Eladio Sena v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 04-2043

ANGEL ELADIO SENA,

Petitioner,

v.

ALBERTO R. GONZÁLES,* ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge
Torruella and Howard, Circuit Judges.

Stephen A. Lagana and Lagana & Associates on brief for
petitioner.
Janice K. Redfern, Office of Immigration Litigation,
Department of Justice, Peter D. Keisler, Assistant Attorney
General, Civil Division, Department of Justice, and Linda S.
Wernery, Senior Litigation Counsel, Department of Justice, on brief
for respondent.

November 2, 2005

*
Alberto R. Gonzáles was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent.
See Fed R. App. P. 43(c)(2).
 Per Curiam. Angel Eladio Sena is a citizen of the

Dominican Republic who attained permanent resident status in the

United States on December 1, 1990. On January 28, 1994, Sena pled

guilty in the United States District Court for the District of

Puerto Rico to the crime of "encourag[ing] or induc[ing] an alien

to . . . reside in the United States, knowing or in reckless

disregard of the fact that such . . . residence is or will be in

violation of law." 8 U.S.C. § 1324(a)(1)(A)(iv) (2000).1 He was

convicted pursuant to this plea in May 1994 and sentenced to three

years probation.

On March 4, 1997, the Immigration and Naturalization

Service ("INS") issued an Order to Show Cause, charging Sena with

being deportable under section 241(a)(2)(A)(iii) of the Immigration

and Naturalization Act ("INA") as an alien convicted of an

1
The count to which Sena pled guilty reads as follows:

On or about the 12th day of August, 1993, in
the District of Puerto Rico and within the
jurisdiction of this Court, ANGEL SENA the
defendant herein, knowing that a number of
aliens . . . had come to, entered, or remained
in the United States in violation of Law, did
encourage the above mentioned aliens to reside
in the United States in reckless disregard of
the fact that said residence was in violation
of law. All in violation of Title 8, United
States Code, Section 1324(a)(1)(D).

In 1994, section 1324(a)(1)(D) was reclassified as section
1324(a)(1)(A)(iv).

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"aggravated felony."2 At the time of Sena's plea agreement, his

offense was arguably not classified as an aggravated felony, but

Sena concedes that subsequent amendments to the definition of

"aggravated felony" in the immigration statutes have made it clear

that the offense for which Sena was convicted is at present an

aggravated felony for purposes of INA section 241(a)(2)(A)(iii).

See 8 U.S.C. § 1101(a)(43)(N).

Sena was ordered deported by an immigration judge on

March 23, 2000. The immigration judge found that Sena's conviction

constituted an aggravated felony for which he could be deported; he

further determined that recent amendments to the immigration laws

precluded Sena from applying for relief pursuant to INA section

212(c), 8 U.S.C. § 1182(c)3--a discretionary waiver program that

originally applied only to aliens facing exclusion from the United

States, but which has since been extended by numerous federal

courts (including this one) to cover certain aliens facing

deportation, see Campos v. INS, 961 F.2d 309, 313 (1st Cir. 1992).

On October 31, 2002, the Board of Immigration Appeals ("BIA")

2
The INA provision authorizing deportation of "[a]ny alien who
is convicted of an aggravated felony at any time after admission"
is now codified at 8 U.S.C. section 1227(a)(2)(A)(iii). The INS
also initially charged Sena with being deportable under section
241(a)(2)(A)(i) of the INA as an alien convicted of a crime of
moral turpitude, but it subsequently withdrew this latter charge.
3
This subsection was repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L.
No. 104-208, Div. C, Title III, § 304(b), 110 Stat. 3009, 3009-597.

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remanded the case to the immigration judge in light of the Supreme

Court's holding in INS v. St. Cyr, 533 U.S. 289, 326 (2001), that

section 212(c) relief remained available to aliens who pled guilty

prior to the effective date of the INA amendments.

On remand, the immigration judge once more found that

Sena was ineligible for a section 212(c) waiver. This time, the

judge first noted (in accordance with INS precedent) that aliens

facing deportation can apply for a section 212(c) waiver only if

the ground for which they are being deported is comparable to one

for which an alien could also be excluded under INA section 212(a).

He then determined that the ground on which Sena was being

deported--his prior conviction for encouraging or inducing illegal

residency--was not comparable to any ground for which an alien

could be excluded. The BIA affirmed the immigration judge's

decision on July 7, 2004, and this appeal followed.

The government spends much of its brief arguing that we

do not have jurisdiction to hear Sena's case, because it is

governed by a transitional rule enacted as part of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

("IIRIRA"), Pub. L. No. 104-208, Div. C, 110 Stat. 3009, which

precludes judicial review of final orders of removal for aliens who

are removable by reason of having committed an aggravated felony,

see id. § 309(c)(4)(G), 110 Stat. at 3009-626 to 3009-627.

Congress's recent amendments to the INA, however, make clear that

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we have jurisdiction to consider all of Sena's claims. See REAL ID

Act of 2005, Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119

Stat. 231, 310 (to be codified at 8 U.S.C. § 1252(a)(2)(D)).4

On the merits, Sena first argues that the retroactive

application of the broader aggravated felony definition to qualify

him, on the basis of his earlier guilty plea, for deportation is an

unconstitutional violation of due process. He seeks only rational

basis review, and we cannot say that Congress lacked any "facially

legitimate and bona fide reason," Campos, 961 F.2d at 316 (quoting

Fiallo v. Bell, 430 U.S. 787, 794 (1977)), for applying the

expanded definition of aggravated felony retroactively, to

encompass cases like Sena's.

As the Second Circuit said in rejecting an identical due

process challenge to the retroactive application of an expanded

definition of "aggravated felony" (albeit in the context of a

different crime than that for which Sena was convicted):

4
The new section reads:

(D) Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any
other provision of this chapter (other than
this section) which limits or eliminates
judicial review, shall be construed as
precluding review of constitutional claims or
questions of law raised upon a petition for
review filed with an appropriate court of
appeals in accordance with this section.
(emphasis added)

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 Congress has a legitimate interest in
protecting society from the commission of
aggravated felonies as well as the illegal
trafficking, possession, and use of dangerous
weapons, and legislation that deports aliens
who presently commit or who have committed
those acts in the past is a rational means of
furthering that interest. Congress also has a
narrower and equally legitimate interest in
expeditiously removing dangerous aliens from
the country, and uniform application of the
new statute to remove all aliens convicted of
certain offenses rationally furthers that
purpose as well.

Kuhali v. Reno, 266 F.3d 93, 111 (2d Cir. 2001); see also Hamama v.

INS, 78 F.3d 233, 235-36 (6th Cir. 1996); United States v.

Yacoubian, 24 F.3d 1, 7-8 (9th Cir. 1994).

We reject Sena's attempt to distinguish cases such as

Kuhali by arguing that the crimes made grounds for deportation in

those cases are more dangerous than the crime for which he was

convicted. Given the particular deference we must accord Congress

when it legislates in the area of immigration, see Campos, 961 F.2d

at 316, we cannot say it is irrational for Congress to choose to

combat illegal immigration by deporting aliens who have been

convicted of encouraging illegal immigrants to remain in U.S.

territory, even if Congress's choice operates far more harshly than

Sena believes is fair, cf. St. Cyr, 533 U.S. at 316, or permits

deportation of some individuals who may in fact pose no further

threat of breaking federal immigration laws, cf. N.Y. City Transit

Auth. v. Beazer, 440 U.S. 568, 592-94 (1979); Williamson v. Lee

Optical of Oklahoma, 348 U.S. 483, 487-88 (1955).

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 Sena next argues that he does meet the eligibility

requirements under (now-repealed) section 212(c) of the INA. This

court has fully endorsed the Attorney General's ruling in Matter of

Hernandez-Casillas, 20 I. & N. Dec. 262, 280 (A.G. 1991), that an

alien facing deportation cannot seek a waiver under section 212(c)

for "deportation grounds lacking any corresponding, statutorily-

referenced ground for excludability"--i.e., the grounds for which

the alien is being deported must correspond to one of "the grounds

specifically referred to in § 212(a)" of the INA, 8 U.S.C. §

1182(a). See Campos, 961 F.2d at 313-14.

Sena first contends that he need not point to a ground

for exclusion in INA section 212(a) "because there could not

conceivably be an analogous ground of exclusion based on

Petitioner's specific conviction." We find Sena's premise

mistaken: someone outside the United States could encourage someone

within it to remain (e.g., by letter or funding). Our earlier

decision in Campos does require a comparable ground of exclusion

for Sena to prevail. See 961 F.2d at 313-14.

Sena's second contention is that the offense for which he

was deported--"encourag[ing] or induc[ing] an alien to . . . reside

in the United States, knowing or in reckless disregard of the fact

that such . . . residence is or will be in violation of law," 8

U.S.C. § 1324(a)(1)(A)(iv)--is comparable to the enumerated ground

for exclusion for alien smuggling, 8 U.S.C. § 1182(a)(6)(E). This

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argument also fails. The criminal offense for which Sena was

convicted--encouraging or inducing continued illegal residence--

criminalizes a different activity than those activities listed as

grounds for exclusion under the provision Sena claims is

"comparable," 8 U.S.C. section 1182(a)(6)(E)--encouraging,

inducing, assisting, aiding or abetting illegal entry or attempted

entry. In other words, one simply could not be excluded under 8

U.S.C. section 1182(a)(6)(E) for the category of criminal behavior

for which Sena was convicted (and then deported under 8 U.S.C.

sections 1227(a)(2)(A)(iii) and 1101(a)(43)(N)). Under our

precedent in Campos, Sena cannot claim comparability and so is

ineligible for a section 212(c) waiver.

Affirmed.

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