Hing Cheung Wong v. I.N.S.
| Decision Date | 08 December 1992 |
| Docket Number | No. 92-1721,92-1721 |
| Citation | 980 F.2d 721,1992 WL 358913 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Hing Cheung WONG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Robert J. Napolitano, on Memorandum in Support of Motion for Stay, for petitioner.
Stuart M. Gerson, Assistant Attorney General, Robert Kendall, Jr., Assistant Director, and Charles E. Pazar, Office of Immigration Litigation, Civil Division, Department of Justice, on Memorandum in Opposition to Motion for Stay, for respondent.
BIA
STAY DENIED.
Before Breyer, Chief Judge, Selya and Cyr, Circuit Judges.
Petitioner Hing Cheung Wong seeks a stay of deportation under 8 U.S.C. § 1105a(a)(3) pending our review of an order of the Board of Immigration Appeals (BIA) denying his request for discretionary waiver. On August 10, 1992, we stayed the order of deportation on a provisional basis and directed the parties to file memoranda addressing petitioner's challenges to the BIA's decision. Having now reviewed the administrative record along with the parties' memoranda, we find that the instant petition raises no serious legal question. We therefore vacate the provisional stay and deny petitioner's application for a stay pending review.
Petitioner is a 39-year-old native and citizen of Hong Kong who has been a legal permanent resident in the United States since 1968. The record discloses that he has committed three legal offenses since his arrival. In March 1977, he pled guilty in Maine state court to a charge of possessing less than one and one-half ounces of marijuana-a civil violation for which he was ordered to perform community service. In May 1979, he pled guilty to a charge of shoplifting and was fined $100. 1 And in August 1984, he pled guilty to the charge of acquiring scheduled drugs (codeine) by deception, for which he received a one-year suspended sentence and two years of probation. 2
Relying on these latter two convictions, the INS in December 1985 charged petitioner with being deportable as an alien "who at any time after entry [has been] convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct...." 8 U.S.C. § 1251(a)(4) (). 3 At a hearing before an immigration judge (IJ) in March 1987, petitioner conceded his deportability under this provision and requested a discretionary waiver pursuant to 8 U.S.C. § 1182(c). Following the receipt of testimony from petitioner, his wife and his father, the IJ denied such relief as a matter of discretion, finding that the adverse factors outweighed the equities in petitioner's favor. The BIA summarily endorsed the IJ's ruling, and petitioner now seeks a stay of the order of deportation pending review in this court.
The filing of a petition for review acts as an automatic stay of an order of deportation "unless the alien is convicted of an aggravated felony, in which case the [INS] shall not stay the deportation ... unless the court otherwise directs." 8 U.S.C. § 1105a(a)(3). The INS contends that petitioner's 1984 state conviction for acquiring scheduled drugs by deception constitutes an "aggravated felony." It therefore asserts that petitioner is ineligible for an automatic stay, even though the provision eliminating such stays in cases of aggravated felons was added in 1990 (six years after the conviction involved here). As petitioner has not disputed either of these points, we pause only to note that both appear supportable.
The term "aggravated felony" is defined in 8 U.S.C. § 1101(a)(43) as, inter alia, "any drug trafficking crime as defined" in 18 U.S.C. § 924(c)(2). That provision in turn defines a "drug trafficking crime" as, inter alia, "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." Under 21 U.S.C. § 843(a)(3), it is a felony "to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge." This crime is directly analogous to petitioner's 1984 state conviction. Moreover, the definition of aggravated felony goes on to read: "Such term applies to offenses described in the previous sentence whether in violation of Federal or State law." 8 U.S.C. § 1101(a)(43). The fact that petitioner's conviction occurred in state court, therefore, does not preclude a finding of aggravated felony under federal law.
The aggravated-felony provisions were introduced in 1988. See Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. No. 100-690, 102 Stat. 4181. The elimination of the automatic stay for aggravated felons (along with the inclusion of state crimes in the aggravated-felony definition) was effected by the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649, 104 Stat. 4978. Some initial uncertainty arose as to the degree to which the amendment eliminating the automatic stay, see id. § 513(a), 104 Stat. 5052, was retroactive. IMMACT provided that such change was applicable to petitions for review "filed more than 60 days after the date of the enactment of this Act." Id. § 513(b). Yet this directive failed to specify when the conviction must have occurred. Noting this fact, one court held that the 1990 amendment eliminating the automatic stay for aggravated felons did not apply to persons whose convictions predated the ADAA's effective date of November 18, 1988. See Ayala-Chavez v. INS, 945 F.2d 288 (9th Cir. 1991)
In December 1991, however, new legislation amended this provision so that it would apply "to convictions entered before, on, or after" IMMACT's effective date. Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, § 306(a)(11), 105 Stat. 1751. This amendment "take[s] effect as if included in the enactment of the Immigration Act of 1990." Id. § 310(1), 105 Stat. 1759. Arguably, some question still remains as to whether the automatic stay is inapplicable (1) to all aggravated felony convictions, whenever they occurred, or (2) only to those occurring after November 18, 1988. See Ayala-Chavez, 945 F.2d at 293-94 (). However, the Ninth Circuit has since held that the Technical Amendments effectively overruled its Ayala-Chavez decision, and that "a party convicted of an aggravated felony is precluded from obtaining an automatic stay of deportation, regardless of the date of conviction." Arthurs v. INS, 959 F.2d 142, 143 (9th Cir. 1992) (6/88 conviction). Other courts have agreed. See Zegarski v. INS, 965 F.2d 426, 427 (7th Cir. 1992) (per curiam) (8/86 convictions); Ignacio v. INS, 955 F.2d 295, 297-98 (5th Cir. 1992) (per curiam) (9/83 convictions). Cf. Martins v. INS, 972 F.2d 657, 659-60 (5th Cir. 1992) (per curiam) (). Moreover, the Arthurs case involved a state drug conviction and so held, by implication, that the 1990 amendment including state crimes within the definition of aggravated felony was also fully retroactive. 4
Cf. United States v. Bodre, 948 F.2d 28, 32 (1st Cir. 1991) (), cert. denied, 112 S. Ct. 1487 (1992). Given this caselaw, and given his failure to raise the issue, we conclude that petitioner is not entitled to an automatic stay.
We have stated in a different context that, where denial of a stay "will utterly destroy the status quo, irreparably harming" appellant, but granting a stay "will cause relatively slight harm" to appellee, the appellant "need not show an absolute probability of success" on the merits; it is enough if "there are serious legal questions presented." Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979); accord Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1, 4 n.2 (1st Cir. 1982) (). The Fifth Circuit has suggested such a lower standard might apply in the § 1105a context, see Ignacio, 955 F.2d at 299 & n.5, and the INS here has adverted to the Providence Journal standard in its memorandum (albeit without addressing its applicability). Yet we need not decide which standard should govern, inasmuch as petitioner has failed to present a "serious legal question," let alone establish a probability of success.
In exercising its discretion whether to grant relief from deportation under 8 U.S.C. § 1182(c), the BIA "balance[s] the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf." Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (quoted in Hazzard v. INS, 951 F.2d 435, 438 (1st Cir. 1991)). The IJ found that a number of factors strongly militated in petitioner's favor. He has resided in this country since age 15, for a total of 24 years. His parents, grandparents, and four siblings all reside here as well; he has no relatives in Hong Kong. He served in the Navy from September 1971 to January 1973. Petitioner married a native-born United States citizen in 1985, and the two have lived together ever since. At the time of the 1987 hearing, they had had one child together, his wife had a second child from a previous relationship who lived with them, and she was pregnant with a third. After earlier bouts of underemployment, petitioner resumed working full-time at a family restaurant in 1986 (as a food preparer); he has been the sole support for his family since that time.
Arrayed against these equities were the following adverse factors. As...
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Da Rosa Silva v. I.N.S.
...Shaughnessy, 219 F.2d 249 (2d Cir.1955)(larceny of two sacks of cornmeal involves moral turpitude); see also, Wong v. INS, 980 F.2d 721, 1992 WL 358913, at *5, n. 5 (1st Cir.1992)(citing cases finding that a shoplifting offense is a crime involving moral turpitude). Under these interpretati......