Omar Barreiro v. INS

• Court: Court of Appeals for the First Circuit
• Decided: April 5, 1993
• Docket: 92-2093
• Status: Published

Opinion

USCA1 Opinion

March 31, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________
        No. 92-2093

                                NESTOR OMAR BARREIRO,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

                                 ____________________

                           PETITION FOR REVIEW OF AN ORDER

                         OF THE BOARD OF IMMIGRATION APPEALS

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                               and Cyr, Circuit Judge.
                                        _____________

                                 ____________________

Jeremiah Friedman  with whom Harvey  Kaplan, Kaplan, O'Sullivan  &
            _________________            ______________  _____________________
        Friedman, Lory  D. Rosenberg  and American Immigration  Law Foundation
        ________  __________________      ____________________________________
        were on brief for petitioner.
            Alexander Shapiro with  whom Stuart M. Gerson, Assistant  Attorney
            _________________            ________________
        General,  Robert  Kendall, Jr.,  Assistant  Director,  and Charles  E.
                  ____________________                             ___________
        Pazar, Office of Immigration Litigation, were on brief for respondent.
        _____
            Denyse Sabagh,  Metzger, Gordon,  Scully, et  al., Barbara  Hines,
            _____________   _________________________________  ______________
        and Lawyers' Committee for  Civil Rights Under Law of Texas,  on brief
            _______________________________________________________
        for American Immigration Lawyers Association and National  Immigration
        Project of the National Lawyers Guild, Inc., amici curiae.

                                 ____________________

                                    March 31, 1993
                                 ____________________
                      ALDRICH,  Senior Circuit Judge.   Petitioner Nestor
                                ____________________

            Omar  Barreiro, a 40 year old citizen of Argentina, moves for

a  stay  of  deportation.   He  has  been  a legal  permanent

            resident since December  1980, is married to a  United States

            citizen, and has a  ten year old son.  In October 1984 he was

            convicted in the  Massachusetts Superior Court  of possession

            of a sizeable amount of a controlled substance with intent to

            distribute and was sentenced  to the mandatory term of  10 to

            15 years.  He was released in April 1992, having served seven

            years.   Meanwhile, in  June 1986 respondent  Immigration and

            Naturalization Service  (INS) issued  an order to  show cause

            why   petitioner  should   not   be  deported   pursuant   to

              241(a)(11) of the Immigration and Naturalization Act (INA),

            8  U.S.C.   1251(a)(11)  (Supp.  1986), as  amended 8  U.S.C.
                                                    ___________

              1251(a)(2)(B)(i) (Supp. 1992),  because of his  conviction.

            This case  involves three  recent enactments:   the Anti-Drug

            Abuse  Act of  1988 (ADAA),  Pub. L.  No. 100-690,  102 Stat.

            4181;  the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-

            649,  104 Stat.  4978;  and the  Miscellaneous and  Technical

            Immigration and Naturalization Amendments of 1991 (TINA) Pub.

            L. No. 102-232, 105 Stat. 1733.

                      In 1992  petitioner sought a waiver  of deportation

            pursuant to INA   212(c), 8  U.S.C.   1182(c) (Supp. 1992) as

            a seven year domiciliate.  This  was denied, and the Board of

            Immigration Appeals affirmed, applying the final  sentence of

            the section,  inserted on November  29, 1990,  that reads  as

            follows:

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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.

            IMMACT     511(a).     The   Board  held   that  petitioner's

            imprisonment,   though  largely   completed  prior   to  this

            amendment, was comprehended therein.  We agree.

                      There is no question but that petitioner's offense,

            though  he  was  convicted  in  a  state  proceeding,  is  an

            aggravated   felony,  within   INA    101(a)(43),   8  U.S.C.

              1101(a)(43) (Supp. 1992).1   Also, although   1182(c) reads

____________________

            1.             (43)  The  term "aggravated  felony"
                      means murder, any illicit  trafficking in
                      any controlled substance  (as defined  in
                      section 102 of the  Controlled Substances
                      Act),  including   any  drug  trafficking
                      crime as defined in section  924(c)(2) of
                      title  18, United  States  Code,  or  any
                      illicit  trafficking  in any  firearms or
                      destructive devices as defined in section
                      921  of such title, any offense described
                      in  section  1956  of  title  18,  United
                      States  Code  (relating to  laundering of
                      monetary  instruments),  or any  crime of
                      violence  (as defined  in  section 16  of
                      title   18,   United  States   Code,  not
                      including a purely political offense) for
                      which  the  term of  imprisonment imposed
                      (regardless  of  any  suspension of  such
                      imprisonment) is at least 5 years, or any
                      attempt or conspiracy  to commit any such
                      act.    Such  term  applies  to  offenses
                      described   in   the  previous   sentence
                      whether in violation  of Federal or State
                      law,   and   also  applies   to  offenses
                      described  in  the  previous sentence  in
                      violation  of foreign  law for  which the
                      term of imprisonment was completed within
                      the previous fifteen years.

                                         -3-

as  limited  to  aliens  who  are  returning  from  voluntary

            absences  abroad,  concededly  the  statute,  apart from  the

            amendment, applies equally to  resident aliens who are sought

            to be deported.   This was established by Francis  v. I.N.S.,
                                                      _______     ______

            532 F.2d  268 (2d Cir. 1976).  The court there noted that the

            manifest purpose was to qualify certain aliens who  had lived

            here seven years  to seek a waiver, in  the discretion of the

            Attorney General, of the exclusionary  consequence of various

            prohibitions in   1182(a).  The court held that it would be a

            denial  of equal  protection  to distinguish  between  aliens

            seeking readmission and those resisting deportation, and that

            consequently   212(c) must be  applied to include the latter.

            The  limited wording of the statute has not been changed, but

            the Second  Circuit's ruled  enlargement has  been recognized

            ever  since.  Tapia-Acuna v.  I.N.S., 640 F.2d  223 (9th Cir.
                          ___________     ______

            1981).    E.g., Gouveia  v. I.N.S.,  980  F.2d 814  (1st Cir.
                      ____  _______     ______

            1992).   Petitioner's contention that this  ruling should not

            apply to the  amendment is frivolous.  He  may seek a waiver,

            but must fail if  his seven year imprisonment was  within the

            statute.

                      In  addition  to  this permanent  waiver,  the  INA

            contained a presumption of  a temporary stay pending judicial

            appeal,   106(a)(3), 8 U.S.C.   1105a(a)(3) (Supp. 1992), the

            underlined words  having been  added by IMMACT    513(a), and

            are to "apply to petitions to  review filed more than 60 days

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after  the  date  of  enactment  of  the  statute."    IMMACT

              513(b).

                      The  service of  the petition  for review
                      . . .  shall stay the  deportation of the
                      alien   pending   determination  of   the
                      petition by  the court, unless  the court
                      otherwise directs or unless the  alien is
                                        _______________________
                      convicted  of  an  aggravated felony,  in
                      _________________________________________
                      which case the Service shall not stay the
                      _________________________________________
                      deportation   of    the   alien   pending
                      _________________________________________
                      determination  of  the  petition  of  the
                      _________________________________________
                      court unless the court otherwise directs.
                      ________________________________________

                      Finally,  on  December  12,   1991  by  the   TINA,

              306(a)(11)(B), it  was provided  that the  IMMACT amendment

            "shall apply to convictions entered before, on, or after such

            date,"  and by    310(1), that  this latter  amendment "shall

            take  effect  as  if  included   in  the  enactment  of   the

            Immigration Act of 1990."

                      The  Board's  opinion sustaining  the  denial of  a

            waiver relied  on  Matter of  A-A-,  Interim Dec.  3176  (BIA
                               _______________

            1992),  which in  turn is  so persuasive  that we  could well

            simply  agree,  but  we  will  further  comment  in  light of

            petitioner's persistent  complaint.  There is,  of course, no

            constitutional issue,  United States  v. Bodre, 948  F.2d 28,
                                   _____________     _____

            31-32  (1st Cir. 1991), cert. denied, 112 S. Ct. 1487 (1992);
                                    ____________

            the only question is  that of Congressional intent.   While a

            presumption against  retroactivity prevails in the absence of

            clearly contrary  indicia, Dion  v. Secretary of  H.H.S., 823
                                       ____     ____________________

            F.2d 669, 671  (1st Cir.  1987), one must  look at the  whole

            picture.

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In Ayala-Chavez  v. I.N.S., 945 F.2d  288 (9th Cir.
                         ____________     ______

            1991) the court held  that only aggravated offenses committed

            after November  18, 1988 receive the  negative presumption of

            no  temporary  waiver  pending  appeal.   The  TINA  followed

            promptly,    and   the   Ninth    Circuit   recognized   that

              306(a)(11)(B)  was  intended   to  overrule   Ayala-Chavez.
                                                            ____________

            Arthurs v. I.N.S., 959  F.2d 142 (9th  Cir. 1992).  See  also
            _______    ______                                   ___  ____

            Ignacio v. I.N.S., 955 F.2d 295 (5th Cir. 1992); Matter of A-
            _______    ______                                ____________

            A-, supra.  The legislative history makes clear that this was
            __  _____

            fully recognized as a technical amendment for  clarification.

            Actually  the amendment was introduced into and passed by the

            Senate on August 1,  1991, prior to Ayala-Chavez.   137 Cong.
                                                ____________

            Rec.  S11,799-804.    Offering   the  bill,  Senator  Simpson

            described  it  as  "truly  technical. . . .    The  Bill  was

            developed  under  the following  rule:   If  any of  the four

            Immigration Subcommittee's staffs [Republican and Democrat of

            the House and Senate] found a provision controversial or non-

            technical,  then  it  was removed."    Id  at  S11,799.   The
                                                   __

            following November  25, post Ayala-Chavez, an identical House
                                         ____________

            bill  passed.  Id.  at H11,245-251.  The  next day the Senate
                           __

            made minor  amendments, id.  at S18,506-514, which  the House
                                    __

            promptly accepted.  Id. at H11,485-493.  One of these changes
                                __

            was the addition of  the 'before, on, or after'  amendment to

              513(b).

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We have  two reasons  for agreeing with  the Board.

            In  the  first place,  we  believe  Ayala-Chavez was  wrongly
                                                ____________

            decided.    If  Congress  believed  seven  years'   residence

            insufficient to entitle aliens to waivers if they had  served

            five or more years  imprisonment for committing an aggravated

            felony, it makes small sense that so substantial  a stricture

            should not go into effect for five years from enactment.  The

            presumption against a  retroactive interpretation is to  give

            fair warning so that a party may avoid consequences.  This is

            scarcely  a situation calling for  any such a  warning.  Five

            years   free  time  would   be  extraordinarily  considerate,

            particularly for the undeserving.

                      In addition,  as we  study the legislation  and the

            legislative  history,  we  believe  that   although  Congress

            amended  only    513(b),   its  failure  to  amend     511(b)

            correspondingly was a simple oversight.  We do not believe it

            necessary, however, to detail  further the several steps that

            lead us to that conclusion.

                      Affirmed.
                      ________

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