Rodriguez-Padron v. I.N.S., RODRIGUEZ-PADRO

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before ANDERSON and DUBINA, Circuit Judges, and GODBOLD; ANDERSON
• Citation: Rodriguez-Padron v. I.N.S., 13 F.3d 1455 (11th Cir. 1994)
• Decision Date: 21 January 1994
• Docket Number: JIMINEZ-MUNO,92-4986,Nos. 92-2015,MATEO-RUI,P,92-4672,92-4674,92-2016,RODRIGUEZ-PADRO,IZQUIERDO-DELGAD,DELGADO-NUNE,BATALLAN-VASQUE,92-4094,s. 92-2015
• Parties: Fernandoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Osvaldo DAVILA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Dale Delmar DOWNS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Lazaroetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Primitivoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Andre SAUNDERS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Caleme CHERFRERE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Lazaroetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Luis LACASSE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Jean Ronald ROSAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Remo Lamott MISSICK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Rauletitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Jennifer Dianica YOUNG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Angel L.etitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. to 92-4988, 92-4994 to 92-4996, 92-5014, 92-5015 and 92-5105.

Page 1455

13 F.3d 1455

Fernando RODRIGUEZ-PADRON, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Osvaldo DAVILA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Dale Delmar DOWNS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Lazaro JIMINEZ-MUNOZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Primitivo IZQUIERDO-DELGADO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Andre SAUNDERS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Caleme CHERFRERE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Lazaro MATEO-RUIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Luis LACASSE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Jean Ronald ROSAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Remo Lamott MISSICK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Raul DELGADO-NUNEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Jennifer Dianica YOUNG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Angel L. BATALLAN-VASQUEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 92-2015, 92-2016, 92-4094, 92-4672, 92-4674, 92-4986 to

92-4988, 92-4994 to 92-4996, 92-5014, 92-5015 and 92-5105.

United States Court of Appeals Eleventh Circuit.

Jan. 21, 1994.

Patricia S. Wihnyk, Florida Institutional Legal Services, Inc., Gainesville, FL, for petitioners.

Donald Couvillon, Richard M. Evans, Carl H. McIntyre, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, DC, for respondents in Nos. 92-2015, 92-4672, 92-4986, 92-4987, 92-4988, 92-4994, 92-4995, 92-4996 and 92-5105.

Richard Smith, I.N.S., Kenneth Hurewitz, Gen. Atty., Miami, FL, Donald Couvillon, Richard M. Evans, Carl H. McIntyre, Appellant Counsel, Civ. Div., Immigration Litigation, Washington DC, for respondents in Nos. 92-2016 and 92-5014.

Richard M. Evans, Carl H. McIntyre, David J. Kline, Immigration Litigation, Civ. Div., Washington, DC, for respondent in No. 92-4094.

Richard M. Evans, Carl H. McIntyre, Dept. of Justice, Office of Immigration Litigation, Washington, DC, for respondent in No. 92-4674.

Donald A. Couvillon, Carl McIntyre, Office of Immigration Litigation, Civ. Div., Washington, DC, for respondent in No. 92-5015.

Petitions for Review of an Order of the Immigration and Naturalization Service.

Before ANDERSON and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.

ANDERSON, Circuit Judge:

This case involves an issue of immigration law upon which there is a split of authority--i.e., whether the Section 212(c) waiver is available in deportation proceedings when the deportation is based upon a ground which has no analogue in exclusion proceedings. This is the consolidated appeal of fourteen permanent resident aliens (hereinafter "Petitioners"), all of whom have been convicted of firearms offenses and thus were classified as deportable under Section 241(a)(14) of the Immigration and Nationality Act ("INA"), 8 U.S.C. Sec. 1251(a)(14). ¹ Petitioners conceded their deportability and sought discretionary waivers of deportation under Section 212(c) of the INA, 8 U.S.C. Sec. 1182(c). The immigration judges ruled that Petitioners were ineligible for 212(c) waiver, and the Board of Immigration Appeals affirmed. This court has jurisdiction to review final orders of deportation pursuant to INA Sec. 106(a), 8 U.S.C. Sec. 1105a(a). We will affirm.

Section 212 of the INA provides several grounds for excluding aliens from the United States. 8 U.S.C. Sec. 1182. Subsection (c) allows the Attorney General to use her discretion to admit permanent resident aliens who temporarily travel abroad and seek readmission, even if they may normally be excludable under the provisions of the statute. ² On its face, Section 212(c) and its predecessor statute always have referred solely to exclusion, not deportation. ³

Although the language of Section 212(c) refers only to exclusion (the process of excluding noncitizens who seek to enter the United States), for the last four decades it has been applied under certain circumstances to deportation (the process of expelling aliens who already are in the country). A brief review of the history of the application of Section 212(c) in the deportation context is in order. The Immigration and Naturalization Service ("INS") initially extended the availability of waiver for equitable reasons. A resident alien subject to exclusion upon reentry could seek a waiver if he was denied reentry; however, if border officials erroneously failed to challenge reentry and subsequently sought deportation on the same ground, the waiver would not be available under Section 212(c)'s plain language. This would put the alien who gained reentry and then was subject to deportation in a worse position than one denied reentry. To avoid this result, the INS allowed aliens who actually left the U.S. and then reentered to apply for a nunc pro tunc waiver if deportation was sought on a ground specified in Section 212. See Leal-Rodriguez v. INS, 990 F.2d 939, 949 (7th Cir.1993) (detailing the history of 212(c) waiver).

This extension led to further complications. A resident alien who became deportable and then voluntarily left the country suddenly became eligible for waiver upon reentry; another alien who was deportable for the same reason but never left the country had no recourse. See id. The Second Circuit found this result "not rationally related to any legitimate purpose of the statute" and struck it down in Francis v. INS, 532 F.2d 268, 272 (2d Cir.1976). The Board of Immigration Appeals and the circuit courts of appeal for the First, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits have followed the lead of the Second Circuit. ⁴ As a result, certain deportable aliens may seek discretionary waivers of exclusion under Section 212(c), but only if they are deportable on a ground specified for exclusion in Section 212. Courts for years declined to extend 212(c) waiver any further, holding that it was not available to aliens whose deportability was based on a ground for which a comparable ground of exclusion did not exist. See In re Granados, 16 I. & N.Dec. 726 (BIA 1979). In 1990, the Board of Immigration Appeals reversed its ground in a case involving deportation based on entry without inspection and held that Section 212(c) relief is available to all aliens facing deportation (unless the ground was one specifically excluded in 212(c)). In re Hernandez-Casillas, Int.Dec. 3147 (BIA Jan. 11, 1990). This extension of 212(c) waiver was short-lived; the Attorney General reversed the Board of Immigration Appeals, and the reversal was affirmed by the Fifth Circuit. In re Hernandez-Casillas, Int.Dec. 3147 (Att'y Gen. Mar. 18, 1991), aff'd mem., 983 F.2d 231 (5th Cir.1993). ⁵ Three other circuits have agreed that 212(c) waiver is not available in deportations on grounds for which there are no analogous grounds of exclusion. Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir.1993) (entry without inspection); Campos v. INS, 961 F.2d 309 (1st Cir.1992) (firearms violation); Cabasug v. INS, 847 F.2d 1321 (9th Cir.1988) (firearms violation). However, a few days before oral argument was heard in the present case, the Second Circuit held that 212(c) waiver is available in deportations based on unlawful entry without inspection, a ground for which there is no analogous basis for exclusion. Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir.1993).

Petitioners are subject to deportation based on their convictions for firearms violations. There is no analogous ground for exclusion. However, they contend that they should be able to seek discretionary waiver for two reasons: (1) denying them the opportunity to pursue waiver violates their right to equal protection of the laws; and (2) Congress has implicitly acquiesced to the expansion of 212(c) waiver. In addition, at oral argument counsel for Petitioners urged us to adopt the reasoning of the Second Circuit in Bedoya-Valencia v. INS. We consider these arguments in turn. The Attorney General's interpretation of 212(c) waiver in Hernandez-Casillas will be disregarded only if it misconstrues the law or the Constitution. See Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) (courts defer to reasonable interpretations of administrative agencies). See also Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977) (Congress has plenary power over immigration matters); Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1296 (11th Cir.1990) (giving deference to the BIA's interpretation of the INA).

EQUAL PROTECTION

In the only equal protection argument that has been fairly presented to this court, Petitioners contend that it is irrational to deny them the opportunity to seek 212(c) waiver when those convicted of more serious crimes may apply for discretionary waiver. ⁶ Petitioners allege that this "creates a classification of aliens based solely on their crimes [that] does not permit for consideration of the severity of the crimes or equities of the aliens as a means of affording relief. There is no rational basis for deporting all aliens convicted of firearms offenses." ⁷ Pet'r Br. at 5. In response, the INS argues that Congress has shown a strong desire to curtail firearms violations among aliens, and this desire is a legitimate reason for denying 212(c) waiver.

Petitioners rely heavily on Marti-Xiques v. INS, 713 F.2d 1511 (11th Cir.1983), vacated, 724 F.2d 1463 (11th Cir.), decided on other grounds, 741 F.2d 350 (11th Cir.1984), in support of their equal protection argument. The original Marti-Xiques panel held that when an alien is deportable under two grounds arising from the same incident--one with an analogous...