Mosquera-Perez v. I.N.S.

Decision Date11 June 1993
Docket NumberMOSQUERA-PERE,P,No. 93-1044,93-1044
Citation3 F.3d 553
PartiesLuis Javieretitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
CourtU.S. Court of Appeals — First Circuit

Nancy B. Norman, Boston, MA, for petitioner.

Robert Kendall, Asst. Director, Civ. Div., Office of Immigration Litigation, with whom Stuart E. Schiffer, Acting Asst. Atty. Gen., Civ. Div., Washington, DC, was on brief, for respondent.

Before SELYA, CYR and BOUDIN, Circuit Judges.

CYR, Circuit Judge.

Petitioner Luis Javier Mosquera-Perez ("Mosquera"), a resident alien convicted of an "aggravated felony," challenges a final order of the Board of Immigration Appeals ("BIA") denying his application for a withholding of deportation. We deny the petition for review.

I BACKGROUND

Mosquera, a citizen of Colombia, entered the United States in June, 1980, and became a permanent United States resident in May, 1989. See 8 U.S.C. Sec. 1255(a). On May 3, 1990, he was convicted of possessing one-half ounce of cocaine, with intent to distribute, in violation of Mass.Gen.L. ch. 94C, Sec. 32A. Mosquera received a suspended thirty-month prison sentence and three years' probation, with community service.

On January 3, 1991, the Attorney General issued an order to show cause why Mosquera should not be deported as an alien convicted of an "aggravated felony," pursuant to 8

U.S.C. Sec. 1251(a)(2)(A)(iii), (B)(i), 1 based on his Massachusetts drug conviction. At a preliminary hearing before an Immigration Judge, Mosquera was found deportable and, as an alien convicted of an aggravated felony, ineligible for either political asylum, see 8 U.S.C. Sec. 1158(d), 2 or withholding of deportation, 3 see 8 U.S.C. Sec. 1253(h). The BIA affirmed.

II DISCUSSION

Our jurisdiction is founded in Section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1105a(a). See Ravindran v. INS, 976 F.2d 754, 756 (1st Cir.1992); Alvarez-Flores v. INS, 909 F.2d 1, 2 (1st Cir.1990). Mosquera concedes that the conduct underlying his state-law conviction constituted an "aggravated felony" under the INA, see 8 U.S.C. Sec. 1101(a)(43), and that he is therefore precluded from applying for asylum, see 8 U.S.C. Sec. 1158(d). He contends, nonetheless, that his aggravated felony conviction does not preclude a withholding of deportation under 8 U.S.C. Sec. 1253(h)(2)(B). 4

A. Effect of Aggravated Felony Conviction on Eligibility for Withholding of Deportation

Whether an aggravated felony conviction constitutes an absolute bar to withholding of deportation under section 1253(h)(2)(B) presents a pure issue of statutory construction for plenary review, see Skidgel v. Maine Dept. of Human Servs., 994 F.2d 930 (1st Cir.1993), and an issue of first impression in this circuit. We employ traditional tools of statutory construction for determining congressional intent, see Dole v. United Steelworkers of America, 494 U.S. 26, 35, 110 S.Ct. 929, 934, 108 L.Ed.2d 23 (1990) (quoting NLRB v. Food and Commercial Workers, 484 U.S. 112, 123, 108 S.Ct. 413, 416, 98 L.Ed.2d 429 (1987)), beginning with the language of the statute.

We "assume that the ordinary meaning of the statutory language accurately expresses the legislative purpose," Stowell v. Ives, 976 F.2d 65, 69 (1st Cir.1992) (quoting Morales v. Trans World Airlines, Inc., --- U.S. ----, ----, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992)), and we "resort to the legislative history and other aids of statutory construction only when the literal words of the statute create ambiguity or lead to an unreasonable result," id. (quoting United States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir.1987)). If the statutory language makes the intent of Congress clear and unambiguous, we give full effect to that intent; if the statute is "silent or ambiguous with respect to the specific issue," however, we do not simply impose our own construction on the statute, but give due deference to the BIA's interpretation of the INA unless it is arbitrary, capricious, or manifestly contrary to the statute. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 445 n. 29, 107 S.Ct. 1207, 1220 n. 29, 94 L.Ed.2d 434 (1987); Alvarez-Flores, 909 F.2d at 3. Nonetheless, "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2782 n. 9.

Section 1253(h) provides as follows:

(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that--

. . . . .

(B) the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;

....

For purposes of subparagraph (B), an alien who has been convicted of an aggravated felony shall be considered to have committed a particularly serious crime.

8 U.S.C. Sec. 1253(h) (emphasis added). Mosquera argues that section 1253(h)(2)(B) contemplates a two-part analysis for determining whether an alien is precluded from a withholding of deportation: once it is determined that an alien has been convicted of a "particularly serious crime," a separate factual determination must be made that the alien poses a danger to the community of the United States. 5

1. Plain Language of Section 1253(h)(2)(B)

Mosquera contends that the phrase "having been convicted ... of a particularly serious crime" modifies the word "alien" and thus narrows the universe of aliens who may be determined a "danger to the community." Mosquera further insists that a contextual comparison of section 1253(h) with the asylum provisions in section 1158(d) demonstrates that Congress well understood how to legislate a per se bar to eligibility for a withholding of deportation had it so intended. 6 We agree. But we think the statutory language is more ambiguous than Mosquera suggests.

Mosquera asks, with considerable logical force, why Congress would have included the "danger to the community" clause at all if it intended that an alien's conviction of "a particularly serious crime" be dispositive and that there be no separate determination that the alien poses a danger to the community. See Allende v. Shultz, 845 F.2d 1111, 1119 (1st Cir.1988) (" 'A familiar canon of statutory construction cautions the court to avoid interpreting a statute in such a way as to make part of it meaningless....' ") (quoting Abourezk v. Reagan, 785 F.2d 1043, 1054 (D.C.Cir.1986)); United States v. Ven-Fuel, Inc., 758 F.2d 741, 751 (1st Cir.1985) ("All words and provisions of statutes are intended to have meaning and are to be given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant or superfluous."). On the other hand, as the government argues, had Congress intended two separate determinations, surely it could have made its intention plain, simply by writing section 1253(h)(2)(B) with "two coordinate clauses joined by a conjunction," viz., "the alien has been convicted by a final judgment of a particularly serious crime and constitutes a danger to the community of the United States." Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir.1987) (emphasis added); see Zardui-Quintana v. Richard, 768 F.2d 1213, 1222 (11th Cir.1985) (Vance, J. concurring in result) (same); see also Martins v. INS, 972 F.2d 657, 660-61 (5th Cir.1992); Arauz v. Rivkind, 845 F.2d 271, 275 (11th Cir.1988); Crespo-Gomez v. Richard, 780 F.2d 932, 934 (11th Cir.1986). Moreover, Mosquera's contextual argument is counterbalanced by the presence of 8 U.S.C. Sec. 1226(e)(2)-(3), governing parole for aliens convicted of aggravated felonies, which establishes various criteria for assessing recidivism to guide the Attorney General in determining whether aggravated felons will pose a danger to society. 7 Thus, in a closely analogous context, section 1226(e)(2)-(3) demonstrates congressional cognizance of its option to require a separate determination of dangerousness to the community in regard to aliens who apply for withholding of deportation following an aggravated felon conviction. As the statutory language does not clearly and unambiguously favor either interpretation of section 1253(h), we turn to the legislative history.

2. Legislative History

Mosquera invites our attention to two particular components of the legislative history of section 1253(h). First, he cites several unenacted bills which would have imposed a per se ban on withholding deportation of aggravated felons. Second, he cites a letter to the INS from Senator Edward M. Kennedy, Chairman of the Senate Subcommittee on Immigration and Refugee Affairs and a cosponsor of the Immigration Act of 1990, see infra note 11, to the effect that Congress, in section 1253(h)(2)(B), contemplated that a showing of dangerousness to the community would be necessary in addition to proof of conviction of an aggravated felony.

Before we evaluate these particular developments, it is helpful to place section 1253(h) in historical perspective. Prior to 1980, section 1253(h) conferred discretion upon the Attorney General to withhold the deportation of any alien who would be subject to persecution in the receiving nation on account of race, religion, or political opinion. The Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 107 (1980), amended section 1253(h) to comport with Article 33 of the United Nations Protocol Relating to the Status of Refugees ("Protocol"), Jan. 31, 1967, 19 U.S.T. 6223 (1968)...

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