Servin-Espinoza v. Ashcroft

• Decision Date: 05 November 2002
• Docket Number: No. 01-16225.,01-16225.
• Citation: 309 F.3d 1193
• Parties: Manuel SERVIN-ESPINOZA, Petitioner-Appellee, v. John ASHCROFT, Attorney General; Charles Demore, Respondents-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

309 F.3d 1193

Manuel SERVIN-ESPINOZA, Petitioner-Appellee, v. John ASHCROFT, Attorney General; Charles Demore, Respondents-Appellants.

No. 01-16225.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2002.

Filed November 5, 2002.

James Todd Bennett, El Cerrito, CA, for the petitioner-appellee.

Donald E. Keener and Alison R. Drucker, Office of Immigration Litigation, Washington, DC, for the respondents-appellants.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding, D.C. No. CV-00-04397-WHA.

Before THOMPSON, W. FLETCHER and BERZON, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge:

Lawful permanent resident Manuel Servin-Espinoza was ordered deported to Mexico after conviction of an aggravated felony. The district court granted Servin-Espinoza's petition for writ of habeas corpus on the ground that enforcing § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996), which bars discretionary relief under former § 212(c) of the Immigration and Nationality Act ("INA"), against deportable aliens but not excludable aliens violated the equal protection component of the Due Process Clause during the time period in question. For the reasons that follow, we affirm.

I. Background

Servin-Espinoza is a citizen of Mexico and a lawful permanent resident of the United States. In 1996, Servin-Espinoza pled guilty to possession of methamphetamine for sale. The Immigration and Naturalization Service ("INS") charged him with deportability under INA former § 241(a)(2)(A)(iii), 8 U.S.C. former § 1251(a)(2)(A)(iii), for conviction of an aggravated felony after entry into the United States. The Immigration Judge ("IJ") ordered Servin-Espinoza deported to Mexico on September 18, 1998.

On May 14, 1997, prior to Servin-Espinoza's deportation hearing, the Board of Immigration Appeals ("BIA") issued a published decision in In re Fuentes-Campos, 1997 WL 269368, 21 I. & N. Dec. 905 (BIA 1997), holding that AEDPA § 440(d), which barred discretionary relief previously available under INA former § 212(c), 8 U.S.C. § 1182(c), operated against aliens in deportation proceedings but not those in exclusion proceedings. As a result, Servin-Espinoza was not eligible for § 212(c) relief during his deportation proceedings, but would have been had he been in exclusion proceedings.

On June 7, 1999, we decided United States v. Estrada-Torres, 179 F.3d 776 (9th Cir.1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir.2001). Like Servin-Espinoza, Estrada-Torres was a legal permanent resident who was ordered deported after conviction of an aggravated felony; he also was denied § 212(c) relief under AEDPA § 440(d). Unlike Servin-Espinoza, however, Estrada-Torres was ordered deported before Fuentes-Campos was decided, and thus before the BIA held that excludable aliens could seek § 212(c) relief even after the enactment of AEDPA § 440(d). By the time we heard Estrada-Torres' petition for review, the BIA had decided Fuentes-Campos. Estrada-Torres argued that depriving deportable but not excludable aliens of the opportunity to apply for § 212(c) relief, under the BIA's interpretation of § 440(d), violated equal protection. We held in Estrada-Torres that: 1) the BIA's interpretation of AEDPA § 440(d) and INA § 212(c) in Fuentes-Campos was contrary to the meaning of the statute; 2) the statute denies relief to both deportables and excludables and thus does not violate equal protection on its face; and 3) because Estrada-Torres was denied § 212(c) relief by the IJ before Fuentes-Campos had been decided (and thus before the BIA treated deportables and excludables differently with respect to discretionary relief), the statute had not been unconstitutionally applied to him.¹ See also Armendariz-Montoya v. Sonchik, 291 F.3d 1116(9th Cir.2002) (rejecting identical equal protection challenge). We left open, however, the question whether the statute would be unconstitutionally applied in a case where a deportable alien was denied § 212(c) relief between the time of the BIA's decision in Fuentes-Campos and our decision in Estrada-Torres.

Servin-Espinoza's case presents that open question, for he was ordered deported by the IJ in the window of time between Fuentes-Campos and Estrada-Torres. Servin-Espinoza appealed his deportation order to the BIA, raising among other issues an equal protection challenge to the denial of § 212(c) relief to deportables but not excludables. The BIA dismissed his appeal on September 25, 2000, stating that it lacked "jurisdiction to rule on the constitutionality of the Immigration and Nationality Act and the regulations we administer."

Servin-Espinoza then filed a petition for a writ of habeas corpus in federal district court. He again raised the argument that AEDPA § 440(d) violates "his Fifth Amendment rights to due process, equal protection, and fundamental fairness." The district court found an as-applied equal protection violation against Servin-Espinoza, and granted the habeas corpus petition. The district court stated that it was bound to follow our decision in Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.1981), which it characterized as holding that a distinction between legal permanent residents in deportation and exclusion proceedings lacks a rational basis. The district court then stayed Servin-Espinoza's deportation and ordered the government to provide Servin-Espinoza with a hearing before an IJ on an application for waiver under § 212(c). The government timely appealed.

II. Discussion

Servin-Espinoza contends that the INS policy of granting to excludable aliens the opportunity to apply for § 212(c) relief but denying to deportable aliens that same opportunity violated the equal protection component of the Due Process Clause of the Fifth Amendment. We review constitutional questions de novo. See S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 466 (9th Cir.2001).

There is no question that during the window of time between Fuentes-Campos and Estrada-Torres the INS intentionally and systematically treated aliens in exclusion proceedings more favorably than those in deportation proceedings, by allowing the former and not the latter to apply for § 212(c) relief. The government does not dispute this, but it argues that a rational basis existed for the difference in treatment. The government offers three reasons to justify the difference: 1) denying relief to deportables but not excludables encourages criminal aliens already in the United States to leave voluntarily; 2) criminal aliens at large in the United States pose a greater threat than those abroad seeking to return; and 3) at the time of AEDPA's enactment, the number of criminal aliens in deportation proceedings was ten times the number in exclusion proceedings; concerned that criminal aliens were abusing § 212(c) relief in order to forestall their removal, Congress could hasten the removal of most criminal aliens from the country by eliminating the discretionary relief for deportables.

If the question before us were whether a congressionally created distinction between excludable and deportable aliens with respect to § 212(c) relief is rational, we might well agree with several of our sister circuits that the distinction could successfully withstand an equal protection challenge, based on the reasons advanced by the government. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (Congress's power to regulate the exclusion or admission of aliens is extremely broad); Perez-Oropeza v. INS, 56 F.3d 43, 45 (9th Cir.1995) ("statutory restrictions which limit relief from deportation to certain classes of aliens are valid unless wholly irrational") (internal quotation marks omitted). We are not convinced that our decision in Tapia-Acuna (adopting equal protection analysis of Francis v. INS, 532 F.2d 268 (2d Cir. 1976)) would require a different result. See, e.g., DeSousa v. Reno, 190 F.3d 175, 183-84 (3d Cir.1999) (assuming without deciding that AEDPA § 440(d) creates a distinction between excludable and deportable aliens with respect to the availability of § 212(c) waivers, and finding no equal protection violation: "A careful reading of Francis ... reveals that it did not directly concern distinctions between excludable and deportable aliens, but rather addressed disparate treatment of groups of deportable aliens."); accord Domond v. INS, 244 F.3d 81 (2d Cir.2001); Asad v. Reno, 242 F.3d 702 (6th Cir.2001); Almon v. Reno, 192 F.3d 28 (1st Cir.1999); Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir.1999); Jurado-Gutierrez v. Greene, 190 F.3d 1135 (10th Cir.1999); LaGuerre v. Reno, 164 F.3d 1035 (7th Cir. 1998). See also Armendariz-Montoya, 291 F.3d at 1122-23.

However, because of our reading of AEDPA § 440(d) in Estrada-Torres, that is not the question before us. As we interpreted § 440(d) in Estrada-Torres, Congress treated excludable and deportable aliens equally, not differently, with respect to the availability of relief under § 212(c). That is, neither category of aliens is eligible to receive it. See 179 F.3d at 779. Whatever the reasons might be for granting excludable aliens the opportunity to apply for § 212(c) relief while denying the same opportunity to deportable aliens, Congress did not have those reasons in mind when it enacted the statute. Under our interpretation of § 440(d) in Estrada-Torres, the reasons advanced by the government for the difference in treatment could not have been Congress's reasons, for the simple fact that Congress did not intend that difference.

We are thus faced with an equal protection challenge to an administrative policy that violated a statutory command. Such a challenge is unusual but not without precedent. The Supreme Court's decisions in Allegheny Pittsburgh...