Chow v. I.N.S.

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 2, 1993
• Docket: 93-4816
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-4816 Summary Calendar

KIN SANG CHOW,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals (A18 998 312)

(November 23, 1993)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Kim Sang Chow, a native of Hong Kong and citizen of the United

Kingdom, entered the United States on June 16, 1971, as a lawful

permanent resident. On November 10, 1977, he was convicted of

possession of a .25 caliber automatic pistol. Subsequently, he was

convicted of using a telephone to facilitate distribution and

possession with intent to distribute heroin in violation of 21

U.S.C. § 843(b).

Deportation proceedings commenced against Chow on July 17,

* Local Rule 47.5.1 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that rule, the court has determined that this opinion should not be published. 1992. An immigration judge ("IJ") denied his application for

waiver of deportation, and the Board of Immigration Appeals ("BIA")

affirmed that denial. Chow petitions for review of the BIA's

decision. Finding that the decision was within the BIA's discre-

tion, we deny the petition.

I.

Chow was charged with deportability under § 241(a)(2)(B)(i) of

the Immigration and Nationality Act (the "Act"), 8 U.S.C.

§ 1251(a)(2)(b)(i), based upon the controlled substances violation.

He was further charged with deportability under § 241(a)(2)(iii) of

the Act, 8 U.S.C. § 1251(a)(2)(iii), as an aggravated felon.

Finally, Chow was charged with deportability under § 241(a)(2)(C)

of the Act, 8 U.S.C. § 1251(a)(2)(C), because of the firearms

conviction.

The deportation hearing commenced on August 17, 1992, at

Oakdale, Louisiana. Chow was represented by his current counsel,

Lawrence Fabacher. The hearing was adjourned when Chow's counsel

agreed to submit a memorandum arguing against deportability. The

memorandum was filed on September 2, 1992.

Chow filed a motion for change of venue on September 15, 1992.

His counsel argued that Chow, who had been released on bond, had

returned to his permanent residence in Illinois and had retained

Illinois counsel. Chow argued that the deportation hearing should

be held in Illinois.

On September 17, 1992, Chow's Louisiana counsel, Fabacher,

2 filed a motion to withdraw as counsel of record. The INS opposed

the proposed venue change on September 18, 1992. The deportation

hearing resumed on September 21, 1992, in Louisiana. The IJ stated

that he wanted Fabacher to continue representing Chow until

deportability was resolved.

On October 12, 1992, Chow's Illinois counsel, Robert Ahlgren,

filed a motion for change of venue to Chicago. The hearing resumed

in Louisiana on October 16, without Chow's presence. Fabacher was

present via telephone, and another Louisiana attorney represented

Chow in the courtroom. The IJ announced that Ahlgren had called

the previous day to say that he would be present in his office at

the time of the hearing. In face, he was not present in his office

at that time.

The IJ said that he had taken the motion to change venue under

advisement because he wished to determine whether Chow was

deportable and, if so, whether he was eligible for relief from

deportation. The IJ also refused to grant Fabacher's motion to

withdraw.

Based upon Chow's 1977 weapons conviction, the IJ found him

deportable as charged under § 241(a)(2)(C) as an alien convicted of

a firearms violation. The IJ also found that Chow was deportable

under § 241(a)(2)(B)(i) as an alien convicted of a controlled

substance violation on the basis of his drug-related conviction.

The IJ further determined that that drug-related conviction did not

support a finding of deportability under § 241(a)(2)(A)(iii) for

conviction of an aggravated felony.

3 The IJ ordered deportation to the United Kingdom and denied

Chow's application for relief from deportation under 8 U.S.C.

§ 1182(c). Chow appealed this decision to the BIA, which received

briefs and heard oral argument, then dismissed the appeal on

April 13, 1993.

II.

Chow first contends that the BIA erred in concluding that the

IJ correctly determined that his 1977 conviction for possession of

a pistol supported a finding of deportability under § 241(a)(2)(C).

A two-prong standard of review applies to cases such as these.

Iredia v. INS, 981 F.2d 847 (5th Cir. 1993).

First, interpretations of ambiguous law by an executive agency

are accorded considerable weight and deference. Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

This court has accepted the Chevron standard and upheld reasonable

agency interpretations of governing law when that law did not speak

unequivocally to the question at hand. National Grain & Feed Ass'n

v. Occupational Safety & Health Admin., 866 F.2d 717 (5th Cir.

1988).

After considering the legal standard under which the INS

should operate, we review the BIA's findings under the substantial

evidence test, Rojas v. INS, 937 F.2d 186 (5th Cir. 1991) (per

curiam), which requires only that the BIA's conclusion be based

upon the evidence presented and that it be substantially reason-

able, Animashaun v. INS, 990 F.2d 234 (5th Cir. 1993), petition for

4 cert. filed (Aug. 9, 1993) (No. 93-5539).

Chow argues that because his conviction occurred prior to

enactment of § 241(a)(2)(C), the legislation is not retroactive and

therefore is inapplicable to him. Furthermore, Chow argues that

§ 241(a)(2)(C) of the Act originally was embodied in § 241(a)(14).

Chow asserts that that section later was expanded by § 2348 of the

Anti-Drug Abuse Act of 1988, which was made applicable only to

aliens convicted on or after the date of the enactment of that Act.

The BIA correctly noted, however, that Chow was not found

deportable under former § 241(a)(14); instead, he was found

deportable under § 241(a)(2)(C), which was made applicable to

proceedings for which notice was provided to the alien on or after

March 1, 1991. See § 602(d) of the Immigration Act of 1990.

Section 241(a)(2)(C) provides,

Any alien who at any time after entry is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying in violation of any law, any weapon, part, or accessory which is a firearm or destructive device (as defined in Section 921(a) of Title 18) is deportable. [Emphasis added.]

That section, enacted in 1990, completely supersedes all former

versions of legislation dealing with deportation for firearm

offenses. We conclude that the BIA was justified in finding that

Chow violated § 241(a)(2)(C) and that the BIA's decision was

reasonable in accordance with Chevron.

III.

Chow next challenges the INS's interpretation of § 212(c) of

5 the Act, 8 U.S.C. § 1182(c), which is a question of law reviewed de

novo. Fonseca-Leite v. INS, 961 F.2d 60 (5th Cir. 1992). Yet,

because Congress has delegated the administration of the statutory

scheme to the INS, its interpretation is entitled to strong

deference. Chevron, 467 U.S. at 844. See also INS v. Cardoza-

Fonseca, 480 U.S. 421 (1987). The IJ found, and the BIA agreed,

that Chow was ineligible for a waiver under § 212(c) because there

is no exclusion provision in § 212(a) corresponding to the

deportation ground for conviction of a firearms violation.

Section 212(c) allows the Attorney General, in his discretion,

to grant relief from orders of deportation to "aliens lawfully

admitted for permanent residence who temporarily proceed abroad

voluntarily and not under an order of deportation, and who are

returning to a lawful unrelinquished domicile of seven consecutive

years." We have recognized that a § 212(c) waiver is available in

deportation proceedings only to those aliens who have been found

deportable under a charge of deportability for which there is a

comparable ground of excludability. In re Hernandez-Casillas, 983

F.2d 231 (5th Cir. 1993) (unpublished).

The First Circuit has addressed the issue of whether § 212(c)

authorizes the granting of discretionary relief to aliens convicted

of possession of a firearm without a license. In Campos v. INS,

961 F.2d 309 (1st Cir. 1992), the petitioner was convicted in Rhode

Island for carrying a .22 caliber Bernadelli pistol without a

6 license, in violation of a state statute.1 On June 8, 1990, the

INS issued an order requesting him to show cause why he should not

be deported.

At his June 29, 1990 deportation hearing, Campos admitted that

he was deportable on the grounds enumerated in the order to show

cause. He expressed, however, a desire to apply for relief from

deportation under § 212(c). The INS concluded that the firearms

conviction removed Campos from any possibility of § 212(c) relief.

Campos appealed, alleging that Congress never intended to

deprive aliens convicted of illegal possession of a firearm of the

possibility of seeking § 212(c) relief. The First Circuit affirmed

the BIA's interpretation of § 212(c) and held that it did not

authorize relief to aliens facing deportation for firearms

violations, in that such ground of deportation was not one of the

grounds of exclusion referenced in the statute. Similarly, we

reject Chow's argument that § 212(c) can be applied in cases where

there is no comparable ground of excludability.

IV.

The BIA also found that Chow's deportability under

§ 241(a)(2)(B)(i), as an alien convicted of a controlled substance

violation, was established by his conviction under 21 U.S.C.

§ 843(b) for using a telephone to facilitate the crimes of

distribution of and possession with intent to distribute heroin.

1 Campos also was convicted in state court for possession of heroin with intent to distribute and possession of cocaine in February 1989.

7 We recently explained the BIA's balancing test for considering

applications under § 212(c):

The immigration judge must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of the country. . . . Among the factors deemed adverse to a respondent's application have been the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and if so, its nature, recency, and seriousness, and the presence of other evidence indica- tive of a respondent's bad character or undesirability as a permanent resident of this country . . . . Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of young age), evidence of hardship to the respondent and family if deportation occurs, service in this country's Armed [sic] forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of a genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent's good character.

Diaz-Resendez v. INS, 960 F.2d 493, 495-96 (5th Cir. 1992) (quoting

In re Marin, 16 I&N Dec. 581 (BIA 1978) (ellipses in Diaz-

Resendez)). We also stated that "applicants for discretionary

relief who have been convicted of serious drug offenses must show

`unusual or outstanding equities.'" Id. at 496. Given Chow's

conviction under § 241(a)(2)(B)(i), along with his extensive

criminal record, the BIA would have been justified in denying

relief to him under § 212(c), even if he would have been eligible

to apply for a waiver.

V.

8 Chow also argues that the IJ erred in proceeding to a

conclusory hearing without ruling on his pending motion for change

of venue or his motion to withdraw as counsel of record. We employ

the abuse of discretion standard in reviewing procedural chal-

lenges.

The decision of whether to grant a change of venue is

committed to the IJ's sound discretion and will not be overturned

except for an abuse of that discretion. Baires v. INS, 856 F.2d 89

(9th Cir. 1988). Given this broad discretion, we conclude that it

was not unreasonable for the IJ to proceed with a determination of

deportability prior to ruling on Chow's motion to change venue.

Similarly, the BIA did not abuse its discretion in affirming

the IJ's refusal to hear the motion to withdraw prior to determin-

ing the issue of deportability. Not only did the IJ grant Chow's

Illinois attorney the opportunity to attend the deportation hearing

via telephone, but the IJ ordered that the Louisiana attorney

represent Chow at the hearing.

VI.

Finally, Chow asserts that the IJ erred in failing to afford

him the opportunity to apply for political asylum. Again, this

procedural challenge is reviewed pursuant to the abuse of discre-

tion standard.

Chow has failed to cite any authority that would have required

the IJ to explain asylum procedures to him. It is well established

that an IJ does not have an obligation to explain asylum procedures

9 unless the immigrant expresses some reluctance to return to his

homeland. Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993).

Although Chow declined to name a country for deportation, he did

not express any reluctance to being returned to the United Kingdom.

We conclude that it was not an abuse of discretion for the BIA to

affirm the order that Chow be returned to the United Kingdom.

For the foregoing reasons, the petition for review is DENIED.