Farquharson v. U.S. Attorney General

• Decision Date: 06 April 2001
• Docket Number: Nos. 00-11807,00-13647,s. 00-11807
• Citation: 246 F.3d 1317
• Parties: (11th Cir. 2001) Alan FARQUHARSON, Petitioner-Appellant, v. U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents- Appellees. Alan Farquharson, Plaintiff-Appellant, v. U.S. Attorney General, John Ashcroft, District Director for the Immigration and Naturalization Service, Robert Wallis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1317

246 F.3d 1317 (11th Cir. 2001)

Alan FARQUHARSON, Petitioner-Appellant, v. U.S. ATTORNEY GENERAL, Immigration and Naturalization Service, Respondents- Appellees.

Alan Farquharson, Plaintiff-Appellant, v. U.S. Attorney General, John Ashcroft, District Director for the Immigration and Naturalization Service, Robert Wallis, Defendants-Appellees.

Nos. 00-11807, 00-13647.

United States Court of Appeals, Eleventh Circuit.

April 6, 2001.

April 18, 2001.

Petition for Review of an Order of the Immigration and Naturalization Service. (No. 00-01387-CV-KMM), K. Michael Moore, Judge.

Appeal from the United States District Court for the Southern District of Florida.

Before ANDERSON, Chief Judge, CARNES, Circuit Judge, and NANGLE^*., District Judge.

ANDERSON, Chief Judge:

Alan Farquharson petitions this Court to review a deportation order of the Board of Immigration Appeals ("BIA"). The BIA ordered Farquharson deported to Jamaica on the grounds of his entry into the United States without submitting to inspection and his conviction of a controlled substance violation. The BIA also held that, as an alien deportable for entry without inspection, Farquharson was ineligible for an equitable waiver of deportation. Farquharson filed a petition with this Court for review of the BIA's decision. After review, we affirm the BIA's decision that Farquharson is deportable. We also hold that Farquharson's ineligibility for a waiver of deportation under 212(c) of the INA does not violate his right to equal protection. Finally, we hold that the BIA did not deny Farquharson's constitutional right to a fundamentally fair hearing.

I. BACKGROUND

Alan Farquharson, a native and citizen of Jamaica, was admitted to the United States as a lawful permanent resident on August 23, 1977. On November 17, 1980, he was flying a plane loaded with marijuana from Jamaica to Florida when he encountered engine trouble and was forced to crash-land about fifty miles from his intended landing site in Florida. Farquharson testified at his hearing that he radioed for help before the crash and that, after the crash, he and his copilot stayed with the plane for a few minutes, then walked to a nearby highway and attempted to flag down a car for assistance. A utility worker who witnessed the crash notified the local police, who initiated a search for the plane's occupants. Farquharson and his copilot were apprehended by a police search party about a half hour after the crash. Farquharson was convicted of unlawful possession of marijuana in an amount of more than twenty grams. He was sentenced to five years of probation.

On October 2, 1986, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause charging that Farquharson was deportable because he was convicted of a controlled substance violation and because he entered the United States without inspection. Both grounds for Farquharson's removal arose out of the 1980 incident. The Immigration Judge issued a decision on October 2, 1991, finding Farquharson deportable and finding him ineligible for relief under 212(c) and 244(a)(2) of the INA.¹ Farquharson appealed, arguing that his flight into Florida was not an "entry" within the meaning of INA 101(a)(13), so that he could not be deported for "entering" this country without inspection. He further argued that, if he was found deportable for entry without inspection, he should be eligible for equitable relief from deportation under INA 212(c). The BIA affirmed the Immigration Judge's decision and dismissed Farquharson's appeal on March 20, 2000, finding that he had made an entry into the United States on November 17, 1980. The BIA also affirmed the Immigration Judge's conclusion that Farquharson was ineligible for a waiver of deportation under INA 212(c).

Farquharson has filed a petition for review with this Court.² He argues that he is not deportable for entry without inspection because he did not make an "entry" into the United States within the meaning of the immigration statute. He also argues in each petition that even if he is deportable, he is entitled to apply for a waiver of deportation under former INA 212(c).

II. DISCUSSION

A.Farquharson's Deportability

1.Jurisdiction

Before addressing the merits of Farquharson's appeal, we must consider whether we have jurisdiction to hear his petition. Section 106 of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1105a(a), as amended by section 309 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA") governs this Court's jurisdiction. Although most of IIRIRA's provisions apply only to proceedings commenced on or after April 1, 1997, IIRIRA adopted transitional rules which apply in the case of an alien who is in exclusion or deportation proceedings before April 1, 1997, where the final order is entered after October 31, 1996. See Alanis-Bustamante v. Reno, 201 F.3d 1303, 1306 (11th Cir.2000). IIRIRA's transitional rules apply to Farquharson because his deportation proceedings were commenced before April 1, 1997, and the final deportation order was entered after October 31, 1996.

IIRIRA's transitional rules provide that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense" described in specific enumerated sections. IIRIRA 309(c)(4)(G), reprinted in 8 U.S.C. 1101 note. Notwithstanding this restriction, this Court retains jurisdiction to determine whether an alien is deportable under the immigration statute. See Lettman v. Reno, 168 F.3d 463, 465 (11th Cir.1999). Because judicial review is limited by statutory conditions, courts retain jurisdiction to determine whether those conditions exist. See id. As explained in Lettman, this determination involves considering whether the petitioner is (1) an alien (2) deportable (3) by reason of a criminal offense listed in the statute. See id. We thus have jurisdiction over Farquharson's petition for direct review to determine whether the BIA correctly concluded that Farquharson is deportable.

2.Standard of Review

On the merits, the Immigration Judge found that Farquharson was deportable both for his controlled substance conviction and for making an entry without inspection. Each of these was a statutory basis for deportation. See 8 U.S.C. 1251(a)(2), (11) (1990).³ Farquharson argued that he did not make an "entry" into the United States within the meaning of the immigration statute, and therefore that he was not deportable on that basis. In dismissing Farquharson's appeal, the BIA rejected this argument and affirmed that Farquharson was deportable for entry without inspection. In our review of the BIA's decision, we review the BIA's statutory interpretation de novo, but we defer to the BIA's interpretation if it is reasonable. See Asencio v. INS, 37 F.3d 614, 616 (11th Cir.1994). We review the BIA's factual determinations under the substantial evidence test. See Lorisme v. INS, 129 F.3d 1441, 1444 (11th Cir.1997). To reverse a factual finding by the BIA, this Court must find not only that the evidence supports a contrary conclusion, but that it compels one. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992).

3.Merits

The BIA has established that an entry within the meaning of 8 U.S.C 1101(a)(13) requires: (1) a crossing into the territorial limits of the United States; (2)(a) inspection and admission by an immigration officer, or (b) actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint. See Matter of Z-, 20 I. & N. Dec. 707, 708 (BIA 1993). Farquharson argues that the BIA erred in finding that he entered without inspection when he crash-landed in Florida in November 1980 because he did not intentionally evade inspection and because he was not free from official restraint.

Farquharson first challenges the Immigration Judge's factual finding, affirmed by the BIA, that he intentionally evaded inspection. Farquharson argues that the evidence in this case shows that he did not intentionally evade inspection. Evasion of inspection occurs when an alien avoids the ordinary route to the nearest point of inspection or otherwise attempts to circumvent the normal inspection process. See Cheng v. INS, 534 F.2d 1018, 1019 (2nd Cir.1976). Even a temporary evasion of the inspection process suffices to produce an entry. U.S. v. Kavazanjian, 623 F.2d 730, 739 (1st Cir.1980) (stating that aliens who fled from a U.S. airport and subsequently applied for political asylum at a regional INS office effected an "entry"). Farquharson's own testimony, corroborated by his copilot, indicates that he entered the United States flying a plane which was involved in a drug smuggling operation. He did not have proper travel documents, and he had not filed the customary flight plan before his trip. He did not intend to land at an airport, but at a private landing strip where the drugs would be disbursed. When problems occurred with the plane, he landed in a field. A few minutes after landing, he and his copilot left the plane, and there is no evidence to suggest that they left en route to the nearest point of inspection. They surrendered a short time later to a police search party. The fact that Farquharson was smuggling drugs into the United States shows that he had no intention of submitting himself for immigration inspection. His conduct after landing is consistent with this intent to evade inspection. We conclude that substantial record evidence supports the finding that Farquharson intentionally evaded inspection.

Farquharson next argues that he was not free of official restraint on his entry into the United States because his plane was under surveillance by federal officials. In support of this argument, Farquharson cites Matter of Pierre, 14 I. & N. Dec. 467 (BIA 1973), for the proposition that an alien has not entered the...