United States v. Vieira Candelario

• Court: Court of Appeals for the First Circuit
• Decided: October 4, 1993
• Docket: 93-1274
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUITT

                                 ____________________

        No. 93-1274

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                              AURELIO VIEIRA-CANDELARIO,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                          __________________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                     Coffin and Campbell, Senior Circuit Judges.
                                          _____________________

                                 ____________________

            Damon  M.  D'Ambrosio,  by Appointment  of  the  Court, with  whom
            _____________________
        Martin D. Harris, Esquire, Ltd. was on brief for appellant.
        _______________________________
            Stephanie S. Browne,  Assistant United States Attorney, with  whom
            ___________________
        Edwin J. Gale, United  States Attorney, and Craig N.  Moore, Assistant
        _____________                               _______________
        United States Attorney, was on brief for the United States.

____________________

                                  September 28, 1993
                                 ____________________

CAMPBELL,   Senior   Circuit  Judge.     Defendant-
                                  _______________________

            appellant  Aurelio  Vieira-Candelario  was  indicted  in  the

            United States District Court for the District of Rhode Island

            for   unlawful  reentry  into  the  United  States  following

            deportation, in violation of  8 U.S.C.   1326.   Vieira moved

            to  quash   the  indictment  and  to   dismiss,  collaterally

            attacking the deportation order upon which the indictment was

            based.  The district court denied the motions.  United States
                                                            _____________

            v. Vieira-Candelario, 797 F. Supp. 117 (D.R.I. 1992).  Vieira
               _________________

            entered into a plea  agreement in which he pleaded  guilty to

            the  indictment but  reserved the  right  to appeal  from the

            denials  of  his  motions  to quash  the  indictment  and  to

            dismiss.  We affirm.

                                          I.
                                          I.

                      Vieira,  a  native  and  citizen of  the  Dominican

            Republic, lived in  the United States  as a lawful  permanent

            resident  alien for almost  twenty-six years.   His  wife and

            children are  United  States  citizens,  and  Vieira  himself

            served in the United States Army  during the Vietnam-war era.

            Vieira, however,  was convicted  in 1989 of  two drug-related

            offenses.  One  of these  was for possession  of heroin  with

            intent to deliver, an aggravated felony.

                      Vieira's convictions made him deportable  under the

            Immigration  and  Naturalization  Act  ("the Act").    See   
                                                                   ___

            241(a)(4)(B) (aggravated felony), now  codified as 8 U.S.C.  

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1251(a)(2)(A)(iii)(1991);   and      241(a)(11)   (controlled

            substance   violation),   now   codified   as   8  U.S.C.    

            1251(a)(2)(B)(i)  and   (ii)(1991).    After   a  hearing  on

            September  20, 1989,  an immigration  judge entered  an order

            deporting Vieira.  The judge ruled that Vieira was ineligible

            to seek discretionary  relief under    212(c) of  the Act,  8

            U.S.C.    1182(c), as  aggravated felons were  ineligible for

            such relief.  The  judge advised Vieira that any  appeal from

            this order had to be filed by October 2, 1989.

                      The next day, Vieira filed a  notice of appeal with

            the  Board of Immigration Appeals ("the BIA"). As grounds for

            the appeal, Vieira specifically challenged the judge's ruling

            on the unavailability of   212(c) relief, claiming the  judge

            was wrong as a matter  of law.  That issue was  never reached

            because on October 24,  1989, Vieira voluntarily withdrew his

            appeal.    At all  times  during  this  process,  Vieira  was

            represented by counsel.

                      Vieira was  deported on October 27, 1989.  On March

            24,  1992,  INS  agents  found Vieira  in  Providence,  Rhode

            Island, took him into custody, and charged him with violating

            8  U.S.C.   1326.  In the present criminal proceeding, Vieira

            seeks   collaterally   to  attack   the  original   order  of

            deportation,  arguing that  it cannot  properly serve  as the

            basis for his indictment under   1326.

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II.
                                         II.

                      Under section 212(c) of the Act, certain aliens who

            have  legally resided in the United States for seven years or

            more may seek relief from deportation because of family ties,

            long term  residence, service  in the  armed forces,  and the

            like.   See generally, Matter of  Marin, 16 I. &  N. Dec. 581
                    _____________  ________________

            (1978).  As written,  section 212(c) literally affords relief

            only  to long-term  legal  aliens who  temporarily leave  the

            United States  and who, but for 212(c), would be inadmissible

            upon  return  as   a  result  of   some  violation  of   law.

            Nevertheless,  for   reasons  buried   in   the  history   of

            immigration law,    212(c) relief  is also available  to some

            legal aliens who  have not  left the country  but who  become

            subject to  deportation as a result  of criminal convictions.

            See Campos v. I.N.S.,  961 F.2d 309, 312-13 (1st  Cir. 1992);
            ___ ______    ______

            Francis v. I.N.S.,  532 F.2d 268 (2d Cir. 1976).  Such relief
            _______    ______

            is only available, however, if the ground  for deportation is

            one  for which  an alien  could initially have  been excluded
                                                                 ________

            from the country under  section 212(a) of the Act, 8 U.S.C.  

            1182(a).   See Campos, 961 F.2d at 312-15 (refusing to extend
                       ___ ______

            212(c) relief to  alien charged with illegal  possession of a

            firearm, an offense not listed in 212(a)).

                      At  Vieira's  deportation hearing,  the immigration

            judge held that Vieira was, as a matter of law, ineligible to

            apply  for discretionary  relief under  section 212(c).   The

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immigration judge believed,  erroneously as  it now  appears,

            that Vieira's aggravated felony conviction was an offense for

            which  there was  no  corresponding ground  of  excludability

            under  section 212(a).  The  judge based his  decision on the

            BIA opinions of Matter of  Wadud, 19 I. & N. Dec.  182 (1984)
                            ________________

            and Matter of Granados, 16 I.  & N. Dec. 726 (1979), in which
                __________________

            felons  were held to be  ineligible for section 212(c) relief

            because their offenses (which were  of a type different  from

            Vieira's heroin offense here) were not specifically listed in

            section 212(a).

                      The  district court  found, and the  government now

            concedes, that the immigration  judge was mistaken insofar as

            he  determined that  there  was no  corresponding ground  for

            excludability in  section 212(a) of Vieria's  aggravated drug

            offense.  See  Matter of Meza,  Int. Dec. 3146  (BIA May  22,
                      ___  ______________

            1991).  Had Vieira  pursued his appeal, he would  likely have

            been allowed  to seek discretionary section  212(c) relief   

            although with what result on the merits we cannot, of course,

            know.  

                      In  seeking  to  quash   and  dismiss  his  present

            indictment for unlawful reentry following deportation, Vieira

            does not attack the  deportation order on the ground  that it

            was  error at  the time  of the  deportation hearing  to have

            denied him  an opportunity to petition  under section 212(c),

            but  rather contends  that, while  the denial  may  have been

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correct  then, it  was subsequently  rendered incorrect  by a

            change in  the law.  In 1990, after Vieira had been deported,

            Congress amended section 212(c) to provide that discretionary

            relief  would not  be  available to  an  alien who  had  been
                          ___

            convicted of an  aggravated felony and had  served five years

            or more in prison.  See  The Immigration Act of 1990, Pub. L.
                                ___

            No. 101-649,   511(a),  104 Stat. 4978, 5052.   Vieira argues

            that  this amendment  must be  construed, by  implication, to

            mean  that aggravated felons who had not served five years in
                                                 ___

            prison    like  Vieira     were eligible  for section  212(c)

            relief  even if  their offenses  were  not listed  in section

            212(a).

                      Vieira  points to  Matter of  Meza, Int.  Dec. 3146
                                         _______________

            (BIA May 22, 1991),  as the indicator of the  changed policy.

            There, in a case very similar to Vieira's, the BIA allowed an

            alien  who had  been convicted  of a  drug-related aggravated

            felony to apply for   212(c) relief.   Vieira argues that the

            purported change in INS  policy between the earlier cases  of

            Wadud and Granados  and the  later case  of Meza  effectively
            _____     ________                          ____

            robbed him of judicial  review.  In effect, he  contends that

            the allegedly  changed policy of  the 1990 amendment  and the

            Meza case should be applied retroactively so as to invalidate
            ____

            his deportation order rendered without a   212(c) hearing.

                      We do not find this argument persuasive.   The 1990

            amendments and  Meza  do  not appear  to  have  signaled  any
                            ____

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material  change in  INS  policy.    To  be  sure,  the  1990

            amendment,  by  cutting  off  relief  to   aggravated  felons

            incarcerated   for  five   or   more  years,   recognized  by

            implication  that some  aggravated felons might  otherwise be

            eligible for 212(c) relief and, indeed, that this eligibility

            might continue to be true for those not incarcerated for five

            or more  years.   But as we  noted in  Campos, the  amendment
                                                   ______

            "said nothing about wanting  to enlarge the relief authorized

            under    212(c)."   Campos, 961 F.2d  at 315.   Congress "can
                                ______

            only  be said to have expressed a continued desire to limit  

            212(c) relief to the listed grounds of exclusion."  Id.
                                                                ___

                      To understand Meza, there is no need to hypothesize
                                    ____

            any fundamental  policy change.    The BIA  found that  drug-
                                                                    _____

            related  aggravated  felonies,  for  one of  which  Meza  was
            _______

            convicted,  were  included within  a  specific  subsection of

            212(a) describing  drug-related  offenses.   Meza, Int.  Dec.
                                                         ____

            3146  at 3  (holding  that a  drug-related aggravated  felony

            could  provide  the  basis  for relief  under     212(a)(23),

            recodified   as      1182(a)(2)(A)(i)(II)).     Meza   was  a
                                                            ____

            straightforward application of the existing law that   212(c)

            relief was  available solely  to those  offenses specifically

            listed  in   212(a).  Meza was entirely consistent with Wadud
                                  ____                              _____

            and Granados,  neither  of which  cases  involved  aggravated
                ________

            felonies of the particular kind mentioned in   212(a).

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That Meza did not  indicate a change in deportation
                           ____

            policy is  confirmed  by Matter  of Hernandez-Casillas,  Int.
                                     _____________________________

            Dec. Att. Gen.  March 18, 1991.  The Attorney  General of the

            United States reversed a decision of the BIA overruling Wadud
                                                                    _____

            and Granados and maintained that   212(c) relief continued to
                ________

            be available only for  those offenses specifically identified

            in  section 212(a).  This  Court recently upheld the Attorney

            General's construction  of section 212(c).   Campos, 961 F.2d
                                                         ______

            at 314-15.

                      We   agree  with   the   district  court   and  the

            prosecution that the immigration judge appears simply to have

            misapplied   212(c) under  then-existing doctrine.  He should

            have   offered  Vieira   an  opportunity   to  petition   for

            discretionary relief.  Had Vieira pursued his appeal, the BIA

            presumably  would  have overruled  the immigration  judge and

            allowed Vieira to apply for   212(c) relief, as it did when a

            similar issue was appealed in Meza.  
                                          ____

                      The immigration  judge appears regrettably  to have

            committed an error of law in this respect, but it was not the

            type of error  that provides any basis for  collateral attack

            on  the judge's  deportation order  in a  subsequent criminal

            prosecution brought under 8 U.S.C.   1326.  To provide such a

            basis, the error  must have violated the  alien's due process

            rights,   being  "so   fundamental"   that  it   "effectively

            eliminates the right of the alien to obtain judicial review."

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United States v. Mendoza-Lopez, 481 U.S.  828, 837-39 & n.17,
            _____________    _____________

            107 S.  Ct.  2148, 95  L.  Ed. 2d  772  (1987).   "Our  cases

            establish   that   where   a   determination   made   in   an

            administrative proceeding  is to play a critical  role in the

            subsequent imposition  of a criminal sanction,  there must be

            some meaningful review of the administrative proceeding." Id.
            ____                                                      ___

            at 837-38 (citations omitted) (emphasis in original).  

                      Here,  in  contrast to  the  situation  in Mendoza-
                                                                 ________

            Lopez, the immigration  judge's putatively erroneous decision
            _____

            did  not  "effectively" rob  Vieira of  his right  to review.

            Vieira filed  a  notice of  appeal.   He  later  deliberately

            withdrew  the   appeal.    He  was   represented  by  counsel

            throughout.   As  Vieira voluntarily  abandoned his  right to

            obtain review of the deportation order, we see no way to hold

            that   he  was   deprived   of  meaningful   review  of   the

            administrative proceeding contrary to the due process clause.

            The order  entered in  that proceeding was,  therefore, valid

            and binding on  Vieira, who violated it at  his peril when he

            illegally reentered the United States.

                      Affirmed.
                      ________

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