Gutierrez-Chavez v. I.N.S.

• Decision Date: 31 July 2002
• Docket Number: No. 00-56149.,00-56149.
• Citation: 298 F.3d 824
• Parties: Gustavo GUTIERREZ-CHAVEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 824

298 F.3d 824

Gustavo GUTIERREZ-CHAVEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; et al., Respondents-Appellees.

No. 00-56149.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 16, 2001.

Filed July 31, 2002.

Victor D. Nieblas (argued), Law Office of Victor D. Nieblas Pradis, Los Angeles, CA, for the petitioner-appellant.

Cindy S. Ferrier (argued), United States Department of Justice, Appearances only by David W. Ogden, United States Department of Justice, Civil Division, Kristen A. Chapman, United States Department of Justice, Office of Immigration Litigation, and John P. Moran, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding, D.C. No. CV-99-07228 DDP.

Before B. FLETCHER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION

D.W. NELSON, Circuit Judge.

Gustavo Gutierrez-Chavez challenges the manner in which the BIA exercised its discretion in denying his request for a 212(c) waiver of deportation. We must decide if he can do so in a 28 U.S.C. § 2241 petition for habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gutierrez was admitted to the United States as a legal permanent resident in 1979 at the age of thirteen. After holding several odd jobs, Gutierrez began working at a company called Stack Equipment in 1986. Gutierrez testified before the Immigration Judge ("IJ") that sometime in 1990, while still working at Stack Equipment, he injured his back on the job and had to have an operation. He further testified that, because he was unable to work, he became desperate for money once his disability payments stopped in 1991. This desperation, according to Gutierrez, led him to start selling drugs.

Gutierrez testified that he sold drugs for approximately six months in 1991; during those six months, he participated in ten transactions, each transaction involving one kilo of cocaine. Gutierrez testified that he made approximately $200 to $300 per transaction. He was eventually caught by the police and pled guilty to possession of cocaine for sale in November of 1991. The state trial court sentenced Gutierrez to three years, but he was released on parole in 1993 after serving only approximately 2 years of his sentence.

The INS issued Gutierrez an order to show cause on December 24, 1992, contending that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) (aggravated felony) based on his California conviction for the sale of cocaine. When Gutierrez came before the IJ in 1994 for a hearing on the order to show cause, Gutierrez conceded that he was removable on the basis of his drug conviction. However, he requested a discretionary waiver of his removal pursuant to then-existing INA § 212(c).¹

The IJ denied Gutierrez's application for a 212(c) waiver. The IJ stated that, after considering testimony from Gutierrez, his wife and his parents (along with various documentary evidence), "respondent has failed to demonstrate sufficient favorable equities which offset the negative factors in his case, in particular his 1991 conviction for an aggravated felony." The IJ found that Gutierrez's criminal past and the precarious financial position that gave rise to that past (and continued to persist at the time of the hearing) outweighed any other positive factors that Gutierrez presented, including his extensive familial contacts in the United States. The IJ also noted that Gutierrez's deportation to Colombia would not cause great hardship because all his family members were from Colombia and were still primarily Spanish speakers.

Believing that the IJ had erred in three respects, Gutierrez appealed to the BIA. Gutierrez claimed that (1) the IJ had incorrectly balanced the equities in his case in denying a 212(c) waiver, (2) the translation of his testimony before the IJ was inadequate and deprived him of due process of law, and (3) the IJ was biased against him (also in violation of the due process clause) because of his link to Cali, Colombia.

The BIA rejected all three arguments and affirmed the IJ in a per curiam opinion. As to Gutierrez's 212(c) request, the BIA found that the IJ had not abused his discretion in evaluating the equities of the case. The BIA noted that "the respondent's equities, including his length of residence and family ties, are outstanding...."² However, the BIA agreed with the IJ's conclusion that these equities were simply insufficient to overcome the negative factors, in particular Gutierrez's conviction of a serious drug crime and his admission that he engaged in drug trafficking for six months and participated in ten transactions. The BIA also rejected Gutierrez's due process claims alleging that he did not get a fair hearing before the IJ because of the inadequate translation and the IJ's alleged bias. The BIA found the inadequate translation claim flawed because, according to the BIA, Gutierrez failed to establish that he was prejudiced by the alleged translation defect. The BIA also rejected Gutierrez's claim of bias, finding that he had not shown the IJ departed from the record or gave "undue weight to the place of [Gutierrez's] birth."

Gutierrez petitioned for review of the BIA's decision by our Court on August 24, 1996. The petition for review was dismissed for lack of jurisdiction due to changes effected by § 440(a) of AEDPA. See Duldulao v. INS, 90 F.3d 396 (9th Cir.1996) (holding that § 440(a) applies retroactively).

His avenue for direct review by us thus foreclosed by Congress, Gutierrez then sought review through resort to the Great Writ; he filed a 28 U.S.C. § 2241 habeas petition in federal district court. In his habeas petition, Gutierrez continued to press his argument that the BIA abused its discretion in finding that the positive equities did not outweigh the negative factors in his case. He also reasserted his due process claims alleging inaccurate translation of his statements and bias of the IJ at the hearing.

The district court denied Gutierrez's habeas petition. The court found that neither of Gutierrez's constitutional claims had merit; Gutierrez had not shown that a better translation would have made a difference in the hearing's outcome, and the references to Cali, Colombia by the IJ didn't evince any impermissible bias when taken in context. More importantly for our purposes, though, the district court also reviewed on the merits Gutierrez's claim that the BIA had abused its discretion in denying him a 212(c) waiver. The court explained that its reading of recent decisions of this Circuit "confirmed that claims of abuse of discretion are cognizable on Section 2241 habeas corpus review." The district court, however, found that the BIA did not abuse its discretion. Noting that Gutierrez must make a showing of unusual or outstanding equities because of the seriousness of his offense, the district court could find no abuse of discretion in the BIA's reasoned explanation of why Gutierrez's drug conviction outweighed the equities in his favor.

II. DISCUSSION

We hold that 28 U.S.C. § 2241 does not allow us, in the absence of constitutional or statutory error, to second-guess the manner in which the INS chooses to exercise the discretion given it by statute.³

A. The discretionary calculus

Section 2241 provides that habeas corpus review is available to persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241. The text is clear both in what it says and what it does not say. Section 2241 explicitly says that one who is in custody may file a habeas petition if he or she alleges that such custody violates the constitution or federal law (or treaties). However, § 2241 does not say that habeas is available to challenge purely discretionary (yet arguably unwise) decisions made by the executive branch that do not involve violations of the Constitution or federal law.

However, Gutierrez argued, and the district court was convinced, that decisions of this Circuit have gone beyond the text and held that judicial review of purely discretionary decisions, like INS's decision to deny a 212(c) waiver here, is permitted under § 2241. In particular, the district court cited statements that appear in the footnotes of two of our more recent cases. See Ma v. Ashcroft, 257 F.3d 1095, 1101 n. 4 (9th Cir.2001); Magana-Pizano v. INS, 200 F.3d 603, 608 n. 5 (9th Cir.1999). When we take another look at these cases, however, we remain convinced that habeas review under § 2241 is limited only to claims of constitutional or statutory error.

Our decision in Ma v. Ashcroft does not expand the text of § 2241 to permit Gutierrez's challenge to the discretionary result the INS reached in his case. The Court stated in footnote 4 of Ma that "claims of statutory error and abuse of discretion in the application of the immigration laws have long been cognizable on habeas corpus." Ma, 257 F.3d at 1101 n. 5 (citing Magana-Pizano and United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954)). While this may be historically accurate, it does not tell the whole story.

Prior to 1996, aliens in deportation proceedings could bring a habeas challenge to their deportation under either (or both) of two habeas statutes. The first is the one that is the principal subject of this opinion, namely § 2241. However, there also existed another statutory grant of habeas jurisdiction: INA § 106(a)(10). That statute provided the following (before it was repealed by Congress in 1996): "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C. § 1105a(a)(10) (1994), repealed by Anti-Terrorism and Effective Death Penalty Act of 1996, § 401(e), 110 Stat. 1214, 1268.

Thus, before Congress'...