James Scheidemann v. Immigration and Naturalization Service

83 F.3d 1517, 1996 U.S. App. LEXIS 11352, 1996 WL 255928
CourtCourt of Appeals for the Third Circuit
DecidedMay 16, 1996
Docket95-3241
StatusPublished
Cited by84 cases

This text of 83 F.3d 1517 (James Scheidemann v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James Scheidemann v. Immigration and Naturalization Service, 83 F.3d 1517, 1996 U.S. App. LEXIS 11352, 1996 WL 255928 (3d Cir. 1996).

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioner James Enrique Scheidemann, a permanent resident alien, seeks review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an immigration judge’s deportation order. Petitioner, who faces deportation on account of a 1987 drug trafficking conviction for which he has served over five years in prison, does not contest his deportability. Rather, arguing that he is eligible to apply for discretionary waiver of deportation under § 212(c) of the Immigration and Nationality Act (the “Act”), 8 U.S.C. § 1182(c), he urges us to reverse the BIA’s finding that he is statutorily barred under that section from seeking discretionary relief because of his prior drug offense conviction.

Petitioner acknowledges, as he must, that § 212(c) plainly bars discretionary relief to aliens who have served at least five years’ imprisonment for one or more “aggravated felonies,” and that the Act’s definition of “aggravated felony” includes drug trafficking offenses such as his. Because both the statutory bar and the underlying definition of “aggravated felony” were added to the Act by amendments enacted after petitioner’s conviction, however, he argues that the BIA violated the presumption against retroactivity by applying the bar to his antecedent conviction. We find that the statutory bar does not have a retroactive effect as applied to petitioner’s conviction, and we hold that the BIA correctly applied the statute in accordance with clear congressional intent. We will therefore deny the petition for review.

I.

Petitioner, a 49 year-old native and citizen of Colombia, has been a lawful permanent resident in the United States since 1959. His wife, children, parents and siblings are all United States citizens. In June 1987, petitioner was convicted in the United States District Court for the District of New Jersey of (1) racketeering in violation of 18 U.S.C. § 1962(c), (2) conspiracy to commit racketeering in violation of 18 U.S.C. § 1962(d), (3) conspiracy to distribute and to possess with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. § 846, (4) possession with intent to distribute a controlled substance (cocaine) in violation of 21 U.S.C. § 841(a)(1), and (5) use of a telephone to facilitate a drug conspiracy in violation of 21 U.S.C. § 843(b). Petitioner was sentenced to four concurrent ten-year terms for the racketeering and drug conspiracy and possession offenses, and to a four-year term, also to run concurrently, for the telephone offense. Petitioner actually served five years and ten months in prison.

In March 1992, while petitioner was still in prison, the Immigration and Naturalization Service (“INS”) instituted deportation proceedings against him, charging him with de-portability pursuant to 8 U.S.C. § 1251(a)(2)(B)(i) as an alien convicted of a controlled substance violation. At a deportation hearing held in November 1994, the immigration judge found petitioner deporta-ble as charged. Petitioner then applied with the immigration judge for discretionary relief from deportation under § 212(c) of the Act. The INS opposed the application, arguing [1519]*1519that discretionary relief is unavailable under the plain language of § 212(c) to an alien who has served a sentence of at least five years for one or more “aggravated felonies,” and that petitioner’s drug trafficking offenses are “aggravated felonies” within the Act’s definition thereof. In December 1994, the immigration judge denied petitioner’s application for relief and ordered petitioner deported to his native country of Colombia.

Petitioner appealed to the BIA The BIA affirmed, holding that the § 212(c) statutory bar applies to all convictions within the original definition of “aggravated felony,” regardless of the date of conviction, if the petitioner filed the application for relief after the statutory bar became effective on November 29, 1990. This timely petition for review followed.

II.

We have jurisdiction over this petition to review the BIA’s dismissal of an appeal from a deportation order pursuant to 8 U.S.C. § 1105a(a) because the petitioner’s residence (as defined in 8 U.S.C. § 1101(a)(33)) is in New Jersey and he timely filed this petition. The deportation order became final upon the BIA’s dismissal of petitioner’s appeal therefrom, 8 C.F.R. § 243.1, and petitioner has exhausted his administrative remedies as of right.

The framework for judicial review of an agency’s construction of the statute it administers is well settled. “The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 2157, 124 L.Ed.2d 368 (1993) (internal quotation marks and alteration omitted). But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). “In sum, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program ... unless that interpretation is arbitrary, capricious, or manifestly contrary to the statute.” Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir.1993) (citations and internal quotation marks omitted), cert. denied, — U.S. -, 114 S.Ct. 902, 127 L.Ed.2d 93 (1994).

III.

Section 212(c) grants the Attorney General discretion to waive the exclusion of otherwise excludable resident aliens seeking to reenter the United States from abroad:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General [despite being otherwise excludable].... The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c).

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Bluebook (online)
83 F.3d 1517, 1996 U.S. App. LEXIS 11352, 1996 WL 255928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-scheidemann-v-immigration-and-naturalization-service-ca3-1996.