Hernandez-Rodriguez v. Pasquarell

Citation118 F.3d 1034
Decision Date24 July 1997
Docket NumberNo. 95-50876,P,HERNANDEZ-RODRIGUE,95-50876
PartiesRaymundoetitioner-Appellant, v. Kenneth L. PASQUARELL, District Director of the Immigration and Naturalization Service, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Linda Yee Chew, Douglass, Chew & Chew, El Paso, TX, for Petitioner-Appellant.

Hugh G. Mullane, Department of Justice, Immigration Litigation, Washington, DC, Guadalupe Reyna Gonzalez, El Paso, TX, Philemina McNeill Jones, U.S. Department of Justice, Office of Immigration, Washington, DC, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, WIENER and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Raymundo Hernandez-Rodriguez, an alien, in November 1987 was ordered excluded from the United States after attempting to import marihuana through the Del Rio port of entry. In April 1988, the exclusion order was affirmed by the Board of Immigration Appeals (the Board). Over a year later, Petitioner filed with the Board a motion to reopen his exclusion proceeding alleging that familial developments warranted the grant of discretionary relief pursuant to section 212(c) of the Immigration and Nationality Act. In December 1991, the Board denied Petitioner's motion on the basis of statutory ineligibility. Some six months thereafter, Petitioner instituted the instant habeas corpus proceedings in the district court below challenging the Board's 1991 decision. In August 1995, the district court denied the Petitioner's habeas application, from which action Petitioner brings this appeal. We affirm.

Facts and Proceedings Below

Petitioner is a citizen of Mexico who entered the United States in 1965 and became a lawful permanent resident on November 1, 1974. He fathered five children with his wife, Irma Orona Hernandez, who is a United States citizen. Their children were born on February 24, 1974 (Raymundo Jr.), May 20, 1975 (Francisco), April 20, 1980 (Albert), August 6, 1983 (Veronica), and April 18, 1986 (Juan). Petitioner is a construction worker by trade, specializing in concrete. He has worked in the Texas construction industry for most of his adult life.

The events giving rise to the instant habeas action began December 19, 1983, when Petitioner attempted to enter the United States as a returning resident at the port of entry in Eagle Pass, Texas. Concealed in Petitioner's vehicle were twenty-eight pounds of marihuana. On December 22, 1983, Petitioner was served with a "Notice to Applicant for Admission Detained for Hearing before an Immigration Judge" charging him with excludability under 8 U.S.C. § 1182(a)(23). 1 Petitioner was also indicted for the underlying federal drug offense. On March 15, 1984, in the United States District Court for the Western District of Texas (Del Rio Division), Petitioner was convicted of unlawfully, knowingly and intentionally importing and causing to be imported a quantity of marihuana into the United States from Mexico in violation of 21 U.S.C. §§ 952(a), 960(a)(1). Petitioner was sentenced to 4 years' imprisonment, a special parole term of 4 years, and a fine of $1,000. The district court suspended the imprisonment, placed the Petitioner on probation for 5 years, and ordered him to perform 300 hours of community service.

In October 1985, while still on probation, Petitioner was again involved in a drug-related offense, culminating in his guilty plea on October 31, 1985, to a state charge of delivery of marihuana. The 204th Judicial District Court in Dallas County, Texas, sentenced Petitioner to two years' deferred adjudication. As a result of Petitioner's subsequent drug offense, the United States District Court for the Western District of Texas revoked his probation on March 20, 1986, and, on April 8, 1986, committed him to prison for two years, with a four-year special parole term.

After Petitioner completed his federal sentence in 1987, he was transferred to the INS Processing Center in El Paso, Texas. Petitioner's request for release pending completion of the exclusion proceedings was denied by the District Director on October 5, 1987. The Immigration Judge conducted hearings on October 9, 1987, and on October 29, 1987. Before the Immigration Judge, the Petitioner conceded excludability and applied for a waiver of exclusion pursuant to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). The Immigration Judge, acknowledging that the Petitioner met the statutory eligibility requirements of seven years' unrelinquished domicile and lawful permanent resident status, nevertheless determined that discretionary waiver under section 212(c) was not warranted in light of his prior drug-related activity. The Immigration Judge noted that Petitioner's "favorable factors," in this case his American wife, his five American children, and his construction trade skills, did not weigh sufficiently in favor of granting a waiver. Accordingly, on November 2, 1987, nearly ten years ago, the Immigration Judge ordered Petitioner excluded and deported to Mexico.

Petitioner filed a Notice of Appeal to the Board of Immigration Appeals on November 12, 1987. In an opinion issued April 29, 1988, the Board affirmed the Immigration Judge's decision. The Board, as had the Immigration Judge, noted the Petitioner's "unusual or outstanding equities," but concluded that, given the seriousness of Petitioner's drug trafficking conviction, he had failed to demonstrate rehabilitation. In this regard, the Board found significant the Petitioner's involvement in 1985 in marihuana-related activity. 2

In July 1989, approximately fourteen months after the Board had denied his appeal, Petitioner filed a Motion To Reopen and/or Motion for Reconsideration with the Board. The motion declared that, since his return to Frisco, Texas, in November 1987, Petitioner had become divorced from his American wife and had subsequently been awarded custody of his three oldest American children, Raymundo Jr., Francisco, and Albert. In July 1989, their ages were fifteen fourteen, and nine, respectively. 3 Characterizing his family developments as "new material evidence," Petitioner also repeated his contentions that his extended residence in the United States, his ownership of a trailer, and his construction skills would render his exclusion and deportation an extreme hardship to his family.

On December 31, 1991, five years after Petitioner had been ordered excluded and deported, the Board issued a per curiam denial of Petitioner's motion to reopen. Citing Matter of Cerna, Int. Dec. 3161 (B.I.A. Oct. 7, 1991), the Board held that, as Petitioner's "lawful permanent resident status terminated with the entry of the final administrative order of exclusion and deportation, i.e., when the Board dismissed the applicant's appeal," the Petitioner was statutorily ineligible for section 212(c) relief, which applies only to "[a]liens lawfully admitted for personal residence."

On June 30, 1992, Petitioner filed the instant petition for a writ of habeas corpus in the United States District Court for the Western District of Texas (El Paso Division) asserting that the Board's 1991 denial of his July 1989 motion to reopen was arbitrary and capricious. 8 U.S.C. § 1105a(b); 28 U.S.C. § 2241. Defendant-appellee District Director of the Immigration and Naturalization Service filed a Motion To Dismiss/Motion for Summary Judgment arguing that the Board's decision in Cerna was controlling. On August 18, 1995, the district court entered an order denying Petitioner's habeas petition. The district court, citing our decision in Ghassan v. INS, 972 F.2d 631 (5th Cir.1992), cert. denied, 507 U.S. 971, 113 S.Ct. 1412, 122 L.Ed.2d 783 (1993), held that the Board's determination that Petitioner was no longer eligible for section 212(c) relief after the Board's April 1988 affirmance of the Immigration Judge's decision was not an abuse of discretion.

Petitioner brings this appeal, and we affirm.

Discussion

"The exclusion of aliens is a fundamental act of sovereignty." Gisbert v. United States Attorney General, 988 F.2d 1437, 1440 (5th Cir.1993) (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953) ("Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control."); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950)). The right to exclude aliens is vested in the political branches which "have plenary authority to establish and implement substantive and procedural rules governing the admission of aliens." Id.

The statutory scheme governing immigration affairs in the United States is the Immigration and Nationality Act (the Act). Under the Act, an order of deportation is reviewable directly by this Court pursuant to a petition for review, 8 U.S.C. § 1105a(a). The only review of an order of exclusion is pursuant to a petition for a writ of habeas corpus, 8 U.S.C. § 1105a(b). Included within the scope of habeas review of orders of exclusion, however, is the Board's compliance with prescribed procedures.

Throughout the Petitioner's exclusion proceedings and before the district court, he has conceded excludability. In his application to the district court for habeas relief and on appeal before this Court, Petitioner raised the sole issue of whether the Board's refusal to reopen or reconsider his exclusion case on the grounds that he was statutorily ineligible was based on an erroneous construction of section 212(c). There is no statutory provision for Petitioner's motion to reopen his exclusion proceeding; the authority for his motion derives entirely from the regulations promulgated by the Attorney General. INS v. Doherty, 502 U.S. 314, 321-23, 112 S.Ct. 719, 724, ...

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