Nestor Omar Barreiro, Petitioner, v. Immigration and Naturalization Service, Respondent, 989 F.2d 62 (1st Cir. 1993)

Petitioner Nestor Omar Barreiro, a 40 year old citizen of Argentina, moves for a stay of deportation. He has been a legal permanent resident since December 1980, is married to a United States citizen, and has a ten year old son. In October 1984 he was convicted in the Massachusetts Superior Court of possession of a sizeable amount of a controlled substance with intent to distribute and was sentenced to the mandatory term of 10 to 15 years. He was released in April 1992, having served seven years. Meanwhile, in June 1986 respondent Immigration and Naturalization Service (INS) issued an order to show cause why petitioner should not be deported pursuant to § 241(a) (11) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a) (11) (Supp.1986), as amended 8 U.S.C. § 1251(a) (2) (B) (i) (Supp.1992), because of his conviction. This case involves three recent enactments: the Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. No. 100-690, 102 Stat. 4181; the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649, 104 Stat. 4978; and the Miscellaneous and Technical Immigration and Naturalization Amendments of 1991 (TINA) Pub. L. No. 102-232, 105 Stat. 1733.

In 1992 petitioner sought a waiver of deportation pursuant to INA § 212(c), 8 U.S.C. § 1182(c) (Supp.1992) as a seven year domiciliate. This was denied, and the Board of Immigration Appeals affirmed, applying the final sentence of the section, inserted on November 29, 1990, that reads as follows:

The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

IMMACT § 511(a). The Board held that petitioner's imprisonment, though largely completed prior to this amendment, was comprehended therein. We agree.

There is no question but that petitioner's offense, though he was convicted in a state proceeding, is an aggravated felony, within INA § 101(a) (43), 8 U.S.C. § 1101(a) (43) (Supp.1992).¹  Also, although § 1182(c) reads as limited to aliens who are returning from voluntary absences abroad, concededly the statute, apart from the amendment, applies equally to resident aliens who are sought to be deported. This was established by Francis v. I.N.S., 532 F.2d 268 (2d Cir. 1976). The court there noted that the manifest purpose was to qualify certain aliens who had lived here seven years to seek a waiver, in the discretion of the Attorney General, of the exclusionary consequence of various prohibitions in § 1182(a). The court held that it would be a denial of equal protection to distinguish between aliens seeking readmission and those resisting deportation, and that consequently § 212(c) must be applied to include the latter. The limited wording of the statute has not been changed, but the Second Circuit's ruled enlargement has been recognized ever since. Tapia-Acuna v. I.N.S., 640 F.2d 223 (9th Cir. 1981). E.g., Gouveia v. I.N.S., 980 F.2d 814 (1st Cir. 1992). Petitioner's contention that this ruling should not apply to the amendment is frivolous. He may seek a waiver, but must fail if his seven year imprisonment was within the statute.

In addition to this permanent waiver, the INA contained a presumption of a temporary stay pending judicial appeal, § 106(a) (3), 8 U.S.C. § 1105a(a) (3) (Supp.1992), the underlined words having been added by IMMACT § 513(a), and are to "apply to petitions to review filed more than 60 days after the date of enactment of the statute." IMMACT § 513(b).

The service of the petition for review ... shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs or unless the alien is convicted of an aggravated felony, in which case the Service shall not stay the deportation of the alien pending determination of the petition of the court unless the court otherwise directs.

Finally, on December 12, 1991 by the TINA, § 306(a) (11) (B), it was provided that the IMMACT amendment "shall apply to convictions entered before, on, or after such date," and by § 310(1), that this latter amendment "shall take effect as if included in the enactment of the Immigration Act of 1990."

The Board's opinion sustaining the denial of a waiver relied on Matter of A-A-, Interim Dec. 3176 (BIA 1992), which in turn is so persuasive that we could well simply agree, but we will further comment in light of petitioner's persistent complaint. There is, of course, no constitutional issue, United States v. Bodre, 948 F.2d 28, 31-32 (1st Cir. 1991), cert. denied, --- U.S. ----, 112 S. Ct. 1487, 117 L. Ed. 2d 628 (1992); the only question is that of Congressional intent. While a presumption against retroactivity prevails in the absence of clearly contrary indicia, Dion v. Secretary of H.H.S., 823 F.2d 669, 671 (1st Cir. 1987), one must look at the whole picture.

In Ayala-Chavez v. I.N.S., 945 F.2d 288 (9th Cir. 1991) the court held that only aggravated offenses committed after November 18, 1988 receive the negative presumption of no temporary waiver pending appeal. The TINA followed promptly, and the Ninth Circuit recognized that § 306(a) (11) (B) was intended to overrule Ayala-Chavez. Arthurs v. I.N.S., 959 F.2d 142 (9th Cir. 1992). See also Ignacio v. I.N.S., 955 F.2d 295 (5th Cir. 1992); Matter of A-A-, supra. The legislative history makes clear that this was fully recognized as a technical amendment for clarification. Actually the amendment was introduced into and passed by the Senate on August 1, 1991, prior to Ayala-Chavez, 137 Cong.Rec. S11, 799-804. Offering the bill, Senator Simpson described it as "truly technical.... The Bill was developed under the following rule: If any of the four Immigration Subcommittee's staffs [Republican and Democrat of the House and Senate] found a provision controversial or non-technical, then it was removed." Id at S11,799. The following November 25, post Ayala-Chavez, an identical House bill passed. Id. at H11,245-251. The next day the Senate made minor amendments, id. at S18,506-514, which the House promptly accepted. Id. at H11,485-493. One of these changes was the addition of the 'before, on, or after' amendment to § 513(b).

We have two reasons for agreeing with the Board. In the first place, we believe Ayala-Chavez was wrongly decided. If Congress believed seven years' residence insufficient to entitle aliens to waivers if they had served five or more years imprisonment for committing an aggravated felony, it makes small sense that so substantial a stricture should not go into effect for five years from enactment. The presumption against a retroactive interpretation is to give fair warning so that a party may avoid consequences. This is scarcely a situation calling for any such a warning. Five years free time would be extraordinarily considerate, particularly for the undeserving.

In addition, as we study the legislation and the legislative history, we believe that although Congress amended only § 513(b), its failure to amend § 511(b) correspondingly was a simple oversight. We do not believe it necessary, however, to detail further the several steps that lead us to that conclusion.

Affirmed.