Lara v. Trominski, LARA-RESENDE

• Decision Date: 10 July 2000
• Docket Number: LARA-RESENDE,No. 98-60091,P,No. 98-41434,98-41434,98-60091
• Citation: 216 F.3d 487
• Parties: (5th Cir. 2000) FRANCISCO R. LARA, Petitioner-Appellee, v. E.M. TROMINSKI, District Director, Immigration and Naturalization Service; JANET RENO, U.S. Attorney General Respondents-Appellants. FRANCISCOetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

Page 487

216 F.3d 487 (5th Cir. 2000)

FRANCISCO R. LARA, Petitioner-Appellee, v. E.M. TROMINSKI, District Director, Immigration and Naturalization Service; JANET RENO, U.S. Attorney General Respondents-Appellants.

FRANCISCO LARA-RESENDEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE Respondent.

No. 98-41434 No. 98-60091

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

July 10, 2000

[Copyrighted Material Omitted]

Appeal from the United States District Court For the Southern District of Texas

Petition for Review of an Order of the Board of Immigration Appeals

Before EMILIO M. GARZA, DeMOSS, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This consolidated immigration appeal arises from complex procedural circumstances. The government appeals from the district court's grant of habeas corpus relief to Francisco Lara-Resendez ("Lara") under 28 U.S.C. § 2241. Lara petitions for review of the Board of Immigration Appeals' ("BIA's") denial of his motion to reconsider its denial of his motion to reopen his deportation proceedings. For the reasons discussed below, we vacate the grant of habeas corpus relief and remand with instructions to dismiss for lack of jurisdiction, and we affirm the denial of the motion to reconsider on the merits.

I

Lara, a Mexican national, was admitted to the United States as a resident alien in 1966. In 1986, he was convicted of conspiracy to make a machine gun, in violation of 18 U.S.C. § 371 and 26 U.S.C. § 586(f), and sentenced to twenty-two months in prison. In February 1993, the INS issued an Order to Show Cause, charging Lara as deportable under Immigration and Naturalization Act ("INA") § 241(a)(2)(C). See 8 U.S.C. § 1251(a)(2)(C) (1993) ("Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm . . . in violation of any law is deportable"). The Immigration Judge ("IJ") found Lara deportable as charged. Lara withdrew his appeal and was deported to Mexico.

Lara subsequently reentered the United States unlawfully and pled guilty to unlawful reentry after deportation, in violation of 8 U.S.C. § 1326. Lara received a fifteen-month sentence. In 1995, the INS again instituted deportation proceedings by entering a second Order to Show Cause, charging Lara with being deportable pursuant to: 1) INA § 241(a)(1)(B) (8 U.S.C. § 1251(a)(1)(B) (1995)) (allowing deportation for entry into the United States without inspection); and 2) INA § 242(f) (8 U.S.C. § 1252(f)(1995)) (allowing deportation for unlawful reentry into the United States after deportation). Before the IJ, Lara admitted the factual allegations contained in the order to show cause, but contested the § 242(f) charge. He attempted to collaterally attack his prior deportation, claiming that his offense had not been grounds for deportation under § 241(a)(2)(C) (1993). Relying on Fifth Circuit precedent including Cipriano v. INS, 24 F.3d 763 (5th Cir. 1994), the IJ held that itlacked jurisdiction over Lara's collateral attack, as Lara had departed the U.S. pursuant to the prior deportation order. Lara conceded deportability under § 241(a)(1)(B). Therefore, the IJ found deportability established on the § 241(a)(1)(B) charge and ordered Lara deported.

Lara appealed to the BIA, claiming that the IJ should have rescinded the 1993 order of deportation and restored him to his pre-1993 status. In its February 1997 decision, the BIA disagreed with the IJ's blanket holding that jurisdiction did not exist to consider Lara's claim. Noting that the authority relied upon by the IJ related to judicial review by the federal courts, not review within the INS, it found that the BIA had the "right to review" a collateral attack on an order of deportation in a subsequent deportation proceeding "so long as the respondent has demonstrated he suffered a gross miscarriage of justice by being deported." See Matter of Malone, 11 I & N Dec. 730 (BIA 1966); Matter of Farinas, 12 I & N Dec. 467 (BIA 1967).

The BIA held, however, that it would not review the 1993 deportation order because Lara had not shown that his prior deportation was a gross miscarriage of justice. It first stated that findings of a gross miscarriage of justice are rare and exceptional, noting that the Fifth Circuit had never found such a miscarriage. Second, the BIA emphasized that Lara had failed to contest his deportability during the prior proceedings and had not pursued an appeal. Finally, there was no showing of any impropriety in the 1993 proceedings. The BIA then explained that, even if it were to concede that it should examine the 1993 order, § 241(a)(2)(C) did apply to Lara's 1986 conviction because the making of a firearm, although not enumerated in the statute, was inherently encompassed in the "possessing" or "owning" of a firearm, which were explicitly listed.¹ Lara's appeal was dismissed.

Lara's attorney, Lionel Perez ("Perez") did not inform him of the BIA's decision until after the statutory period for seeking review in this court had expired. Therefore, no petition for review was attempted. Lara retained new counsel, who in April 1997 filed a motion to reopen the deportation proceedings on the basis of ineffective assistance of counsel. The BIA denied the motion to reopen, finding that Lara had not complied with the procedural requirements for stating an ineffective assistance claim set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).

Following the issuance of the BIA decision, Lara was ordered to report for deportation and denied a stay. He surrendered to INS custody. On April 29, 1997--the day before his scheduled deportation--Lara filed a 28 U.S.C. § 2241 petition in the district court. He claimed that the BIA's refusal to consider the merits of the motion to reopen and the scheduled deportation violated his due process rights. The government moved to dismiss the § 2241 petition for lack of jurisdiction. The district court granted a temporary restraining order staying deportation; ultimately, the government agreed to release Lara and stay deportation until the district court's jurisdiction was resolved. Lara then moved to amend his § 2241 petition to include review of the BIA's February 1997 dismissal of his appeal. Lara again claimed that the BIA had erred in finding his conviction fell under § 241(a)(2)(C).

While the district court considered Lara's § 2241 petition, Lara moved the BIA for reconsideration of its denial of his motion to reopen. The BIA denied the motion. It noted that, to the extent to which the motion to reconsider raised entirely new grounds for reopening, it was barred because Lara was only permitted to file one motion to reopen under 8 U.S.C. § 3.2(c)(2) (1997). The BIA also affirmed its finding that Lara had not complied with the Lozada requirements for establishing ineffective assistance and declined to modify those requirements. Lara timely petitioned for review of the denial of the motion to reconsider.

The district court subsequently granted Lara's motion to amend his § 2241 petition, and then granted the petition. First, relying on United States ex rel. Marcello v. District Director, 634 F.2d 964 (5th Cir. 1981), the district court found that it had jurisdiction over Lara's § 2241 petition because Lara had not "deliberately bypassed" available review of the February 1997 decision in the Fifth Circuit, but rather had been precluded from doing so by his counsel's ineffectiveness. On the merits, the district court rejected the BIA's February 1997 decision. It held that, as a matter of statutory interpretation, Lara's conviction did not fall under § 241(a)(2)(C) and therefore was not a deportable offense. Because Lara was deported for an offense which was not a basis for deportation, the court held, that deportation represented a gross miscarriage of justice. The district court concluded that the BIA had erred in dismissing the appeal, vacated the February 1997 order, and remanded the case for further proceedings. The court stated that the BIA's refusal to reopen had not been considered as a part of its order. The government timely appealed.

II

We first consider whether the district court had jurisdiction to consider Lara's § 2241 petition. We review the district court's determination of its jurisdiction de novo. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir. 1999). As Lara was the party seeking to invoke federal jurisdiction, he bears the burden of demonstrating that jurisdiction was proper. See Stockman v. Federal Election Comm'n., 138 F.3d 133, 151 (5th Cir. 1998).

The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") took effect in 1996. See IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). It is clear, and the parties agree, that Lara's case is governed by the IIRIRA transitional rules. See IIRIRA § 309(a), (c)(1), (c)(4).²

§ 106(c) of the INA states: "[a]n order of deportation . . . shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order." See 8 U.S.C. § 1105a(c) (1994) (repealed 1996). The IIRIRA repealed § 106 of the INA. See Sofinet v. INS, 188 F.3d 703, 708 (7th Cir. 1999). However, the transitional rules incorporate § 106(c), 8 U.S.C. § 1105a(c). See Sofinet, 188 F.3d at 708 ("Because the transitional rules apply to Sofinet, § 1105a(c) still applies to him."); Hose v. INS, 180 F.3d 992, 996 (9th Cir. 1999) (en banc) ("The transitional rules prevent this court from reviewing exclusion orders when the petitioner has departed the country. The transitional rules incorporate 8 U.S.C. § 1105a(c). . . .").

We have previously relied on § 1105a(c) to bar collateral attacks on prior deportation orders after their execution. In Cipriano, petitio...