Molina v. I.N.S., Nos. 89-1684

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA; BREYER
• Citation: 981 F.2d 14
• Parties: Geilher MOLINA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Docket Number: 90-1167,Nos. 89-1684
• Decision Date: 04 December 1992

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981 F.2d 14 61 USLW 2361 Geilher MOLINA, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Nos. 89-1684, 90-1167. United States Court of Appeals,
First Circuit. Submitted Oct. 6, 1992.
Decided Dec. 4, 1992.

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John H. Ruginski, Jr., Providence, R.I., for appellant.

Harvey Kaplan, Maureen O'Sullivan, Jeremiah Friedman, Kaplan, O'Sullivan & Friedman, Boston, Mass., Lory D. Rosenberg, American Immigration Lawyers Ass'n, Washington, D.C., Kenneth H. Stern and Stern & Elkind, Denver, Colo., on briefs for American Immigration Lawyer's Ass'n and Nat. Immigration Project of the Nat. Lawyers Guild, amici curiae.

Norah Ascoli Schwarz with whom Stuart M. Gerson, Asst. Atty. Gen., Robert Kendall, Jr., Asst. Director, Office of Immigration Litigation, and Jill E. Zengler, Attorney, Office of Immigration Litigation, Washington, D.C., were on brief for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BREYER, Chief Judge.

Geilher Molina asks us to review two decisions regarding his immigration status. See 8 U.S.C. § 1105a(a). First, the Board of Immigration Appeals (affirming an immigration judge) held that Molina had entered the United States unlawfully, and it ordered him deported. See 8 U.S.C. § 1251(a)(2). Second, the INS Legalization Appeals Unit denied Molina's "amnesty" request (to become a temporary resident despite his unlawful entry) because of his two drug-crime convictions. See 8 U.S.C. §§ 1255a(a), 1255a(a)(4)(B). We find both of these decisions lawful, and we dismiss Molina's review petitions.

I

The Deportation Decision

Molina argues that the decision ordering him deported contains three legal flaws. First, he says the decision is procedurally flawed because he was not present at his immigration hearing, on March 30, 1987. He argues that the immigration judge should have granted a continuance instead of then ordering him deported. Molina must concede, however:

1) that, at a first scheduled immigration hearing a month earlier, he personally had asked for an initial continuance until March 30 (because his counsel could not be present in February);

2) that the immigration judge then told him he should return with counsel on March 30 and gave him a written notice of the new March 30 hearing date;

3) that his counsel, present on March 30, could offer no reason for Molina's absence, stating simply that Molina "probably got lost or he couldn't get up here today;" and,

4) that his counsel conceded that he had entered the United States unlawfully--a fact that he does not now deny.

Immigration judges have broad legal power to decide whether or not to grant continuances. See Castaneda-Delgado v. INS, 525 F.2d 1295, 1300 (7th Cir.1975); Patel v. INS, 803 F.2d 804, 806 (5th Cir.1986). Given the circumstances just described, the immigration judge, in denying a further continuance, acted well within the boundaries of that power. See, e.g., Reyes-Arias v. INS, 866 F.2d 500 (D.C.Cir.1989) (no abuse of discretion to deny continuance and proceed with hearing in alien's absence

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where counsel is present). Thus, there is no procedural flaw.

Second, Molina argues that the immigration judge, instead of ordering him deported, should have permitted him to leave voluntarily. See 8 U.S.C. § 1254(e) (authorizing Attorney General to permit voluntary departure). This INS decision, too, however, is highly discretionary. Strantzalis v. INS, 465 F.2d 1016, 1017 (3d Cir.1972). To qualify for voluntary departure, a deportable alien must show that he has demonstrated "good moral character" over the preceding five years. See 8 U.S.C. § 1254(e); Trias-Hernandez v. INS, 528 F.2d 366, 370 (9th Cir.1975). Molina has made no such demonstration.

We add one point. The record shows that the immigration judge said he would deny Molina's voluntary departure request "because Molina did not appear at the hearing." However, read in context, that statement does not imply that the immigration judge was equating "bad character" with "failure to appear." In making the statement, the judge simply was referring to Molina's failure to demonstrate good character, at the hearing or elsewhere in the record.

Third, Molina says that he later told the BIA why he was late, and he argues that the BIA then should have reopened the matter. BIA regulations, however, say that a

motion to reopen shall state the new facts to be proved and shall be supported by affidavits or other evidentiary material.

8 C.F.R. § 3.8(a). The only evidence attached to Molina's motion consisted of a traffic ticket issued on the date of the hearing and an auto repair shop receipt dated March 30 one year later. Moreover, the record is silent as to what, in a reopened proceeding, Molina could have shown that might have helped him. Thus, the INS's decision not to reopen (like its decision to deport Molina and its decision not to permit him to depart voluntarily) was plainly lawful. See Fuentes v. INS, 746 F.2d 94 (1st Cir.1984) (alien must support motion to reopen with affidavits or other evidence).

II

The "Amnesty" Decision

The immigration laws grant a kind of "amnesty" to certain aliens who have lived unlawfully in the United States since 1982. They permit the Attorney General to "adjust the status of [such] an alien to that of an alien lawfully admitted for temporary residence." 8 U.S.C. § 1255a(a)(4). The Attorney General may make this adjustment, however, only if the alien is "admissible as an immigrant." Id. And, an alien is "admissible as an immigrant" only if (among other things) he "has not been convicted of any felony." 8 U.S.C. § 1255a(a)(4)(B).

Molina asked for "temporary residence" under these provisions. The INS (through its Legalization Appeals Unit) denied his request because, in its view, Molina had "been convicted" of two drug felonies. Molina admitted that, on two occasions, he had pled nolo contendere to Rhode Island drug charges and that he had been sentenced to probation, but he denied that these dispositions of the charges against him amounted to "convictions." And, he sought review of the INS decision in this court.

While Molina's petition was pending before this court, the INS asked us to remand this aspect of Molina's case. The Legalization Appeals Unit of the INS, and the Bureau of Immigration Appeals of the Department of Justice ("BIA"), from time to time, have changed the standards they use to determine what counts as a "conviction." Compare Matter of M--, 19 I. & N. Dec. 861 (Op. Comm'r.1989) with Matter of Ozkok, Int.Dec. 3044, 1988 BIA LEXIS 4 (January 26, 1988) and Matter of L-- R--, 8 I. & N. Dec. 269 (BIA 1959). The Fifth Circuit had held that the INS's most recent change in these standards was unlawful in that it was inconsistent with binding BIA precedent. See Martinez-Montoya v. INS, 904 F.2d 1018, 1022-24 (5th Cir.1990) (setting aside INS decision in Matter of M-- as inconsistent with BIA precedent in Matter

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of Ozkok ). And, the INS wished to reconsider Molina's status adjustment request in light of the Fifth Circuit opinion. After reconsideration, the INS Legalization Appeals Unit, applying the standard set out in Matter of Ozkok (which preceded the Matter of M-- standard invalidated by the Fifth Circuit), reaffirmed its original determination. See Matter of Ozkok, supra; cf. Matter of L-- R--, supra. Molina now continues to press his original argument, namely that he is entitled to amnesty because a "nolo plea plus probation" under Rhode Island law does not amount to a "conviction." A

Defining the Word "Conviction:" The "Ozkok" Standard

Almost every state has some provision in its criminal law that permits a person, accused of a crime, to enter a plea that leads 1) to a kind of "provisional" conviction, 2) followed by probation, and 3) followed by some kind of "expunging" of the conviction upon successful completion of probation. See Dickerson v. New Banner Institute, 460 U.S. 103, 121-22, 103 S.Ct. 986, 996, 74 L.Ed.2d 845 (1983) (describing variations among state procedures). The INS has developed standards (which it has modified from time to time) designed to define just when such "pleas plus probation" amount (for federal immigration law purposes) to "convictions," and when they do not.

In 1988, in Matter of Ozkok, the BIA set forth the standards that the INS now applies to Molina. In that case, the BIA said it would (for federal immigration law purposes) consider a "person" to have been "convicted," if

1) "the court has adjudicated him guilty" or "has entered a formal judgment of guilt"

or

2) an "adjudication of guilt has been withheld" and

a) "a judge or jury has found" him "guilty" or "he has entered a plea of guilty or nolo contendere" or he "has admitted sufficient facts to warrant a finding of guilty;" and

b) the "judge has ordered some form of punishment, penalty, or restraint on the person's liberty;" and

c) a "judgment or adjudication of guilt may be entered if the person violates the terms of his probation ... without availability of further proceedings" regarding his guilt or innocence of the crime originally charged.

Matter of Ozkok, 1988 BIA LEXIS at 12-13.

Molina's case, as we have said, involves a "plea plus probation." In fact, it involves two of them:

a) On February 19, 1987, Molina pled "nolo contendere" in a Rhode Island court to a charge of possession of cocaine. The court placed him on probation for 18 months.

b) On February 26, 1987, Molina pled "nolo contendere" in a Rhode Island court to a charge of possession of a controlled substance. The court placed him on probation for two years.

The INS held that these "pleas plus probation," in the circumstances here present, met the Ozkok tests to qualify as convictions. Indeed, the "pleas plus probation" apparently met both Ozkok tests. They met the first test because the state documents entitled "Judgment and Disposition" in each case specifically say, "IT IS...