Marmolejos v. INS

Opinion

USCA1 Opinion

October 31, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1728



                               GUARIONEX A. MARMOLEJOS,



                                     Petitioner,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                                 ____________________



                        ON PETITION FOR REVIEW OF FINAL ORDER

                         OF THE BOARD OF IMMIGRATION APPEALS



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Boudin and Stahl, Circuit Judges.
                                            ______________



                                 ____________________



            Guarionex A.  Marmolejos  on Application  for  Review  of a  Final
            ________________________

        Order of Deportation and Memorandum in Support of Motion for Review of

        Final Order of Deportation, pro se.

            Vernon Benet Miles,  Attorney, Office  of Immigration  Litigation,
            __________________

        Civil  Division, U.S.  Department of  Justice,  on Motion  for Summary

        Dismissal  and  Motion  to  Dismiss  for  Lack  of  Jurisdiction,  for

        respondent.


____________________


____________________



Per Curiam.   Petitioner, Guarionex A.  Marmolejos,
                      __________



            petitions for review  of a  final order of  deportation.   He



            currently is incarcerated pursuant  to a state conviction for



            drug trafficking  offenses.   He  does not  dispute that  his



            conviction renders  him an  aggravated felon for  purposes of



            the  Immigration and  Nationality  Act  ("INA").   Petitioner



            raises essentially two issues on review.



                      1.  Petitioner  contends that  the Immigration  and



            Naturalization Service  ("INS") violated his  Fifth Amendment



            due process rights by delaying both the issuance of the order



            to  show cause and the scheduling of the deportation hearing.



            Specifically, by the  time of the hearing  -- when petitioner



            first  indicated his  intention  to  apply  for a  waiver  of



            deportation  under    212(c), 8  U.S.C.    1182(c) --  he was



            ineligible  for such  relief,  having served  more than  five



            years of  his  sentence.1   Although  the  show  cause  order



                                
            ____________________



            1.  Section 212(c), in relevant part, provides:



                        Aliens lawfully  admitted for permanent

                      resident [sic]  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

                      without  regard  to  the   provisions  of

                      subsection  (a)  of  this section  (other

                      than paragraphs  (3) and (9)(C)) .  . . .

                      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
                      _________________________________________



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issued prior to  the five-year cut-off, petitioner  maintains
                   _____ __



            that had it been issued  earlier, he would have been  able to



            secure  legal   assistance  and   make  a  timely      212(c)



            application.   Also,  petitioner argues  that the  show cause



            order   was  constitutionally  deficient   because  it  never



            informed him that there was a time limit for applying for the



            waiver.



                      Before proceeding, we note what is not  at stake in
                                                         ___



            this  case.    Petitioner   does  not  contest  that  he   is



            deportable, nor does he dispute that  he was ordered deported



            only  after  a  hearing  which complied  with  statutory  and



            regulatory requirements.   Petitioner  also does not  contend



            that  he never received notice of his  right to apply for a  



            212(c) waiver.  Rather, he  complains about the timeliness of



            the  procedures used by the INS in initiating and hearing the



            matter of his deportability.  With  this in mind, we turn  to



            the merits.



                      A  review of  the statutes and  regulations reveals



            that  neither Congress nor the  INS has required  that a show



            cause order  should  issue in  sufficient  time to  allow  an



            aggravated felon to apply  for a   212(c) waiver  or that the



            order should include  notice of  the time limit  on    212(c)



            eligibility.  Although   242(i),  8 U.S.C.   1252(i), directs



                                
            ____________________



                      least 5 years.
                      _____________



            (Emphasis added).



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the Attorney General to  "begin any deportation proceeding as



            expeditiously as possible after  the date of the conviction,"



            Congress has  clarified that    242(i)  does not  create "any



            substantive or  procedural right  or benefit that  is legally



            enforceable by any  party" against the INS.   See Immigration
                                                          ___



            and Nationality  Technical Corrections  Act of 1994,  Pub. L.



            No. 103-416,   225,  108 Stat. 4305,  4324 (1994).  See  also
                                                                ___  ____



            Campos v.  INS, 62 F.3d 311, 314 (9th Cir. 1995) (  225 makes
            ______     ___



            clear that    242(i) does  not place any  obligations on  the



            government).  See generally  INS v. Miranda, 459 U.S.  14, 18
                          ___ _________  ___    _______



            (1982); Pimental-Romero v.  INS, 954 F.2d 564, 564  (1st Cir.
                    _______________     ___



            1991).



                      2.   Petitioner's  second  contention  is that  his



            conviction  did not  become  final  for immigration  purposes



            until  the  Massachusetts Supreme  Judicial Court  denied his



            request  for  further  appellate  review  of his  conviction.



            Because the denial occurred  on September 8, 1993, petitioner



            argues that the five-year period in   212(c) did not begin to



            run until then.   Thus, he concludes, he still is eligible to



            apply for a   212(c) waiver.



                      Petitioner is  correct that his conviction  did not



            become final until September 8, 1993.  It is settled that "an



            alien is not deemed to have been `convicted' of a crime under



            the  [INA] until  his conviction  has attained  a substantial



            degree of  finality."  Marino v.  INS, 537 F.2d 686,  691 (2d
                                   ______     ___


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Cir. 1976).  This occurs when "direct appellate review of the



            conviction  has either been  exhausted or waived."   White v.
                                                                 _____



            INS, 17 F.3d  475, 479 (1st Cir. 1994).   Here, as petitioner
            ___



            points out, his conviction could only be considered final  as



            of  September 8,  1993.   This,  however,  does not  end  the



            matter.



                      The last sentence  of   212(c) states that an alien



            is ineligible to apply for a waiver of deportability if he or



            she "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)



            (emphasis added).  Plainly,  two conditions must exist before



            an alien is barred from applying for a   212(c) waiver -- his



            or her felony conviction  must be final for INA  purposes and



            he or  she must have been imprisoned  for the felony for five



            years.



                      Thus, the five-year requirement applies to a  "term



            of imprisonment,"  not to a "conviction."  The ordinary usage



            of the phrase  "term of  imprisonment" refers,  we think,  to



            time  actually  spent in  prison  for  a particular  offense.



            Petitioner does not, nor would  he for ordinary purposes such



            as  parole,  contend that  his  "term  of imprisonment"  only



            commenced  on September  8,  1993, when  the  SJC denied  the



            appeal of his conviction.   In sum, the term  of imprisonment


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can begin before  the conviction  is affirmed  on appeal  and



            that is what happened in this case.



                      It might be a closer question whether the five-year



            term should run from the date on which a petitioner  was held



            for  trial and from which he received credit against his term



            following conviction.   This is  not a  distinction urged  by



            petitioner  in this  case; no  plain error  is  involved; and



            given the apparent  purpose of  the statute, it  is at  least



            doubtful whether  petitioner could be granted  a waiver since



            he  has now served more than five  years from the date of his



            conviction, even if the pre-conviction period is discarded.



                      Based on  the foregoing the  motion of the  INS for



            summary  dismissal is  granted.   See Local  Rule 27.1.   The
                                   _______    ___



            motion of  petitioner for  in forma  pauperis status  and the



            motion of the  INS to  dismiss for lack  of jurisdiction  are



            denied as moot.
            ______


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