Matter of Roberts
| Decision Date | 01 May 1991 |
| Docket Number | A-35959317.,Interim Decision Number 3148 |
| Parties | MATTER OF ROBERTS. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated June 7, 1990, the immigration judge found the respondent deportable under sections 241(a)(4)(B) and (11) of the Immigration and Nationality Act, 8 U.S.C. §§ 1251(a)(4)(B) and (11) (1988), as an alien convicted of an aggravated felony and of a controlled substance violation. The immigration judge granted the respondent's application for a waiver of inadmissibility under section 212(c) of the Act, 8 U.S.C. § 1182(c) (1988). The Immigration and Naturalization Service has appealed. The appeal will be sustained.
The respondent is a 41-year-old native and citizen of Jamaica who entered the United States as a lawful permanent resident on September 17, 1979, at the age of 29. Conviction records for the respondent reflect that on October 12, 1989, he was convicted in a Missouri State court, upon a plea of guilty, of the felony offense of sale of a controlled substance (cocaine). He was sentenced to 8 years in prison. Reportedly, the respondent's sentence was modified to a term of 120 days.1
On June 7, 1990, at a hearing on the merits of the respondent's application for relief from deportation pursuant to section 212(c) of the Act, the respondent testified that he is married but separated from his wife, who lives in New York with their four children, whose ages range from 18 to 11. The respondent stated that he and his family resided in Brooklyn, New York, from 1979 until 1987. He related that during this period, he worked for a construction company and for a private security company. The respondent stated that in 1987, he moved to Kansas City where he resided with his girlfriend, with whom he subsequently had a son. He testified that he commuted between New York City and Kansas City from 1987 to 1989, and that he continued to work for the same construction company in New York on a job-by-job basis but was unemployed in Kansas City. He added that he and his girlfriend ended their relationship in 1989, and that his young son is in the custody of the child's grandmother.
The respondent testified that his wife and his three oldest children are lawful permanent residents and that his youngest daughter and 2-year-old son are United States citizens. He stated that he has no other close relatives living in Jamaica with the exception of his father and his aunt, with whom he does not communicate. The respondent related that he has an 11th grade education, and that he had requested some classes in prison but was released before his request was acted upon. He stated that he has no other convictions and has never been charged by the police with any other offenses. He added that while in prison, he obeyed all the rules and was known as the quiet one because he spent a lot of time reading his Bible. He stated that he filed income tax returns up through 1986. The respondent testified that he gave his wife most of the money he earned, including that earned while they were separated.
The respondent testified that his arrest was the result of doing a favor for a friend by allowing a man to pick up drugs in exchange for money at his home, and he claimed that it had been a "set up." He asserted that he pled guilty only to the fact of giving the man his friend's package in exchange for the money, but not to the offense of selling drugs. The respondent added that at the time he agreed to plead guilty, he had no knowledge of the 8-year sentence to be imposed. He claimed that his public defender did not tell him that his conviction may affect his immigration status. He testified that his desire is to return to his family and job in New York. The respondent implored that he be allowed to remain in the United States because his family needs his support, and he would not be able to afford construction tools or real estate in Jamaica.
Besides testimony, a number of documents were entered into evidence. These documents include the respondent's criminal indictment and judgment upon his guilty plea in 1989, the respondent's immigration documents, including his Immigrant Visa and Alien Registration (Form FS-511) evidencing his arrival in New York on September 17, 1979, and letters from his wife and three of his children requesting that the respondent be permitted to resume living with them and working in New York.
In his decision, the immigration judge determined that the respondent was statutorily eligible for a section 212(c) waiver, and that such relief was warranted in the exercise of discretion. He reasoned that the serious negative factor of the respondent's criminal conviction was overcome by the respondent's period of residence in this country, his family ties and the hardship that deportation would have upon his family, his clean criminal record prior to and after his conviction, and his history of employment. The immigration judge stated that the respondent's sole conviction for sale of cocaine was not sufficient to establish that he is a drug trafficker. The immigration judge also noted that the circumstances of the respondent's arrest and the long delay before indictment raised the possibility of entrapment. He further noted that the respondent was misinformed during his criminal plea arrangement because he was not told of the effect that such a plea would have on his immigration status. For these reasons, the immigration judge granted the respondent's section 212(c) waiver request.
On appeal, the Service argues that the immigration judge erred in finding that the respondent merited a section 212(c) waiver as a matter of discretion. The Service contends that the immigration judge incorrectly concluded that the respondent's sole felony conviction for sale of cocaine was not sufficient to find that he was a "drug trafficker." The Service further asserts that a determination of eligibility for section 212(c) relief for an aggravated felon requires a higher discretionary test than is presently recognized by case law.
Section 241(a)(4)(B) of the Act, added by section 7344 of the Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat. 4181, 4470-71, renders deportable an alien who is "convicted of an aggravated felony at any time after entry." Prior to the enactment of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, on November 29, 1990, section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) (1988), defined the term "aggravated felony" to include any drug trafficking crime as defined in section 18 U.S.C. § 924(c)(2) (1988), or any attempt or conspiracy to commit any such act, committed within the United States. In Matter of Barrett, 20 I&N Dec. 171 (BIA 1990), the Board of Immigration Appeals held that the definition of "drug trafficking crime" in section 18 U.S.C. § 924(c)(2) (1988), section 6212 of the Anti-Drug Abuse Act of 1988, 102 Stat. at 4360, for purposes of determining a drug-related "aggravated felony" within the meaning of section 101(a)(43) of the Act, encompasses state convictions for crimes analogous to offenses under the Controlled Substances Act, 21 U.S.C. § 801 et seq. (1988), the Controlled Substances Import and Export Act, 21 U.S.C. § 951 et seq. (1988), or the Maritime Drug Law Enforcement Act, 46 U.S.C. App. § 1901 et seq. (1988).
While the Service's appeal was pending in this case, Congress enacted section 501(a) of the Immigration Act of 1990, 104 Stat. at 5048, which significantly revises the definition of an aggravated felony contained in section 101(a)(43) of the Act. Section 101(a)(43) was amended, in pertinent part, to provide that the term "aggravated felony" includes "any illicit trafficking in any controlled substance (as defined in section 102 of the Controlled Substances Act)" and that "[s]uch term applies to offenses described in the previous sentence whether in violation of Federal or State law." Moreover, section 501(b) of the Immigration Act of 1990, 104 Stat. at 5048, further provides that amended section 101(a)(43), which clarifies that illicit trafficking in controlled substance offenses under state law are now covered in the definition of an aggravated felony, "shall be effective as if included in the enactment of section 7342 of the Anti-Drug Abuse Act of 1988."
In the case before us, the respondent was convicted of the felony offense of criminal sale of a controlled substance, cocaine, in violation of Missouri law. At his deportation hearing, the respondent was found to be an aggravated felon within the meaning of the Act. The respondent's...
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