United States Court of Appeals,
Fifth Circuit.
No. 91-4657.
Raul RODRIGUEZ, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Dec. 20, 1993.
Petition for Review of an Order of the Immigration and Naturalization Service.
Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner Raul Rodriguez-Mijes (Rodriguez) seeks review of a Board of Immigration Appeals
(BIA) order finding him ineligible for relief from deportation under section 212(c) of the Immigration
and Nationality Act (INA), 8 U.S.C. § 1182(c). The BIA dismissed his appeal from an immigration
judge's denial of relief and order of deport ation. We have jurisdiction pursuant to 8 U.S.C. §
1105a(a). We deny the petition for review.
Facts and Proceeding Below
Rodriguez is a native and citizen of Mexico who has lived continuously in the United States
as a permanent resident alien since April 1968. The facts surrounding his deportation order are not
in dispute. In April 1988, he was convicted in state court in Bexar County, Texas, of three separate
offenses:1 (1) possession of cocaine; (2) possession of lysergic acid diethylamide (LSD); and (3)
possession of a prohibited weapon, a sawed-off shotgun.2 He received sentences, apparently
concurrent, of ten years imprisonment for each offense.
1
The three offenses were all committed on the same day, November 6, 1987. Each offense
was the subject of a separate indictment, based on different provisions of law; each was given a
separate cause number. Rodriguez pleaded guilty and was convicted and sentenced in each case
on the same day, April 18, 1988, in the same court.
2
Texas law prohibits the intentional or knowing possession of a short-barrel firearm, which is
defined to include a shotgun with a barrel length of less than eighteen inches or an overall length
of less than twenty-six inches. Tex.Penal Code Ann. §§ 46.01(10), 46.06(a)(3) (Vernon 1989).
The offense is a second degree felony. Id., § 46.06(e).
In August 1989, respondent Immigration and Naturalization Service (INS) issued an order
charging that Rodriguez was deportable pursuant to sections 241(a)(11) (relating to drug convictions)
and 241(a)(14) (relating to firearms conviction) of the INA, 8 U.S.C. §§ 1251(a)(11) and
1251(a)(14), based on his state court convictions.3 The order directed him to appear before an
immigration judge and show cause why he should not be deported.4
At the hearing before the immigration judge, Rodriguez requested an opportunity to apply for
a waiver of deportation pursuant to section 212(c) of the INA, 8 U.S.C. § 1182(c). The judge found
that he was statutorily ineligible for such relief and ordered him to be deported to Mexico. Rodriguez
appealed to the BIA, which agreed with the immigration judge and dismissed the appeal. Rodriguez
petitions us for a review of the BIA order.
Discussion
The issue before us is whether an alien who has been ordered deported on the basis of
possession of a prohibited weapon under section 241(a)(14) of the INA, 8 U.S.C. § 1251(a)(14), is
eligible for relief from deportation under section 212(c), 8 U.S.C. § 1182(c).5 Our review of
immigration decisions is extremely limited. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478,
52 L.Ed.2d 50 (1977) (" "the power over aliens is of a political character and therefore subject only
3
Sections 241(a)(11) and 241(a)(14), 8 U.S.C. §§ 1251(a)(11), (14), were amended in 1990
and now appear as sections 241(a)(2)(B)(i) and 241(a)(2)(C), respectively. 8 U.S.C. §§
1251(a)(2)(B)(i), 1251(a)(2)(C). Pub.L. No. 101-649, § 602(a). References to these sections in
this opinion will be to the former version, as the 1990 amendments apply only to deportation
proceedings for which notice of a deportation hearing was given on or after March 1, 1991.
Rodriguez was given notice on August 24, 1989.
Previous amendments to section 241(a)(14) in 1988 expanded that section to make
possession of a firearm in violation of any law a deportable offense for aliens whose
convictions occur on or after November 18, 1988. Pub.L. No. 100-690, § 7348(b). Thus
deportable weapons offenses are no longer limited to machine guns and sawed-off
shotguns. Rodriguez was convicted in April 1988 and is not affected by this change.
4
The INS filed an unopposed motion requesting that the transcript of the hearing before the
immigration judge not be sent to the BIA. Rodriguez makes no complaint concerning this
transcript not being before the BIA or this Court. Rodriguez has been represented by counsel at
each stage of his deportation proceedings.
5
Rodriguez is also subject to deportation under section 241(a)(11), 8 U.S.C. § 1251(a)(11),
for his drug convictions. As is discussed below, only the effect of the weapon conviction upon his
eligibility to apply for a waiver of deportation is at issue here.
to narrow judicial review' ") (citing Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895,
1904-1905, 48 L.Ed.2d 495 (1976)).
I. Applicability of Section 212(c) Relief
Section 241(a)(14) of the INA, as in effect at the time of Rodriguez's deportation
proceedings, provides that the Attorney General may order deported any alien who
"at any time after entry, shall have been convicted of possessing or carrying in violation of any
law any weapon which shoots or is designed to shoot automatically or semi-automatically
more than one shot without manual reloading, by a single function of the trigger, or a weapon
commonly called a sawed-off shotgun." 8 U.S.C. § 1251(a)(14).
Rodriguez concedes that he is deportable for his conviction of possession of a sawed-off
shotgun. He argues only that he should be given the opportunity to apply for relief from deportation
under section 212(c) of the INA, 8 U.S.C. § 1182(c). Section 212(c) allows the Attorney General
to waive exclusion of aliens who are found to be inadmissible upon certain grounds specified in
section 212(a), 8 U.S.C. § 1182(a).6 Grounds for exclusion include many which are similar to
grounds for deportation set forth in section 241, 8 U.S.C. § 1251, such as conviction for drug
offenses.7 There is no provision, however, for exclusion of aliens convicted of weapons offenses.
That Rodriguez may even attempt to apply for deportation relief under section 212(c), which
6
Section 212(c) states that the Attorney General may admit "returning" resident aliens
"without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a) of this
section." 8 U.S.C. § 1182(c). The Attorney General has no discretion to waive the exclusion of
an alien who is determined to be inadmissible for the grounds set forth in paragraphs (26)-(29),
which exclude aliens who lack a passport or visa, who pose a threat to the security of the United
States, who are members of suspect organizations, or who may engage in subversive activities.
Section 212(c) was amended in 1990 to reflect concurrent changes in subsection
(a). Pub.L. No. 101-649, § 601(d)(1). This amendment is effective for individuals
entering the United States on or after June 1, 1991, and is not applicable here.
In addition, a provision was then added to section 212(c), which limits waiver of
exclusion for "an alien who has been convicted of one or more aggravated felonies and has
served for such felony or felonies a term of imprisonment of at least 5 years." 8 U.S.C. §
1182(c) (1993 Supp.). Pub.L. No. 101-649, § 511(a). This amendment likewise does not
affect our decision here, as it applies only to admissions occurring after the date of
enactment, November 29, 1990.
7
See Cabasug v. Immigration and Naturalization Service, 847 F.2d 1321, 1323-1324 (9th
Cir.1988), for an interesting comparison of the grounds for exclusion and deportation.
applies on its face only to excludable aliens,8 is due to judicial and administrative interpretations of
the INA which have expanded section 212(c) to apply to some grounds of deportation. The BIA
initially interpreted section 212(c) narrowly to apply only in exclusion proceedings and not in
deportation proceedings. Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971). This
interpretation drew a distinction between resident aliens who had temporarily left the United States
and were found excludable for some reason upon return and those who had never left the United
States and were found to be deportable upon the same grounds.
The Second Circuit found this distinction unconstitutional in Francis v. Immigration &
Naturalization Service, 532 F.2d 268 (2d Cir.1976). In Francis, the petitioner was a resident alien
subject to deportation under section 241(a)(11) of the INA, 8 U.S.C. § 1251(a)(11), for conviction
of possession of marijuana, which would also be grounds for exclusion. § 212(a)(23) of the INA, 8
U.S.C. § 1182(a)(23).9 Because section 212(c) relief would be available for an excludable resident
alien convicted of possession of marijuana, the Second Circuit held that denial of the same relief to
the petitioner there would violate the equal protection clause of the Fifth Amendment. Francis, 532
F.2d at 273.
The BIA adopted this interpretation of section 212(c) in Matter of Silva, 16 I. & N. Dec. 26
(BIA 1976) (petitioner subject to deportation for conviction of possession of marijuana with intent
to distribute allowed to apply for section 212(c) discretionary relief). The BIA did not, however,
extend discretionary relief to all grounds for deportation. Instead, the BIA limited this extension of
section 212(c) relief to deportable resident aliens whose grounds for deportation are also grounds for
exclusion under section 212(a) for which discretionary relief is available under section 212(c). See
Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984) (alien subject to deportation under section
241(a)(5) of the INA, 8 U.S.C. § 1251(a)(5), for conviction of aiding and abetting another alien to
8
Section 212(c) applies to "[a]liens 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...." 8 U.S.C. § 1182(c).
9
Following the 1990 amendments, this provision appears as section 212(a)(2)(A)(i)(II), 8
U.S.C. § 1182(a)(2)(A)(i)(II). Pub.L. No. 101-649, § 601(a). The change affects individuals
entering the United States on or after June 1, 1991.
obtain a visa procured by fraud was not entitled to invoke section 212(c) relief because there is no
analogous ground of exclusion); Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979) (refusing to
extend section 212(c) to allow relief from deportation for an alien convicted of possession of an
unregistered sawed-off shotgun because such a conviction is not a section 212(a) ground for
exclusion nor a crime involving moral turpitude that would render petitioner excludable under section
212(a)(9) of the INA, 8 U.S.C. § 1182(a)(9)), aff'd, 624 F.2d 191 (9th Cir.1980).
In 1990, the BIA expanded its interpretation of section 212(c) to include all grounds fo r
deportation, even if not also grounds for exclusion under section 212(a), except for the grounds
which are expressly precluded from relief by section 212(c). Matter of Hernandez-Casillas, (BIA,
January 11, 1990) (Hernandez I ). In that case, an alien was convicted of entry without inspection,
a deportable offense under section 241(a)(2) of the INA, 8 U.S.C. § 1251(a)(2), but not grounds for
exclusion under section 212(a). The BIA withdrew its decisions in Granados and Wadud, and
remanded the case to allow the alien to apply for a section 212(c) waiver.
The Attorney General granted the INS's request for review of the BIA decision, disapproved
the decision, and remanded for further proceedings consistent with his decision. Matter of
Hernandez-Casillas, Int. Dec. Att. Gen. March 18, 1991 (Hernandez II ). The Attorney General
concluded that the BIA lacked statutory authority to expand section 212(c) relief to grounds of
deportation that are not also waivable grounds for exclusion. He stated that the BIA's new
interpretation of section 212(c) relief would disrupt the statutory scheme designed by Congress to
govern deportation proceedings by allowing an alien to obtain relief under section 212(c) without
meeting the standards for relief from deportation set forth in section 244(a)(1) of the INA, 8 U.S.C.
§ 1254(a)(1).10
Courts reviewing the decisions of the BIA have upheld the initial expansion of section 212(c)
to grounds for deportation which have corresponding grounds for exclusion, and most courts have
10
In order to be eligible for relief under section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1),
there must be a showing that the alien is of good moral character and that his deportation would
result in extreme hardship. These showings are not required in order to be eligible for relief under
section 212(c).
taken positions similar to that of the Attorney General and refused to extend section 212(c) relief to
grounds of deportation which are not also grounds for exclusion.
In Zinnanti v. Immigration & Naturalization Service, 651 F.2d 420, 422 (5th Cir. Unit A
1981), this Court summarily denied section 212(c) relief to a petitioner convicted of possession of
a sawed-off shotgun. In addition, the First and Ninth Circuits have recently addressed this issue and
found section 212(c) relief t o be unavailable in this situation. See Campos v. Immigration &
Naturalization Service, 961 F.2d 309 (1st Cir.1992) (agreeing with the reasoning of the Attorney
General in Hernandez II and holding that an alien who was ordered deported on the basis of a
conviction for possession of an unlicensed .22 caliber pistol was not eligible to apply for section
212(c) relief); Cabasug v. Immigration & Naturalization Service, 847 F.2d 1321 (9th Cir.1988)
(dismissing the petition for review of an alien convicted of possession of a sawed-off shotgun).
Finally, the Seventh Circuit has recently held section 212(c) relief to be unavailable to a permanent
resident alien found deportable for entering the United States without inspection. Leal-Rodriguez
v. Immigration & Naturalization Service, 990 F.2d 939, 948-51 (7th Cir.1993).
The 1990 amendments to the INA, which affected sections 212(c) and 241, were made after
the Ninth Circuit rendered its decision in Cabasug and after the Attorney General agreed to review
Hernandez I. 11 We must assume that Congress was aware of the interpretation given to section
212(c) to extend only to deportation grounds with analogous waivable grounds for exclusion, and
that Congress could easily have legislated a change to this interpretation had it wished to do so.12
Rodriguez seeks to distinguish Campos and Cabasug on the grounds that the petitioners in
those cases were subject to deportation solely for their weapons convictions. He claims that because
he is also subject to deportation for his drug possession convictions, offenses for which discretionary
relief under section 212(c) is available, his weapons offense may not preclude an application for relief
11
As noted above, Rodriguez's deportation proceedings were not affected by these
amendments. See notes 3 and 6, supra.
12
Although at the time of the 1990 amendments, the Attorney General had not yet disapproved
of the BIA's decision in Hernandez I allowing section 212(c) relief for all grounds of deportation,
the amendments cannot be interpreted as an adoption of the BIA's position. Campos, 961 F.2d
309, 315 n. 8.
from deportation. In support of this argument, he cites the original Eleventh Circuit decision in
Marti-Xiques v. Immigration & Naturalization Service, 713 F.2d 1511 (11th Cir.1983), vacated, 724
F.2d 1463 (11th Cir.1984), decided on other grounds, 741 F.2d 350 (11th Cir.1984). The petitioner
in Marti-Xiques was found deportable for entering the United States without inspection and for
knowingly aiding another alien to enter. Smuggling aliens is an offense which renders an alien
deportable or excludable. Entering without inspection, however, is a ground of deportation only.
The Eleventh Circuit allowed the alien to apply for section 212(c) relief on both grounds of
deportability, but the court limited its holding to situations where an alien is deportable under two
grounds arising out of the same incident, and where the more serious of the grounds for deportation
is an enumerated ground for exclusion. This decision was later vacated and the case was decided on
other grounds.13
Rodriguez contends that the reasoning of the original decision in Marti-Xiques should control
here because he is deportable under two grounds, one of which may be waived pursuant to section
212(c). We doubt that the panel opinion in Marti-Xiques has any validity in this respect. Even if it
were good law in certain restricted circumstances, we would not apply it here. The two deportation
grounds in Marti-Xiques arose out of the same incident and were closely related types of entry
offenses, the offense having no counterpart in § 212(a) being a misdemeanor while the other offense,
which had a § 212(a) counterpart, was a felony. Id., 713 F.2d at 1515-16. By contrast, Rodriguez's
conviction for possession of a sawed-off shotgun is a felony and a distinctly different type of offense
than either of his drug convictions and shares no common element with either of them.
We hold that Rodriguez is ineligible to apply for section 212(c) relief because his conviction
of possession of a sawed-o ff shotgun, a ground for deportation, is not also a waivable ground for
exclusion under section 212(a). His separate convictions for the drug charges do not mandate a
different result.
II. Constitutional Considerations
13
In the later opinion, the court held that Marti-Xiques was ineligible for section 212(c) relief
because he had not met the seven-year residency requirement.
Rodriguez challenges the denial of an opportunity to apply for a waiver of deportation on due
process and equal protection grounds. Although resident aliens are entitled to constitutional
protection, Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), this protection
is limited by Congress's broad powers to control immigration. This Court has recognized Congress's
"unbounded power" in the area of immigration. See Matter of Longstaff, 716 F.2d 1439, 1442 (5th
Cir.1983) (in discussion of exclusion, stating that "Congress can bar aliens from entering the United
States for discriminatory and arbitrary reasons, even those that might be condemned as a denial of
equal protection or due process if used for purposes other than immigration policy to draw
distinctions among people physically present within the borders of the United States.").
Rodriguez contends that the denial of an opport unity to apply for section 212(c) relief
deprives him of his constitutional right to due process. This argument has no merit. Rodriguez is not
entitled to any process because he is not eligible under the statute to apply for discretionary relief.
The denial of the opportunity to present evidence in support of an application would violate his
constitutional rights only if he were eligible to apply for relief.
The cases cited by Rodriguez in support of his due process claim are distinguishable. Only
one, Vissian v. Immigration & Naturalization Service, 548 F.2d 325 (10th Cir.1977), involves a
denial of section 212(c) relief. There, the court found that the alien was entitled to present evidence
in support of a waiver of deportation because the INS had mistakenly concluded that he was
ineligible. Id. at 329-30. Other cases cited by Rodriguez concern asylum claims rather than section
212(c) relief. See Shahandeh-Pey v. Immigration & Naturalization Service, 831 F.2d 1384 (7th
Cir.1987); Arauz v. Rivkind, 845 F.2d 271 (11th Cir.1988).
Rodriguez claims that allowing some, but not all, deportees to apply for waivers is a violation
of equal protection. Specifically, he points to the fact that he is not eligible for waiver of deportation
for "mere" possession of a prohibited firearm, while aliens deportable for trafficking in firearms or
for use of a firearm in committing a crime, such as armed robbery o r murder, may be eligible for
relief. Again, we are not persuaded by this argument. Rodriguez is not being treated any differently
from other aliens who are deportable upo n grounds which have no corresponding grounds for
exclusion. Campos, 961 F.2d 309, 316.
Congress is not required to treat all aliens alike; it is only required to give a facially legitimate
and bona fide reason for treating them differently. Fiallo v. Bell, 430 U.S. at 794-95, 97 S.Ct. at
1479. See also Cabasug, 847 F.2d at 1328 ("The equal protection component of the due process
clause does not require that all deportable aliens be treated alike, no matter what they have done")
(Wallace, J., concurring). Because the challenged statute does not employ a suspect classification
or impinge upon fundamental rights, we must uphold it if it is rationally related to a l egitimate
governmental purpose. Campos, 961 F.2d 309, 316. As the Ninth Circuit observed in Cabasug,
"Congress gave special attention to deporting "racketeers,' and saw machine guns and
sawed-off shotguns as badges of such individuals. The singling out of the machine gun and
sawed-off shotgun offenses in the depo rtation statute is a reasonable means by which to
achieve the legitimate purpose of deporting "racketeers.' ... The treatment for deportation
purposes of these firearms offenses is a rational means to achieve the legitimate purpose of
deterring possession of the forbidden weapons by aliens." 847 F.2d at 1327.
Although the expansion of the interpretation of section 212(c) to allow relief from some
grounds of deportation, an interpretation begun in Francis for equal protection reasons, has resulted
in confusing and arbitrary distinctions between deportable aliens, such as those pointed out by
Rodriguez, we cannot conclude that these distinctions render the statute unconstitutional. Further,
it is the role of Congress, not of the courts, to rewrite the statute to correct these problems. Campos,
961 F.2d 309, 317.
III. Applicability of Deportation Relief Provisions
Counsel for Rodriguez made reference during oral argument to the statutory provisions for
relief from deportation, INA sections 244 and 245, 8 U.S.C. §§ 1254 and 1255. It appears from the
record before us that these grounds for relief were not asserted below. Because Rodriguez failed to
raise this issue before the BIA, he has not exhausted his administrative remedies, and we have no
jurisdiction to consider these grounds.14 Campos-Guardado v. Immigration & Naturalization
14
Even were we to address this issue, however, we would find that Rodriguez is not eligible for
relief under this provision. Section 244(a)(2) gives the Attorney General discretionary power to
suspend the deportation of an alien who "has been physically present in the United States for a
continuous period of not less than ten years immediately following the commission of an act, or
the assumption of a status, constituting a ground for deportation...." 8 U.S.C. § 1254(a)(2).
Because Rodriguez's convictions which were the basis for his deportation order occurred in 1988
Service, 809 F.2d 285, 291 (5th Cir.1987).15
Conclusion
We hold that Rodriguez is not eligible for relief from deportation. Because we find no error
in the decision of the BIA, the petition for review is
DENIED.
(and the underlying offenses in 1987), he has not met this time requirement.
Section 245(a), 8 U.S.C. § 1255(a), is inapplicable because it does not provide
relief from deportation. This subsection provides that the Attorney General may, in his
discretion, adjust the status of an alien to that of a permanent resident alien if the applicant
meets certain admissibility requirements. Rodriguez was granted permanent resident
status in 1968.
15
Moreover, grounds for reversal not set forth in a petitioner's (or appellant's) opening brief in
this Court are normally waived. See, e.g., United States v. Miller, 952 F.2d 866, 874 (5th Cir.),
cert. denied, --- U.S. ----, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992).