Hernaez v. Immigration & Naturalization Serv.
| Decision Date | 27 March 2001 |
| Docket Number | No. 99-70440,99-70440 |
| Citation | 244 F.3d 752 |
| Parties | (9th Cir. 2001) CARLO PONDOC HERNAEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
James A. Stanton, Stanton, Clay, Tom, Chapman & Crumpton, Honolulu, Hawaii, for the petitioner.
Ronald E. LeFevre, Immigration & Naturalization Service, San Francisco, California, for the respondent.
Mark C. Walters, Norah Ascoli Schwarz, and Alice E. Loughran, Office of Immigration Litigation, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. I & NS No.A28-695-188
Before: Betty B. Fletcher, Ferdinand F. Fernandez, and Richard A. Paez, Circuit Judges.
Petitioner Carlo Hernaez, a citizen of the Philippines, is HIV-positive and a homosexual. An Immigration Judge ("IJ") ordered him deported on the bases of overstaying his visa and his drug addiction. The Board of Immigration Appeals ("BIA") affirmed, denying his motions to remand for consideration of an application for suspension of deportation and to reopen for consideration of an asylum application. The case presents a threshold question under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"): Does Hernaez's status as an admitted drug addict preclude this court from exercising jurisdiction over his petition for review? We hold that because drug addiction cannot be considered a criminal offense, we have jurisdiction over Hernaez's case. But we affirm the denial of his motions to remand and reopen.
Petitioner Hernaez arrived in Hawaii on a six-month visitor visa on September 13, 1987. On March 10, 1988, just before his visa expired, he married a United States citizen, who filed a visa petition on his behalf. Within a year, however, the couple divorced, and Petitioner's wife notified the Immigration and Naturalization Service ("INS") that the marriage had been fraudulent and withdrew the petition. On August 24, 1989, the INS mailed Petitioner a notice that his visa application had been denied and that he had until September 13, 1989, to voluntarily depart. Petitioner claims he never received that notice.
Nearly two years later, on May 22, 1991, Petitioner applied to the INS for an alien registration receipt card because he had never received one. On May 30, 1991, he submitted the following handwritten statement to the INS:
I, Carlo P. Hernaez, a Filipino citizen who came to Hawaii on September 13, 1988 as a tourist with a multiple indefinite visa . . . . I got married to Connie Balidio on March 12, 1989. The married [sic] didn't work out after a year so I filed a divorce after we did all the means to save it . . . . Last year, until the month of March this year, I'd been heavily involved in my drug use. Then, I seek some help . . . in a reha bilitate [sic] center.1
He gave his address as the drug treatment facility.
The INS did not respond to Petitioner's request, and in March 1992, he went to the INS in person with the following note:
I, Carlo P. Hernaez, was in A Second Chance, a drug and alcohol rehabilitation program in the month of March to September 1991 for treatment. I do have a drug problem that I had decided to get help [sic]. Now, I'm . . . presently covered by welfare. I came today to ask for a note in order for me to get a state I.D. in which enable me to have an identification card. My main goal at this time is to get a job and be a part of the society. I want to live a new life.
Petitioner was arrested as an "alien not lawfully entitled to be or remain in the United States." He was advised of his rights, including the right to counsel and that "any statement made might be used against him in subsequent administrative proceedings," and was provided with a list of free legal services. After being advised of these rights, Petitioner agreed to make the following statement under oath:
I, Carlo P. Hernaez, a citizen of the Philippines, came to Hawaii on [S]eptember 13, 1987, as a tourist . . . . From August of 1990 to about March 1991 I've been heavily involved in my drug use, crystal methamphetamine, I seek some help. I received treatment from March 27, 1991 to August 13, 1991 at "A SECOND CHANCE" . . . . It's up to me now to stay away from drugs. I am on welfare and desire to seek employment.
The INS instituted deportation proceedings against Petitioner by issuing an order to show cause ("OSC") alleging that Petitioner had been notified that the visa petition filed by his ex-wife had been withdrawn, that he had failed to voluntarily depart, and that he had been a drug abuser. Petitioner was charged with deportability for violation of the Immigration and Nationality Act ("INA") S 241(a)(1)(B) (codified at 8 U.S.C. S 1227(a)(1)(B)) (overstay), and INA S 241(a)(2)(B)(ii) (codified at 8 U.S.C. S 1227(a)(2)(B)(ii)) (having been a drug abuser or addict).2
At a hearing before the IJ on December 9, 1992, Petitioner admitted all the allegations in the OSC but denied deportability and alienage, claiming citizenship through his parents, who were born in the Philippines during a time when it was a territory of the United States. He has since abandoned that claim, as well as his challenge to the denial of voluntary departure.
At the conclusion of the hearing, the IJ found Petitioner deportable based on the charges in the OSC and Petitioner's admissions. The IJ also found that Petitioner was ineligible for voluntary departure because his drug abuse prevented him from making the requisite showing of good moral character, as required by INA SS 241(a)(2)(B)(ii), 244(a) (codified at 8 U.S.C. SS 1227(a)(2)(b)(ii), 1254(a)).
Petitioner timely appealed to the BIA, claiming that as a United States citizen, he was not subject to deportation. Petitioner also claimed that because he was not convicted of a drug offense, his drug abuse did not disqualify him from voluntary departure. The INS opposed the appeal on both grounds.
On May 14, 1996, while his appeal was pending, Petitioner filed an application for suspension of deportation under former INA S 244(a)(1) (), and moved to have his case remanded to the IJ to consider the merits of his suspension application. He withdrew his claim to citizenship, and instead argued that he was eligible for suspension of deportation because he had overstayed his visa long enough toacquire the seven years in the United States required to establish permanent residency. Former S 244(a)(1) provided for permanent residency for aliens living in the United States for a continuous period of seven years, if they were "of good moral character" and if deportation would "result in extreme hardship." Former S 244(a)(2) provided for permanent residency for aliens deportable on specific grounds, including drug abuse or addiction, if they had lived in the United States for ten years following commission of the act upon which deportation was based and met the other requirements of former S 244(a)(1).
Petitioner's claim to extreme hardship was that he was an HIV-positive homosexual who had acquired this disease after arriving in the United States. Petitioner claimed that medical treatment would be unavailable to him in the Philippines and he would either have to hide his homosexuality or bear the "brunt of discrimination, maltreatment, and being ostracized." He alleged that he would be condemned by the Catholic Church in the Philippines. Petitioner supplemented his application with documentation of the treatment of homosexuals in the Philippines. On August 8, 1996, the INS opposed remand, arguing that petitioner was subject to former S 244(a)(2) and was statutorily ineligible for suspension of deportation because he had not lived in the United States for ten years after his disqualifying act of drug abuse.
On September 27, 1996, Petitioner filed an application for asylum and withholding of deportation and a motion to reopen to consider the application. Petitioner claimed that his "fear of homophobic persecution from the church, or from members of the public, is a valid ground upon which " to apply for asylum. Petitioner claimed that medical treatment for HIV is not available in the Philippines and that he has a well-founded fear of persecution in that country. He resubmitted some of the material included in his suspension application. The INS opposed reopening, arguing that Petitioner had failed to meet the requirements for reopening because he submitted no new previously unavailable evidence. 8 C.F.R. S 3.2(c)(1).
On March 23, 1999, the BIA dismissed Petitioner's appeal and denied his motions to reopen and remand. The BIA found that Petitioner had failed to qualify for remand to consider his application for suspension of deportation because he had notmade a prima facie showing of eligibility: "As the respondent has not been present in the United States for 10 years after his drug use, he is statutorily ineligible for suspension of deportation."
Second, the BIA found that Petitioner had failed to establish a reasonable likelihood of success on the merits of his asylum claim because he failed to show that he would be persecuted or had a well-founded fear of persecution based on his status as an HIV-positive homosexual. Rather, the BIA found that Petitioner's evidence showed nothing more than occasional discrimination and...
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