In re Esposito
| Citation | 21 I&N Dec. 1 |
| Decision Date | 30 March 1995 |
| Docket Number | File A30 619 479.,Interim Decision No. 3243. |
| Parties | In re Antonio ESPOSITO, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated May 12, 1992, this Board dismissed the respondent's appeal from the Immigration Judge's denial of his motion to reopen deportation proceedings. We found that the respondent had failed to establish that he was prejudiced by the actions of his former counsel, and that the Immigration Judge had correctly determined that the respondent was ineligible for relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. IV 1992). The respondent petitioned for review of our decision in the United States Court of Appeals for the Second Circuit. In Esposito v. INS, 987 F.2d 108 (2d Cir. 1993), the court vacated our May 12, 1992, decision and remanded this matter to us. The appeal will be dismissed.
The matter was remanded to us to determine two issues with respect to the respondent's request for relief under section 212(c) of the Act:
(1) [W]hether the aggregate suspended sentences of five years or more to which Esposito was subjected were "actually imposed" within the meaning of [8 U.S.C.] § 1182(a)(2)(B), with the result that § 1182(a)(2)(B) applies to Esposito's situation; and if so, (2) whether an immigrant who has a conviction for weapons possession that would be a constituent of a § 1182(a)(2)(B) violation, thus providing a ground for exclusion subject to Francis v. INS, 532 F.2d 268 (2d Cir. 1976)] discretionary relief, is nonetheless ineligible for such relief because that conviction standing alone also provides a ground for deportation under [8 U.S.C.] § 1251(a)(2)(C) that has no counterpart in § 1182.
On April 16, 1986, the respondent was convicted in the Circuit Court of Virginia Beach, Virginia, of the following offenses: possession of marihuana in violation of section 18.2-250.1 of the Virginia State Code; possession of cocaine with intent to distribute in violation of section 18.2-248 of the Virginia State Code; and possession of a sawed-off shotgun in violation of section 18.2-300(b) of the Virginia State Code. On the marihuana violation the court sentenced the respondent to confinement for 12 months, then suspended the execution of the sentence conditioned on the respondent's good behavior for a period of 20 years plus payment of court costs. For the cocaine possession the respondent was sentenced to confinement for 20 years and fined $10,000, then execution of the sentence to confinement was suspended conditioned on the respondent's good behavior for 20 years, service of 12 months in the city jail, and payment of court costs. Finally, with respect to his conviction for unlawful possession of a sawed-off shotgun, the court sentenced the respondent to 5 years' imprisonment and suspended execution of the sentence conditioned on the respondent's good behavior for 20 years and payment of court costs.
This Board has not issued a precedent decision addressing whether a sentence to confinement, the execution of which is subsequently suspended, is a "sentence[] to confinement actually imposed" within the meaning of section 212(a)(10) of the Act, 8 U.S.C. § 1182(a)(10) (1988), or its successor section at 212(a)(2)(B) of the Act, 8 U.S.C. § 1182(a)(2)(B) (Supp. V 1993). We have, however, as noted by the circuit court, specifically addressed whether a sentence to confinement, the execution of which is subsequently suspended, is a "sentence actually imposed" for purposes of former section 212(a)(9) of the Act.2
In Matter of Castro, 19 I&N Dec. 692 (BIA 1988), this Board found that when a court imposes a sentence but suspends execution of that sentence, the sentence is "actually imposed" for purposes of section 212(a)(9) of the Act even though probation may also be granted. Id. at 695. In contrast, when a court suspends the imposition of the sentence, there is no "sentence actually imposed." Id. at 694. The phrases "sentence actually imposed" in section 212(a)(9) and "sentences to confinement actually imposed" in section 212(a)(10) appeared in the Act, at the same time, in successive paragraphs, and relate to the same object and subject matter. We find that they must be interpreted consistently. 2A N. Singer, Sutherland Statutory Construction, § 51.03 (4th ed. 1985). We note that the reasoning in Matter of Castro, supra, has been upheld for purposes of section 212(a)(9), see Solis-Muela v. INS, 13 F.3d 372 (10th Cir. 1993),3 and followed in interpreting the "actually imposed" requirement of section 212(a)(10), see Fonseca-Leite v. INS, 961 F.2d 60 (5th Cir. 1992).4 Moreover, as no substantive change was made in revising and redesignating section 212(a)(10) as section 212(a)(2)(B), we find that the interpretation in Castro is equally applicable to section 212(a)(2)(B). See Rodrigues v. INS, 994 F.2d 32 (1st Cir. 1993) ().
The State Department provision at 22 C.F.R. § 40.22(b) mentioned by the circuit court in Esposito v. INS, supra, at 112, is not necessarily to the contrary. That provision states that a "sentence to confinement that has been suspended by a court of competent jurisdiction is not one which has been `actually imposed' within the meaning of [section] 212(a)(2)(B)." 22 C.F.R. § 40.22(b) (1994). Neither the regulation nor the interpretive notes found at Vol. 9, Foreign Affairs Manual, Part I, 22 C.F.R. § 40.22 note 1.2 (TL:VISA-46 Aug. 26, 1991), indicate whether the suspension referred to is suspension of the "imposition" or the "execution" of the sentence.
If suspension of the imposition of sentence is referred to, then the regulation is not at all inconsistent with Matter of Castro, supra. The parties have presented no cases addressing 22 C.F.R. § 40.22(b), and we are aware of none. In such a vacuum we decline to interpret 22 C.F.R. § 40.22(b) as applying to suspension of the execution of sentence, an interpretation which would put the regulation at odds with a substantial body of contrary caselaw, including our own. See Rodrigues v. INS, supra, at 34.
Furthermore, even assuming the State Department regulation evidenced a clear conflict with the position we have taken, we note that this Board, as the Attorney General's delegate, is charged by law with interpreting questions of law within our jurisdiction under the Act and, in this instance, for the reasons stated, we would depart from the State Department regulation:
The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.
Section 103(a) of the Act, 8 U.S.C. § 1103(a) (1988); see also 8 C.F.R. § 3.1 (1994).
In response, then, to the first issue on remand, we find that even though the execution of the sentence to confinement was suspended on each of the respondent's convictions, the "aggregate sentences to confinement actually imposed" on the respondent within the meaning of section 212(a)(10) [now 212(a)(2)(B)] of the Act were: 12 months for the respondent's marihuana violation, plus 20 years for the respondent's cocaine violation, plus 5 years for the respondent's firearms violation, for a total of 26 years. Matter of Castro, supra; see also Solis-Muela v. INS, supra; Rodrigues v. INS, supra; Fonseca-Leite v. INS, supra. The respondent therefore could be deemed inadmissible within the meaning of section 212(a)(10) [now 212(a)(2)(B)] of the Act, with one of the constituent convictions being his firearms violation.
Section 212(c) of the Act provides, in pertinent part, that aliens lawfully admitted for permanent residence who temporarily proceed abroad...
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