Almon v. INS

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-2055



                         WILTON K. ALMON,



                       Plaintiff, Appellee,



                                v.



                       JANET RENO, ET AL.,



                     Defendants, Appellants.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



         [Hon. Edward F. Harrington, U.S. District Judge]



                       ____________________



                              Before



                     Torruella, Chief Judge,



               Hill and Cyr, Senior Circuit Judges.



                      _____________________



    Alison Marie Igoe, Trial Attorney, Office of Immigration

Litigation, with whom Frank W. Hunger, Assistant Attorney General,

U.S. Department of Justice, Civil Division, and Christopher C.

Fuller, Senior Litigation Counsel, Office of Immigration

Litigation, were on brief, for appellant.

    Randy Olen for appellee.


____________________



                       September 21, 1999

                       ____________________         TORRUELLA, Chief Judge.  Petitioner-appellee Wilton K.

Almon is a native and citizen of Jamaica who entered the United

States as an immigrant on March 29, 1980, at the age of nine.  On

October 24, 1996, the Immigration and Naturalization Service

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

deportability as an aggravated felon pursuant to

 241(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"),

8 U.S.C.  1251(a)(2)(A)(iii).  The basis of the charges of

deportability were three separate criminal convictions: (1) a

September 16, 1996 conviction for entering a dwelling with intent

to commit larceny; (2) a January 9, 1995 conviction for possession

of a stolen motor vehicle; and (3) a January 9, 1995 conviction for

assault with a dangerous weapon.

         On June 25, 1997, an immigration judge found Almon

deportable and ineligible for a  212(c) waiver of deportation by

operation of  440(d) of the Antiterrorism and Effective Death

Penalty Act of 1996 ("AEDPA").  Almon was ordered deported to

Jamaica.  The BIA affirmed the deportation order on May 1, 1997.

         Prior to April 24, 1996,  Almon would have been able to

apply for a discretionary waiver of deportation under  212(c) of

the INA.  See 8 U.S.C.  1182(c) (1995).  However, effective

April 24, 1996,  440(d) of the AEDPA amended  212(c) and rendered

Almon ineligible for such a waiver.  See AEDPA, Pub. L. No. 104-

132, Title IV,  440(d), 110 Stat. 1214, 1277 (1996).

         Almon filed a petition for a writ of habeas corpus in the

United States District Court for the District of Massachusetts,

alleging that  440(d) of the AEDPA violates his right to equal

protection by irrationally denying eligibility for  212(c) relief

to aliens who, like himself, are in deportation proceedings, while

preserving such relief for aliens in exclusion proceedings.  The

district court agreed with Almon, granting his petition, and

remanding his case to the BIA for a discretionary determination of

the merits of Almon's application for relief under the old INA

 212(c).  This appeal followed.

                            DISCUSSION

         In order to better understand Almon's equal protection

claim, some background information is necessary.  Deportable aliens

are aliens presently residing in the United States, but who are

subject to deportation on various grounds.  See 8 U.S.C.  1251(a)

(1996).  Excludable aliens are those who seek to enter the United

States to set up residence, and whom the Attorney General has the

power to exclude.  See 8 U.S.C.  1182(a) (1996).  Prior to the

passage of the AEDPA,  212(c) of the INA provided that excludable

aliens who were legal permanent residents of the United States for

seven consecutive years and who traveled abroad voluntarily and

temporarily could be re-admitted at the discretion of the Attorney

General.  See supra note 2.  By its terms,  212(c) discretionary

relief applied specifically and exclusively to excludable aliens

seeking readmission, and not to aliens in deportation proceedings. 

See id.

         However, in 1956, in Matter of G.A., 7 I. & N. Dec. 274

(BIA 1956), the BIA permitted a criminal alien in deportation

proceedings to apply for a  212(c) waiver.  See Matter of G.A., 7

I. & N. at 275.  The petitioner in that case was convicted of a

drug offense in 1947.  See id. at 274.  In 1952, he briefly left

the United States, and upon his return was readmitted.  See id. 

The INS did not initiate deportation proceedings against G.A. until

1956.  See id.  From 1947, the date of his drug conviction, to

1956, G.A. did not suffer any additional convictions.  See id. at

274-75. In holding that G.A. was eligible to apply for

discretionary relief under  212(c), the BIA reasoned that if the

Attorney General exercised his discretion under  212(c) and waived

the ground of excludability based upon G.A.'s 1947 criminal

conviction when G.A. sought readmission to the United States in

1952, a deportation proceeding based upon the same criminal

conviction could not thereafter be initiated.  See Matter of G.A.,

7 I. & N. at 275-76.

         After the BIA's holding in Matter of G.A., resident

criminal aliens were routinely considered eligible for

discretionary relief under  212(c) if, at some point after their

convictions, they had temporarily departed the United States, been

readmitted, and were in deportation proceedings.  See, e.g., Matter

of Tanori, 15 I. & N. Dec. 566, 568 (BIA 1976) ("Under section

212(c) of the Act, a waiver of the ground of inadmissibility may be

granted in a deportation proceeding when, at the time of the

alien's last entry, he was inadmissible because of the same facts

which form the basis of his deportability."); Matter of Edwards, 10

I. & N. Dec. 506 (BIA 1963) (holding that the fact that a resident

criminal alien's status may have changed from excludable to

deportable does not preclude the exercise of discretionary relief

contained in  212(c)).  At the same time, the BIA declined to

extend  212(c) relief to otherwise eligible resident criminal

aliens in deportation proceedings who had not departed the country

after being convicted.  See, e.g., Matter of Arias-Uribe, 13 I. &

N. Dec. 696 (BIA 1971).  In this way, the BIA distinguished between

two classes of deportable aliens: those who had traveled abroad

after their convictions, and those who had never left the country.

         This distinction did not go unnoticed.  In 1976, in

Francis v. INS, 532 F.2d 268 (2d Cir. 1976), the Second Circuit

held that the BIA's distinction between these two classes of

deportable aliens violated equal protection.  See 532 F.2d at 273. 

Like G.A., the petitioner in Francis was in deportation proceedings

but, unlike G.A., had never left the United States at any time

after his conviction.  See id. at 269.  For this reason, the BIA

deemed Francis ineligible for  212(c) relief and ordered him

deported.  In granting Francis's request for a declaration of his

eligibility for  212(c) relief, the Second Circuit explained that

the government had failed to suggest any reason why a deportable

alien's failure to travel abroad after a conviction should be a

crucial factor in determining his eligibility for a  212(c)

waiver.  See  id. at 273.  Therefore, the Francis court concluded

that distinguishing between different categories of deportable

aliens based on whether they had departed and returned to the

United States was "wholly unrelated to any legitimate government

interest."  Id.  The remedy for this constitutional violation was

a remand to the BIA for a determination of the merits of Francis'

application for a  212(c) waiver.

         Prior to the passage of the AEDPA, Almon, like the

petitioner in Francis, would have been eligible for  212(c)

relief.  See Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976)

(holding that, after Francis,  212(c) relief may be granted to 

permanent resident aliens in deportation proceedings).  However,

effective April 24, 1996,  440(d) of the AEDPA amended the last

sentence of  212(c) to read: "[t]his section shall not apply to an

alien who is deportable by reason of having committed [various

enumerated criminal offenses]."  AEDPA  440(d), 110 Stat. 1214,

1277 (emphasis added).  Although immigration judges initially

applied this exclusion from  212(c) eligibility to both excludable

and deportable criminal aliens, the BIA in In re Fuentes-Campos,

Int. Dec. 3318 (BIA 1997), interpreted  440(d) as excluding only

aliens in deportation proceedings from eligibility for  212(c)

relief.  It is this interpretation of  440(d), limiting

eligibility for  212(c) relief to criminal aliens in exclusion

proceedings only, that Almon claims violates his right to equal

protection.  Specifically, Almon contends that there is no

rational basis for treating two aliens convicted of exactly the

same crime differently simply because one has chosen to leave the

country while the other has not.  We disagree.

         Almon first argues that the Second Circuit's holding in

Francis compels us to find the BIA's interpretation of  440(d)

violative of equal protection guarantees.  However, Almon's equal

protection claim is very different from that litigated in Francis. 

First, Almon challenges a different statutory classification:

namely, the distinction between excludable and deportable aliens. 

Second, even assuming arguendo that excludable aliens and

deportable aliens are similarly situated with respect to  440(d),

the government in this case has advanced a rational and legitimate

reason for the statute's disparate treatment of excludable and

deportable aliens.  We therefore reject Almon's argument to the

extent it is based on the Second Circuit's decision in Francis.

         We turn next to the merits of Almon's equal protection

claim.  It is well established that a challenged classification

that does not involve a suspect class or impinge upon fundamental

rights is accorded a strong presumption of validity.  See Heller v.

Doe, 509 U.S. 312, 319 (1993).  Such a classification must be

upheld if it is rationally related to a legitimate governmental

purpose.  See id. at 320.  Moreover, under this minimal standard of

review, the government need not actually articulate at any time the

purpose or rationale supporting its classification.  See id. at

320.  Instead, a classification must be upheld against an equal

protection challenge "if there is any reasonably conceivable set of

facts that could provide a rational basis for the classification"

whether the basis has a foundation in the legislative record or

not.  Heller, 509 U.S. at 320 (quoting FCC v. Beach Communications

Inc., 508 U.S. 307, 313 (1993)).  Under this standard of review, we

conclude that there exists a rational basis for the disparate

treatment of excludable and deportable aliens under  440(d) of the

AEDPA.

         We conclude that in limiting  440(d)'s restrictions to

criminal aliens in deportation proceedings, Congress advanced the

legitimate legislative goal of expediting the deportation of

criminal aliens currently residing within our borders.  See

LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998); Mattis v.

Reno, 44 F. Supp. 2d 379, 385-86 (D. Mass. 1999).  But see Wallace

v. Reno, 39 F. Supp. 2d 101, 106-08 (D. Mass. 1999).  The

Congressional record leading up to the enactment of the AEDPA

indicates that the number of deportable criminal aliens greatly

exceeds the number of excludable criminal aliens.  See H.R. Rep.

No. 104-469(I) (1996) (1996 WL 168955 at *384-85) (reporting that

in 1995 the INS deported approximately 29,255 criminal aliens and

excluded approximately 2,738).  Given these figures, the more

lenient treatment of excludable criminal aliens under  440(d)

makes rational sense.  With the passage of  440(d), Congress

created an incentive for deportable criminal aliens to leave the

country without their having to be ordered to leave at the

government's expense.  See LaGuerre, 164 F.3d at 1041.  As the

Seventh Circuit explained: "To induce their voluntary departure, a

little carrot is dangled before them consisting of the opportunity

to seek a waiver should they seek to return to the country and by

doing so trigger exclusion proceedings."  LaGuerre, 164 F.3d at

1041.  Section 440(d) clearly accomplishes this legitimate

governmental purpose, and therefore must be upheld.

                            CONCLUSION

         For the reasons stated above, we reverse the decision of

the district court.