Opinion
3-01-CV-1562-H
February 14, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Statement of the Case: Aurelio Guerra is a citizen of Mexico and is a permanent resident alien within the United States. Eloisa Guerra is the wife of Aurelio and is a native born American. In June 1998 Aurelio was placed on deferred adjudication upon his plea of guilty to the offense of aggravated sexual assault of a child under 14 years of age. As a result of this criminal conviction, Aurelio was served by the Immigration and Naturalization Service (INS) with a "Notice to Appear" and was subsequently ordered deported by an immigration judge in Dallas, Texas, on November 1, 2000. Aurelio' s appeal to the Board of Immigration Appeals was denied on March 13, 2001, and his petition for review to the Fifth Circuit was dismissed for lack of jurisdiction on May 11, 2001. For the purposes of this case Aurelio is in the custody of the Immigration and Naturalization Service after having been ordered to surrender to the custody of the Immigration and Naturalization Service on July 30, 2001. After the petition was filed in this action the INS agreed not to deport Petitioner and to allow him to remain at liberty until the court has ruled on the merits of the petition filed in this action.
Findings and Conclusions: There are no factual disputes which need be addressed in this action. Rather the issues raised are purely matters of law which are directly impacted by whether Aurelio Guerra's equal protection rights under the Fifth Amendment are violated by the provisions of § 212(h) of the Immigration and Nationality Act [ 8 U.S.C. § 1182 (h)].
Both non-legal permanent residents and legal permanent residents are subject to removal if convicted of an aggravated felony. 8 U.S.C. § 1227 (a)(2)(A)(iii). Two provisions of § 1182(h) come into play in addressing the equal protection claim. A non-legal permanent resident, convicted of an aggravated felony may seek an adjustment of status, and thus remain in the United States, by receiving a discretionary waiver. Specifically § 1182(h)(1)(B) in pertinent part permits the Attorney General in the exercise of discretion to waive certain grounds of inadmissibility:
in the case of an immigrant who is the spouse . . . of a citizen of the United States . . . if it established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen . . .
Aurelio's wife, Eloisa, was born in Waxahachie, Texas.
However, § 1182(h) further provides that:
No waiver shall be granted in the case of an alien who has previously been admitted to the United States as an alien legally admitted for permanent residence if . . . since the date of such admission the alien has been convicted of an aggravated felony. (Emphasis added).
Aurelio's aggravated sexual assault of a child occurred on or about December 2, 1992, for which he was placed on deferred adjudication on June 14, 1998, both of which post-dated his status as a lawful permanent alien obtained on February 4, 1987.
Aurelio Guerra' s argument in support of his claim that the provisions of § 1182(h) violate his equal protection rights essentially is that there is no rational basis for allowing persons who have no legally recognized alien status in the United States to obtain discretionary relief from deportation while at the same time prohibiting persons who have obtained permanent resident status from seeking such relief
Although the Fifth Circuit has yet to address this issue and the undersigned's research has not found any opinions of districts within the Fifth Circuit which have addressed this issue, a number of circuit courts and district courts have issued opinions addressing the equal protection argument raised in the present case.
The circuit courts which have addressed the issue have uniformly held that § 1182(h) does not violate the equal protection rights of an alien who has been granted permanent resident status. See Finau v. INS, 277 F.3d 1146 (9th Cir. 2002); Moore v. Ashcroft, 251 F.3d 919, 925-26 (11th Cir. 2001); Lara-Ruiz v. INS, 241 F.3d 934 947-48 (7th Cir. 2001),Umanzor-Lazo v. INS, No. 98-1898, 1999 WL 27405 at *4 (4th Cir. 1999) (unpublished opinion).
Among district courts which have considered the issue there is a conflict. In the following published opinions district courts have held that the provisions of § 1182(h) are unconstitutional on the ground that they violate the equal protection rights of a permanent resident alien subject to removal (deportation): Song v. INS, 82 F. Supp. 2d at 1121 (C.D. Calif. 2001); Jankowski v. INS, 138 F. Supp.2d 269 (D.Conn. 2001) and Roman v. Ashcroft, No. 1:01cv1236, 2002 WL 32722 (ND. Ohio Jan. 4, 2002).
The subsequent opinion of the Ninth Circuit in Finau v. INS, supra, rejected the rationale of the district court in Song and thus overruled Song sub silentio.
The decision in Jankowski is currently on appeal before the Second Circuit. See Barton v. Ashcroft, 171 F. Supp.2d 86, 92-93 (D.Conn. 2001).
As contrasted with the district court decision holding § 1182(h) unconstitutional, the circuit courts have relied principally on the broad power which Congress possesses in regulating the admission and exclusion of aliens, which in turn subjects provisions of the Immigration and Nationality Act to minimal scrutiny under the rational basis standard of review will be upheld if not arbitrary or unreasonable. See Moore v. Ashcroft, supra, 251 F.2d at 924-25.
In addition the Moore court favorably commented on the observations of the Seventh Circuit in Lara-Ruiz, 241 F.3d at 947, that Congress could rationally have concluded that a permanent resident alien — who by reason of such status enjoyed substantial rights and privileges not enjoyed by illegal immigrants, but who disregarded the concomitant responsibilities in committing aggravated felonies while in such status — should not be entitled to any additional consideration of mitigating factors before he or she is removed from the United States.
At bottom the question of what categories of aliens should be subject to deportation and under what circumstances is one of policy which in the final analysis is one within the prerogative of the legislative branch. While reasonable minds may differ as to the wisdom of the course ultimately enacted into law, given the broad power reserved to Congress to regulate admissions and exclusions of aliens, a court has no authority to substitute its judgment for that of the legislative branch, except in the most egregious circumstances, which in the case of § 1182(h) is not present.
Insofar as Eloisa Guerra seeks to bring this action in her own behalf, she has no standing to assert the claims which she seeks to raise. While there can be no doubt that Aurelio's removal from the United States will likely have a disruptive effect on their marriage, § 1182(h) makes clear that given Aurelio' s status as a permanent legal alien, consideration of such potential hardships is foreclosed. See Prado v. Reno, 198 F.3d 286, 287, n. 1 (1st Cir. 1999). RECOMMENDATION:
In Beharry v. Reno, No. 98cv5381 (JBW), 2002 WL 92805 (E.D.N Y Jan. 22, 2002), a district court declined to address the constitutionality of § 1182(h). Id. at *7. However, the court found that the adversely affected minor child of the petitioning alien was afforded rights under international law. Id. at *11. Although Eloisa is a spouse rather than a child of an alien, the court's opinion in Beharry suggests that international law would likewise afford her a corresponding right. Id. at *18 discussing the provisions of the International Covenant on Civil and Political Rights (ICCPR). The magistrate judge respectfully disagrees with the court's reasoning and application of international law and therefore finds it unpersuasive in implying that Eloisa has standing in this case.
For the foregoing reasons it is recommended that Aurelio Guerra's claims be denied and dismissed with prejudice and that the claims of Eloisa Guerra be dismissed pursuant to Rule 12(b)(1) and (6), Federal Rules of Civil Procedure.