Peter Richard Bowe v. Immigration and Naturalization Service

597 F.2d 1158

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 4, 1979
• Docket: 78-1496
• Status: Published

Opinions

CHOY, Circuit Judge:

Bowe appeals from the order of the Board of Immigration Appeals refusing to grant a waiver of deportability under § 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1182(c). Bowe “does not dispute that he is deportable as charged” under § 241(a)(11) of the Act, 8 U.S.C. § 1251(a)(11), providing for deportation of aliens convicted of criminal laws dealing with drug offenses. But Bowe contends that the immigration judge, affirmed by the Board, failed to afford him a full and fair hearing on the § 212(c) waiver by not allowing him to present certain evidence concerning his alleged rehabilitation from drug activities. He claims that he has a constitutional and statutory right to present such evidence. Bowe also claims that the Board and immigration judge abused their discretion in refusing the waiver.

We need not determine the constitutional and statutory rights, if any, of an alien proceeding under § 212(c) to present evidence in his own behalf. This court has recently noted:

Relief under § 212(c) has been held in this Circuit to be unavailable to an alien facing deportation for conviction of a drug-related crime, pursuant to 8 U.S.C. § 1251(a)(11). [Citations omitted.]

Nicholas v. Immigration & Naturalization Service, 590 F.2d 802, 808 (9th Cir. 1979); see Dunn v. Immigration & Naturalization Service, 499 F.2d 856, 857-58 (9th Cir. 1974), cert, denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 801 (1975); Arias-Uribe v. Immigration & Naturalization Service, 466 F.2d 1198, 1199-1200 (9th Cir. 1972).

Bowe acknowledges that he is deportable under § 1251(a)(ll). Thus, he could not obtain a waiver under § 212(c). Accordingly, any alleged errors in the Board’s procedures by which it denied the waiver could not have affected the outcome — denial of the waiver — and thus were harmless. Therefore, the decision by the Board and the immigration judge is AFFIRMED.¹

1 . The dissent argues that because the INS has not followed Arias-Uribe in practice but has instead applied § 212(c) to persons convicted of drug-related crimes, under the INS’ interpretation of § 212(c) Bowe could conceivably have received a waiver. The dissent concludes that the AU’s alleged denial of due process therefore cannot be viewed as harmless.

The premise underlying the dissent is that because the INS has not followed this court’s interpretation of § 212(c), this court is now bound to give full effect to the INS’ interpretation of § 212(c). This premise, however, conflicts with the congressional scheme that this court has appellate jurisdiction over the INS’ decisions and that within the jurisdiction of this court, our interpretation of the law binds the INS. See 5 U.S.C. § 706; 8 U.S.C. § 1105a.

To the degree that the dissent may be read simply as disapproving the Arias-Uribe and Nicholas holdings, we note that this panel is obligated to follow the prior holdings of this court and is not free to overrule earlier holdings even if we consider them ill-advised. Whether Arias-Uribe and Nicholas should be overruled is a matter that can be determined only by this court sitting en banc. See Fed.R. App.P. 35.

1 . 8 U.S.C. § 1251(a)(11) (1976), which provides: (a) Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—

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(11) is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana, or who has been convicted of a violation of, or a conspiracy to violate, any law or regulation governing or controlling the taxing, manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, exportation, or the possession for the purpose of the manufacture, production, compounding, transportation, sale, exchange, dispensing, giving away, importation, or exportation of opium, coca leaves, heroin, marihuana, any salt derivative or preparation of opium or coca leaves or isonipecaine or any addiction-forming or addiction-sustaining opiate[.]