IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60807
MIGUEL LOPEZ DE JESUS,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order of the
Board of the Immigration Appeals
November 7, 2002
Before KING, Chief Judge, and JOLLY, and HIGGINBOTHAM, Circuit
Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Petitioner, a lawful permanent resident, appeals the decision
of the Board of Immigration Appeals upholding the decision of the
immigration judge which found him excludable as illegally
reentering the United States after a three-day trip to Mexico. It
ordered him excluded and deported from the United States. We
affirm the Board’s decision and in doing so hold that retroactive
reach of the IIRIRA amendment of the INA is constitutional.
I.
Miguel Lopez De Jesus, a citizen of Mexico, married Victoria
Palacios, a citizen of the United States, and, on the basis of his
marriage, was admitted to the United States as a permanent resident
in 1995.
On May 27, 1996, the Immigration and Naturalization Service
initiated exclusion proceedings against Lopez when he tried to
return to the United States after a two to three-day trip to
Mexico. The INS charged that Lopez was inadmissible under
§ 212(a)(6)(E) of the Immigration and Nationality Act,1 because he
sought to illegally bring an alien, Sylvia Rubio, into the United
States.
Lopez filed a motion with the immigration judge, arguing that
the exclusion proceedings against him should be terminated and that
he should instead be placed in deportation proceedings2 because he
was a lawful permanent resident of the United States and because
his May 1996 departure from the United States was not meaningfully
interruptive of his otherwise unrelinquished domicile in the United
States. In the alternative, Lopez argued that he should be granted
discretionary relief under INA § 212(d)(11),3 which allows the
Attorney General to waive inadmissibility when the alien has
1
8 U.S.C. § 1182(a)(6)(E)(2001).
2
Deportation proceedings would provide petitioner with more rights and
protections than exclusion proceedings.
3
8 U.S.C. § 1182(d)(11)(2001).
2
assisted the alien’s spouse in entering the United States
unlawfully.
The immigration judge held a hearing to address Lopez’s
motion. Before taking testimony, the parties stipulated to
numerous facts, including the following: Lopez went to Mexico on
May 25th or May 26th of 1996 and upon his return to the United
States, he was accompanied by Sylvia Rubio; both he and Rubio
presented themselves to the immigration inspector for inspection;
upon being asked by the inspector, Lopez presented his alien
registration card and Rubio handed a driver’s license and social
security card belonging to a Maria Castenada to Lopez, who then
handed the documents to the inspector; Lopez and Rubio were then
directed to secondary examination where they were interviewed by
immigration inspector Claudio Cruz; Rubio was not a United States
citizen and was returned to Mexico; Lopez was placed in exclusion
proceedings; Lopez obtained a divorce from Victoria Palacios on
June 4, 1996 and at some point thereafter entered into a common law
marriage with Rubio. The parties also stipulated to the fact that
Lopez knew Rubio was not entitled to enter the United States.
After receiving evidence, the immigration judge denied Lopez’s
motion to terminate the exclusion proceedings; found Lopez
excludable as charged; and found that Lopez was statutorily
ineligible for a waiver of inadmissability under INA § 212(d)(11)
in light of the amendments contained in the Illegal Immigration and
3
Reform and Immigrant Responsibility Act of 1996. He ordered Lopez
excluded and deported from the United States.
On appeal to the BIA, Lopez argued that his trip to Mexico,
which was “for the purpose of visiting his family, friends and his
wife,” did not meaningfully interrupt his presence, and thus,
because he was not effecting an entry when he sought to return, he
should not be in exclusion proceedings. He argued in the
alternative that even if he were excludable, he should be allowed
to apply for a discretionary waiver available to those who seek to
smuggle members of their immediate family, even though the waiver
for after-acquired spouses had been statutorily eliminated by the
time he applied for it.
The BIA dismissed the appeal. Because the evidence
demonstrated that Lopez’s purpose in departing the United States
was to help someone else enter illegally, Lopez’s departure was not
innocent, it meaningfully interrupted his presence, and he was
properly in exclusion proceedings. Turning to Lopez’s claim of
eligibility for a waiver of inadmissibility pursuant to INA §
212(d)(11), the BIA concluded that because the waiver was limited
to smugglers who had the qualifying relationship with the person
they were assisting at the time, it was not available to Lopez
because at the time he sought to smuggle Rubio into the country, he
was still married to Victoria Palacios. The BIA also rejected
Lopez’s argument that because he eventually married Rubio, she was
a qualifying individual for purposes of seeking the waiver, because
4
the IIRIRA had eliminated the waiver for after-acquired spouses.
The BIA rejected Lopez’s argument that the IIRIRA’s amendment to
INA § 212(d)(11) should not be applied retroactively.
II.
As Lopez’s exclusion proceedings commenced before April 1,
1997, IIRIRA's permanent “new rules” do not apply; rather, because
the BIA’s decision was issued on October 3, 2001, IIRIRA’s
transitional rules for judicial review apply.4 This court has
jurisdiction over Lopez’s petition for review because it was filed
within 30 days of the BIA’s October 3, 2001, decision as required
by § 309(c)(4)(C) of the transitional rules.5
We are authorized to review only the decision of the BIA, and
not that of the immigration judge.6 We consider decisions of the
immigration judge “only to the extent they affect the decision of
the BIA[.]”7 In reviewing the BIA's decision, questions of law are
reviewed de novo, according deference to the BIA's interpretation
of immigration statutes.8 This court also reviews de novo the
BIA’s interpretation and application of Supreme Court and Fifth
4
See IIRIRA § 309(a), (c)(1) & (4); Nguyen v. INS, 117 F.3d 206, 207 (5th
Cir. 1997).
5
See IIRIRA § 309(c)(4)(C); Ibrik v. INS, 108 F.3d 596, 597 (5th Cir.
1997).
6
Ogvedumia v. INS, 988 F.2d 595, 598 (5th Cir. 1993).
7
Id.
8
Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir. 1992).
5
Circuit precedent regarding whether an alien made an “entry” into
the United States as defined in INA § 101(a)(13).9 Findings of
fact are reviewed to determine whether they are supported by
“substantial evidence.”10 We may not reverse the BIA's factual
conclusions unless the evidence was “so compelling that no
reasonable factfinder could conclude against it.”11
III.
Lopez argues that his visit to Mexico in May 1996 was brief,
innocent, and casual and therefore that he did not effect an
“entry” into the United States within the meaning of INA
§ 101(a)(13).
It is the petitioner’s burden to prove that he comes within
the statutory exception to the “entry” definition.12 In Rosenberg
v. Fleuti,13 the Supreme Court held that a resident alien does not
effect an “entry” for purposes of INA § 101(a)(13) when he returns
from an “innocent, casual, and brief excursion” outside the U.S.;
instead, such an alien effects an entry only if he intended to
depart in a manner “meaningfully interruptive” of his permanent
9
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
10
Id.
11
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (citation omitted).
12
See Molina v. Sewell, 983 F.2d 676, 678 (5th Cir. 1993).
13
374 U.S. 449 (1963).
6
residence.14 The Supreme Court set forth three factors to be
considered in determining whether an alien had the requisite intent
to effect a meaningful interruption of permanent residence status:
(1) the length of the alien's absence from the United States; (2)
whether the alien had to procure travel documents for the trip; and
(3) the purpose of the visit, with an emphasis on whether the
purpose was contrary to immigration policy.15 The Fleuti factors
must be balanced carefully in deciding whether an “entry” under the
Act has occurred.16
Fleuti has been applied in several cases in which deportation
was based on the petitioner's involvement in alien-smuggling.17 In
Solis-Davila, the petitioner left the United States with the
express intent of smuggling Mexican aliens into this country.18 He
executed the crime and then reentered the United States, where he
received payment for his work.19 He pleaded guilty to alien
smuggling and was sentenced.20 Concluding that Solis-Davila's
14
Id. at 462.
15
Id.
16
Carbajal-Gonzalez, 78 F.3d at 199.
17
See Solis-Davila v. INS, 456 F.2d 424 (5th Cir. 1972); Vargas-Banuelos
v. INS, 466 F.2d 1371 (5th Cir. 1972); Laredo-Miranda v. INS, 555 F.2d 1242 (5th
Cir. 1977); Carbajal-Gonzalez v. INS, 78 F.3d 194 (5th Cir. 1996).
18
Solis-Davila, 456 F.2d at 427.
19
Id. at 426.
20
Id.
7
criminal intent permeated his trip southward, this court upheld the
deportation order.21
In Vargas-Banuelos, a resident alien traveled to Mexico to pay
a condolence call on a family member.22 While there, four Mexicans
asked him to help them enter illegally.23 Vargas-Banuelos agreed,
accepted payment, and arranged for someone to meet and assist the
illegal aliens once in the United States.24 Vargas-Banuelos then
reentered the United States legally.25 This court reversed the
deportation order, weighing factors such as Vargas-Banuelos's brief
trip, his lawful return to the United States, and his innocent
state of mind at the time of his departure against the criminal
activity in which he eventually engaged.26 The court held that
“[u]nder Fleuti and its progeny in this circuit, the failure of the
Government to show a criminal purpose prior to petitioner's
departure is fatal to its case.”27
21
Id. at 427.
22
Vargas-Banuelos, 466 F.2d at 1372.
23
Id.
24
Id.
25
Id.
26
Id. at 1373-74.
27
Id. at 1374.
8
In Laredo-Miranda, a lawful resident alien crossed into Mexico
to have a meal with his girlfriend and her family.28 Although he
traveled with a companion who intended to smuggle a group of
illegal aliens into the United States, Laredo-Miranda had no such
criminal intent upon departure.29 However, upon return, Laredo-
Miranda discovered that he had forgotten his alien registration
card and, rather than explain such to the border officials, Laredo-
Miranda waded across the river with the aliens and guided them to
a landing place.30
We upheld the deportation order, weighing Laredo-Miranda's
short visit and innocent intentions upon departure against his
wholly voluntary and active ferrying of illegal aliens.31 The panel
distinguished the case from Vargas-Banuelos, noting that Vargas-
Banuelos crossed and recrossed legally, whereas Laredo-Miranda was
an active and essential participant in bringing illegal aliens into
the country at the precise time of his covert crossing by way of
the river.32 Laredo-Miranda concluded that such showed an intent
28
Laredo-Miranda, 555 F.2d at 1243.
29
Id.
30
Id.
31
Id. at 1244-46.
32
Id. at 1245.
9
to disrupt his status, even though his intent to smuggle the aliens
was formed after his departure.33
In Carbajal-Gonzalez, Carbajal-Gonzalez, a legal alien who
taught dance classes in Mexico and entered the United States many
times by showing his immigration card, left the United States with
his wife to attend a dance party in Mexico.34 Carbajal-Gonzalez and
another individual who Carbajal-Gonzalez thought was a documented
alien, although without documents on his person at the time,
crossed the border without inspection in order to buy beer in the
United States and return to the party in Mexico.35
Reviewing the Fleuti doctrine and its progeny, the panel noted
that a new factor was suggested in the balancing of factors: “a
resident alien's fully consummated intent to participate actively
in alien smuggling, whether formed prior to or after departure from
the United States.”36 Applying those factors, it reversed the
deportation order, concluding that the BIA overlooked Carbajal-
Gonzalez's length of absence from the United States, the purpose of
his trip, the purpose of his return, and the absence of any
33
Id. at 1245-46.
34
Carbajal-Gonzalez, 78 F.3d at 195-96.
35
Id. at 196.
36
Id. at 199.
10
evidence that Carbajal-Gonzalez formed a fully consummated criminal
intent to secret illegal aliens into the country.37
In the present case, the Board agreed with the immigration
judge that the evidence clearly showed Lopez went to Mexico with
the main or sole purpose of bringing back Rubio, a person he knew
could not lawfully enter the United States. To support its
conclusion, the BIA relied on inspector Cruz’s testimony and
Lopez’s sworn statement taken at the inspection interview, which
stated that Lopez went to Mexico to bring Rubio back to the United
States, that he knew it was illegal for her to reenter the United
States, that he obtained United States documents for Rubio to use
in reentering the United States, and that he knew alien smuggling
was illegal. The BIA also noted Cruz’s testimony that Rubio stated
Lopez went to Mexico to bring her back to the United States. The
BIA therefore concluded that Lopez’s departure from the United
States was not innocent and that he was properly in exclusion
proceedings.38
Although Lopez states that his intent when he departed the
United States was to visit his family and friends, he presented no
evidence to this effect at the hearing. Moreover, as noted by the
BIA, there was substantial evidence introduced at the hearing by
the INS that Lopez’s intent when he departed the United States was
37
Id. at 199-201.
38
See Solis-Davila, 456 F.2d at 426.
11
to bring Rubio back from Mexico to the United States. Lopez did
not contradict this evidence, pleading the Fifth Amendment to
questions regarding his intent when he left and how and when he
procured the documents from Castenada.
Lopez makes much of the fact that he did not try to smuggle
Rubio into the United States “surreptitiously or by evading
inspection.” However, as we have explained, there was substantial
evidence that Lopez was trying to surreptitiously gain the entry of
Rubio into the United States by using Castaneda’s documents. To
the extent that Lopez challenges the BIA’s implicit determination
that Cruz was credible, such a credibility determination may not be
overturned unless the record compels it.39
Accordingly, Lopez failed to show to this court that the
evidence was “so compelling that no reasonable factfinder could
conclude against it.”40 The evidence shows that he failed to carry
his burden of proving that he came within the statutory exception
to the “entry” definition of INA § 101(a)(13) because he left the
United States with the intent of smuggling an alien into this
country and then acted upon his plan. The BIA’s decision that
Lopez was properly in exclusion proceedings is therefore affirmed.
IV.
39
See Chun, 40 F.3d at 78 (holding this court cannot substitute its
judgment for that of the BIA with respect to the credibility of a witness or
ultimate factual findings based on credibility determinations).
40
Id.
12
The final issue is whether retroactive application of the
IIRIRA amendment to § 212(d)(11) of the INA is unconstitutional.
Before the passage of the IIRIRA, the INA permitted the Attorney
General, in his discretion and for humanitarian reasons, to grant
a waiver of inadmissability to an alien who “encouraged, induced,
assisted, abetted, or aided only the alien’s spouse, parent, son,
or daughter (and no other individual) to enter the United States in
violation of law.”41 The statute made an individual eligible for
a waiver even when the familial relationship arose after the act of
smuggling but existed at the time of the filing of the application
for relief.42
IIRIRA amended this standard, however. Rejecting Matter of
Farias, § 351(a) of the IIRIRA amended the statute by requiring
that the alien have smuggled “an individual who at the time of such
action was the alien’s spouse, parent, son or daughter . . . .”43
The IIRIRA stated that its amendments, effective on September 30,
1996, modified the legal standard for “applications for waivers
filed before, on, or after the date of the enactment of this Act.”44
41
See INA § 212(d)(11), 8 U.S.C. § 1182(d)(11) (West 1995).
42
See Matter of Farias-Mendoza, 21 I.&N. Dec. 269, 1996 WL 139465 (BIA
1996).
43
See IIRIRA § 351(a) (1996), 8 U.S.C. § 1182(d)(11) (West 1999) (emphasis
added); see also Matter of Farias, 21 I.&N. 269, 281, 1997 WL 258945 (BIA 1997)
(“The legislative history of that amendment shows that its specific purpose was
to overrule the Board’s precedent decision in this particular case.”).
44
See IIRIRA § 351(c) (1996).
13
The BIA held in the instant case that the amendment made by IIRIRA
to relief under INA § 212(d)(11) applied retroactively, rendering
Lopez ineligible for a waiver even though the amendment was made
after the alleged smuggling occurred because at the time Lopez and
Rubio tried to enter the United States, Lopez was still married to
Victoria Palacios.
Lopez argues to this court that the retroactive application of
the IIRIRA amendment violates his constitutional rights to fair
notice and due process. He argues that, although Congress
expressly made the amendment retroactive, its retroactive
application violates the due process concerns recognized in
Landgraf v. USI Film Products.45 Lopez, relying on United States
v. St. Cyr,46 argues that these concerns are present in this case
even though the relief in question is discretionary. He argues
that the retroactive application of the IIRIRA amendment at issue
is harsh and oppressive because when he and Rubio attempted to
enter the United States, he thought he might be eligible for a
waiver and because, if he is deported, he will be separated from
his family, friends, and property in the United States.
45
511 U.S. 244, 265, 266 (1994).
46
533 U.S. 289, 325 (2001).
14
This court has not addressed the constitutionality of the
retroactive application of INA § 212(d)(11).47 In Landgraf, the
Supreme Court held that when a case implicates a statute enacted
after the events in the suit, the court should first determine
“whether Congress has expressly prescribed the statute’s proper
reach” and, if there is no such express command, then determine
“whether the new statute would have retroactive effect.”48 Here,
Congress stated that the amendment should apply to petitions filed
before, on, or after the effective date of the amendment, clearly
giving it retroactive effect. We must therefore determine if the
retroactive application of the amendment is constitutional.
This court has upheld the constitutionality of retroactive
application of other sections of the IIRIRA which Congress
explicitly made retroactive.49 In Gonzalez-Torres v. INS, we cited
with approval two extra-circuit decisions rejecting due process and
equal protection challenges to the stop-time rule of § 304(a) of
47
Lopez did not raise his due process claim in his appeal to the BIA.
However, this court has concluded that when a petitioner's due process claim does
not assert a procedural error correctable by the BIA, it is not subject to an
exhaustion requirement. Anwar v. INS, 116 F.3d 140, 144 & n.4 (5th Cir. 1997);
see also Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993) (not subjecting
alien's due process claim to exhaustion requirement).
48
Landgraf, 511 U.S. at 280.
49
See Moosa v. INS, 171 F.3d 994, 1006-07 (5th Cir. 1999)(IIRIRA § 322);
see also Brown v. Apfel, 192 F.3d 492, 497 (5th Cir. 1999) (stating that Landgraf
provides little support for constitutional argument when Congressional intent to
make a statute retroactive is clear).
15
the IIRIRA and § 309(c)(5),50 which expressly made the IIRIRA
amendment to § 304(a) retroactive.51 This court concluded that
“[w]hile petitioners may have expected that they would be eligible
for suspension of deportation, IIRIRA’s amendment limited only
their eligibility for discretionary relief; it did not infringe on
a right that they possessed prior to its enactment.”52 The
Gonzalez-Torres court also expressed approval of the Appiah and
Tefel courts’ determinations that there is a rational basis for the
new stop-time rule.53 The court described as correct the Appiah
court’s determination that Congress’s rational basis for the rule
was to remove an alien’s incentive for prolonging deportation
proceedings in order to become eligible for suspension.54
50
213 F.3d 899, 903 (5th Cir. 2000)(citing Appiah v. INS, 202 F.3d 704,
708-10 (4th Cir. 2000); Tefel v. Reno, 180 F.3d 1286, 1301-02 (11th Cir. 1999)).
51
Before the enactment of the IIRIRA, § 244(a) of the INA provided the
Attorney General with discretion to grant suspension of deportation to an alien
who satisfied certain requirements. One of the requirements was that the alien
must have been physically present in the United States for a continuous period
of not less than seven years immediately preceding the date of his application
for suspension of deportation. The time an alien spent in deportation
proceedings counted toward the physical-presence requirement. See Gonzalez-
Torres, 213 F.3d at 902.
The IIRIRA repealed the suspension-of-deportation provision in INA § 244.
Section 304(a) of the IIRIRA established a “stop-time rule” for determining an
alien’s eligibility for suspension of deportation or cancellation of removal.
Section 304(a) provided that “`any period of continuous residence or continuous
physical presence shall be deemed to end when the alien is served a notice to
appear.’” Id. (citing 8 U.S.C. § 1229b(d)(1)).
52
Id. (citing Appiah, 202 F.3d at 709).
53
Id. (citing Appiah, 202 F.3d at 709; Tefel, 180 F.3d at 1301).
54
Id. (citing Appiah, 202 F.3d at 709).
16
The reasoning of Gonzalez-Torres extends to this case as the
IIRIRA’s amendment to § 212(d)(11) limited only Lopez’s eligibility
for discretionary relief and did not infringe on a right he
possessed prior to its enactment.55 Moreover, Congress has a
rational basis for the rule: to deter the smuggling of aliens who
are not immediate family members.
Petitioner cites St. Cyr for his proposition that the fact
that the waiver is discretionary does not reduce constitutional
concerns. In St. Cyr, the Supreme Court addressed the retroactive
application of § 440(d) of the Antiterrorism and Effective Death
Penalty Act which repealed discretionary relief from deportation.56
In St. Cyr, the Court found that it was likely that aliens had pled
guilty, giving up certain rights, in reliance on the possibility of
receiving a waiver.57 The Court viewed the guilty plea as a quid
pro quo, and found it unfair for the government to get the benefit
of the plea, and then retroactively take away the benefit that the
alien had relied on in pleading guilty.58 The Court viewed this as
a harsh retroactive effect.59
55
See Gonzalez-Torres, 213 F.3d at 903.
56
St. Cyr, 533 U.S. at 314-25.
57
Id. at 322.
58
Id. at 321-22.
59
Id. at 325.
17
The statute in question in St. Cyr was not made expressly
retroactive by Congress. Because application of the statute would
have harsh retroactive effects, the Court declined retroactive
application without a clear statement from Congress. It was in
determining whether the statute would have a retroactive effect
that the Court stated that the fact that it was a discretionary
waiver at issue did not affect its conclusion.60
This case is distinguishable from St. Cyr.61 Here the IIRIRA
amendment was expressly made retroactive by Congress, and there was
no comparable bargain with the government. Thus, based upon
Congress’s express intent to make the IIRIRA amendment to
§ 212(d)(11) retroactive and based upon the reasoning of Gonzalez-
Torres, we reject Lopez’s due process claim. The retroactive
application of the IIRIRA amendment is not unconstitutional. The
decision of the Board of Immigration Appeals is AFFIRMED.
60
Id.
61
See also Sibanda v. INS, 282 F.3d 1330, 1334-35 (10th Cir.
2002)(concluding that aliens seeking suspension of deportation could not benefit
from the holding in St. Cyr because the statute in question was expressly made
retroactive and because aliens failed to show what Government gained from their
decision to forego the voluntary departure right granted to them).
18