Johnson v. I.N.S.

• Decision Date: 29 July 1992
• Docket Number: Nos. 91-70112,91-70563,s. 91-70112
• Citation: 971 F.2d 340
• Parties: Brigette Karin JOHNSON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 340

971 F.2d 340

Brigette Karin JOHNSON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 91-70112, 91-70563.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 7, 1992.

Decided July 29, 1992.

Cindy M. Cipriani, Marcelle E. Mihalia, Peter N. Larrabee, Gray, Cary, Ames & Frye, San Diego, Cal., for petitioner.

David M. McConnell and Charles E. Pazar, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: ALARCON, NORRIS, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked to decide whether violation of the Travel Act by an alien can be a deportable offense.

Johnson seeks review of a decision by the Immigration and Naturalization Service ("INS") ordering her deportation. She also asks us to review whether the Board of Immigration Appeals ("BIA") erred in not reopening her deportation proceeding to consider new evidence.

I

Johnson is a German citizen who emigrated to the United States in 1979 and later attained permanent resident status. In 1985, she transported an automobile from Texas to California for her boyfriend. The car contained a hidden compartment which was used to transport the proceeds from her boyfriend's ongoing drug transactions.

Johnson pled guilty to an information which charged her with "travel[ing] in interstate commerce ... with the intention of distributing the proceeds derived from the unlawful distribution of narcotics and controlled substances...." in violation of the Travel Act, 18 U.S.C. § 1952. ¹ Johnson also told the federal district court in Oklahoma that she "believed that my boyfriend was going to use it [the car] to put money in it from narcotics." The court sentenced Johnson to four years imprisonment and a $4,000 fine. Six months of the sentence were to be served in a jail-type institution followed by three and one-half years of probation.

The INS then ordered Johnson to show cause why she should not be deported for this criminal violation. The matter was transferred from Oklahoma to San Diego on Johnson's motion. Pursuant to that motion, her attorney filed proof of Johnson's California residence. Johnson filed with the INS, as part of her showing, a Drug Enforcement Agency ("DEA") affidavit which implicated her to a greater extent in her boyfriend's drug dealing activities. Ultimately, in June 1988, Johnson was ordered deported by an Immigration Judge ("IJ") under the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(11), ² due to her violation of the Travel Act.

Johnson appealed the IJ's order of deportation to the BIA which affirmed in January 1991. In April 1991, Johnson petitioned the BIA to reopen the proceeding and to reconsider the decision not to waive deportation. This consolidated appeal followed the BIA's reaffirmation of the deportation order and its denial of the petition to reopen the proceeding. ³

II

A

Johnson argues that a violation of the Travel Act cannot properly be a predicate offense for deportation under 8 U.S.C. § 1251(a)(11) since it is not a "law ... relating to a controlled substance."

The Travel Act specifically defines unlawful activity as "any business enterprise involving ... narcotics or controlled substances." 18 U.S.C. § 1952(b)(1). It is violated when one travels in interstate commerce with intent to distribute the proceeds of any unlawful activity. 18 U.S.C. § 1952(a)(1). Johnson's criminal conduct involved narcotics and controlled substances. She pled guilty to "travel[ing] in interstate commerce ... with the intention of distributing the proceeds derived from the unlawful distribution of narcotics and controlled substances...." We have no hesitancy in concluding that Johnson was convicted of violating a law relating to a controlled substance.

Johnson nevertheless argues that the Travel Act is a general law covering other criminal activity than just drug-related conduct and therefore cannot be considered. We are unpersuaded. The mere fact that the Travel Act outlaws other forms of criminal interstate travel does not mean it is not also, in appropriate cases, a law relating to controlled substances.

Johnson also attempts to analogize her situation to cases where an alien was convicted of misprision (concealment) of a felony, 18 U.S.C. § 4, and of illegally carrying a firearm during the commission of a felony, 18 U.S.C. § 924(c), yet escaped deportation. Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir.1977); Matter of Carrillo, 16 I & N Dec. 625 (BIA 1978). ⁴ These cases are clearly distinguishable. Notwithstanding the drug-related nature of the underlying conduct, the offenses of conviction did not pertain to nor mention controlled substances. Johnson's offense of conviction was for a crime expressly relating to controlled substances, and for direct involvement in a drug transaction, not for some other type of criminal activity.

Consequently, we hold that violation of the Travel Act under the circumstances before us is properly a basis for deportation under 8 U.S.C. § 1251.

B

Johnson's argument that she did not have the specific intent to violate the Travel Act is without merit. Her contention is foreclosed by a simple reading of the information to which she pled guilty and the petition she filed to enter her guilty plea.

The information charged that she "traveled in interstate commerce ... [in an automobile] which had been modified to contain a hidden compartment for the purpose of carrying large amounts of money, with the intention of distributing the proceeds derived from the unlawful distribution of narcotics and controlled substances...." In her Petition to Enter Plea of Guilty Johnson said: "I believed that my boyfriend was going to use it to put money in it from narcotics." (Emphases added). These admissions suffice to establish specific intent to violate the Travel Act. ⁵

In any event, the district court was required to hear testimony and evidence pursuant to the federal rules when taking Johnson's guilty plea. That court could not enter a judgment of guilt "without making such inquiry as shall satisfy it that there is a factual basis for the plea." Fed.R.Crim.P. 11(f). That court was satisfied that Johnson had properly pled guilty and that there was a factual basis for all the elements, including the intent element, for a violation of the Travel Act.

III

Johnson further challenges the IJ's and the BIA's reliance upon a DEA affidavit. Johnson's attorney offered an affidavit containing incriminating testimony regarding Johnson's involvement in her boyfriend's drug dealings into evidence to support her motion to transfer venue of the deportation hearing to San Diego. Johnson nevertheless argues that the use of the affidavit was a violation of due process. She points out that she was not allowed to cross-examine the witnesses who testified in the affidavit or to force the DEA to disclose the identity of the confidential informant.

We are unpersuaded by Johnson's argument. Although BIA hearings are not governed by strict rules of evidence, Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983), an analogy to court procedure is appropriate in this case. It is well-settled that even criminal "[a]ppellants may not seek reversal on the basis of their own evidentiary errors." United States v. Miller, 771 F.2d 1219, 1234 (9th Cir.1985) (damaging testimony elicited by defense counsel on cross). See also Burgess v. Premier Corp., 727 F.2d 826, 834 (9th Cir.1984) (attorney may waive client's right to raise issue of error by eliciting inadmissible evidence).

We recently reiterated that "[t]he doctrine of invited error prevents a defendant from complaining of an error that was his own fault." United States v. Reyes-Alvarado, 963 F.2d 1184, (9th Cir.1992) (citing United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2184, 53 L.Ed.2d 229 (1977)). In Reyes-Alvarado, we held that admission of a co-defendant's post-arrest statement was not reversible Bruton error when the statement was elicited by the appellant's attorney. Reyes-Alvarado, 963 F.2d at 1187. When an appellant's "tactics backfire[ ]" he cannot complain of error he induced: "A defendant cannot have it both ways." Id. at 1187.

This reasoning applies with even greater force to a civil litigant in an INS proceeding. Johnson's attorney offered the DEA affidavit to prove Johnson's connection with southern California so that the proceeding would be transferred. Johnson cannot later be heard to complain that her tactic backfired and that the INS's consideration of this affidavit was error. It was "fundamentally fair" and not a violation of due process for the IJ and the BIA to consider this hearsay evidence when Johnson herself offered it. Cf. Baliza, 709 F.2d at 1233-34 (fundamentally unfair when the government offered hearsay affidavit with no attempt to authenticate or investigate).

IV

Johnson contends that the IJ and the BIA erred in failing to waive her deportation due to the equities of her situation. 8 U.S.C. § 1182(c). She also petitions for review of the BIA's refusal to reopen her deportation proceeding to consider new evidence.

The BIA affirmed the IJ's deportation decision on January 29, 1991. On April 2, 1991, in her petition to reopen the deportation proceeding, Johnson offered the following "new evidence": (1) that she had married a United States citizen; (2) that she and her husband had a child; (3) that they had opened a business; and (4) that her probation for the Travel Act violation was terminated early. The BIA, however, had already been aware of the birth of Johnson's child and the termination of her probation before it affirmed the IJ's deportation order. Nevertheless, the BIA again considered all four elements before denying Johnson's motion to reopen the proceeding.

We are satisfied that the BIA did not abuse...