252(a)(2)(C), we determined that we lacked jurisdiction to scrutinize the BIA's decision. Carranza v. INS, No. 99-1428 (1st Cir. May 3, 1999) (unpublished order). Withal, we noted that the petitioner's papers could be read as requesting relief in the nature of habeas corpus and transferred the matter to the district court for consideration of that claim. Id. at 1-2 (referencing 28 U.S.C. § 2241).

In the district court, the petitioner claimed that he had not been properly advised of the consequences of pleading guilty to the firearms charge and asserted that he would have contested that charge had he known the ramifications. To show that he had a viable defense, he tendered a statement from his landlord maintaining that the landlord (rather than the petitioner) owned the gun. He also proffered evidence of his good character and his son's delicate medical condition.

The district court held a non-evidentiary hearing on January 20, 2000. The petitioner again appeared pro se. Although the petitioner had not raised the question, the court expressed concern as to whether the Attorney General had exercised discretion before initiating removal proceedings. Counsel for the INS stubbornly refused to address this concern, but, rather, (1) questioned the district court's jurisdiction to hear the matter, and (2) asserted that when an alien had been convicted of an aggravated felony, the IIRIRA left the Attorney General no choice but to proceed with deportation.

On February 29, 2000, the district court issued an opinion in which it rejected the INS's contention that the court lacked habeas jurisdiction. Carranza I, 89 F. Supp. 2d at 94-95. The court then concluded that "[a]lthough this district court cannot review the decision that the INS reaches after exercising its discretion, this court can require that the INS exercise discretion rather than deciding that [it] has no discretion." Id. at 95. The court emphasized the very short time that had elapsed between the petitioner's conviction and the INS's issuance of the notice to appear -- roughly ten weeks -- and ruled that the INS had brought removal proceedings against the petitioner without any antecedent exercise of discretion. Id. On that basis, the court remanded the case to the BIA "for a discretionary determination of the propriety of having commenced proceedings against Carranza," and appointed counsel for him. Id. at 97. At the same time, the court dismissed the petitioner's ineffective assistance of counsel claim vis-a-vis the firearms conviction on the ground that the petitioner had failed to exhaust available state remedies.¹ Id. at 96.

The INS promptly moved to alter or amend the judgment. See Fed. R. Civ. P. 59(e). It asserted that the district court had misunderstood its position and argued that the decision to institute removal proceedings against the petitioner itself represented the required exercise of discretion. The district court rejected this entreaty, stating that the INS had "conflat[ed] an act of discretion with an act (unmodified)." Carranza II, 111 F. Supp. 2d at 63. The court concluded:

Available evidence strongly supports the inference . . . that employees of the INS do not recognize the scope of their discretionary power in assessing the merits of individual cases before proceeding, and during proceedings, and that in the case of [petitioner] they did not make a discretionary determination as to the propriety of instituting proceedings against him.

Id. at 64. This timely appeal followed.

II. ANALYSIS

We think it useful to begin by attempting to distill some semblance of clarity from the Byzantine realm of immigration law. We then mull the particulars of the case at hand.

A. Historical Overview.

The Immigration and Nationality Act of 1952, ch. 2, § 212, 66 Stat. 187 (1952) (repealed 1996) (INA), gave the Attorney General discretion to permit aliens lawfully admitted for permanent residence to return after a temporary absence.² This seemingly innocuous provision was later interpreted to permit the Attorney General, as a matter of discretion, to waive deportation for removable aliens already within the United States. Wallace v. Reno, 194 F.3d 279, 281 (1st Cir. 1999). Such waivers came to be known as "212(c) waivers" or "212(c) relief."

In United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260

(1954), the Supreme Court encountered a claim based on a substantively similar provision embodied in an earlier version of the immigration laws. There, an alien filed a habeas petition in which he charged the Attorney General with improperly influencing the BIA and thus precluding meaningful review of his application for 212(c) relief. Id. at 263-65. The Court found this claim colorable under the district court's habeas jurisdiction, reasoning that the regulations granted the BIA discretion in passing upon applications for equitable relief from deportation, and that the BIA's failure to exercise this discretion was actionable. Id. at 268. The Court concluded:

If petitioner can prove the allegation, he should receive a new hearing before the Board without the burden of previous proscription by the [Attorney General's bias]. . . . [I]n arriving at its decision [the Board must] exercise its own independent discretion, after a fair hearing, which is nothing more than what the regulations accord petitioner as a right.

Id.

Critical to this analysis was the admonition that a court reviewing a habeas claim could not pass upon the merits of the BIA's final decision on the appropriateness of discretionary relief. See id. (warning that the petitioner "may still fail to convince the Board or the Attorney General, in the exercise of their discretion, that he is entitled to suspension"). The Court reiterated this point two years later, declaring that "[a]lthough . . . aliens have been given a right to a discretionary determination on an application for suspension, a grant thereof is manifestly not a matter of right under any circumstances, but rather is in all cases a matter of grace." Jay v. Boyd, 351 U.S. 345, 354 (1956) (citation omitted).

This, then, was the state of the law while the INA remained in force. Because section 212(c) afforded a deportable alien an opportunity to apply for discretionary relief, an eligible alien could seek habeas review if and when the INS...