In re Leon-Ruiz
| Decision Date | 08 October 1997 |
| Docket Number | Interim Decision No. 3261.,File A91 278 310. |
| Citation | 21 I&N Dec. 154 |
| Parties | In re Hector PONCE DE LEON-Ruiz, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated October 11, 1994, an Immigration Judge found the respondent deportable under sections 241(a)(2)(B)(i) and (a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(2)(B)(i) and (a)(2)(A)(iii) (1994). The Immigration Judge further determined that the respondent was statutorily ineligible for relief under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). As a result, the Immigration Judge ordered the respondent deported from the United States to Mexico. The respondent has appealed from the Immigration Judge's decision. This appeal will be dismissed. The respondent's request for oral argument before the Board is denied. See 8 C.F.R. § 3.1(e) (1995). Because of the importance of the issue, this decision is certified to the Attorney General pursuant to 8 C.F.R. § 3.1(h)(1)(ii).
The central issue is whether the respondent can properly count his lawful temporary resident status towards the 7-year lawful domicile requirement for eligibility for a waiver under section 212(c) of the Act.
The respondent is a 29-year-old native and citizen of Mexico. He was granted temporary resident status effective on April 27, 1988, and subsequently adjusted his status under that provision to that of a lawful permanent resident on September 6, 1991.1
On August 26, 1993, the respondent was convicted of three counts of the sale of marihuana in the Ramsey County District Court, St. Paul, Minnesota, and was sentenced to a suspended sentence of 1 year and 1 day, 100 days of community service, and a fine of $387. The Immigration and Naturalization Service subsequently served the respondent with an Order to Show Cause and Notice of Hearing (Form I-221) on December 15, 1993, charging him with deportability under section 241(a)(2)(B)(i) of the Act, as an alien convicted of a violation of a law relating to a controlled substance, and section 241(a)(2)(A)(iii), as an alien convicted of an aggravated felony. On October 11, 1994, after a hearing, the Immigration Judge found the respondent deportable as charged. The Immigration Judge also found the respondent ineligible for section 212(c) relief, because he lacked 7 years of lawful unrelinquished domicile.
The respondent timely filed his appeal before this Board on October 18, 1994. He does not dispute the finding of deportability under section 241(a)(2)(B)(i) of the Act, but argues that the Immigration Judge improperly classified his conviction as an aggravated felony, and thus that he is not deportable under section 241(a)(2)(A)(iii) of the Act. He also challenges the Immigration Judge's denial of section 212(c) relief. The respondent argues that he is statutorily eligible for relief pursuant to section 212(c) because he can establish lawful unrelinquished domicile. In particular, the respondent argues that his status became lawful in 1986, when section 245A of the Act, 8 U.S.C. § 1255a (Supp. IV 1986) went into effect, and thus, he began his lawful unrelinquished domicile at that time. Alternatively, in a subsequently filed motion to remand, he argues that his lawful unrelinquished domicile began on April 27, 1988, the date that he became a temporary resident pursuant to section 245A.
The respondent argues that his conviction for the sale of marihuana is not an aggravated felony because under Minnesota law, such convictions are not treated harshly. As an example, he argues that Minnesota law provides for reduction of his conviction to the status of a misdemeanor upon successful completion of his probation.
We conclude that the respondent's arguments in this regard are without merit, and that the Immigration Judge properly found that the respondent's conviction constitutes an aggravated felony. The Act defines an "aggravated felony" to include "any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 921 of title 18, United States Code)" and states that "[s]uch term applies to offenses described in the previous sentence whether in violation of Federal or State law." Section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (Supp. V 1993). The term "any illicit trafficking in any controlled substance" is commonly defined as any unlawful trading or dealing in any controlled substance. Matter of L-G-, 21 I&N Dec. 89 (BIA 1995); Matter of Davis, 20 I&N Dec. 536 (BIA 1992). The respondent was convicted on August 6, 1993, of unlawfully selling marihuana in violation of Minnesota Statutes § 152.025, subdivision 1, and was sentenced to 1 year and 1 day in prison. His offense involved a controlled substance as defined in section 102 of the Controlled Substances Act. See 21 U.S.C. § 812(c), schedule I(c) (1988 & Supp. V 1993). The sale of marihuana clearly involves the unlawful trading or dealing in a controlled substance. The offense is a felony.2 Thus the respondent's conviction is "illicit trafficking" and constitutes an aggravated felony as defined in section 101(a)(43) of the Act.
In response to the respondent's argument that his conviction might be reduced to a misdemeanor upon the successful completion of his probation, we note that, for deportation purposes, the respondent is subject to a final felony conviction. It is well established that a conviction attains a sufficient degree of finality for immigration purposes when direct appellate review of the conviction has been exhausted or waived. See Matter of Ozkok, 19 I&N Dec. 546, 522 n. 7 (BIA 1988). The availability of post-conviction motions or other forms of collateral attack does not affect the finality of the conviction for immigration purposes, unless and until the conviction has been overturned pursuant to such a motion. See Okabe v. INS, 671 F.2d 863, 865 (5th Cir. 1982); Aguilera-Enriquez v. INS, 516 F.2d 565, 570 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976); Matter of Gabryelsky, 20 I&N Dec. 750, 752 (BIA 1993); Matter of Adetiba, 20 I&N Dec. 506, 508 (BIA 1992). Therefore, the possibility that the respondent may seek to reclassify his conviction as a misdemeanor does not alter our conclusion that his conviction constitutes an aggravated felony.
Further, even if the respondent's conviction were reclassified as a misdemeanor, a misdemeanor conviction under state law may still be an aggravated felony for purposes of section 101(a)(43) of the Act. Even where an offense is not designated as a felony, it may nonetheless be a "drug trafficking crime" (and therefore "illicit trafficking" and an "aggravated felony") if it is analogous to an offense punishable under one of the federal acts specified in 18 U.S.C. § 924(c)(2) (1994), and the offense to which it is analogous is a felony under federal law. Matter of Davis, supra, at 541-43. The respondent's conviction for the sale of marihuana is analogous to the offense of distribution of a controlled substance under the Controlled Substances Act. See 21 U.S.C. § 841(a)(1) (1994). That offense constitutes a felony under federal law, as the maximum term of imprisonment authorized exceeds 1 year. See 21 U.S.C. § 841(b) (1994); 18 U.S.C. § 3559 (1994). Thus, even if the respondent's conviction were to be classified as a misdemeanor under Minnesota state law, it is a "drug trafficking crime," and therefore, it constitutes "illicit trafficking" and an "aggravated felony" under section 101(a)(43) of the Act.
A waiver of inadmissibility under section 212(c) of the Act is generally available to aliens who have been 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 7 consecutive years in the United States. This form of relief is also available to lawful permanent residents who have not departed the United States and who are in deportation proceedings. Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 16 I&N Dec. 26 (BIA l976); see also Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir. 1981). Thus, eligibility under section 212(c) of the Act requires that an alien (1) be lawfully admitted for permanent residence, and (2) have 7 consecutive years of lawful unrelinquished domicile.
The respondent became a lawful permanent resident on September 6, 1991, and thus satisfies the first requirement. Only the second requirement whether the respondent has established 7 years of lawful unrelinquished domicile for section 212(c) purposes, is at issue in this case.
The Board has held that the acquisition of lawful domicile for purposes of eligibility under section 212(c) of the Act must be subsequent to...
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