In re Fuentes-Campos, Interim Decision No. 3318.
| Citation | 21 I&N Dec. 905 |
| Decision Date | 14 May 1997 |
| Docket Number | Interim Decision No. 3318. |
| Parties | In re Samuel FUENTES-CAMPOS, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
The issue in this case is whether an applicant for admission who is excludable on the basis of a controlled substance offense is eligible for a waiver of inadmissibility under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (enacted Apr. 24, 1996) ("AEDPA"). The Immigration Judge determined that the applicant was statutorily ineligible for relief under section 212(c) of the Act. The applicant has appealed from that decision. The appeal will be sustained, and the record will be remanded for further proceedings.
The applicant is a native and citizen of Mexico who became a lawful permanent resident of the United States on February 2, 1988. On March 25, 1995, he was detained by the Immigration and Naturalization Service as he attempted to enter the United States at Nogales, Arizona. Thereafter, on or about November 6, 1995, he pled guilty to possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (1994).
The Service subsequently initiated exclusion proceedings. At a hearing on July 5, 1996, the applicant acknowledged being excludable as a controlled substance trafficker and an alien convicted of a controlled substance violation. He also sought to apply for a section 212(c) waiver. However, in a written decision dated August 5, 1996, the Immigration Judge granted the Service's motion to pretermit the section 212(c) application.
Is an applicant for admission in exclusion proceedings, who is inadmissible on the basis of a controlled substance offense, statutorily ineligible for relief under section 212(c) of the Act as "an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i)"?
Prior to the enactment of section 440(d) of the AEDPA, section 212(c) of the Act read as follows:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provisions of subsection (a) (). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 211(b). The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years. (Emphasis added).
The AEDPA was signed on April 24, 1996, more than 2 months prior to the applicant's exclusion hearing. Congress subsequently made a technical correction to section 440(d) of the AEDPA in section 306(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-612 (enacted Sept. 30, 1996) ("IIRIRA"). As corrected, section 440(d) of the AEDPA changed the last sentence of section 212(c) of the Act to provide as follows:
This subsection shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i). (Emphasis added.)
The object of statutory construction is to determine the congressional intent with respect to the legislation enacted. Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). Where the language of the statute is clear, the inquiry is ended. The unambiguously expressed intent of Congress must be given effect. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The paramount index of congressional intent is the plain meaning of the words used in the statute taken as a whole. INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); Matter of Grinberg, 20 I&N Dec. 911, 912 (BIA 1994). Presumably, the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya, 464 U.S. 183, 189 (1984); Matter of W-F-, supra; Matter of Barrett, 20 I&N Dec. 171, 174 (1990). In ascertaining the plain meaning of a provision, we construe the language in harmony with the wording and design of the statute as a whole. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Matter of W-F-, supra.
We find that the plain language of the amendment to section 212(c), as construed within the context of the well-established statutory distinctions between deportation and exclusion, provides that the bar to eligibility for relief applies only to specified criminal aliens who are in deportation proceedings.
At the time the AEDPA was enacted, the distinctions between exclusion and deportation had long been recognized in immigration law. Leng May Ma v. Barber, 357 U.S. 185, 187 (1958). The meaning of each term is well defined, and the significant differences between them are clear. See Landon v. Plasencia, 459 U.S. 21, 25-26 (1982) (). For example, the admissibility of aliens seeking to enter the United States is determined in an exclusion hearing, while aliens already physically in this country are subject to deportation proceedings. Id. The grounds of inadmissibility and deportability are set forth in separate statutory provisions. Leng May Ma v. Barber, supra. In addition, the rights available to persons in exclusion proceedings are significantly different from those provided in deportation proceedings. Landon v. Plasencia, supra. Congress, which had created these important distinctions between exclusion and deportation proceedings, was obviously aware of them when it enacted the AEDPA.
Prior to its amendment, section 212(c) of the Act barred from eligibility those aliens who "had been convicted" of certain offenses. This inclusive language covered both aliens in exclusion proceedings and those in deportation proceedings. By enacting section 440(d) of the AEDPA, Congress omitted the inclusive language of section 212(c), which made a waiver unavailable to certain criminal aliens regardless of whether they were in exclusion or deportation proceedings. Congress replaced that language with a more limited provision making relief unavailable to any alien "who is deportable by reason of having committed any criminal offense covered in [specified grounds of deportability]." (Emphasis added.)
Clearly, aliens in exclusion proceedings seeking admission to the United States are not "deportable." The Supreme Court has recognized the long-standing principle of the immigration laws that aliens seeking admission are subject to exclusion proceedings and are to be distinguished from "deportable" aliens, who are only subject to deportation proceedings. See, e.g., Landon v. Plasencia, supra; Leng May Ma v. Barber, supra. As the United States Court of Appeals for the Ninth Circuit stated, the term "deportable" is a "word of art [that] does not cover excludable aliens." Yuen Sang Low v. Attorney General of United States, 479 F.2d 820, 823 (9th Cir.), cert. denied, 414 U.S. 1039 (1973).
The phrase "is deportable" also has a long administrative history of being understood to apply only in deportation proceedings. See Matter of Ching, 12 I&N Dec. 710, 712 (BIA 1968) (); Matter of T-, 5 I&N Dec. 459 (BIA 1953) (); see also Matter of Melo, 21 I&N Dec. 883, 885 n.2 (BIA 1997) ().
The Immigration Judge concluded that Congress' use of the words "who is deportable by reason of having committed any criminal offense covered in [certain sections]" indicates its intent to include within the bar to eligibility any alien who has committed a described criminal offense. However, such a conclusion is unwarranted in light of the explicit statutory reference to an alien "who is deportable." In this regard, it would have been possible for Congress to have clearly barred aliens in exclusion proceedings from relief under section 212(c) either by (1) referencing excludability and deportability, as was done in other AEDPA amendments; or (2) by applying the bar to an alien "who has been convicted of [a designated offense]," as...
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