Koussan v. Holder

• Decision Date: 12 February 2009
• Docket Number: No. 07-4107.,07-4107.
• Citation: 556 F.3d 403
• Parties: Ibrahim Ali KOUSSAN, Petitioner, v. Eric H. HOLDER, Jr.,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

556 F.3d 403

Ibrahim Ali KOUSSAN, Petitioner, v. Eric H. HOLDER, Jr.,^* Respondent.

No. 07-4107.

United States Court of Appeals, Sixth Circuit.

Submitted: October 30, 2008.

Decided and Filed: February 12, 2009.

ON BRIEF: Marisa C. Petrella, Petrella Brown, Southfield, Michigan, for Petitioner. Vanessa O. Lefort, United States Department of Justice, Civil Division, Washington, D.C, for Respondent.

Before: MARTIN, DAUGHTREY, and KETHLEDGE, Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Petitioner Ibrahim Ali Koussan appeals from the denial of his request for a waiver of inadmissibility following the administrative determination that he should be removed to Lebanon, his native country. Before this court, Koussan contends that the denial of the waiver under the now-repealed section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994), was an unconstitutional denial of equal protection and due process and, alternatively, was based upon the erroneous conclusion that applicable statutes did not contain a ground of exclusion that was comparable to the ground on which the petitioner's order of removal was based.¹ Koussan further asserts that the Board of Immigration Appeals (BIA) erred by designating only a single member— rather than a three-member panel—to hear the administrative appeal. For the reasons set out below, we find these issues to be without merit and, therefore, deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Koussan, a citizen of Lebanon, entered the United States as a lawful permanent resident in 1980 at the age of eight and has resided in this country continually since that time. He was indicted in December 1992 on a charge that on August 17, 1992, he had "knowingly, intentionally and unlawfully distribute[d] a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance; to wit: approximately 56 grams of cocaine." Koussan eventually pleaded guilty to the cocaine charge on August 17, 1993, exactly one year after the commission of the offense, and was sentenced to 15 months in prison by a judgment order dated November 18, 1993.

Two-and-one-half years later, in May 1996, an information was returned against Koussan alleging a violation of 18 U.S.C. § 1546(a) for making a false statement in a document required by immigration laws. Specifically, that instrument charged that "[o]n or about November 11, 1992," Koussan falsely stated on an application for naturalization that he had never "been an illicit trafficker in narcotic drugs or marijuana" and that he had never "knowingly committed any crime for which [he] ha[d] not been arrested." But, in fact, only three months before the November application, the petitioner had sold the cocaine that led to his 1993 conviction, and he had actually been arrested for that offense on September 8, 1992, a full two months before the making of the statements at issue. Eventually, Koussan entered a guilty plea to the false-statement charge and was sentenced by the district court to six months in prison for that offense.

On October 18, 1996, almost three full years after the petitioner was sentenced for the distribution of cocaine, the Immigration and Naturalization Service (INS) (now subsumed into the Department of Homeland Security) issued an order to show cause to Koussan, thereby initiating deportation proceedings based upon that 1993 conviction. In the order, the INS alleged that Koussan was removable from the United States both because the drug-trafficking conviction qualified as an aggravated felony pursuant to the provisions of 8 U.S.C. § 1101(a)(43)(B), see former § 241(a)(2)(A)(iii) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), and because the conviction was for a controlled substance offense, see former § 241(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(B)(i). Although Koussan conceded at a January 1997 hearing that he was convicted of the distribution charge, the INS still filed "additional charges of deportability" against Koussan on August 27, 1997, alleging that the petitioner was also removable from this country because he had previously been convicted "of a violation of ... section 1546 of Title 18 (relating to fraud and misuse of visas, permits, and other admission documents)." See former § 241(a)(3)(B)(iii) of the INA, 8 U.S.C. § 1227(a)(3)(B)(iii).

At a hearing conducted on April 28, 1998, an immigration judge found that Koussan had been convicted previously of both distribution of cocaine and making a false statement on a document required for immigration purposes in violation of 18 U.S.C. § 1546. The immigration judge thus concluded that the petitioner was "removable under 241(a)(2)(B)(i) as having been convicted of a crime relating to a controlled substance, that he's removable under 241(a)(2)[(A)](iii) as being convicted of an aggravated felony and, as well, he's removable under 241(a)(3)(B)(iii) as being convicted on a violation of Section 1546, Title 18."

Koussan appealed that determination to the BIA, which remanded the matter to the immigration judge for a determination of the petitioner's eligibility for a waiver of inadmissibility under § 212(c) of the INA, 8 U.S.C. § 1182(c), in light of the United States Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Koussan thereafter submitted an application for such a waiver on November 9, 2001. Finally, on December 23, 2005, the immigration judge denied the requested relief, holding that Board precedent, Matter of Jimenez-Santillano, 21 I & N Dec. 567 (BIA 1996), does not recognize the availability of section 212(c) relief for an alien removable under § 241(a)(3)(B)(iii) of the INA "because there is no corresponding ground of inadmissibility" should an applicant be seeking such relief upon returning to the United States from abroad. The BIA, through a single board member, dismissed Koussan's subsequent appeal, declining to revisit its prior decision in Matter of Jimenez-Santillano. The petitioner now seeks our review of that decision.

DISCUSSION

A. Standard of Review

When the BIA issues its own separate opinion after reviewing the decision of an immigration judge, we treat that BIA ruling as the final agency determination. See Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.2007). We must review all legal determinations made in such a BIA ruling de novo, while granting substantial deference to the BIA's interpretation of the Immigration and Nationality Act and the INA's accompanying regulations. See id.

B. Waiver of Inadmissibility Under Section 212(c) of the INA

In his appeal of the BIA decision in this matter, Koussan contends that the underlying framework supporting section 212(c) waiver determinations is unconstitutionally restrictive and that, in any event, the petitioner satisfied the existing requirements for a grant of such relief. The applicable provisions of the now-repealed section 212(c) of the INA, 8 U.S.C. § 1182(c) (1994), are relatively straightforward. Subsection (a) of section 212, as in effect prior to the repeal of subsection (c), listed numerous classes of individuals "who are ineligible to receive visas and who shall be excluded from admission into the United States." (Emphasis added.) Subsection (c), however, titled "Nonapplicability of subsection (a)," provided:

Aliens lawfully admitted for permanent resident [sic] 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) of this section (other than paragraphs (3) [denying admission to spies, terrorists, assassins, Communists, and Nazis, among others] and (9)(C) [denying admission to polygamists, child abductors, and guardians of excluded aliens]). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under ... this title. 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.

8 U.S.C. § 1182(c) (1994).² Thus, at least initially, certain aliens who had established a continuous domicile in the United States for at least seven years, and who had not been convicted of an aggravated felony punished by imprisonment of at least five years, were allowed to reenter the country after a voluntary departure despite the fact that those individuals had previously committed crimes that would have otherwise made them ineligible for readmission.

In 1956, the BIA issued a decision that sought to rectify an inequity that could arise in the readmission process solely by chance. Because section 212(c) relief was available only to aliens detained while seeking readmission into the country, the very real possibility existed that a border official's unauthorized failure to deny reentry to an individual who should otherwise have been detained would exclude that individual from later discretionary relief. In other words, if a person otherwise ineligible for readmission somehow was granted such readmission improperly, that person would have no protection during a subsequent deportation proceeding, while another individual who was properly detained upon reentry by immigration officials would be allowed to petition to remain in the country. In Matter of G-A-, 7 I & N Dec. 274 (BIA 1956), the Board remedied that problem by extending § 212(c) relief to "lawful permanent residents who commit an excludable offense in the United States, depart and return to the United States after commission of the offense, have not been put in exclusion proceedings upon return, but later end up in deportation proceedings." Blake v. Carbone, 489 F.3d 88, 94 (2d Cir.2007).

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