Margalli-Olvera v. I.N.S.

• Decision Date: 09 February 1995
• Docket Number: P,No. 94-1240,MARGALLI-OLVER,94-1240
• Citation: 43 F.3d 345
• Parties: Alejandroetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 345

43 F.3d 345

63 USLW 2369

Alejandro MARGALLI-OLVERA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-1240.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 14, 1994.

Decided Dec. 6, 1994.

Rehearing Denied Feb. 9, 1995.

Robert A. Dildine, Minneapolis, MN, argued, for petitioner.

Teresa Wallbaum, Washington, DC, argued (David M. McConnell, on the brief), for respondent.

Before FAGG, Circuit Judge, ROSS, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Alejandro Margalli-Olvera seeks judicial review of a final administrative order of deportation entered by the Board of Immigration Appeals (BIA). Margalli-Olvera makes two primary arguments on appeal. First, he argues that the BIA erred in entering this order notwithstanding the government's breach of a plea agreement obligating the government to remain silent regarding deportation. Second, Margalli-Olvera argues that the BIA improperly denied his motion to remand for consideration of discretionary relief from deportation under 8 U.S.C. Sec. 1182(c). ¹ We agree with him and hold that the BIA erred on both accounts. Accordingly, we remand for further administrative proceedings consistent with this opinion.

I. BACKGROUND

Alejandro Margalli-Olvera is a Mexican citizen who entered the United States as a non-immigrant visitor on or about July 2, 1981. He began working in the United States (in violation of the terms of his admission) about a month later, and he has continuously resided in the United States since that time. On August 23, 1983, he married Tamra Dee Odegaard, a United States citizen, and his status was adjusted to permanent resident alien on October 29, 1984, based upon this marriage. Alas, theirs was not a marriage made in heaven. The marriage ultimately ended in divorce, but not before Margalli-Olvera had fathered a daughter by his current girlfriend, Lisa Welle, who is also a United States citizen.

It seems that Margalli-Olvera's troubles were not limited to his relationships with the opposite sex. On January 3, 1986, as part of a plea agreement with the United States Attorney's Office, he pleaded guilty to one count of possessing with intent to distribute cocaine. This plea agreement provides in pertinent part:

if the defendant participates fully and truthfully in a debriefing, ... the United States will recommend against deportation. Otherwise, the United States will remain silent regarding deportation.

Admin.R. at 55. ²

On June 16, 1986, the Immigration and Naturalization Service (INS) issued an Order to Show Cause that charged Margalli-Olvera with deportability due to his prior drug conviction. Deportation proceedings were held on September 2, 1987, but were continued until March 22, 1988, on Margalli-Olvera's motion so that he could obtain a transcript of the criminal change of plea proceeding containing the terms of the plea agreement. The immigration judge instructed Margalli-Olvera to make any Sec. 212(c) application and to seek any post-conviction relief before February 1 and March 22, respectively. Margalli-Olvera neither sought post-conviction relief nor made a Sec. 212(c) application.

At the March 22 hearing, Margalli-Olvera admitted that he had been convicted and authenticated the conviction record introduced by the government at the September 2 hearing. Margalli-Olvera's probation officer testified about his progress on probation. Margalli-Olvera's new girlfriend, Lisa Welle, began to testify about the change of plea proceeding but was cut short by an INS objection. In response to the objection, Margalli-Olvera made an offer of proof of an equitable estoppel claim based on the plea agreement. This offer consisted of proof of the following: that the prosecutor in the criminal action had made representations upon which Margalli-Olvera reasonably relied; that the prosecutor should have known that these representations would be relied upon; and that the prosecutor should have known that these representations were false. The immigration judge sustained the INS objection to the testimony concerning the change of plea proceeding, stating that he would not "go behind the conviction record." Admin.R. at 133-34. Margalli-Olvera then sought a second continuance to attack the conviction collaterally. The immigration judge denied this request. Margalli-Olvera briefly testified about his entry into the United States. The INS objected to this testimony on the basis that no Sec. 212(c) application had been filed, and the immigration judge gave Margalli-Olvera an additional extension of time in which to file the application. ³ The immigration judge found Margalli-Olvera to be deportable and limited testimony during the remainder of the hearing to the merits of the Sec. 212(c) application.

The immigration judge issued an oral decision at the close of the hearing. The immigration judge rejected Margalli-Olvera's estoppel argument and stated that the immigration court lacked jurisdiction to review a guilty plea entered in federal court. The immigration judge found Margalli-Olvera to be ineligible for discretionary relief under Sec. 212(c) because he had not acquired seven years of lawful unrelinquished domicile as required by Sec. 212(c). Alternatively, the immigration judge noted that even if Margalli-Olvera's arguments concerning his period of residency were accepted, he still would not satisfy the seven-year requirement for eligibility for Sec. 212(c) relief. The immigration judge ordered Margalli-Olvera deported to Mexico.

Margalli-Olvera appealed to the BIA on April 4, 1988, arguing (1) that the immigration judge erred when he refused to enforce the plea agreement, and (2) that his residency prior to his adjustment of status to lawful permanent resident should be counted toward satisfying the Sec. 212(c) seven-year requirement. Margalli-Olvera also moved to remand the case to the immigration judge on the basis that he had accrued seven years lawful unrelinquished domicile (even under the INS theory of the case) during the pendency of the appeal. On November 3, 1993, the BIA dismissed Margalli-Olvera's appeal and denied his motion to remand. The case comes to us on Margalli-Olvera's timely filed petition for judicial review.

II. DISCUSSION

Margalli-Olvera raises two issues in his petition for review. ⁴ First, he argues that the BIA erred in refusing to remand his case for deportation proceedings at which the government remains silent, as required by the plea agreement. In essence, Margalli-Olvera argues that the BIA erred in ordering his deportation where the deportation proceeding was infected by the government's breach of the plea agreement. Second, he argues that the BIA erred in denying his motion to remand for consideration of his Sec. 212(c) motion in light of his acquisition of seven years' domicile during the pendency of his appeal to the BIA. We address each issue in turn.

A. Did the BIA err in refusing to remand for specific performance of the plea agreement as a remedy for the government's breach?

The appellate jurisdiction of a court of appeals to review final deportation orders is defined in 8 U.S.C. Sec. 1105a(c). Although ignored by the parties, courts of appeals have consistently applied this section as a bar to review of issues not raised before the BIA. Khalaf v. I.N.S., 909 F.2d 589, 592-93 (1st Cir.1990) (claim of persecution "mentioned only in passing" in amnesty application and appeal brief before BIA not considered on appeal); Alleyne v. I.N.S., 879 F.2d 1177, 1182-85 (3d Cir.1989) (court of appeals would not consider issues where notice of appeal to BIA asserted three errors, none of which "even arguably" raised issues asserted in court of appeals). Thus, before we may review the merits of Margalli-Olvera's petition, we must determine whether these issues were presented to the BIA.

Margalli-Olvera's arguments before the immigration judge and the BIA were basically, but not completely, identical. Margalli-Olvera presented his argument to the immigration judge as an attempt to apply the doctrine of equitable estoppel (the "estoppel argument"), and the immigration judge understood Margalli-Olvera's argument as an estoppel argument. Margalli-Olvera's position before the BIA is more complex. His notice of appeal to the BIA labels his argument as an estoppel argument, and the BIA construed the argument as an estoppel argument. Admin.R. at 3 ("At the hearing and on appeal, the respondent has maintained that the government is estopped from deporting him because the terms of the plea agreement included that deportation proceedings would not be initiated against him."). However, Margalli-Olvera's brief before the BIA specifically argues that the plea agreement was breached and should be enforced (the "breach argument"). In his brief, Margalli-Olvera makes the estoppel argument and the breach argument in the alternative. Admin.R. at 35 ("The United States is bound by its agreement with the respondent [Margalli-Olvera] not to proceed in deportation against him, or is equitably estopped from proceeding against him.") (emphasis added). Thus, because Margalli-Olvera made the breach of plea agreement argument as an alternative argument before the BIA, he has preserved the breach issue for judicial review. Bridges v. Wixon, 326 U.S. 135, 151-52, 65 S.Ct. 1443, 1451, 89 L.Ed. 2103 (1945). ⁵

We review the BIA treatment of the breach argument de novo. Thomas, 35 F.3d at 1336-37. Issues concerning the interpretation and enforcement of the plea agreement are issues of law on which we owe no deference to the BIA. See United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990) (ambiguity of plea agreement is question of law reviewed de novo); Matter of Lok, 18 I & N Dec. 101, 107 (BIA 1981) (questions of law are reviewed de novo on petition for review of BIA order). These issues may be broken down into a series of questions. First, does the plea agreement...