Mejia Rodriguez v. Reno

• Decision Date: 22 June 1999
• Docket Number: Nos. 98-4426,98-5878,s. 98-4426
• Citation: Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999)
• Parties: Ernesto Alonso MEJIA RODRIGUEZ, Petitioner-Appellant, v. Janet RENO, as Attorney General of the United States, and the Immigration and Naturalization Service, Respondents-Appellees. Ernesto Alonso Mejia Rodriguez, Petitioner, v. Immigration and Naturalization Service, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1139

178 F.3d 1139

Ernesto Alonso MEJIA RODRIGUEZ, Petitioner-Appellant, v. Janet RENO, as Attorney General of the United States, and the Immigration and Naturalization Service,

Respondents-Appellees.

Ernesto Alonso Mejia Rodriguez, Petitioner, v. Immigration and Naturalization Service, Respondent.

Nos. 98-4426, 98-5878.

United States Court of Appeals Eleventh Circuit.

June 22, 1999.

Elliot H. Scherker, Oscar Levin, Greenberg, Traurig, Hoffman, Lipoff & Quentel, P.A., Miami, FL, for Mejia Rodriguez.

Jane Gomez, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondents-Appellees.

David V. Bernal, Office of Immigration Litigation, Washington, DC, for Respondents-Appellees and Respondent.

Janet Reno, U.S. Attorney General, Dept. of Justice, Laura M. Friedman, Office of Immigration Litigation, Washington, DC, for Respondent.

Appeal from the United States District Court for the Southern District of Florida.

Petition for Review from the Board of Immigration Appeals.

Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge. ^* .

HULL, Circuit Judge:

This consolidated case involves two separate appeals. First, in 1997 Appellant Ernesto Alonso Mejia Rodriguez ("Mejia") filed a motion to reopen his deportation proceedings, which became final in 1994. The BIA denied Mejia's motion to reopen. In appeal No. 98-5878, Mejia has filed a petition for review in this Court appealing the BIA's denial of his motion to reopen.

While his motion to reopen was still pending before the BIA, Mejia filed a § 2241 petition in September 1997 challenging his 1994 deportation order. In appeal No. 98-4426, Mejia appeals the district court's dismissal of his § 2241 petition. After review, we affirm the BIA's denial of Mejia's motion to reopen in appeal No. 98-5878. Because in addressing Mejia's petition for review we reach all of the issues raised in Mejia's § 2241 petition, we affirm the district court's dismissal of Mejia's § 2241 petition but do so because Mejia's § 2241 petition is now moot.

I. Facts and Procedural History

Mejia is a native of Honduras who lawfully entered the United States as a nonimmigrant visitor on November 17, 1980.

A. Mejia's Criminal Offense

On April 14, 1986, Mejia was charged in Florida state court with possession of cocaine, trafficking in cocaine, and conspiracy. On July 24, 1986, Mejia pled no contest to the cocaine-trafficking charge. As part of a plea agreement, the court withheld a final adjudication of guilt and sentenced Mejia to a one-year term of youth-offender incarceration and two years to be served in a "Community Control Program."

Mejia introduced evidence in the district court which established that he entered his no-contest plea in reliance on certain representations. ¹ Specifically, both the trial court and Mejia's counsel advised him that his no-contest plea would not yield any adverse immigration consequences. In addition, Mejia was advised that his criminal record would be sealed upon completion of his probationary sentence.

Prior to his first deportation hearing, Mejia filed a petition in Florida state court to seal his criminal record. The Florida court denied Mejia's petition. After his first deportation hearing, Mejia filed a motion for reconsideration of the state court's denial of his petition to seal his criminal record. Mejia's motion contended that he entered his no-contest plea in reliance on the court's representation that his criminal record would be sealed and that his plea would not cause any "immigration problems." On December 4, 1990, the state court granted Mejia's petition to seal his criminal records.

B. Deportation Proceedings Concluded in 1994

On March 8, 1990, the INS commenced deportation proceedings against Mejia. The INS issued an Order to Show Cause which asserted two grounds for deportation. First, the INS charged Mejia with deportability under INA § 241(a)(2), 8 U.S.C. § 1251(a)(2) (1990), as an alien who had entered the United States without inspection by an immigration officer, and under INA § 241(a)(11), 8 U.S.C. § 1251(a)(11) (1990), as an alien convicted of a crime involving controlled substances.

On December 6, 1990, the INS amended its show-cause order withdrawing these two grounds for deportation and charging Mejia with deportability under INA § 241(a)(2), 8 U.S.C. § 1251(a)(2)(1990), for overstaying his nonimmigrant visa. The INS alleged that Mejia originally had entered the United States as a nonimmigrant visitor and later changed his status to nonimmigrant student. According to the INS, Mejia's nonimmigrant-student visa expired in August 1990.

After the state court had sealed Mejia's criminal record, the immigration judge found Mejia deportable. On January 24, 1991, the immigration judge entered a deportation order concluding that Mejia had unlawfully remained in the United States beyond the period allowed by his nonimmigrant visa. However, the immigration judge allowed Mejia leave to file for "suspension of deportation." On February 21, 1991, Mejia filed for suspension of deportation under INA § 244, 8 U.S.C. § 1254(a)(2) (1991). ²

The INS immediately moved to pretermit Mejia's motion for suspension of deportation. The INS argued that Mejia's drug conviction precluded a finding that Mejia had been a person of "good moral character," thus rendering him ineligible for a suspension of deportation.

On August 2, 1991, following a hearing, the immigration judge granted the INS' motion to pretermit Mejia's motion for a suspension of deportation and ordered Mejia deported to Honduras. First, the immigration judge admitted into evidence the records of Mejia's cocaine conviction that had been sealed by the Florida state court. The immigration judge specifically noted that he admitted the records only for the purpose of considering Mejia's application for suspension of deportation and not to establish another ground for deportation. The immigration judge found that these records established a conviction as defined under federal immigration law. Based on his conviction for cocaine trafficking, the immigration judge found that Mejia could not be deemed a person of "good moral character" and therefore could not meet the requirements for suspension of deportation under INA §§ 244(a)(2) & 101(f), 8 U.S.C. § 1254(a)(2) & 1101(f) (1991). ³

Mejia appealed the immigration judge's August 1991 decision to the BIA, and on January 12, 1994, the BIA affirmed the deportation order entered by the immigration judge. First, the BIA concluded that the immigration judge properly found Mejia deportable for remaining in the United States following the expiration of his student visa. In doing so, the BIA also rejected Mejia's claim that he remained in the United States only to contest his deportation. In addition, the BIA upheld the immigration judge's determination that Mejia had been "convicted" for the purposes of federal immigration law regardless of the fact that the state court had ordered Mejia's records sealed. As a result of this conclusion, the BIA found that Mejia was within a class of aliens who could be deported based on a controlled-substance conviction and therefore concluded that the immigration judge properly found that Mejia was ineligible for a suspension of deportation.

C. Mejia is a Fugitive from May 1995 Until September 1997

In a letter dated April 12, 1995, the INS informed Mejia that he was scheduled to be deported on May 12, 1995, and ordered him to report to the INS on that date for deportation to Honduras. Mejia did not appear for deportation as ordered. Although Mejia could have sought judicial review of the BIA's January 1994 decision, he did not do so and instead absconded.

D. Drug Conviction Vacated in 1997

While he remained a fugitive from deportation, on May 21, 1997, Mejia petitioned in Florida state court for a writ coram nobis in which he sought to vacate his drug-trafficking conviction. Mejia contended that he did not receive effective assistance of counsel in his state criminal proceedings because he was not informed of the immigration consequences of his no-contest plea.

On August 1, 1997, the state court vacated Mejia's plea and sentence. Subsequently, the Florida State's Attorney announced a nolle prosequi of the cocaine-trafficking charges against Mejia.

E. BIA Denies Mejia's Motion to Reopen Deportation Proceedings

On September 23, 1997, the INS took Mejia into custody to execute the final deportation order entered in January 1994. On September 26, 1997, Mejia filed two motions to reopen his deportation proceedings--one with the immigration judge and one with the BIA. According to Mejia, the immigration judge refused to accept this motion. Before the BIA, Mejia argued that his application for suspension of deportation had been pretermitted based on a criminal conviction and that this conviction was vacated after his suspension application had been pretermitted. Thus, Mejia contended that the BIA should reopen his deportation proceeding to allow him to file another application for suspension of deportation.

In an order dated November 27, 1998, the BIA denied Mejia's motion to reopen his deportation proceedings. The BIA noted that under 8 C.F.R. § 3.2(c)(2) a motion to reopen deportation proceedings must be filed within 90 days of the BIA's decision or before September 30, 1996, whichever is later. As Mejia did not file his motion to reopen until September 1997, the BIA concluded that his motion was not timely filed. On December 14, 1998, Mejia filed, in this Court, a petition for review of the BIA's November 1998 order. Mejia-Rodriguez v. INS, No. 98-5878.

F. Mejia's Petition for a Writ of Habeas Corpus

On September 26, 1997, while his motion to reopen his deportation proceedings was still pending before the BIA, Mejia filed a § 2241 petition for habeas corpus in United States District Court for the Southern District of Florida. 28 U.S.C. § 2241. In this...