No. 1682; Docket No. 93-4039.
Argued June 10, 1993.
Decided May 23, 1996.
ROBERT A. MURTHA, JR., New York, NY, for Petitioner.
DIOGENES P. KEKATOS, Asst. U.S. Atty., S.D.N.Y., New York, NY (Roger S. Hayes, U.S. Atty., Mary Jo White, U.S. Atty., James A. O'Brien, III, Special Asst. U.S. Atty., Thomas A. Zaccaro, Asst. U.S. Atty., Claude M. Millman, Asst. U.S. Atty., of counsel), for Respondent.
Resident alien, charged with deportability, requested a discretionary waiver of deportation. The immigration judge held that alien was ineligible for such relief, and the Board of Immigration Appeals affirmed. Alien petitions for review of the determination that he is ineligible for a discretionary waiver.
Petition for Review DENIED.
Before: OAKES, WINTER, and McLAUGHLIN, Circuit Judges.
Mark Anthony Cato, a lawful permanent resident of the United States, pled guilty to possession of a loaded firearm, and thereafter the Immigration and Naturalization Service ("INS") brought deportation proceedings against him. Cato conceded his deportability, but asked for a chance to apply for a discretionary waiver of deportation. The immigration judge found Cato ineligible to apply for such relief, and ordered him deported. The Board of Immigration Appeals ("BIA") affirmed.
Cato petitioned this Court to review his deportation order. We initially held this case in abeyance pending the BIA's decision in In re Esposito, Interim Decision No. 3243 (BIA Mar. 30, 1995) (reported at 1995 WL 147030), following our remand of that case, see Esposito v. INS, 987 F.2d 108 (2d Cir. 1993). The Esposito proceedings have since come to a close. We now decide Cato's case on the merits. For the reasons discussed below, the petition for review is denied.
In Esposito, the BIA held in part that a deportee cannot cure his ineligibility for discretionary relief from deportation under the Immigration and Nationality Act Section(s) 212(c), 8 U.S.C. § 1182(c) — because his charged ground of deportation does not have a counterpart ground of exclusion listed in Section(s) 212(a) of that Act, 8 U.S.C. §(s) 1182(a) — by showing that his offense may support some further ground for excludability that is so listed. See Esposito, Interim Decision No. 3243 at 13-15.
Cato, a native and citizen of Jamaica, has lawfully resided in the United States since 1981. In 1990, he was arrested after firing a gun in the direction of other people. On February 28, 1991, Cato pled guilty in New York state court to criminal possession of a weapon in the third degree, in violation of N Y Penal Law Section(s) 265.02. The court sentenced him to one year's imprisonment.
On December 12, 1991, the INS served Cato with an order to show cause and notice of hearing, charging that his weapons conviction rendered him deportable from the United States, pursuant to 241(a)(2)(C) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2)(C). At his deportation proceedings, Cato, represented by counsel, conceded his deportability, but requested an opportunity to apply to the Attorney General for a discretionary waiver of deportation pursuant to INA Section(s) 212(c), 8 U.S.C. §(s) 1182(c).
Immigration Judge Sydney B. Rosenberg held that Cato was statutorily ineligible for Section(s) 212(c) relief. Noting that Section(s) 212(c) relief is available to a deportee only if the ground for deportation has an analogous ground for exclusion listed in INA Section(s) 212(a), 8 U.S.C. § 1182(a), Judge Rosenberg found that Cato's ground for deportation — a weapons offense — had no such analogue in Section(s) 212(a). Judge Rosenberg ordered Cato deported to Jamaica. Cato appealed to the BIA, which affirmed the order of deportation. The BIA agreed with Judge Rosenberg that Cato was ineligible for Section(s) 212(c) relief because "[t]here is no section 212(a) ground of excludability which corresponds to a charge of deportability under section 241(a)(2)(C) of the [INA] for conviction of a firearms violation." Cato petitions this Court for review of his deportation order, arguing that: (1) Congress originally intended that aliens ordered deported because of a weapons conviction be entitled to Section(s) 212(c) relief; (2) Congress further intended, through recent amendments to the INA, to make Section(s) 212(c) relief available to aliens ordered deported because of a weapons conviction; and (3) if he is not eligible for Section(s) 212(c) relief, he is being denied his constitutional right to equal protection.
Our question is singular and straightforward: may Cato, ordered deported on the sole ground of his weapons conviction, apply for a 212(c) waiver of deportation? The answer is no.
I. General Eligibility for Section(s) 212(c) Relief
An alien may be denied resident status in this country in one of two ways: (1) if he is already in the United States, he may be deported (under Section(s) 241); or (2) if he is not currently in the United States, but seeks to enter, he may be excluded (under Section(s) 212). Congress has chosen to treat deportation and exclusion differently: there are some acts or offenses that are grounds for deportation under Section(s) 241 which are not grounds for exclusion under Section(s) 212, and vice versa. See generally 8 U.S.C. §(s) 1151-1365. Therein lies Cato's problem.
INA Section(s) 212 relates only to exclusion, and it sets forth several grounds to deny an alien admission into the United States. See 8 U.S.C. §(s) 1182(a). But under Section(s) 212(c) the Attorney General, in her discretion, may allow an alien to be admitted despite Section(s) 212(a). See 8 U.S.C. § 1182(c).
While Section(s) 212(c), on its face, applies only to excludees, and not to deportees like Cato, we held in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), that, for equal protection reasons, Section(s) 212(c)'s privilege of discretionary waiver for aliens in exclusion proceedings should also be extended to similarly situated aliens in deportation proceedings. See Francis, 532 F.2d at 272. A deportee and an excludee are similarly situated when the ground for the deportee's removal from the country is the same as the ground for the excludee's denial of admission; thus, a 212(c) waiver becomes available in a deportation proceeding if the reason for deportability is "substantially equivalent" to a ground of exclusion listed in Section(s) 212(a). See Bedoya-Valencia v. INS, 6 F.3d 891, 894 (2d Cir. 1993); Campos v. INS, 961 F.2d 309, 313 n.6 (1st Cir. 1992).
Going a step further, in Bedoya-Valencia v. INS, 6 F.3d 891 (2d Cir. 1993), we held that a deportee whose ground of deportation under 241 could have no conceivable analogue in the exclusion setting should also be eligible for Section(s) 212(c) relief. For example, while an alien may be deported for "entry without inspection," see 8 U.S.C. § 1251(a)(1)(B), obviously an alien could not be excluded on that ground — an excludee, by definition, has not yet "entered" the country, and, hence, could not possibly have done so without inspection, see Bedoya-Valencia, 6 F.3d at 894-95. In those limited circumstances, we found that a "modest extension" of the Francis rule would promote "coherence and consistency" in the statutory scheme. See id. at 897. We were, perhaps, emboldened by the lack of legislative guidance, and the fact that the Francis rule itself — which judicially (not legislatively) crafted — gave rise to the "interstitial issue" we faced. Id.
Thus, the confluence of Francis and Bedoya-Valencia results in three categories into which a deportee seeking the privilege of a 212(c) waiver may fall:
(1) The deportee's ground of deportation may be congruent with a ground of exclusion listed in Section(s) 212(a). Such a deportee is eligible for Section(s) 212(c) relief.
(2) The deportee's ground of deportation may be one that could not possibly be analogous to a ground of exclusion. Such a deportee is also eligible for Section(s) 212(c) relief.
(3) The deportee's ground of deportation may be one that could conceivably have an analogous ground of exclusion under 212(a) but, unhappily, Congress has not chosen to include that ground in Section(s) 212(a). Such a deportee is not eligible for 212(c) relief.
Cato falls squarely into the third group. He does not fall into the first group, because a weapons offense is not a ground of exclusion listed in Section(s) 212(a) — Cato candidly concedes as much. Although Cato believes he falls into the second category, his argument is misplaced. There is no question that Congress, had it so chosen, could have included weapons offenses as grounds of exclusion; but it has not. Because a weapons offense is not a ground of deportation that "could not conceivably" have an exclusion counterpart, see Bedoya-Valencia, 6 F.3d at 897, the Bedoya-Valencia reasoning does not apply. Thus, Cato is ineligible for Section(s) 212(c) relief.
II. Congressional Intent
In an attempt to stretch Section(s) 212(c) to cover him, Cato mounts several assaults on the overall scheme created by Francis and Bedoya-Valencia.
First, Cato argues that Congress did intend to extend the privilege of Section(s) 212(c) relief to aliens ordered deported because of a weapons conviction. Specifically, he claims that Congress designed Section(s) 212(c) to be a broad, humanitarian provision, permitting forgiveness in deportation proceedings to lawful permanent residents with deeply-rooted ties to the United States. Cato asserts that denial of Section(s) 212(c) eligibility to weapons offenders violates this intent.
This argument flies in the teeth of the statute itself, which unequivocally provides relief only for excludees, and, then, only for certain specified grounds of exclusion. See 8 U.S.C. Section(s) 212. It also flouts the legislative history, which indicates that Congress intended that Section(s) 212(c) relief be granted sparingly. See H.R. Rep. No. 1365, 82nd Cong., 2d Sess. 2 (1952), reprinted in 1952 U.S.C.C.A.N. 1653, 1705 ("any discretionary authority to waive the grounds for exclusion should be carefully restricted to those cases where extenuating circumstances clearly require such action and . . . the discretionary authority should be surrounded with strict limitations"). In any event, we rejected Cato's "original intent" argument, at least implicitly, in Francis: if Congress wished to provide sweeping and generous relief to all deportees with substantial ties to the country, we would have recognized this gesture in Francis, and would not have narrowed our holding to deportees who can show an analogous ground of exclusion in Section(s) 212(a). See Francis, 532 F.2d at 273; see also Leal-Rodriguez v. INS, 990 F.2d 939, 949-950 (7th Cir. 1993).
III. ADAA and IMMACT
Cato claims that Congress intended, through recent amendments to the INA, to extend Section(s) 212(c) relief to aliens ordered deported on the ground of a weapons conviction. He points to the Anti-Drug Abuse Act of 1988 ("ADAA"), Pub. L. No. 100-690, 102 Stat. 4181 (1988), and the Immigration Act of 1990 ("IMMACT"), Pub. L. No. 101-649, 104 Stat. 4978 (1990). But neither of those statutes can carry the weight Cato seeks to place on them.
The ADAA added to federal law two new grounds of deportation. With ADAA Section(s) 7348(a), 102 Stat. 4473, Congress amended INA Section(s) 241(a)(14), 8 U.S.C. §(s) 1251(a)(14), to make the illegal possession of any firearm a deportable offense. See 8 U.S.C. § 1251(a)(2)(C) (current version); see also Campos, 961 F.2d at 314. And, ADAA Section(s) 7344(a), 102 Stat. 4470, amended INA Section(s) 241(a)(4), 8 U.S.C. §(s) 1251(a)(4), to include an aggravated felony as a ground for deportation. See 8 U.S.C. §(s) 1251(a)(2)(A)(iii) (current version).
Cato asserts (without citation) that several Senators supported a provision that would have made aggravated-felon-deportees expressly ineligible for Section(s) 212(c) relief, and that Congress rejected this provision. Cato then argues that, "[i]n view of the careful congressional consideration given to the deportation of aggravated felons, precluding Section(s) 212(c) relief for simple unlawful possession of a handgun would contravene both the spirit and intent of Congress as evidenced in the ADAA." Petitioner's Brief at 10. We are not persuaded.
Even accepting Cato's allegations of "careful congressional consideration," such consideration related only to the eligibility of aggravated felons for Section(s) 212(c) relief, and did not relate to eligibility of weapons offenders. As to congressional treatment of weapons offenders in the ADAA:
The amendment [of section 241(a)(14) to include all weapons offenders] itself showed only that Congress believed such offenses were now serious enough to warrant deportation. What, if anything, Congress may have thought on the issue of discretionary relief [for weapons offenders] is simply unknown
. . . .
Campos, 961 F.2d at 314. If Congress wanted to confer upon weapons offenders the privilege of discretionary waiver from deportation, it could have done so expressly, or it could have added weapons offenses to Section(s) 212(a) as waivable grounds of exclusion. Until it does one of these things, we must assume that Congress intended that weapons offenders be ineligible for Section(s) 212(c) relief.
With IMMACT Section(s) 511(a), 104 Stat. 5052, Congress amended INA 212(c), 8 U.S.C. §(s) 1182(c), to provide that an alien convicted of an aggravated felony who has served five years or more in prison is ineligible for a discretionary waiver. See 8 U.S.C. §(s) 1182(c). Cato discerns from that provision an intent that permanent resident aliens convicted of aggravated felonies who serve less than five years in prison be automatically eligible for Section(s) 212(c) relief. And, Cato argues, it would undermine congressional intent to allow some aggravated felons to apply for Section(s) 212(c) relief, but prohibit simple weapons offenders from requesting a discretionary waiver.
But IMMACT Section(s) 511(a) has nothing to say about weapons offenders. It simply provides that some aggravated felons are ineligible for Section(s) 212(c) relief. It would be perverse to infer from this amendment — which limits the scope of Section(s) 212(c) — a concurrent expansion of Section(s) 212(c) eligibility to an offense that is neither listed in Section(s) 212(a), nor mentioned in IMMACT Section(s) 511(a) itself. "By leaving the exceedingly specific language of Section(s) 212(c) substantially unchanged, [Congress] can only be said to have expressed a continued desire to limit Section(s) 212(c) relief to the listed grounds of exclusion." Campos, 961 F.2d at 315; see also Leal-Rodriguez, 990 F.2d at 951.
IV. Equal Protection
Finally, Cato argues that, if he is not eligible for Section(s) 212(c) relief, his constitutional right to equal protection has been denied. Cato, however, does not claim that his ground of deportation under Section(s) 241 — a weapons offense — is substantially equivalent to a ground of exclusion under Section(s) 212(a), and that his ineligibility for a discretionary waiver therefore violates Francis. Rather, he claims that his crime is "less serious" than some crimes that qualify for exclusion (and thus are eligible for a Section(s) 212(c) waiver), and that this odious result violates equal protection. See U.S. Const. amend. V, XIV.
Congress has a "facially legitimate and bona fide reason," Fiallo v. Bell, 430 U.S. 787, 794 (1977), to treat weapons offenders and other offenders differently. See Guan Chow Tok v. INS, 538 F.2d 36, 38-39 (2d Cir. 1976). The Constitution does not require "Congress to lay out crimes on a spectrum, and grant at least as much discretion for the less serious as for any more serious crimes." Cabasug v. INS, 847 F.2d 1321, 1327 (9th Cir. 1988). Different crimes raise different policy concerns, and it is not a judicial function to second-guess the classifications between offenses that Congress has drawn for purposes of immigration. See generally Correa v. Thornburgh, 901 F.2d 1166, 1173 (2d Cir. 1990) ("scope of review as to [an alien's] equal protection claim is exceedingly narrow").
In sum, we hold that an alien, deported on the ground of a weapons conviction, is ineligible for Section(s) 212(c) relief. We have considered all the additional arguments raised by Cato, and find them without merit. Accordingly, the petition for review is DENIED.