Ortega de Robles v. I.N.S.

• Decision Date: 02 June 1995
• Docket Number: No. 93-70461,93-70461
• Citation: 58 F.3d 1355
• Parties: Francisca Elena ORTEGA de ROBLES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1355

58 F.3d 1355

Francisca Elena ORTEGA de ROBLES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 93-70461.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1995.

Decided June 2, 1995.

Raul M. Montes (Armando M. Montes and Gilbert M. Montes with him, on the brief) of Montes Montes & Montes, San Diego, CA, for petitioner.

Brenda E. Ellison (Donald A. Couvillon, on the brief), Office of Immigration Litigation, Dept. of Justice, Washington, DC, for respondent.

Petition for Review of an Order of The Board of Immigration Appeals.

Before: CANBY, and NOONAN, Circuit Judges, and KING, ^* District Judge.

SAMUEL P. KING, District Judge:

Petitioner Francisca Elena Ortega de Robles petitions from an order of the Board of Immigration Appeals (BIA) denying her application for discretionary relief under section

212(c) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1182(c). The BIA determined that Petitioner did not qualify for consideration for Sec. 212(c) relief. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a, and grant the petition and remand to the BIA for consideration of such relief.

BACKGROUND

Petitioner is a married lawful permanent resident alien. Her husband and daughter are also lawful permanent residents; her son is an American citizen. Petitioner was born in Mexico. In June of 1980, at the age of 23, she came to this country as a nonimmigrant visitor and has resided here continuously since then.

On February 29, 1988, pursuant to amnesty provisions of the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. Sec. 1255a, Petitioner applied to legalize her status. Having presented a prima facie case, she was granted status as a legal "temporary resident alien" on June 8, 1988 and was issued an employment authorization card. ¹ Her status was adjusted on October 4, 1990 to an alien "lawfully admitted for permanent residence." 8 U.S.C. Sec. 1255a(b)(1)

On May 14, 1991, Petitioner was convicted in state court on a charge of violating California Health and Safety Code Sec. 11351 for possession for sale of cocaine. She pled guilty under a plea bargain. During the plea colloquy in state court, Petitioner denied possessing cocaine. ² The conviction document reads "I plead guilty to the charge(s) described [above]" but depicts a scribbled-out description of the facts of the charge, with "People v. West" ³ written underneath. Petitioner did not appeal her conviction in state court nor did she seek to withdraw the plea.

Petitioner served 19 and one-half months of a three-year sentence and was then turned over to the Immigration and Naturalization Service (INS). On November 25, 1992, the INS began deportation proceedings by issuing an Order to Show Cause. At a hearing on January 26, 1993 before an immigration judge (IJ), Petitioner denied deportability The IJ found Petitioner deportable based upon her conviction documents and found her ineligible for Sec. 212(c) relief. She appealed to the BIA, which affirmed the IJ and dismissed her appeal. Petitioner timely petitioned for review to this court.

asserting that she did not plead guilty to the elements of possession of cocaine. She also sought discretionary Sec. 212(c) relief.

ANALYSIS

1. Deportability.

Petitioner first asserts that the INS has not proven her deportability because it did not produce evidence that she possessed cocaine. Petitioner claims that her conviction is void and ambiguous. However, because Petitioner did not appeal her conviction, it was a final conviction. Criminal convictions cannot be collaterally attacked in deportation proceedings. Urbina-Mauricio v. INS, 989 F.2d 1085, 1089 (9th Cir.1993) (citing Avila-Murrieta v. INS, 762 F.2d 733, 736 (9th Cir.1985) and Ocon-Perez v. INS, 550 F.2d 1153, 1154 (9th Cir.1977)). "A criminal conviction is final for the purposes of immigration review if the alien has exhausted or waived direct appellate review." Urbina-Mauricio, 989 F.2d at 1089 (citing Hernandez-Almanza v. INS, 547 F.2d 100, 103 (9th Cir.1976)). This court cannot reexamine Petitioner's conviction here. The BIA did not err in affirming the finding of deportability.

2. Eligibility for Section 212(c) Relief.

Section 212(c) of the INA provides in pertinent part:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General without regard to the provision of subsection (a) [classes of excludable aliens].

8 U.S.C. Sec. 1182(c) (emphasis added). In addition to exclusion proceedings, Sec. 212(c) also applies to deportation proceedings. Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.1981). It provides eligible resident aliens facing deportation a chance for discretionary relief. Id.

The BIA determined that Petitioner did not qualify for Sec. 212(c) relief because she did not have a "lawful unrelinquished domicile" of seven consecutive years. It determined that she did not begin accruing time towards that period until October 4, 1990 when her status was adjusted to that of a "lawful permanent resident."

Petitioner asserts that she began accruing time earlier, beginning on February 29, 1988, when she acquired status as a "temporary resident alien" pursuant to IRCA. She cites Castellon-Contreras v. INS, 45 F.3d 149, 154 (7th Cir.1995) (alien gained lawful domicile for purposes of Sec. 212(c) on date that he applied for amnesty under IRCA); Lok v. INS, 548 F.2d 37 (2d Cir.1977) ("Lok I ") (seven year period could include periods of residency prior to date of lawful permanent residence); and Mark A. Hall, Lawful Domicile Under Section 212(c) of the Immigration and Nationality Act, 47 U.Chi.L.Rev. 771 (1980).

The INS, on the other hand, argues that our holding in Castillo-Felix v. INS, 601 F.2d 459 (9th Cir.1979) precludes the relief that Petitioner seeks. Castillo-Felix held that the period of "lawful unrelinquished domicile" for Sec. 212(c) purposes begins accruing when an alien gains "lawful permanent residence." 601 F.2d at 467.

No decision of this circuit has squarely examined the holding and reasoning of Castillo-Felix in light of IRCA. ⁴ Notably, IRCA was enacted over seven years after this circuit decided Castillo-Felix. Therefore, the holding of Castillo-Felix does not necessarily apply to aliens obtaining legal status under IRCA. See R.A.V. v. City of St. Paul, --- U.S. ----, ---- n. 5, 112 S.Ct. 2538, 2545 n. 5, 120 L.Ed.2d 305 (1992) ("It is of course contrary to all traditions of our In Lepe-Guitron v. INS, 16 F.3d 1021, 1024 (9th Cir.1994), we distinguished Castillo-Felix on the basis of facts not considered in that case. We took a closer look at the term "domicile" for Sec. 212(c) purposes and reiterated that Castillo-Felix adopted a definition "consonant with its common law meaning: that 'aliens must not only be physically present here, but must intend to remain.' " 16 F.3d at 1025 (quoting Castillo-Felix ).

jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned"); United States v. Vroman, 975 F.2d 669, 672 (9th Cir.1992) (precedent not controlling on issue not presented to prior panel), cert. denied, --- U.S. ----, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n. 3 (9th Cir.1991) (same).

The IRCA amnesty provision at issue here, INA Sec. 245A, codified at 8 U.S.C. Sec. 1255a, "was a broad legalization program for aliens who had resided unlawfully in the United States since 1982, had been continuously physically present here since 1986, and who were otherwise admissible as immigrants." Naranjo-Aguilera v. INS, 30 F.3d 1106, 1108 (9th Cir.1994). ⁵ Congress reasoned as follows:

The United States has a large undocumented alien population living and working within its borders. Many of these people have been here for a number of years and have become a part of their communities. Many have strong family ties here which include U.S. citizens and lawful residents. They have built social networks in this country. They have contributed to the United States in myriad ways, including providing their talents, labor and tax dollars. However, because of their undocumented status, these people live in fear, afraid to seek help when their rights are violated, when they are victimized by criminals, employers or landlords or when they become ill.

Continuing to ignore this situation is harmful to both the United States and the aliens themselves. However, the alternative of intensifying interior enforcement or attempting mass deportations would be both costly, ineffective, and inconsistent with our immigrant heritage.

The Committee believes that the solution lies in legalizing the [status] of aliens who have been present in the United States for several years, recognizing that past failures to [enforce] the immigration laws have allowed them to enter and to settle here.

H.R.Rep. No. 99-682(I), 99th Cong., 2d Sess. 49, reprinted in 1986 U.S.Code Cong. & Admin.News 5649, 5653.

"When IRCA was passed, it was estimated that there were between 4 and 6 million persons living in the United States who would be eligible for legalization." 2 Charles Gordon & Stanley Mailman, Immigration Law and Procedure, Sec. 52.03 at 52-6 (1994) ("Gordon & Mailman"). About 1.8 million aliens applied for the Sec. 245A program. Immigration and Naturalization Service, U.S. Dep't of Justice, Immigration Reform and Control Act, Report on the Legalized Alien Population, at 5 (March 1992).

Under Sec. 245A, an alien was adjusted to "temporary resident status" by making a timely prima facie showing that the alien (1) had been in continuous unlawful status since 1982, (2) had been continuously physically present in the United States since November 6, 1986 ...