Lopez De Jesus v. Immigration & Naturalization Service

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