Cheung Wong v. INS

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1992
• Docket: 92-1721
• Status: Published

Opinion

USCA1 Opinion

December 8, 1992
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 92-1721 

                                  HING CHEUNG WONG,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

____________________

ON PETITION FOR REVIEW OF AN ORDER

                         OF THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Cyr, Circuit Judges. 
                                          ______________

____________________

            Robert J.  Napolitano,  on  Memorandum in  Support of  Motion  for
            _____________________
        Stay, for petitioner.
            Stuart  M. Gerson,  Assistant  Attorney General,  Robert  Kendall,
            _________________                                 ________________
        Jr., Assistant Director,  and Charles E. Pazar,  Office of Immigration
        ___                           ________________
        Litigation, Civil  Division, Department  of Justice, on  Memorandum in
        Opposition to Motion for Stay, for respondent.

____________________

____________________

Per Curiam.  Petitioner Hing Cheung Wong seeks a stay of
                 __________

            deportation under  8 U.S.C.   1105a(a)(3)  pending our review

            of an order of the Board of Immigration Appeals (BIA) denying

            his request for discretionary waiver.  On August 10, 1992, we

            stayed the order  of deportation on  a provisional basis  and

            directed   the   parties   to   file   memoranda   addressing

            petitioner's challenges to  the BIA's decision.   Having  now

            reviewed the  administrative record  along with  the parties'

            memoranda, we  find  that  the  instant  petition  raises  no

            serious legal question.  We therefore vacate the  provisional

            stay  and deny  petitioner's application  for a  stay pending

            review.  

                                    I. Background
                                       __________

                 Petitioner is  a 39-year-old native and  citizen of Hong

            Kong  who has been a  legal permanent resident  in the United

            States  since  1968.    The  record  discloses  that  he  has

            committed  three legal offenses since  his arrival.  In March

            1977, he  pled guilty  in Maine  state court  to a  charge of

            possessing less than one and one-half ounces of  marijuana--a

            civil violation for which he was ordered to perform community

            service.    In  May 1979,  he  pled  guilty  to  a charge  of

            shoplifting  and was  fined $100.1   And  in August  1984, he

            pled guilty  to  the  charge  of  acquiring  scheduled  drugs

____________________

            1.  This offense, which  involved the  removal of  a pair  of
            sneakers from a department store, led to his conviction under
            Me.  Rev.  Stat.  Ann.  tit.  17-A,     353,  for  "theft  by
            unauthorized taking."   Crimes  in Maine are  categorized, in
            order of decreasing  severity, from Class A to Class  E.  The
            shoplifting violation was denominated a Class E offense. 

(codeine)  by deception,  for  which he  received a  one-year

            suspended sentence and two years of probation.2

                 Relying  on these  latter  two convictions,  the INS  in

            December 1985 charged petitioner  with being deportable as an

            alien  "who at any time  after entry [has  been] convicted of

            two crimes  involving moral turpitude,  not arising out  of a

            single scheme  of  criminal  misconduct ...."    8  U.S.C.   

            1251(a)(4)  (since recodified  at id.    1251(a)(2)(A)(ii)).3
                                              ___

            At  a hearing before an immigration judge (IJ) in March 1987,

            petitioner  conceded his  deportability under  this provision

            and requested a  discretionary waiver pursuant to 8  U.S.C.  

            1182(c).  Following the receipt of testimony from petitioner,

            his  wife and  his father,  the IJ  denied  such relief  as a

            matter  of  discretion,  finding  that  the  adverse  factors

            outweighed  the  equities in  petitioner's  favor.   The  BIA

            summarily endorsed the IJ's  ruling, and petitioner now seeks

            a stay ofthe order of deportationpending review in thiscourt.

____________________

            2.  The record reveals  that petitioner obtained  "Tylenol #4
            with  codeine" by use of a forged medical prescription.  Such
            action  violated Me. Rev. Stat.  Ann. tit. 17-A,    1108, and
            constituted a Class C crime.

            3.  The   INS   later   filed   an   additional   charge   of
            deportability,  contending  that petitioner's  conviction for
            acquiring   scheduled   drugs  by   deception   rendered  him
            deportable under 8 U.S.C.    1251(a)(11) (since recodified at
            id.      1251(a)(2)(B)(i)).     This  provision  applies   to
            ___
            convictions for various  controlled-substance offenses.   The
            immigration    judge,    however,   deemed        1251(a)(11)
            inapplicable.   That  ruling  is  not  part  of  the  instant
            petition for review.

                                         -3-

II. Availability of Automatic Stay
                              ______________________________

                 The filing of a petition for review acts as an automatic

            stay  of  an  order  of  deportation  "unless  the  alien  is

            convicted of an  aggravated felony, in  which case the  [INS]

            shall not stay the deportation ... unless the court otherwise

            directs."  8  U.S.C.    1105a(a)(3).  The  INS contends  that

            petitioner's  1984 state  conviction for  acquiring scheduled

            drugs by  deception constitutes  an "aggravated felony."   It

            therefore  asserts  that  petitioner  is  ineligible  for  an

            automatic stay,  even though the  provision eliminating  such

            stays  in cases of aggravated  felons was added  in 1990 (six

            years after the conviction involved here).  As petitioner has

            not  disputed either of these  points, we pause  only to note

            that both appear supportable.

                 The term  "aggravated felony" is  defined in 8  U.S.C.  

            1101(a)(43) as,  inter alia,  "any drug trafficking  crime as
                             __________

            defined"  in 18 U.S.C.    924(c)(2).  That  provision in turn

            defines  a  "drug trafficking  crime"  as,  inter alia,  "any
                                                        __________

            felony  punishable under  the Controlled  Substances  Act (21

            U.S.C. 801 et seq.)."   Under 21 U.S.C.   843(a)(3), it  is a

            felony  "to  acquire or  obtain  possession  of a  controlled

            substance by misrepresentation, fraud, forgery, deception, or

            subterfuge."     This   crime  is   directly   analogous   to

            petitioner's 1984 state conviction.  Moreover, the definition

            of aggravated felony goes  on to read: "Such term  applies to

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offenses  described  in  the  previous  sentence  whether  in

            violation  of Federal or State law."  8 U.S.C.   1101(a)(43).

            The  fact  that  petitioner's  conviction  occurred  in state

            court, therefore,  does not preclude a  finding of aggravated

            felony under federal law.

                 The  aggravated-felony  provisions  were  introduced  in

            1988.  See Anti-Drug  Abuse Act of  1988 (ADAA), Pub. L.  No.
                   ___

            100-690,  102 Stat. 4181.   The elimination  of the automatic

            stay for aggravated felons (along with the inclusion of state

            crimes in  the aggravated-felony definition)  was effected by

            the  Immigration Act of  1990 (IMMACT), Pub.  L. No. 101-649,

            104 Stat. 4978.   Some  initial uncertainty arose  as to  the

            degree to which the amendment eliminating the automatic stay,

            see  id.   513(a), 104  Stat. 5052, was  retroactive.  IMMACT
            ___  ___

            provided  that such  change was  applicable to  petitions for

            review  "filed  more  than 60  days  after  the  date of  the

            enactment of this  Act."  Id.    513(b).  Yet this  directive
                                      ___

            failed  to specify  when the  conviction must  have occurred.
                                          __________

            Noting  this  fact, one  court held  that the  1990 amendment

            eliminating the automatic stay  for aggravated felons did not

            apply  to  persons  whose  convictions  predated  the  ADAA's

            effective  date of  November 18, 1988.   See  Ayala-Chavez v.
                                                     ___  ____________

            INS, 945 F.2d 288 (9th Cir. 1991)
            ___

                 In December 1991, however, new legislation amended  this

            provision  so that  it  would apply  "to convictions  entered

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before, on, or after" IMMACT's effective date.  Miscellaneous

            and  Technical Immigration  and Naturalization  Amendments of

            1991,  Pub. L.  No. 102-232,    306(a)(11),  105 Stat.  1751.

            This  amendment  "take[s]  effect   as  if  included  in  the

            enactment of the Immigration Act of 1990."  Id.   310(1), 105
                                                        ___

            Stat.  1759.   Arguably,  some question  still remains  as to

            whether  the  automatic  stay  is  inapplicable  (1)  to  all
                                                                      ___

            aggravated felony convictions, whenever they occurred, or (2)

            only  to those occurring after November 18, 1988.  See Ayala-
                                                               ___ ______

            Chavez, 945  F.2d at 293-94 (discussing  two other provisions
            ______

            of  IMMACT having  similar "before,  on, or  after" effective

            dates).  However, the  Ninth Circuit has since held  that the

            Technical Amendments effectively  overruled its  Ayala-Chavez
                                                             ____________

            decision, and that "a party convicted of an aggravated felony

            is precluded from obtaining an automatic stay of deportation,

            regardless of the date  of conviction."  Arthurs v.  INS, 959
                                                     _______     ___

            F.2d 142,  143  (9th Cir.  1992)  (6/88 conviction).    Other

            courts have agreed.   See Zegarski v. INS,  965 F.2d 426, 427
                                  ___ ________    ___

            (7th Cir.  1992) (per curiam) (8/86  convictions); Ignacio v.
                                                               _______

            INS,  955 F.2d 295, 297-98 (5th Cir. 1992) (per curiam) (9/83
            ___

            convictions).   Cf. Martins v. INS, 972 F.2d 657, 659-60 (5th
                            ___ _______    ___

            Cir.  1992)  (per   curiam)  (because  of  4/86   conviction,

            petitioner was  an aggravated  felon ineligible to  apply for

            asylum).   Moreover, the Arthurs  case involved a  state drug
                                     _______

            conviction  and  so  held,  by  implication,  that  the  1990

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amendment  including  state crimes  within the  definition of

            aggravated felony  was also  fully retroactive.4   Cf. United
                                                               ___ ______

            States  v. Bodre, 948 F.2d  28, 32 (1st  Cir. 1991) (statutes
            ______     _____

            retroactively making  past criminal activity a  new basis for

            deportation have been upheld), cert.  denied, 112 S. Ct. 1487
                                           _____________

            (1992).  Given this  caselaw, and given his failure  to raise

            the  issue, we conclude that petitioner is not entitled to an

            automatic stay.  

                         III. Propriety of Discretionary Stay
                              _______________________________

                 We have stated in a different context that, where denial

            of a stay  "will utterly destroy the status  quo, irreparably

            harming"  appellant,   but  granting   a  stay  "will   cause

            relatively slight harm" to  appellee, the appellant "need not

            show an absolute probability of success" on the merits; it is

            enough  if  "there are  serious  legal  questions presented."

            Providence  Journal Co. v. FBI,  595 F.2d 889,  890 (1st Cir.
            _______________________    ___

            1979); accord Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1, 4
                   ______ ______________    ______________

            n.2 (1st Cir. 1982) (probability of success need not be shown

            "where  the harm  to  plaintiffs is  particularly severe  and

            disproportionate").   The Fifth Circuit has  suggested such a

            lower  standard  might apply  in  the    1105a  context,  see
                                                                      ___

            Ignacio, 955 F.2d at 299 & n.5, and the INS here has adverted
            _______

            to the Providence Journal  standard in its memorandum (albeit
                   __________________

____________________

            4.  That amendment (unlike the  one eliminating the automatic
            stay) was made effective "as if included in the enactment of"
            the ADAA.  IMMACT,   501(b), 104 Stat. 5048.

                                         -7-

without  addressing  its applicability).    Yet  we need  not

            decide  which standard should  govern, inasmuch as petitioner

            has failed to  present a "serious legal  question," let alone

            establish a probability of success.

                 In  exercising its  discretion whether  to  grant relief

            from  deportation   under  8   U.S.C.     1182(c),   the  BIA

            "balance[s]  the  adverse   factors  evidencing  an   alien's

            undesirability as  a permanent  resident with the  social and

            humane considerations  presented in  his behalf."   Matter of
                                                                _________

            Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (quoted in Hazzard
            _____                                                 _______

            v.  INS, 951 F.2d  435, 438 (1st  Cir. 1991)).   The IJ found
                ___

            that a  number of factors strongly  militated in petitioner's

            favor.   He has resided in  this country since age  15, for a

            total  of 24  years.   His  parents,  grandparents, and  four

            siblings all reside here as well; he has no relatives in Hong

            Kong.  He served in the  Navy from September 1971 to  January

            1973.  Petitioner married a native-born United States citizen

            in 1985, and the two have  lived together ever since.  At the

            time  of the 1987 hearing,  they had had  one child together,

            his  wife had a second child from a previous relationship who

            lived  with them, and she  was pregnant with  a third.  After

            earlier  bouts of underemployment, petitioner resumed working

            full-time  at  a  family  restaurant   in  1986  (as  a  food

            preparer);  he has been the sole support for his family since

            that time.

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Arrayed   against  these  equities  were  the  following

            adverse factors.  As mentioned, petitioner was convicted of a

            serious drug-related  crime in 1984 and  two less significant

            offenses earlier.5  While  he received an honorable discharge

            from the  Navy, that  discharge was prompted  by petitioner's

            use  of marijuana.  Although petitioner  claimed to have been

            rehabilitated from such drug use, the IJ found otherwise.  In

            a  July  1986  report,   his  probation  officer  reported  a

            "reluctance [on  petitioner's  part] to  deal with  substance

            abuse issues," elaborating as follows:

                      I have contacted Mr. Wong's  [substance abuse]
                 counselor,  who  states  that  Mr.  Wong  has  made
                 virtually no progress.  Their assessment is that he
                 is  still  in  the  denial stage,  that  he  admits
                 continued  regular use  of  marihuana  and that  he
                 justifies  his use by insisting that it is a way of
                 life in  his culture.   Of even greater  concern is
                 that Mr. Wong's  reluctance to deal  with substance
                 abuse issues is  apparently longstanding....  Given
                 the  problems  that  drug   use  has  caused   this
                 individual to date, it is truly unfortunate that he
                 shows no insight or willingness to change.

____________________

            5.  Petitioner, conceding deportability,  has not  challenged
            the denomination  of his shoplifting  offense as a  "crime of
            moral  turpitude."   We  note that  such a  characterization,
            while not unanimously endorsed,  finds support in the caselaw
            of this circuit,  see Pino v. Nicolls, 215 F.2d 237, 245 (1st
                              ___ ____    _______
            Cir. 1954),  rev'd  on other  grounds,  349 U.S.  901  (1955)
                         ________________________
            (petty larceny of twelve  golf balls); Tillinghast v. Edmead,
                                                   ___________    ______
            31 F.2d 81,  83-84 (theft  of fifteen dollars),  and that  of
            other courts, see,  e.g., Mattis  v. INS, 774  F.2d 965,  967
                          ___   ____  ______     ___
            (9th Cir.  1985) (shoplifting); Morasch v. INS,  363 F.2d 30,
                                            _______    ___
            31 (9th Cir. 1966)  (petty larceny); Ablett v. Brownell,  240
                                                 ______    ________
            F.2d 625,  630 (D.C. Cir. 1957) (petty theft).  See also 3 C.
                                                            ________
            Gordon  &  S.  Mailman,   Immigration  Law  and  Procedure   
                                      ________________________________
            71.07[3][d],  at  71-161  & n.306  (1992)  (describing  petty
            larceny as crime of  moral turpitude, while noting criticisms
            of that view). 

                                         -9-

And at the hearing, petitioner acknowledged that he continued

            to use marijuana  (albeit on  an occasional basis).   The  IJ

            determined that, on balance, these adverse factors outweighed

            the equities.   The BIA agreed,  concluding that petitioner's

            "criminal  record,  his  history   of  drug  abuse,  and  his

            continuing disregard of the controlled substance laws of this

            country  warrant  a   denial  of  relief   as  a  matter   of

            discretion."

                 Petitioner advances several  specific challenges to this

            decision,  none  of  which  proves  persuasive.    First,  he

            contends  that the IJ  accorded excessive weight  to his 1977

            marijuana offense, improperly regarding  it as equivalent  in

            severity to his 1984  drug conviction.  Petitioner apparently

            draws  such an  inference from  the simple  fact that  the IJ

            listed both  of these  offenses as separate  adverse factors.

            Yet such an  inference is misplaced: the IJ took full note of

            the  suggestion   that  the  marijuana   offense  involved  a

            noncriminal  violation,6 and  the record  reveals no  lack of

____________________

            6.  It is clear that petitioner's offense was not criminal in
            nature.  Maine decriminalized the possession of up to one and
            one-half ounces of marijuana as of May 1, 1976.  See 1975 Me.
                                                             ___
            Laws c. 499,   2383 (amending Me. Rev. Stat. Ann.  tit. 22,  
            2383).   See also  1989 Me.  Laws c. 344,    2  (lowering the
                     ________
            threshold to one and one-quarter  ounces).  Compare Me.  Rev.
                                                        _______
            Stat.  Ann. tit. 17-A,   1106(3) (any person in possession of
            more than the threshold  amount is presumed to be  unlawfully
            "furnishing"  a  scheduled  drug).    The  offense  to  which
            petitioner pled guilty  occurred on June  28, 1976, some  two
            months after decriminalization took effect.
                 Some confusion  has  occurred on  this  point.   At  the
            agency hearing, petitioner's  counsel suggested, first,  that

                                         -10-

understanding  as  to the  nature of  each  offense.   To the

            extent petitioner contends that  the IJ abused his discretion

            by regarding  the marijuana offense  as an adverse  factor at

            all,   we   likewise    disagree.      Notwithstanding    its

            decriminalization in Maine, the  fact remains that  marijuana

            possession  continued to be against the  law--both as a civil

            violation under state law, see Me. Rev. Stat. Ann. tit. 22,  
                                       ___

            2383(1), and as a criminal  violation under federal law,  see
                                                                      ___

            21 U.S.C.   844.7   Accordingly, for the purpose  of deciding

____________________

            the marijuana offense  was criminal in  nature, then that  it
            was  a  civil  violation.    And  the  government, while  not
            addressing  the issue  below, erroneously  asserts on  appeal
            that  decriminalization  occurred subsequent  to petitioner's
            offense.  Although the IJ apparently did not confirm the date
            of this change in state law, he did  assume arguendo that the
                                                        ________
            1976  offense was  civil in  nature.   Any confusion  on this
            point was thus without prejudice.       

            7.  We note that, in  the interval between the  IJ's decision
            and that of the BIA, an increased tolerance for possession of
            small  amounts  of  marijuana  was likewise  introduced  into
            federal  law.    While  such possession  remains  a  criminal
            violation, the ADAA in 1988  added a provision permitting the
            Attorney General to seek civil rather than criminal penalties
            in  such cases.   See  Pub. L.  No. 100-690,  102 Stat.  4384
                              ___
            (codified  at 21  U.S.C.    844a).   And while  possession of
            marijuana in  whatever amount  formerly provided a  basis for
            deportability, see  8 U.S.C.   1251(a)(11)  (Supp. 1989), the
                           ___
            1990 IMMACT  exempted from  that provision "a  single offense
            involving  possession   for  one's   own  use  of   30  grams
            [approximately  1.06 ounces] or less  of marijuana."  Pub. L.
            No. 101-649,   602(a), 104 Stat. 5080 (recodified at 8 U.S.C.
              1251(a)(2)((B)(i)).
                 These   developments  (to   which  petitioner   has  not
            referred) do  not undermine the  agency's decision here.   As
            mentioned,  his  deportability  was  not  predicated  on  his
            marijuana offense,  but rather on his  two other convictions.
            And  this more  lenient  approach does  not render  marijuana
            possession  (or use)  irrelevant in  the context  of deciding
            whether  discretionary  relief  from  deportation  should  be

                                         -11-

whether  discretionary  relief  from  deportation  should  be

            granted,  we   think  the  IJ  was   warranted  in  regarding

            petitioner's marijuana offense as a relevant adverse  factor.

                 In  a  similar  vein,  petitioner  argues  that  the  IJ

            accorded exaggerated weight to  his ongoing use of marijuana.

            For  much  the same  reasons  just  discussed, this  argument

            likewise   fails.     The   IJ   found   that,  despite   its

            decriminalized status, petitioner's  use of marijuana for  at

            least   fifteen   years   reflected   a   lack   of   genuine

            rehabilitation.  Given the continued illegality of  marijuana

            possession,  we  find no  abuse  of  discretion  in the  IJ's

            consideration  of such  evidence.   To the  extent petitioner

            questions the  IJ's conclusion as to  lack of rehabilitation,

            we  note  that  the probation  officer's  statement  strongly

            supports that  finding.  Moreover,  petitioner's acknowledged

            use of  marijuana  shortly before  the  agency  hearing--some

            months  after having been ordered to show cause why he should
                    _____

            not  be deported--reflects a certain brazenness which further

            reinforces the IJ's conclusion.

                 Finally,  petitioner complains  that the  BIA failed  to

            consider  the  absence  of   negative  information  (and  the

            resulting inference of rehabilitation) during  the five years

            this  case was pending  before the BIA.   Yet, as  far as the

            instant  record  reveals,  petitioner  filed  no  motion   to

____________________

            awarded.        

                                         -12-

reconsider  or reopen  based on  any such  new evidence.   As

            such, the BIA was obviously justified in deciding the case on

            the basis of the original record.

                 In reviewing the BIA's  discretionary decision to deny a

            waiver  under     1182(c),  we  consider  only  whether  that

            decision   was  arbitrary,   capricious,  or   an  abuse   of

            discretion.   See, e.g., Martinez  v. INS, 970  F.2d 973, 974
                          ___  ____  ________     ___

            (1st  Cir. 1992); Hazzard, 951 F.2d at  438.  The denial will
                              _______

            be upheld "unless it was made without a rational explanation,

            inexplicably departed from established policies, or rested on

            an impermissible basis."  Williams v. INS, 773 F.2d 8, 9 (1st
                                      ________    ___

            Cir. 1985)  (quoted in Martinez,  970 F.2d at 974).   For the
                                   ________

            foregoing  reasons, we  find that  the decision  here suffers

            from  none  of these  defects.    The agency  considered  all

            relevant factors and articulated a  supportable rationale for

            its  decision.   As  we find  that  petitioner has  failed to

            present a  serious  legal question,  the  motion for  a  stay

            pending review is denied.

                 The provisional  stay of  deportation entered on  August
                 ________________________________________________________

            10, 1992  is  vacated, and  petitioner's  motion for  a  stay
            _____________________________________________________________

            pending review is  denied.  Petitioner's motions  to stay the
            _____________________________________________________________

            appellate process and to continue the stay of deportation are
            _____________________________________________________________

            likewise denied.   Petitioner  shall show cause  within three
            _____________________________________________________________

            weeks from the date of this decision why the instant petition
            _____________________________________________________________

            should not be dismissed. 
            ________________________

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