Perez-Rodriguez v. I.N.S.

• Decision Date: 25 August 1993
• Docket Number: No. 92-3081,PEREZ-RODRIGUE,P,92-3081
• Parties: Damianetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1074

3 F.3d 1074

Damian PEREZ-RODRIGUEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-3081.

United States Court of Appeals Seventh Circuit.

Argued April 28, 1993.

Decided Aug. 25, 1993.

Ralph M. Schelly, Chicago, IL (argued), for petitioner.

Fred Foreman, U.S. Atty., Criminal Div., Chicago, IL, William J. Howard, David J. Kline, Dept. of Justice, Office of Immigration Litigation, Washington, DC, A.D. Moyer, I.N.S., Chicago, IL, Marshall T. Golding (argued), Office of Immigration Litigation, Civil Div., Washington, DC, for respondent.

Before BAUER, Chief Judge, COFFEY, Circuit Judge, and EISELE, Senior District Judge. ^*

COFFEY, Circuit Judge.

Damian Perez-Rodriguez ("Perez"), petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA affirmed the immigration judge's finding that Perez was deportable under the Immigration and Nationality Act, see 8 U.S.C. Sec. 1251(a)(1)(A) (1988 & Supp. IV 1992), because he reentered the United States following an earlier deportation without the Attorney General's permission, see 8 U.S.C. Sec. 1182(a)(6)(A) (1988 & Supp. IV 1992), and without valid entry documents, see 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I) (1988 & Supp. IV 1992). We deny the petition for review. ¹

I. BACKGROUND

Perez is a forty-six-year-old native and citizen of Mexico who was admitted into the United States as a lawful, permanent resident in November of 1974. On April 13, 1977, Perez was ordered deported for entering the United States on March 29, 1977, without inspection in violation of 8 U.S.C. Sec. 1251(a)(1)(B) (1988 & Supp. IV 1992). He was deported to Mexico on July 25, 1977, but his stay in that country was rather short--he reentered the United States at Eagle Pass, Texas, later that same day. He was not questioned by officials upon his return, and he entered upon his claim of lawful, permanent residency. In June of 1978 Perez was convicted of smuggling an alien into the United States in violation of 8 U.S.C. Sec. 1324(a)(2) (1988). For this he served sixteen months of a three-year term of imprisonment. In August of 1979 the Immigration and Naturalization Service ("INS") issued an order to show cause why Perez should not be deported, charging that Perez was deportable under 8 U.S.C. Sec. 1182(a)(6)(A), for having entered the United States following his deportation without the Attorney General's consent. Nearly seven years later, in July of 1986, the INS added to its order to show cause a charge that Perez was deportable because he had entered the United States without the immigration documents required by 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I).

In May of 1987 an immigration judge ruled that Perez was deportable on the basis of both charges brought by the INS. He found that Perez was deportable on the basis of 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I), because Perez's prior deportation had nullified his immigrant visa and, as such, Perez had entered the United States without a valid entry document. He also found that Perez was deportable on the basis of 8 U.S.C. Sec. 1182(a)(6)(A), because Perez had not procured the Attorney General's consent to enter the United States. Perez sought retroactive permission to enter the United States after deportation or, alternatively, to depart the United States voluntarily. The immigration judge found that he lacked the authority to entertain Perez's application for retroactive permission to enter the United States because Perez was deportable on more than one ground. He also found that Perez was not entitled to an order allowing him to depart the United States voluntarily because the factors that would favor voluntary departure (Perez was married to a woman who was a United States citizen and had three children who also were United States citizens) were outweighed by the factors that would disfavor it (Perez had two criminal convictions and had misrepresented his criminal record during the hearing).

Perez appealed the immigration judge's decision to the BIA. The BIA affirmed the judge's decision, concluding that Perez was deportable on the basis of 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I), because Perez's status as a lawful, permanent resident terminated on April 13, 1977, when the INS entered a final order of deportation and, as such, when Perez reentered the United States on July 25, 1977, he did so without valid immigration documents. The BIA also agreed with the immigration judge's finding that he lacked the authority to entertain Perez's application for retroactive permission to enter the United States. The BIA stated that retroactive permission can be granted only if by granting it the sole ground of deportability or inadmissibility would be eliminated. In this case, the BIA noted, granting Perez retroactive permission to enter the United States would not eliminate the sole ground of deportability or inadmissibility because Perez was deportable on two grounds: for entering the United States without the Attorney General's permission and for entering without valid entry documents. Perez timely filed a petition for review of the BIA's decision.

II. ISSUES

Perez raises three issues in his petition for review. He first contends that, contrary to the position taken by both the immigration judge and the BIA, he did not lose his status as a lawful, permanent resident when the INS ordered him deported on April 13, 1977, and he therefore was not deportable under 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I), for entering the United States with an invalid immigrant visa. Perez also contends that he should have been granted retroactive permission to enter the United States or, alternatively, that he should have been allowed to depart the United States voluntarily.

III. DISCUSSION

Authority to adjudicate an alien's deportability is vested primarily in the Attorney General and his delegates, the immigration judge and the BIA. Variamparambil v. INS, 831 F.2d 1362, 1366 (7th Cir.1987) (quoting In re Lok, 18 I & N Dec. 101, 107 (BIA 1981), aff'd, 681 F.2d 107 (2d Cir.1982)). Although the alien is entitled to seek review of an adverse decision in the Court of Appeals, the scope of judicial review is limited. Id. Absent an error of law or unfairness in procedure, the court must affirm the administrative order of deportation if the order is supported by "reasonable, substantial, and probative evidence." 8 U.S.C. Sec. 1105a(a)(4) (1988); Howard v. INS, 930 F.2d 432, 434 (5th Cir.1991); Variamparambil, 831 F.2d at 1366.

Perez first argues that the BIA erred in ruling that he lost his status as a lawful, permanent resident when the INS entered the final order of deportation on April 13, 1977. "Lawful, permanent resident" is defined in 8 U.S.C. Sec. 1101(a)(20) (1988), as "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with immigration laws, such status not having changed." (emphasis added). Perez was admitted into the United States as a lawful, permanent resident in November of 1974 and retained that status unless it "changed" within the meaning of Sec. 1101(a)(20). The BIA concluded that Perez's status as a lawful, permanent resident "changed" upon entry of the final order of deportation on April 13, 1977, because once the order was entered Perez's privilege of residing in the United States permanently was terminated (barring, of course, a reversal on the merits of the finding of deportability by a court). If the BIA's position is correct, then Perez's reentry into the United States on July 25, 1977, clearly violated 8 U.S.C. Sec. 1182(a)(7)(A)(i)(I), because the immigrant visa that he used to reenter the United States was invalid. The question therefore becomes whether the BIA's interpretation of Sec. 1101(a)(20) is reasonable.

In answering this question we work within the now-familiar framework of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We first determine whether the plain language of the statute dictates a certain answer to our question. "The plain language of the statute should be conclusive, except in the 'rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.' " United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 1031, 103 L.Ed.2d 290 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). If the plain language of the statute is ambiguous or silent on the issue then we must determine whether Congress delegated to the INS the authority to make the legal interpretation in issue. Chevron, 467 U.S. at 843-44, 104 S.Ct. at 2782-83; see also Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408, 411-12 (7th Cir.1987). If Congress intended no such delegation, we must interpret the statute with little deference to the INS's interpretation. If, however, Congress intended to deputize the INS with the authority to interpret the statute, we must make a third inquiry: "whether the [INS's] answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. So long as the INS's interpretation is reasonable, we must defer to that interpretation and not impose our own construction on the statute. Id.

The plain language of Sec. 1101(a)(20) is silent on precisely when an alien's status as a lawfully admitted resident is "changed." And nothing else in the Act explains what Congress intended. We therefore must determine whether Congress delegated to the INS the authority to interpret when a change in status occurs. Certainly Congress delegated such authority to the Attorney General through 8 U.S.C. Sec. 1103(a) (1988), which states:

The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and...