UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-40123
____________________
ISAIAS TOSCANO-GIL,
Petitioner-Appellee,
versus
E.M. TROMINSKI, District Director, Immigration &
Naturalization Service; JANET RENO, U.S.
Attorney General; UNITED STATES OF AMERICA,
Respondents-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
___________________________
April 20, 2000
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The linchpin to the Government’s challenge to the 28 U.S.C. §
2241 habeas relief granted excludable alien Isaias Toscano-Gil is
whether he states a cognizable constitutional claim by asserting
that, in denying him a waiver of inadmissibility, the Board of
Immigration Appeals violated his right to procedural due process by
characterizing his DWI arrest as a conviction and failing to
discuss certain relevant factors or distinguish BIA precedent.
Because such contentions do not state a cognizable constitutional
claim, we REVERSE and DISMISS.
I.
Mexican native and citizen Toscano, a permanent United States
resident since 1987, was arrested in March 1996 on returning from
a brief trip to Mexico, when Immigration and Naturalization Service
Agents found approximately 52 pounds of marijuana in his vehicle’s
fuel tank. Toscano pleaded guilty to a Texas state charge of
marijuana possession and received five years probation.
The INS began exclusion proceedings in May 1996 under §
212(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1182(a)(2)(C), on the grounds that immigration authorities had
reason to believe Toscano was involved in illicit trafficking of a
controlled substance. Toscano conceded he was excludable on this
basis. But, he sought a waiver of inadmissibility, pursuant to
former INA § 212(c), 8 U.S.C. § 1182(c): “Aliens lawfully admitted
for permanent residence who temporarily [go] abroad ... and who are
returning to a lawful unrelinquished domicile of seven consecutive
years, may be admitted in the discretion of the Attorney
General....” (Emphasis added.)1
In January 1997, the Immigration Judge granted Toscano’s
application, finding: he had demonstrated “unusual and
1
INA § 212(c) was repealed effective 1 April 1997. See
Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, § 304(b), 110 Stat. 3009-597 (1996);
see, e.g., Morales-Ramirez v. Reno, No. 99-2065, 2000 WL 375430, at
*4 (7th Cir. 13 April 2000). Under § 304(b), criminal aliens are
ineligible for waivers of exclusion. See INA § 240A, 8 U.S.C. §
1229b (replacing INA § 212(c)).
2
outstanding” equities; it was “highly unlikely” he would become a
repeat offender; and relief was warranted under BIA precedent.
The Government appealed. In May 1998, the BIA, by a two to
one decision, vacated the IJ’s decision and ordered Toscano
excluded and deported.
The BIA majority found Toscano’s employment history to be
favorable. It noted his wife and children were residing illegally
in this country, while his siblings were lawful permanent
residents. Toscano’s “length of residence and family ties in this
country” were determined to be “favorable factors, but not unusual
or outstanding equities”. (Emphasis added.) And, the majority
decided that, in considering Toscano’s knowledge of the marijuana,
the IJ had “improperly reexamined [his] guilt”. It concluded:
[The] equities do not outweigh the adverse
factors. The record reflects that [Toscano]
committed a serious criminal act.
Specifically, [he] attempted to smuggle 52
pounds of marijuana into this country. [He]
pled guilty to the crime of possession of
marijuana. Moreover, [he] conceded that he
was arrested and convicted in 1993 for driving
under the influence.
While we are mindful that the applicant
will likely suffer hardship as the result of
the applicant’s exclusion and deportation,
this is a consequence of the applicant’s
behavior, actions for which he alone is
responsible. Moreover, the applicant’s family
is residing in this country illegally.
Although we recognize the economic hardships
that exist in Mexico, the record reflects that
the applicant has family in Mexico.
3
When we consider all the evidence that
the applicant and his witness presented
regarding his equities, we simply do not find
that he demonstrated that these equities
outweigh the adverse factors. In particular,
we find that granting discretionary relief to
the applicant does not appear to be in the
best interest of this country. Matter of
Burbano, 20 I&N Dec. 872 (BIA 1994); Matter of
Marin, 16 I&N Dec. 581 (BIA 1978).
(Emphasis added.)
The dissent, on the other hand, found: Toscano’s 18 years’
residence in this country was an outstanding equity; his wife and
children were seeking legal status; and the majority “minimize[d]
the hardship” of his deportation on them. The dissent also noted:
Toscano’s conviction for possession “was his only criminal
conviction”; and “the majority’s opinion [did not] provide any
authority ... that the favorable exercise of discretion” was
inconsistent with BIA precedent.
In June 1998, Toscano filed a habeas petition in federal
district court. It concluded it had jurisdiction under 28 U.S.C.
§ 2241(c)(1) and (c)(3) (“where statutory review is unavailable, or
where the petitioner did not deliberately by-pass available
statutory procedures”).
The court found: in adjudicating Toscano’s waiver request,
the BIA failed to consider rehabilitation; failed to consider all
of the equities cumulatively; mischaracterized a prior arrest for
DWI as a conviction; and “neither followed, nor distinguished,
prior precedent decisions ... where ... similar equities” warranted
4
relief. Toscano-Gil v. Trominski, No. CA B-98-89, slip op. at 3-4
(S.D. Tex. Dec. 4, 1998). It held that “procedural Due Process” is
violated “where, as here, the [BIA] fails to follow (or
distinguish) its own precedent, neglects to take into consideration
such crucial matters as rehabilitation, and misstates such
important facts as ... criminal history”. Id. at 6.
II.
The Government contests the district court’s exercise of §
2241 jurisdiction and its due process holding.
The exclusion proceedings were initiated prior to 1 April
1997, and concluded more than 30 days after the 30 September 1996
enactment of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-
546 (1996). See note 1, supra. Therefore, this case is governed
by IIRIRA’s transitional rules. See Requena-Rodriguez v.
Pasquarell, 190 F.3d 299, 302-03 (5th Cir. 1999).
Requena-Rodriguez, rendered while this appeal was pending,
held: “§ 2241 habeas jurisdiction continues to exist under IIRIRA’s
transitional rules in cases involving final orders of deportation
against criminal aliens” (except where 8 U.S.C. § 1252(g), quoted
below, applies)2; and such review “is capacious enough to include
2
“Except as provided in this section and notwithstanding any
other provision of law, no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence proceedings,
5
constitutional and statutory challenges” (such as the retroactivity
and equal protection claims at issue there), which we cannot
consider on direct review, and “which would have been cognizable
even at the lowest pre-IIRIRA ebb of immigration habeas
jurisdiction”. Requena-Rodriguez, 109 F.3d at 305-06 (emphasis
added). See Alfarache v. Cravener, 203 F.3d 381, 382 (5th Cir.
2000) (upholding district court’s exercise of jurisdiction in case
“factually indistinguishable” from Requena-Rodriguez).
The Government asserts that, unlike in Requena-Rodriguez, §
2241 habeas jurisdiction does not exist here, because: Toscano is
excludable, rather than deportable; and he is contesting the
Attorney General’s (AG) discretionary denial of relief under former
§ 212(c), described supra. See Ashby v. INS, 961 F.2d 555, 557
(5th Cir. 1992) (noting AG’s “unusually broad discretion” for §
212(c) waivers).3
We need not reach the jurisdictional questions presented by
the Government if Toscano has not stated a cognizable
constitutional claim. Such a claim is a prerequisite for the §
adjudicate cases, or execute removal orders against any alien under
this chapter.” 8 U.S.C. § 1252(g).
3
Max-George v. Reno, 2000 WL 220502, at *8 (5th Cir. 24 Feb.
2000), holds that, for cases involving “aggravated felons”, 8
U.S.C. § 1101(a), the IIRIRA’s permanent rules “channel all
judicial review of final orders of removal by the INS to petitions
for review filed in the courts of appeals”, eliminating § 2241
habeas review. As noted, Toscano’s case falls under the
transitional rules.
6
2241 jurisdiction he claims. Toscano asserts a due process
violation.
Pursuant to the Fifth Amendment, aliens in deportation
proceedings are entitled to due process. Reno v. Flores, 507 U.S.
292, 306 (1993). We review a due process claim de novo. Ogbemudia
v. INS, 988 F.2d 595, 598 (5th Cir. 1993). The alien must
demonstrate substantial prejudice. Anwar v. INS, 116 F.3d 140, 144
(5th Cir. 1997).
As noted, the district court held the BIA denied Toscano
“procedural due process” by mischaracterizing his DWI arrest as a
conviction; and by failing to consider rehabilitation, to consider
the equities cumulatively, and to follow or distinguish precedent.
These claims, according to the Government, are the type
properly reviewed for abuse of discretion, not for denial of due
process. In support, it cites several Supreme Court cases. E.g.,
Immigration & Naturalization Serv. v. Yang, 519 U.S. 26, 32 (1996)
(“irrational departure” from “general policy” governing exercise of
administrative discretion “could constitute ... an abuse of
discretion”); United States ex rel. Vajtauer v. Commissioner of
Immigration, 273 U.S. 103, 106 (1927) (alien may establish due
process violation by showing he was deported “without a fair
hearing or on charges unsupported by any evidence .... not ... by
showing merely that the decision is erroneous” (emphasis added));
United States ex rel. Tisi v. Tod, 264 U.S. 131, 132, 134 (1924)
7
(“mere error, even ... finding an essential fact without adequate
supporting evidence, is not a denial of due process” (emphasis
added)). It also cites numerous cases where we have applied an
abuse of discretion standard to similar claims in petitions for
review. See, e.g., Opie v. INS, 66 F.3d 737, 739-40 (5th Cir.
1995) (applying abuse of discretion standard where petitioner
claimed BIA erroneously emphasized falsehoods in his nonimmigrant
visa application and minimized hardships).4
Toscano responds that his claims “go to the heart” of due
process, claiming the BIA “failed to give meaningful consideration
to his application” and supporting evidence, therefore denying him
the opportunity to be heard in “a meaningful manner”. In support,
he cites Kwock Jan Fat v. White, 253 U.S. 454, 457-58 (1920)
(immigration orders are “final, and conclusive upon the courts,
unless ... the proceedings were manifestly unfair, were such as to
prevent a fair investigation, or show manifest abuse of the
discretion ... or ... authority was not fairly exercised” (internal
quotation marks and citations omitted)). He also cites several of
our cases. E.g., Zamora-Garcia v. INS, 737 F.2d 488, 490-91 (5th
Cir. 1984) (courts of appeals may review deportation decisions
“‘procedurally’ to ensure that the complaining alien has received
4
The Government maintains that the BIA did not abuse its
discretion, citing, e.g., Yahkpua v. INS, 770 F.2d 1317, 1320 (5th
Cir. 1985) (noting BIA is not required to render “absolutely
consistent” opinions with similar fact patterns).
8
full and fair consideration of all circumstances”, and that each of
his claims has been “meaningfully addressed” (internal quotation
marks and citation omitted)); Ramos v. INS, 695 F.2d 181, 189 (5th
Cir. 1983) (BIA not required to address evidentiary minutiae or
write “lengthy exegeses”; decision need only reflect meaningful
consideration of relevant evidence).
Toscano maintains: the BIA’s failure in its opinion to
discuss rehabilitation shows its authority was not “fairly
exercised”; its unsupported-by-the-record characterization of an
arrest as a conviction, and implicit finding that Toscano had not
shown sufficient rehabilitation, constitutes “a manifest abuse of
discretion”; and substantial prejudice was shown, because the
district court determined that, but for the BIA’s errors, Toscano
likely would have been granted relief.
The claimed bases for due process violations, however, do not
rise to that level. See Diaz-Resendez v. INS, 960 F.2d 493, 496-98
(5th Cir. 1992) (applying abuse of discretion standard to claims
that BIA improperly weighed equities, failed to follow precedent,
and failed to consider hardships or rehabilitation); Osuchukwu v.
INS, 744 F.2d 1136, 1142 (5th Cir. 1984) (BIA decision must be
upheld, even if we disagree with it, “so long as it is not
capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so aberrational that it is arbitrary rather
than the result of any perceptible rational approach”).
9
First, Toscano was not denied the opportunity to be heard or
present evidence. See Molina v. Sewell, 983 F.2d 676, 680 (5th
Cir. 1993) (alien not given opportunity to put on evidence
established requisite prejudice); Chike v. INS, 948 F.2d 961, 962
(5th Cir. 1991) (alien not given notice of briefing schedule denied
opportunity to be heard).
Second, and needless to say, a factual error is not a due
process violation. In any event, the critical factor was the
marijuana conviction (classified by the BIA as a “serious criminal
act”), not the erroneous statement about a conviction for the DWI
arrest.
Third, the BIA gave full consideration to the evidence
presented and to the equities. It decided that the “equities [do
not] outweigh the adverse factors”.
Finally, concerning BIA precedent, the BIA majority cited the
primary cases, Matter of Burbano and Matter of Marin, relied on by
the dissent. In this instance, the majority and dissent simply
disagree over the application of BIA precedent. Obviously, that is
not a due process denial.
The BIA dissent provided further matters upon which the
majority could reflect. For example, the dissent noted the
marijuana incident was Toscano’s only conviction, and raised the
precedent issue. This notwithstanding, Toscano did not ask the BIA
to reconsider its decision.
10
For § 2241 habeas jurisdiction to even exist per Requena-
Rodriguez, Toscano must have stated a cognizable constitutional
claim. He has not done so.5
III.
For the foregoing reasons, the grant of habeas relief is
REVERSED, and the petition is DISMISSED.
REVERSED and DISMISSED
5
Jurisdiction vel non under § 2241 for abuse of discretion is
not claimed. And, in the light of our holding, we need not address
the Government’s contention that denials of former § 212(c) relief
do not implicate due process. See Mejia Rodriguez v. Reno, 178
F.3d 1139, 1146 (11th Cir. 1999) (“failure to receive relief that
is purely discretionary in nature does not amount to a deprivation
of a liberty interest” (emphasis added)).
11