Unpublished Disposition, 904 F.2d 41 (9th Cir. 1988)

MEMORANDUM^** 

Refugio Paniagua-Estrada petitions for review of the Board of Immigration Appeals' ("BIA") order, which affirmed the Immigration Judge's ("IJ") decision finding him deportable and denying his request for waiver of deportation under Sec. 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). Paniagua-Estrada contends that he was never convicted of a heroin offense, and that the BIA placed too much weight on the cocaine offense of which he was convicted in 1987. A review of the record suggests that the BIA's decision may have been based in part on a conviction that never occurred. However, since the petitioner did not raise that issue before the BIA, we affirm the BIA's order for deportation, but stay the mandate for sixty days to permit the filing of a motion to reopen.

Refugio Paniagua-Estrada, a native and citizen of Mexico, entered the United States as a legal permanent resident on May 28, 1963. The Immigration and Naturalization Service issued him an order to show cause why he should not be deported pursuant to Sec. 241(a) (11) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a) (11), based on his conviction for possession of cocaine.¹  At the April 29, 1988, deportation hearing, Paniagua-Estrada, appearing pro se, admitted the allegations contained in the order to show cause and conceded deportability. The IJ found Paniagua-Estrada deportable, and based on two alleged convictions for drug-related offenses, denied his application for waiver of deportation under INA Sec. 212(c), 8 U.S.C. § 1182(c). Paniagua-Estrada appealed the IJ's decision to the BIA, and on August 15, 1988, the BIA affirmed the IJ's decision. Paniagua-Estrada timely petitions for review.

On appeal, Paniagua-Estrada argues that the BIA weighed his drug-related history incorrectly. Although Paniagua-Estrada testified at one point regarding a conviction for possession of heroin, on appeal to this court, he claims that he never was convicted of such offense and that the BIA's reliance on that conviction was erroneous.²  The petitioner also argues that because he received probation and a six-month suspended sentence on the cocaine charge, the cocaine conviction, although denoted a felony on the conviction form, was tantamount to a misdemeanor. He asserts that the cocaine charge for simple possession should not be considered a "very serious" drug offense, as opposed to an offense related to the trafficking of drugs.

Because Paniagua-Estrada did not raise the arguments regarding his drug charges in his appeal to the BIA, his claims are not properly before us. See Dhangu v. INS, 812 F.2d 455, 460 (9th Cir. 1987); Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir. 1987) ("Absent overriding justification, an alien must exhaust his administrative remedies prior to seeking review of a deportation order [citations omitted.] Failure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter."). However, the record strongly suggests that the BIA may have based its decision on erroneous facts, specifically the determination that the petitioner was convicted of a heroin offense, as well as possession of cocaine. We note that Paniagua-Estrada testified before the IJ without the assistance of counsel, and through an interpreter. Possibly due to the language barrier and the unusual surroundings, the petitioner appears to have been anxious to provide answers to questions, even answers that were obviously harmful to him, and not necessarily correct. At one point, Paniagua-Estrada testified that he was convicted for possession of heroin, an incident which occurred in 1983, while several pages away in the transcript, he stated that there was no conviction until 1987, when he was convicted only of possession of cocaine. His admission of an apparently non-existent heroin conviction appears to have resulted, in part, from a lack of familiarity with the legal system and how it works. The criminal record introduced by the INS clearly states that the 1987 conviction was for cocaine, and fails to indicate any charge or conviction for the possession of heroin. The 1987 conviction, moreover, reflects on its face that there were no prior felony convictions. The record raises a serious question concerning the accuracy of the findings which served as the basis of the IJ's and the BIA's decisions. Had the BIA reviewed the order for deportation on the basis of one rather than two convictions, there is a reasonable possibility that it would have reached a different outcome.

Nevertheless, for jurisdictional reasons, we affirm the BIA's order for deportation. However, as in Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir. 1985), " [t]he order of deportation shall be stayed for sixty days from the filing of this [disposition], to allow time for petitioner to file a motion to reopen and, if a motion to reopen is filed with the BIA, for such further time as is necessary for the disposition of the motion by the BIA." See also Dhangu, 812 F.2d at 461; Alarez-Ruiz v. INS, 749 F.2d 1314, 1316 (9th Cir. 1984). We affirm the determination of the BIA, but stay the order of deportation for sixty days to permit the filing of a motion to reopen, and if a motion is filed, until the disposition of the motion by the BIA.

For the reasons given above, we also affirm the denial of voluntary departure. A motion to reopen will permit the BIA to reconsider its decision with respect to that matter as well.

AFFIRMED.