Costa v. Immigration & Naturalization Service, 99-2357

• Citation: 233 F.3d 31
• Decision Date: 28 November 2000
• Docket Number: No. 99-2357,99-2357
• Parties: (1st Cir. 2000) JOSE COSTA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 31

233 F.3d 31 (1st Cir. 2000)

JOSE COSTA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-2357.

United States Court of Appeals, First Circuit.

Argued Nov. 7, 2000.

Decided November 28, 2000.

PETITION FOR REVIEW OF AN ORDER OF REMOVAL OF THE BOARD OF IMMIGRATION APPEALS.

Lidia M. Sanchez, with whom Cooper & Sanchez was on brief, for petitioner.

Paul D. Kovac, Attorney, Office of Immigration Litigation, United States Department of Justice, with whom David W. Ogden, Acting Assistant Attorney General, Civil Division, and Mark C. Walters, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before Selya, Circuit Judge, Coffin and Bownes, Senior Circuit Judges.

SELYA, Circuit Judge.

Petitioner-appellant Jose Costa, a forty-five-year-old Cape Verdean who has no known criminal record, claims that he was eligible to apply for suspension of deportation, but that the Board of Immigration Appeals (BIA) incorrectly refused to recognize that fact. In the alternative, he claims that the BIA erred by failing to treat him as eligible for suspension of deportation on the basis of equitable estoppel. Finding his arguments unconvincing, we deny his petition for review.

I. Background

This case plays out against a kaleidoscopic backdrop of recent developments in immigration law. We focus on one small area of change. Prior to April 1, 1997, non-criminal aliens could apply for suspension of deportation, provided that they had accumulated seven years of continuous physical presence in the United States and had satisfied certain other requirements. See Immigration and Nationality Act (INA) 244, 8 U.S.C. 1254 (repealed 1997). Congress's enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, 3546 (codified as amended in scattered sections of 5, 8, 18, 28, 42, & 48 U.S.C.), eliminated that option; IIRIRA abolished suspension of deportation entirely and replaced it, effective April 1, 1997, with a more restrictive procedure called cancellation of removal. IIRIRA 304(a)(3), 8 U.S.C. 1229b(b)(1) (1999) (replacing INA 244 with a new 240A). Eligibility for cancellation of removal requires, inter alia, a minimum of ten years of continuous physical presence in the United States. Id.

This shifting series of congressional directives makes timing very important. Under those directives, non-criminal aliens placed in deportation proceedings prior to April 1, 1997, are eligible for suspension of deportation if they meet the familiar requirements of INA 244, whereas those placed in deportation proceedings after that date are eligible only for cancellation of removal under IIRIRA 340(a)(3). This line-drawing matters here inasmuch as the petitioner satisfies the criteria for INA 244 relief but not the more stringent criteria imposed by IIRIRA 340(a)(3). Because he lawfully entered the United States in June of 1989, overstayed his six-month nonimmigrant visa, and made a life for himself here, he had more than seven, but fewer than ten, years of continuous physical presence in the United States when suspension of deportation metamorphosed into cancellation of removal.

With a change in the law looming and the calendar working against him, the petitioner decided to take matters into his own hands. On March 18, 1997 -- after Congress had passed IIRIRA but prior to the date on which the abolition of INA 244 took effect -- the petitioner, accompanied by an attorney, presented himself at the local Immigration and Naturalization Service (INS) office in Providence, Rhode Island, requesting that he be placed in deportation proceedings. He asserts that the INS issued an Order to Show Cause (OSC) at that time, and although the INS questions this assertion in its brief -- the OSC was never produced in the course of subsequent proceedings -- we assume arguendo the veracity of the petitioner's account.

In all events, the INS did not file the OSC with the Immigration Court prior to the April 1 cut-off date.¹ Instead, it served the petitioner with a Notice to Appear (NTA) on June 19, 1997, and thereafter filed the NTA with the Immigration Court.

Given this sequence of events, the petitioner's burden is to show that his case falls under the old regime rather than the new. The adequacy of this showing depends, in the first instance, on the statutory text. In pertinent part, IIRIRA provides that "an alien who is in exclusion or deportation proceedings as of the [statute's] effective date" (April 1, 1997) is not subject to the new rules. IIRIRA 309(c)(1). The parties interpret this language differently. The petitioner asserts that the issuance of an OSC invariably marks the commencement of deportation proceedings, and that, therefore, he was in deportation proceedings from and after the date that such a document was served upon him. Since that event occurred prior to April 1, 1997, his thesis runs, the more favorable suspension of deportation paradigm applies to his case. The INS demurs, asserting that the petitioner was not in deportation proceedings until the agency filed the NTA in the Immigration Court. Since that event occurred after April 1, 1997, the INS posits that the less favorable cancellation of removal paradigm applies.

The Immigration Judge (IJ) accepted the INS's view, applied the more onerous criteria, rejected the petitioner's estoppel argument, and ordered removal. The petitioner sought further administrative review but the BIA dismissed his appeal. He now prosecutes this petition for judicial review.² To the extent that the petition presents an abstract legal question concerning the effect, if any, of a served but unfiled OSC on the choice of law seemingly demanded by the confluence of two different statutory schemes, we afford de novo review. Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998); Fergiste v. INS, 138 F.3d 14, 17 (1st Cir. 1998).

II. Discussion

We divide our analysis into two segments, corresponding to the petitioner's broadsides.

A. When Deportation Proceedings Commenced

By statute, the Attorney General has authority to "establish such regulations . . . as he deems necessary for carrying out his authority under the [immigration laws]." 8 U.S.C. 1103(a)(3). The Attorney General has delegated this rulemaking power to the INS. 8 C.F.R. 2.1. The INS's view of when the petitioner first became embroiled in deportation proceedings draws sustenance from a regulation promulgated pursuant to this authority. The regulation provides explicitly that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." 8 C.F.R. 3.14(a). This regulation hardly could be clearer and, under familiar principles, ordinarily would be entitled to great weight. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Sidell v. Commissioner, 225 F.3d 103, 109 (1st Cir. 2000). Here, however, the petitioner scoffs at the suggestion that deference is due. He claims that our decision in Wallace v. Reno, 194 F.3d 279 (1st Cir. 1999), blunts the force of the regulation. Our next task, then, is to determine what effect, if any, Wallace has on the applicability of the regulation in the circumstances at hand.

The Wallace case did not primarily involve IIRIRA, but, rather, a complementary set of changes to the immigration laws effected by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Wallace, a native of Jamaica who immigrated to this country in 1988, was convicted of a drug-trafficking offense in February 1996, following a guilty plea. On March 20, 1996 (prior to AEDPA's April 24, 1996, effective date), the INS served him with an OSC challenging his immigration status. It filed the OSC with the Immigration Court on June 14, 1996 (subsequent to AEDPA's effective date). On December 18, 1996, Wallace conceded deportability. An IJ thereafter found him ineligible to apply for a discretionary waiver of deportation under section 212(c), reasoning that the newly-enacted ban on waivers of deportation for aliens convicted of certain aggravated felonies, contained in AEDPA 440(d), had enlarged the category of statutorily ineligible individuals to include criminal aliens who, like Wallace, had been convicted of drug-trafficking crimes, regardless of length of sentence.³ The BIA dismissed Wallace's administrative appeal.

Wallace then filed a habeas application in the district court, "claiming that it was impermissibly retroactive to apply AEDPA's new limitation on waivers to him." Wallace, 194 F.3d at 282. The retroactivity argument pertained directly to Wallace's pre-AEDPA conviction and to the legitimacy of using that conviction as a fulcrum to force him out of the country under the new law. See id. The district court granted the requested relief. Wallace v. Reno, 24 F. Supp. 2d 104 (D. Mass. 1998). We affirmed, albeit on different grounds.⁴

Faced with a close question as to whether the enlarged ban on waivers could constitutionally be applied to a person who, prior to AEDPA's effective date, had pled guilty to a felony which at the time of the plea did not render the perpetrator ineligible for suspension of deportation, we concluded that Congress did not intend the ban on discretionary waivers to operate in so draconian a fashion. Wallace, 194 F.3d at 286-87. In that context, we rejected the INS's contention that 8 C.F.R. 3.14(a) controlled and held that, for purposes of his habeas case, Wallace had been placed in deportation proceedings on March 20, 1996 (when the INS served him with an OSC). Id. at 287. In that connection, we wrote:

In this case we are not concerned with the INS's internal time tables, starting points, due dates, and the like but with the judicial question of retroactivity. This question turns on considerations...