Malagon De Fuentes v. Gonzales

• Decision Date: 28 August 2006
• Docket Number: No. 04-60897.,04-60897.
• Citation: 462 F.3d 498
• Parties: Alma Rita MALAGON DE FUENTES, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

462 F.3d 498

Alma Rita MALAGON DE FUENTES, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.

No. 04-60897.

United States Court of Appeals, Fifth Circuit.

August 28, 2006.

Lisa S. Brodyaga (argued), Refugio De Rio Grande, San Benito, TX, for Petitioner.

Aviva Lea Poczter, Emily Anne Radford, Asst. Dir. (argued), Thomas Ward Hussey, Dir., U.S. Dept. of Justice, Civ. Div., OIL, Washington, DC, Lawrence Ludka, Asst. U.S. Atty., Corpus Christi, TX, E.M. Trominski, Dist. Dir., U.S. INS, Harlingen, TX, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

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

Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.

PRADO, Circuit Judge:

The journey of Petitioner Alma Rita Malagon de Fuentes, from Mexico to the United States, then to Mexico and back again brought her to an odd legal intersection. While Petitioner would not have been deportable had she stayed in the United States, her leaving rendered her inadmissible upon return. And, because Petitioner returned when she did, relief was not available. For the reasons that follow, the decision of the Board of Immigration Appeals ("BIA") is AFFIRMED.

I.

Petitioner, a native and citizen of Mexico, claims she first came to the United States in 1982. She married, and her husband filed an I-130 petition on her behalf in August 1987. The INS approved the petition in September 1987, and Petitioner became a Lawful Permanent Resident ("LPR") on December 15, 1992. She had four children, all born in the United States.

On July 31, 1999, Petitioner was convicted of theft of property between $1,500 and $20,000 in a welfare fraud. She received five years of deferred adjudication for the felony.

In August 1999, Petitioner traveled to Mexico for a day. She did so with permission from her state probation officer. On August 21, 1999, she requested admission to the United States as a returning LPR. The Immigration and Naturalization Service ("INS") issued a Notice to Appear charging Petitioner as an "arriving alien" inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having committed a crime "involving moral turpitude."¹ On October 26, 2000, an immigration judge determined Petitioner was removable as an "arriving alien" and ineligible for a waiver of admissibility under 8 U.S.C. § 1182(h). The immigration judge ordered her removed from the United States.

Petitioner appealed. On December 17, 2002, the BIA adopted and affirmed the immigration judge's decision. Petitioner filed a writ of habeas corpus in federal district court. On February 24, 2004, a magistrate judge recommended transferring the case to this court for direct review. On September 30, 2004, the district court transferred the case and stayed Petitioner's claims in habeas.

II.

We have jurisdiction to review Petitioner's constitutional claims. 8 U.S.C. § 1252(a)(2)(D); see Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir.2006).

III.

The first question is whether the BIA erred in upholding the immigration judge's determination that Petitioner was seeking admission to the United States as defined in 8 U.S.C. § 1101(a)(13)(C)(v). The statute provides that "[a]n alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien . . . has committed an offense identified in section 1182(a)(2) of this title." There is no dispute as to whether Petitioner's crime is such an offense. She argues she cannot be considered an "arriving alien" under the "Fleuti doctrine," see Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), and that considering her one raises constitutional concerns. The government responds that the doctrine was superseded by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and that Petitioner's case does not raise constitutional concerns.

A. IIRIRA and Fleuti

Before IIRIRA's passage, 8 U.S.C. § 1101(a)(13) defined "entry" as:

[A]ny coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary.

Fleuti, 374 U.S. at 452, 83 S.Ct. 1804. The Fleuti doctrine refers to the Supreme Court's determination that a resident alien did not effect an entry returning from "`an innocent, casual, and brief excursion' outside the United States; instead such an alien effects an entry only if he intended to depart in a manner `meaningfully interruptive' of the alien's permanent residence." Carbajal-Gonzalez v. INS, 78 F.3d 194, 198 (5th Cir.1996) (quoting Fleuti, 374 U.S. at 462, 83 S.Ct. 1804). Petitioner argues this doctrine continues to apply, and that she cannot be considered to be entering the United States because she did not intend to "meaningfully [interrupt]" her residence.

Despite the innocent and brief nature of her trip to Mexico,² Petitioner can be considered an arriving alien. IIRIRA superseded the Fleuti doctrine and its intent test when the act replaced the above-quoted provision with the current § 1101(a)(13)(C).³ The plain language of the statute does not allow for the exception found by the Court in Fleuti.⁴ See Betancourt-Parga v. Ashcroft, 126 Fed.Appx. 165 (5th Cir.2005)(per curiam) ("Fleuti . . . has been superceded by the enactment of certain [IIRIRA] provisions in cases involving suspension of deportation"). Our conclusion regarding IIRIRA's effect on the Fleuti doctrine is consistent with those of our sister circuits. See, e.g., Tapia v. Ashcroft, 351 F.3d 795, 799 (7th Cir.2003) ("The Fleuti doctrine . . . has been superseded by the IIRIRA"); Tineo v. Ashcroft, 350 F.3d 382, 394 (3rd Cir.2003) ("Congress has also set forth six scenarios under which a returning lawful permanent resident may not retain that status. In those scenarios, where Congress has deemed Fleuti doctrine irrelevant, § 301(a)(13) cannot be read to permit an inquiry into the alien's intent."); see also Rivera-Jimenez v. INS, 214 F.3d 1213, 1218 n. 6 (10th Cir.2000) (noting absence of "brief, casual, and innocent and did not meaningfully interrupt the continuous physical presence" provision for calculating residence period in IIRIRA).

Even if the effect of IIRIRA on the Fleuti doctrine were not so plain, the deference we accord the BIA regarding its construction of immigration law yields the same result. In In re Collado, the BIA concluded that the Fleuti doctrine did not survive IIRIRA's passage. 21 I. & N. Dec. 1061, 1064-66 & n. 3, 1998 WL 95929 (BIA 1998).⁵ Under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we subject the BIA's construction of the law it administers to a deferential review. Salazar-Regino v. Trominski, 415 F.3d 436, 442 (5th Cir.2005)(citing Chevron, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). This review involves a two-step inquiry. First, we ask whether Congress has directly spoken to the precise question at issue. If Congress' intent is clear, the agency and the courts are bound to give effect to it. Id. at 443 (quoting Moosa v. INS, 171 F.3d 994, 1005 (5th Cir.1999)). If the statute is silent or ambiguous with respect to the specific issue, we ask the second question, whether "the agency's answer is based on a permissible construction of the statute." Id. As discussed above, we find the statute's language to be clear. Even were it not, Petitioner's observation-that the placement of the word "unless" allows for the logical possibility of an LPR who has committed one of the listed offenses not being deemed to seek admission-does not render the BIA's reading of the statute impermissible. The statute's command that an LPR "shall not" be regarded as seeking admission "unless" she has committed a crime of moral turpitude certainly permits the determination of an LPR who has committed such a crime as seeking admission. Even if we agreed with Petitioner's reading, to hold otherwise would be to "simply impose [this court's] own construction on the statute, as would be necessary in the absence of an administrative interpretation." Id. at 443. Chevron commands we not go so far.

B. Constitutional Objections

Petitioner raises constitutional objections to the determination of her as an arriving alien. These take a variety of forms,⁶ but boil down to an argument that her treatment violates a nebulous "constitutional core" of Fleuti and the Fifth Amendment Due Process Clause's guarantees of equal protection and due process.⁷

Petitioner argues that Fleuti, while nominally based on statutory grounds, in fact reaffirmed a "constitutional core" of fair treatment of immigrants that courts had applied prior to § 101(a)(13)'s enactment in 1952. In tracing the Congressional intent behind the statute, the Fleuti Court did indeed review the caselaw preceding the INA's enactment, in particular the judicially-developed definition of "entry." Fleuti, 374 U.S. at 453, 83 S.Ct. 1804. In several instances, judges had endeavored to ameliorate the rather harsh definition adopted by the Court in United States ex rel Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298 (1933), which excluded even long-standing resident aliens who left only briefly. Id. at 453-60, 53 S.Ct. 665 (citing Carmichael v. Delaney, 170 F.2d 239 (9th Cir.1948); Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947); ...