Lopez De Jesus v. I.N.S.

• Decision Date: 07 November 2002
• Docket Number: No. 01-60807.,01-60807.
• Citation: 312 F.3d 155
• Parties: Miguel LOPEZ DE JESUS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

312 F.3d 155

Miguel LOPEZ DE JESUS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-60807.

United States Court of Appeals, Fifth Circuit.

November 7, 2002.

Simon M. Azar-Farr, Azar-Farr & Associates, A Professional Corp., San Antonio, TX, for Petitioner.

Kurt Barrett Larson, David V. Bernal, Thomas Ward Hussey, Director, Linda Susan Wendtland, Norah Ascoli Schwarz, U.S. Dept. of Justice, Civ. Div., Immigration Litigation, John Ashcroft, U.S. Dept. of Justice, Civ. Div.-App. Staff, Washington, DC, Kenneth Pasquerell, U.S. INS, San Antonio, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

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

Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Petitioner, a lawful permanent resident, appeals the decision of the Board of Immigration Appeals upholding the decision of the immigration judge which found him excludable as illegally reentering the United States after a three-day trip to Mexico. It ordered him excluded and deported from the United States. We affirm the Board's decision and in doing so hold that retroactive reach of the IIRIRA amendment of the INA is constitutional.

I.

Miguel Lopez De Jesus, a citizen of Mexico, married Victoria Palacios, a citizen of the United States, and, on the basis of his marriage, was admitted to the United States as a permanent resident in 1995.

On May 27, 1996, the Immigration and Naturalization Service initiated exclusion proceedings against Lopez when he tried to return to the United States after a two to three-day trip to Mexico. The INS charged that Lopez was inadmissible under § 212(a)(6)(E) of the Immigration and Nationality Act,¹ because he sought to illegally bring an alien, Sylvia Rubio, into the United States.

Lopez filed a motion with the immigration judge, arguing that the exclusion proceedings against him should be terminated and that he should instead be placed in deportation proceedings² because he was a lawful permanent resident of the United States and because his May 1996 departure from the United States was not meaningfully interruptive of his otherwise unrelinquished domicile in the United States. In the alternative, Lopez argued that he should be granted discretionary relief under INA § 212(d)(11),³ which allows the Attorney General to waive inadmissibility when the alien has assisted the alien's spouse in entering the United States unlawfully.

The immigration judge held a hearing to address Lopez's motion. Before taking testimony, the parties stipulated to numerous facts, including the following: Lopez went to Mexico on May 25th or May 26th of 1996 and upon his return to the United States, he was accompanied by Sylvia Rubio; both he and Rubio presented themselves to the immigration inspector for inspection; upon being asked by the inspector, Lopez presented his alien registration card and Rubio handed a driver's license and social security card belonging to a Maria Castenada to Lopez, who then handed the documents to the inspector; Lopez and Rubio were then directed to secondary examination where they were interviewed by immigration inspector Claudio Cruz; Rubio was not a United States citizen and was returned to Mexico; Lopez was placed in exclusion proceedings; Lopez obtained a divorce from Victoria Palacios on June 4, 1996 and at some point thereafter entered into a common law marriage with Rubio. The parties also stipulated to the fact that Lopez knew Rubio was not entitled to enter the United States.

After receiving evidence, the immigration judge denied Lopez's motion to terminate the exclusion proceedings; found Lopez excludable as charged; and found that Lopez was statutorily ineligible for a waiver of inadmissability under INA § 212(d)(11) in light of the amendments contained in the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996. He ordered Lopez excluded and deported from the United States.

On appeal to the BIA, Lopez argued that his trip to Mexico, which was "for the purpose of visiting his family, friends and his wife," did not meaningfully interrupt his presence, and thus, because he was not effecting an entry when he sought to return, he should not be in exclusion proceedings. He argued in the alternative that even if he were excludable, he should be allowed to apply for a discretionary waiver available to those who seek to smuggle members of their immediate family, even though the waiver for after-acquired spouses had been statutorily eliminated by the time he applied for it.

The BIA dismissed the appeal. Because the evidence demonstrated that Lopez's purpose in departing the United States was to help someone else enter illegally, Lopez's departure was not innocent, it meaningfully interrupted his presence, and he was properly in exclusion proceedings. Turning to Lopez's claim of eligibility for a waiver of inadmissibility pursuant to INA § 212(d)(11), the BIA concluded that because the waiver was limited to smugglers who had the qualifying relationship with the person they were assisting at the time, it was not available to Lopez because at the time he sought to smuggle Rubio into the country, he was still married to Victoria Palacios. The BIA also rejected Lopez's argument that because he eventually married Rubio, she was a qualifying individual for purposes of seeking the waiver, because the IIRIRA had eliminated the waiver for after-acquired spouses. The BIA rejected Lopez's argument that the IIRIRA's amendment to INA § 212(d)(11) should not be applied retroactively.

II.

As Lopez's exclusion proceedings commenced before April 1, 1997, IIRIRA's permanent "new rules" do not apply; rather, because the BIA's decision was issued on October 3, 2001, IIRIRA's transitional rules for judicial review apply.⁴ This court has jurisdiction over Lopez's petition for review because it was filed within 30 days of the BIA's October 3, 2001, decision as required by § 309(c)(4)(C) of the transitional rules.⁵

We are authorized to review only the decision of the BIA, and not that of the immigration judge.⁶ We consider decisions of the immigration judge "only to the extent they affect the decision of the BIA[.]"⁷ In reviewing the BIA's decision, questions of law are reviewed de novo, according deference to the BIA's interpretation of immigration statutes.⁸ This court also reviews de novo the BIA's interpretation and application of Supreme Court and Fifth Circuit precedent regarding whether an alien made an "entry" into the United States as defined in INA § 101(a)(13).⁹ Findings of fact are reviewed to determine whether they are supported by "substantial evidence."¹⁰ We may not reverse the BIA's factual conclusions unless the evidence was "so compelling that no reasonable factfinder could conclude against it."¹¹

III.

Lopez argues that his visit to Mexico in May 1996 was brief, innocent, and casual and therefore that he did not effect an "entry" into the United States within the meaning of INA § 101(a)(13).

It is the petitioner's burden to prove that he comes within the statutory exception to the "entry" definition.¹² In Rosenberg v. Fleuti,¹³ the Supreme Court held that a resident alien does not effect an "entry" for purposes of INA § 101(a)(13) when he returns from an "innocent, casual, and brief excursion" outside the U.S.; instead, such an alien effects an entry only if he intended to depart in a manner "meaningfully interruptive" of his permanent residence.¹⁴ The Supreme Court set forth three factors to be considered in determining whether an alien had the requisite intent to effect a meaningful interruption of permanent residence status: (1) the length of the alien's absence from the United States; (2) whether the alien had to procure travel documents for the trip; and (3) the purpose of the visit, with an emphasis on whether the purpose was contrary to immigration policy.¹⁵ The Fleuti factors must be balanced carefully in deciding whether an "entry" under the Act has occurred.¹⁶

Fleuti has been applied in several cases in which deportation was based on the petitioner's involvement in alien-smuggling.¹⁷ In Solis-Davila, the petitioner left the United States with the express intent of smuggling Mexican aliens into this country.¹⁸ He executed the crime and then reentered the United States, where he received payment for his work.¹⁹ He pleaded guilty to alien smuggling and was sentenced.²⁰ Concluding that Solis-Davila's criminal intent permeated his trip southward, this court upheld the deportation order.²¹

In Vargas-Banuelos, a resident alien traveled to Mexico to pay a condolence call on a family member.²² While there, four Mexicans asked him to help them enter illegally.²³ Vargas-Banuelos agreed, accepted payment, and arranged for someone to meet and assist the illegal aliens once in the United States.²⁴ Vargas-Banuelos then reentered the United States legally.²⁵ This court reversed the deportation order, weighing factors such as Vargas-Banuelos's brief trip, his lawful return to the United States, and his innocent state of mind at the time of his departure against the criminal activity in which he eventually engaged.²⁶ The court held that "[u]nder Fleuti and its progeny in this circuit, the failure of the Government to show a criminal purpose prior to petitioner's departure is fatal to its case."²⁷

In Laredo-Miranda, a lawful resident alien crossed into Mexico to have a meal with his girlfriend and her family.²⁸ Although he traveled with a companion who intended to smuggle a group of illegal aliens into the United States, Laredo-Miranda had no such criminal intent upon departure.²⁹ However, upon return, Laredo-Miranda discovered that he had forgotten his alien registration card and, rather than explain such to the border officials, Laredo-Miranda waded across the river with the aliens and...