Correa v. Thornburgh

• Decision Date: 20 April 1990
• Docket Number: No. 736,D,736
• Citation: 901 F.2d 1166
• Parties: Alba Nubia CORREA, Petitioner-Appellant, v. Richard THORNBURGH, as de jure head of the Immigration & Naturalization Service; Immigration Court; The Board of Immigration Appeals, Respondents-Appellees. ocket 89-6199.
• Court: U.S. Court of Appeals — Second Circuit

Page 1166

901 F.2d 1166

Alba Nubia CORREA, Petitioner-Appellant,

v.

Richard THORNBURGH, as de jure head of the Immigration &

Naturalization Service; Immigration Court; The

Board of Immigration Appeals,

Respondents-Appellees.

No. 736, Docket 89-6199.

United States Court of Appeals, Second Circuit.

Argued Jan. 26, 1990.

Decided April 20, 1990.

Irving Edelman, New York City (Leo E. Ypsilanti, New York City, of counsel), for petitioner-appellant.

Scott Dunn, Sp. Asst. U.S. Atty. (Andrew J. Maloney, U.S. Atty., Eastern District of New York, Robert L. Begleiter, Asst. U.S. Atty., of counsel), for respondents-appellees.

Before VAN GRAAFEILAND, MINER and WALKER, Circuit Judges.

WALKER, Circuit Judge:

This appeal comes to us from a denial by the United States District Court for the Eastern District of New York (Costantino, Judge ) of a petition for a writ of habeas corpus, pursuant to 8 U.S.C. Sec. 1105a(b), seeking a review of a final order of the Board of Immigration Appeals (BIA) excluding the petitioner-appellant, Alba Nubia Correa, from admission into the United States.

BACKGROUND

On August 21, 1982, Correa, a citizen of Colombia, and an "alien" who had been "lawfully admitted for permanent residence" in the United States since February 14, 1981, sought to re-enter the United States at the Houston Intercontinental Airport following an international flight from Colombia via Guatemala. ¹

At the Houston airport, all processing at that time of arriving international passengers for customs, agriculture and immigration purposes was conducted in a restricted area closed to the general public commonly referred to as the "Customs Enclosure." Access to or exit from the area was controlled by exit control officers and the other inspecting officers of the United States Customs Service (Customs), Immigration and Naturalization Service (INS or Immigration) and Department of Agriculture (USDA).

Each incoming passenger was initially processed at a primary inspection station by a single Customs or INS inspector, who was cross-designated in order to act for both agencies. After preliminary questioning, the primary inspector would refer the passenger to a "red area" within the "Customs Enclosure" for a more intensive inspection, or to a "green area" still within the "Customs Enclosure." "Green area" referrals were permitted to proceed to the exit control station but were still subject to random selection for the more intensive "red area" inspection. The final stage in the inspection process occurred at the point of exit when the passenger presented the Customs declaration to the exit control officer. The exit control officer could either accept the declaration and permit the passenger to depart the "Customs Enclosure," or direct the passenger to the "red area" for further inspection. ²

Events leading to Correa's arrest began on August 21, 1982, when another passenger, Maria Teresa Uribe, presented herself to Customs Inspector Kenneth W. Brown at the primary inspection station. Inspector Brown, cross-designated as an Immigration inspector, noticed that Uribe's passport revealed numerous trips to Colombia, which he knew to be a source country for drugs, with this most recent return to the United States taken via a circuitous route. He also observed that Uribe's style of dress, her manner, and her frequent trips abroad were peculiar for a person who As he was inspecting Uribe, Brown noticed Correa, waiting in another primary inspection line. Correa had arrived on the same flight as Uribe, appeared to be about her age and was similarly dressed. Inspector Brown knew that drug couriers frequently travelled in pairs and decided then to question Correa to determine if she was traveling with Uribe.

claimed to be a maid. Inspector Brown decided to refer Uribe to the "red area" for a more intensive inspection.

Inspector Brown escorted Uribe to the baggage carousel area, where she claimed her luggage and then to the "red area" inspection station. When they arrived there, Correa was already in the "red area". After going through the primary inspection area, Correa had been stopped by USDA agents before passing through the exit control station and had been sent to the "red area" for a more intensive agriculture inspection. After telling the USDA officers that he also wished to inspect Correa, Brown began a search of Uribe and discovered approximately one kilogram of cocaine hidden in her luggage. Uribe was arrested by Customs officers and turned over to the Houston Police Department.

Inspector Brown then turned his attention to Correa, whose agriculture inspection was completed and who was being detained by Inspector George Holt. Assisted by Inspectors Holt and Gail Osborne-Tanner, Brown searched Correa's luggage and found one kilogram of cocaine that he estimated to be worth one-million dollars. Like Uribe, Correa was arrested and turned over to the Houston Police Department. At that time Correa was also formally "paroled" into the United States for purposes of prosecution pursuant to 8 U.S.C. Sec. 1182(d)(5)(A). ³

From her arrival in the United States to the moment of her arrest, Correa was never free to leave the "Customs Enclosure". If she had attempted to leave, she would have been prevented from doing so by Inspector Brown, other Customs, Immigration or USDA officers, or the exit control officer.

On December 8, 1982, Correa was convicted in a Texas state court, after a jury trial, of possession with intent to distribute cocaine weighing at least 400 grams. The state court jury imposed a sentence of twenty-five years. On April 17, 1985, a Texas appeals court reversed Correa's conviction and remanded because of an improper jury instruction as to the applicable penalty range. On October 7, 1985, Correa pleaded no contest to the same charge and was given a term of five years probation with the adjudication of guilt to be deferred.

On May 28, 1986, the INS issued to Correa a Form I-122 charging her with being excludable from the United States pursuant to 8 U.S.C. Sec. 1182(a)(23) (1982), as an alien "who an immigration officer knows or has reason to believe is or has been an illicit trafficker in narcotic drugs or marijuana." ⁴

On January 15, 1987, an exclusion hearing was held before an Immigration Judge. Correa was represented by counsel. At the hearing, Inspector Brown testified that based on the events at the airport, he believed that Correa was a trafficker in cocaine. Inspector Osborne-Tanner, who participated in the search of Correa, testified that based on Correa's demeanor during the search and the cocaine found in Correa's luggage, she also believed that Correa was a trafficker in cocaine. In an opinion dated January 27, 1987, the Immigration Judge, crediting the testimony of the officers, ordered Correa excluded from the United States pursuant to 8 U.S.C. Sec. 1182(a)(23).

Correa appealed the finding of excludability to the BIA and, alternatively, requested remand to the Immigration Judge to enable her to apply for a waiver of excludability pursuant to 8 U.S.C. Sec. 1182(c). Such a waiver is available at the discretion of the Attorney General to lawful permanent resident aliens who have kept a lawful unrelinquished domicile in the United States for seven consecutive years and can demonstrate that they are deserving of a waiver. Drug offenders must present a showing of unusual or outstanding countervailing equities to obtain a waiver, particularly if the grounds for exclusion involved trafficking in drugs. Matter of Marin, 16 I & N Dec. 581, 586 & n. 4 (BIA 1978).

On January 18, 1989, the BIA affirmed the Immigration Judge's excludability findings and denied Correa's request for a remand. The BIA noted that Correa's counsel conceded excludability at oral argument, a finding that Correa now challenges, but went on to uphold the Immigration Judge's findings on the merits. In denying Correa's request for a remand for consideration of a Sec. 1182(c) waiver, the BIA concluded that such a waiver would be denied by the Immigration Judge in the exercise of her discretion, since Correa "does not have the kind of equities which could be described as outstanding to offset the serious nature of her crime."

On March 8, 1989, the INS instructed Correa to report to the Immigration authorities for her return to Colombia. She thereupon filed her petition for habeas corpus relief in the United States District Court for the Eastern District of New York, as she had taken up residence in Queens County, New York. Her departure has been postponed pending final disposition of her habeas petition.

DISCUSSION

On appeal, Correa argues that the District Court erred in several respects in dismissing her petition: 1) that she had effected an "entry" into the United States and thus was entitled to deportation proceedings instead of exclusion proceedings; 2) that the Immigration Judge's finding of excludability, affirmed by the BIA, was based on the erroneous application of 8 U.S.C. Sec. 1182(a)(23) to her case; 3) that, in being subjected to exclusion rather than deportation proceedings as a returning resident alien, she was deprived of her constitutional right to equal protection of the laws; and 4) that the BIA abused its discretion in denying her a waiver of excludability.

Some of these claims were not raised in the administrative proceedings and thus can be rejected on that basis. In any event, as is explained below, all are without merit.

Correa claims that on August 21, 1982, when she cleared the primary inspection station at the Houston airport, she effected an "entry" into the United States, and thus while deportation proceedings may have been appropriate, she could not have been subjected to exclusion proceedings. ⁵

This claim was never raised by Correa either before the Immigration Judge or on appeal to the BIA. ⁶ The District Court in this habeas corpus proceeding apparently considered the issue de novo, thereby according...