Luis Alberto Bedoya-valencia, Petitioner, v. Immigration and Naturalization Service, Respondent, 6 F.3d 891 (2d Cir. 1993)

Petitioner Luis Alberto Bedoya-Valencia petitions for review of an order of the Board of Immigration Appeals ("BIA") dated October 30, 1992 that dismissed his appeal from a deportation order issued June 18, 1992 by Immigration Judge Robert D. Weisel (the "IJ"). The IJ held, and the BIA agreed, that Bedoya-Valencia was ineligible for relief under Sec. 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (Supp. III 1991),¹  because a ground upon which his deportation is based, entry without inspection, is not also a ground for exclusion. In so ruling, the BIA followed the decision of the Attorney General, reversing a divided BIA, in In re Hernandez-Casillas, Interim Decision No. 3147, 1990 WL 385764 (BIA Jan. 11, 1990; Att'y Gen. Mar. 18, 1991), aff'd mem., 983 F.2d 231 (5th Cir. 1993).

We vacate and remand, directing the BIA to exercise its discretion regarding Bedoya-Valencia's application for Sec. 1182(c) relief.

Background

The facts in this case are uncontested. Bedoya-Valencia, a native and citizen of Colombia, first entered the United States as a lawful permanent resident in 1976. In 1983, he was convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1), and sentenced to four years imprisonment and six years special parole. In February 1984, the Immigration and Naturalization Service ("INS") issued an order to show cause charging Bedoya-Valencia as deportable under Sec. 241 of the INA, 8 U.S.C. § 1251(a) (11),²  for having been convicted of a narcotics offense.

At his deportation hearing in September 1986, Bedoya-Valencia conceded deportability and applied for discretionary relief from deportation under Sec. 1182(c).³  See Francis v. INS, 532 F.2d 268, 272-73 (2d Cir. 1976) (applying Sec. 1182(c) to waiver of deportation as well as exclusion). The parties consented to an adjournment of the proceedings until March 1987 to allow Bedoya-Valencia an opportunity to present evidence concerning his Sec. 1182(c) application. In conjunction with this initial proceeding, Bedoya-Valencia's alien registration card was retained by the INS.

In November 1986, while his deportation proceedings were pending, Bedoya-Valencia departed the United States and went to Colombia. Assertedly because the INS still retained Bedoya-Valencia's documentation as to his resident alien status, he evaded inspection upon his return to the United States in early 1988, and illegally reentered the country. Upon learning of Bedoya-Valencia's illegal reentry, the INS lodged an additional charge of deportability against him on October 11, 1991 for unlawful entry without inspection in violation of Sec. 1251(a) (1) (B). At his continued deportation hearing, Bedoya-Valencia conceded his deportability on the new charge and submitted a new application for Sec. 1182(c) relief.

The IJ found that Bedoya-Valencia was statutorily ineligible for Sec. 1182(c) relief. He based that determination upon the Attorney General's decision in Hernandez-Casillas, stating that " [t]he Attorney General unequivocally determined that entry without inspection, a conceded charge of deportability, is not waiveable by application for relief pursuant to [Sec. 1182(c) ]" because entry without inspection has no comparable ground of excludability under Sec. 1182(a).

Bedoya-Valencia appealed the IJ's decision to the BIA. He did not challenge the IJ's findings of deportability, but argued that the IJ erred in finding him ineligible for Sec. 1182(c) relief because: (1) the ground for deportation stated in Sec. 1251(a) (1) (B), entry without inspection, is analogous to the ground for exclusion stated in Sec. 1182(a) (7) (A), seeking admission without proper documentation; and (2) in any event, fundamental fairness requires that Sec. 1182(c) relief should be available to aliens charged with any ground for deportation or exclusion other than those specifically excepted by statute.⁴ 

The BIA rejected Bedoya-Valencia's arguments. It viewed Hernandez-Casillas as having ruled that an alien deportable under Sec. 1251(a) (1) (B) is ineligible for Sec. 1182(c) relief because: (1) there is no ground of exclusion comparable to entry without inspection; (2) the limitation of Sec. 1182 waiver relief imposed by Hernandez-Casillas is consistent with constitutional guarantees of equal protection; and (3) a contrary ruling would unduly disrupt the statutory scheme. The BIA accordingly affirmed the decision of the IJ and dismissed Bedoya-Valencia's appeal.

Bedoya-Valencia now seeks review of the BIA's decision before this court pursuant to 8 U.S.C. § 1105a (1988 & Supp. III 1991).

Discussion

Bedoya-Valencia argues on appeal that: (1) the deportation ground of entry without inspection is analogous to the exclusion ground of seeking admission without proper documentation, and he is accordingly eligible for Sec. 1182(c) relief; (2) if the statutory analogy is rejected, the case should be remanded for initial discretionary consideration of his claim for waiver of the narcotics ground of deportation, whose resolution might avoid any need to consider the constitutional issue otherwise presented by this appeal; and (3) in any event, due process and equal protection require that Sec. 1182(c) relief be available for an alien deportable on any ground other than those specifically precluded by Sec. 1182(c). See supra note 4.

These issues are solely questions of law, and thus our review is plenary. See Campos v. INS, 961 F.2d 309, 312 (1st Cir. 1992); Ardestani v. INS, 904 F.2d 1505, 1508 (11th Cir. 1990), aff'd, --- U.S. ----, 112 S. Ct. 515, 116 L. Ed. 2d 496 (1991); De los Santos v. INS, 690 F.2d 56, 59 (2d Cir. 1982). In conducting that review, however, deference must be accorded to the views of the Attorney General, who is charged with the administration of the INA and whose rulings with respect to questions of immigration law are controlling within the executive branch. See 8 U.S.C. § 1103(a) (1988); Leal-Rodriguez v. INS, 990 F.2d 939, 950 (7th Cir. 1993); De los Santos, 690 F.2d at 59.

A. Entry Without Inspection as Analogous to a Ground for Exclusion.

Bedoya-Valencia first contends that he is entitled to a Sec. 1182(c) hearing because entry without inspection is analogous to a ground for exclusion, failure to present proper documents for admission. We disagree.

Section 1182(a) (7) (A) (i) provides:

Except as otherwise specifically provided in this chapter, any immigrant at the time of application for admission--

(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 1181(a) of this title, or

(II) whose visa has been issued without compliance with the provisions of section 1153 of this title,

is excludable.

In contrast, section 1251(a) (1) (B) provides:

Any alien who entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or any other law of the United States is deportable.

The issue is to be determined by a standard of "substantial [ ] equivalen [ce]." Campos, 961 F.2d at 313 n. 6 (citing In re Salmon, 16 I. & N.Dec. 734 (1978)); cf. Cabasug v. INS, 847 F.2d 1321, 1324 (9th Cir. 1988) ("crime involving moral turpitude" category "similar but not identical" under deportation and exclusion statutes). This standard is not satisfied by a comparison of these provisions. See Hernandez-Casillas, 1990 WL 385764 at * 25 n. 4 (according to Attorney General, illegal entry is one of two grounds for deportation that have no analogue in the grounds for exclusion); In re M--, 5 I. & N.Dec. 642, 647 (BIA 1954) (entry without inspection is ground of deportation but not exclusion); In re T--, 5 I. & N.Dec. 389, 390 (BIA 1953) (same). Entry without inspection involves a calculated avoidance of the admission procedure; it is hardly equivalent to an invocation of that procedure that is undermined by faulty documents.

Bedoya-Valencia argues that he did not present himself for inspection when he returned to the United States because he lacked proper admission documents. That may be true, but it does not render the resulting illegal entry substantially equivalent, as a matter of statutory definition, to the motivating lack of documentation.

B. Remanding the Case for a Sec. 1182(c) Hearing.

Bedoya-Valencia next contends that this court should decline to address the merits of his claim at this time and remand the case for a determination of whether he would be granted Sec. 1182(c) discretionary relief on his drug offense ground for deportation, thus avoiding the constitutional issue presented by this appeal in the event of an adverse discretionary ruling on remand by the BIA. He cites Gutierrez v. INS, 745 F.2d 548 (9th Cir. 1984), in support of this procedure. In Gutierrez, as here, the alien was charged with both entry without inspection and a narcotics offense. Unlike the present case, however, the immigration judge in Gutierrez had ruled that the alien should not be accorded discretionary relief on the narcotics ground, in addition to ruling that discretion could not be exercised with respect to the entry without inspection. See id. at 549. On appeal, the BIA considered only the latter ruling. The Ninth Circuit remanded for the BIA to address the immigration judge's ruling on the narcotics issue, "an independent determination which, if it had been affirmed, would have disposed of the case." Id.

In this case, the IJ and the BIA properly refrained from exercising their Sec. 1182(c) discretion regarding Bedoya-Valencia's narcotics conviction. They were obliged to follow the Attorney General's ruling in Hernandez-Casillas. See Campos, 961 F.2d at 314 ("The Attorney General's ruling in [Hernandez-Casillas ] was administratively dispositive."). Because, pursuant to Hernandez-Casillas, no Sec. 1182(c) discretion was available with respect to Bedoya-Valencia's entry without inspection, it would have been an exercise in futility for the IJ and the BIA to address the waiveability of the alternative ground of deportation. A remand for that purpose without addressing the underlying issue would be equally unproductive.

C. Eligibility for a Discretionary Waiver of Deportation under Sec. 1182(c).

In Francis, we invoked the implicit equal protection guarantee of the Fifth Amendment due process clause, see Francis, 532 F.2d at 272 n. 5 (citing Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S. Ct. 1160, 1165 n. 4, 39 L. Ed. 2d 389 (1974); Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954)) to determine that it was "irrational to distinguish between two categories of narcotics offenders on the basis of a brief visit out of the country." Guan Chow Tok v. INS, 538 F.2d 36, 38-39 (2d Cir. 1976) (construing Francis) . We therefore concluded that the discretionary waiver that Sec. 1182(c) allowed in favor of a returning alien in exclusion proceedings must also be accorded his more sedentary counterpart in deportation proceedings. See Francis, 532 F.2d at 272-73. We did so even though Congress had "provid [ed] a separate but analogous scheme of discretionary relief to the non-departing alien." Id. at 273 (citing 8 U.S.C. § 1254(a) (2)); cf. Correa v. Thornburgh, 901 F.2d 1166, 1174 n. 10 (2d Cir. 1990) ("there is no requirement that exclusion and deportation grounds be analogous") (citing Cabasug, 847 F.2d at 1326-27).

The BIA subsequently applied the Francis rule nationally in In re Silva, 16 I. & N.Dec. 26, 30 (BIA 1976).⁵  That rule has now been adopted in the First, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits. See De Gonzalez v. INS, 996 F.2d 804, 806 (6th Cir. 1993); Leal-Rodriguez, 990 F.2d at 949 (citing Variamparambil v. INS, 831 F.2d 1362, 1364 n. 1 (7th Cir. 1987)); Butros v. INS, 990 F.2d 1142, 1143 (9th Cir. 1993) (in banc) (citing, inter alia, Tapia-Acuna v. INS, 640 F.2d 223, 224 (9th Cir. 1981)); Casalena v. INS, 984 F.2d 105, 106 n. 3 (4th Cir. 1993) (citing, inter alia, Chiravacharadhikul v. INS, 645 F.2d 248, 248 n. 1 (4th Cir.), cert. denied, 454 U.S. 893, 102 S. Ct. 389, 70 L. Ed. 2d 207 (1981)); Ghassan v. INS, 972 F.2d 631, 633 n. 2 (5th Cir. 1992) (citing, inter alia, Ashby v. INS, 961 F.2d 555, 557 n. 2 (5th Cir. 1992); Mantell v. INS, 798 F.2d 124, 125 (5th Cir. 1986)), cert. denied, --- U.S. ----, 113 S. Ct. 1412, 122 L. Ed. 2d 783 (1993); Campos, 961 F.2d at 313 (citing Joseph v. INS, 909 F.2d 605, 606 n. 1 (1st Cir. 1990); Lozada v. INS, 857 F.2d 10, 11 n. 1 (1st Cir. 1988)); Vissian v. INS, 548 F.2d 325, 328 n. 3 (10th Cir. 1977).

In Francis, however, the ground of deportation was a narcotics conviction, for which there was a substantially equivalent ground of exclusion. Thus, Francis did not address the situation presented by this appeal--a ground of deportation, entry without inspection, for which there is no analogous ground of exclusion.

The Attorney General determined in Hernandez-Casillas that the Francis rule should not be extended to allow Sec. 1182(c) relief in such situations. His ruling was affirmed by the Fifth Circuit, without opinion. See Hernandez-Casillas v. INS, 983 F.2d 231 (5th Cir. 1993) (mem.). Three other circuits concur. See Leal-Rodriguez v. INS, 990 F.2d 939, 950-52 (7th Cir. 1993) (entry without inspection); Campos v. INS, 961 F.2d 309, 314-17 (1st Cir. 1992) (firearms violation); Cabasug v. INS, 847 F.2d 1321, 1326-27 (9th Cir. 1988) (firearms violation) (preceding Hernandez-Casillas) .

Hernandez-Casillas articulated the rationale that has typified these decisions. The bases for the Attorney General's ruling were that: (1) under his interpretation, as under Francis and Silva, the statute "remains tied, albeit loosely, to the statutory text, because it permits waivers of only those grounds for deportation that Congress expressly made waiveable in the related context of exclusion," 1990 WL 385764 at * 20-21, and the contrary approach "would take immigration practice even further from the statutory text, which refers only to grounds for exclusion"; and (2) "the guarantee of equal protection does not require [ ] ... further departure from the terms of [Sec. 1182(c) ]." Id. at * 21; see also Leal-Rodriguez, 990 F.2d at 952; Campos, 961 F.2d at 316-17; Cabasug, 847 F.2d at 1326-27.

Herandnez-Casillas also expressed considerable unease about the underlying Francis/Silva rule, wholly aside from the question of its application to grounds of deportation that do not have analogous grounds of exclusion. See 1990 WL 385764 at * 20 (Attorney General "leave [s] for another day the question of whether [Silva ] should be disapproved"); id. at * 21 (same); id. at * 23 ("I do not here reach the question of the validity of Francis and Silva."); id. at * 28 n. 15 (same). The two pertinent circuit court opinions since Hernandez-Casillas state similar views. The First Circuit said in Campos:

[W]hen to avoid perceived equal protection problems the statute was stretched beyond its language to apply to deportation proceedings, problems crept in. If impatience with the legislative language had not resulted in adding nonexistent provisions to the statute in the first place, Congress would likely have recognized the defects and long ago repaired any problems at the instance of the Attorney General, the INS and those concerned with the welfare of resident aliens. The question now becomes whether to engage in a second judicial rewriting of the statute in order to improve upon the first rewriting. This would be legislation pure and simple. As a starting point, there is not even the justification of linguistic ambiguity. Continued judicial redrafting simply insures that the statute will less and less be the recognizable product of the legislative will. We think a statute of this detailed nature is best left to the ministrations of the Congress. We decline to tinker further.

961 F.2d at 316-17. The Seventh Circuit quoted this passage with approval in Leal-Rodriguez, 990 F.2d at 952.

We view the matter differently. Francis was decided over seventeen years ago, and addressed a situation that had been the subject of similarly ameliorative administrative decisions since 1940. See supra note 5. The Department of Justice declined to seek review of the Francis decision by the Supreme Court, and the BIA promptly adopted the Francis rule nationally. See Silva, 16 I. & N.Dec. at 29-30. As noted supra, seven circuits have since explicitly adopted the Francis rule, and no circuit has embraced a different rule. Further, since Francis was decided, Congress has not addressed either the issue to which Francis was addressed or the variant of the issue that is presented by this appeal.

The resulting situation bears considerable similarity to one recently addressed by the Supreme Court. In Musick, Peeler & Garrett v. Employers Insurance, --- U.S. ----, 113 S. Ct. 2085, 124 L. Ed. 2d 194 (1993), the Court answered affirmatively the question whether "defendants in a 10b-5 action have a right to seek contribution as a matter of federal law." Id. at ----, 113 S. Ct. at 2086. Although not deriving from a constitutional imperative, the authorization of a private right of action under Rule 10b-5, 17 C.F.R. Sec. 240.10b-5 (1992), like the Francis rule, is a judicial creation. See Musick, --- U.S. at ----, 113 S. Ct. at 2088 (citing Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 737, 95 S. Ct. 1917, 1922, 1926, 44 L. Ed. 2d 539 (1975)). The Court thus recognized in Musick that "it would be futile to ask whether the 1934 Congress [that enacted the Securities Exchange Act of 1934, underlying Rule 10b-5] ... displayed a clear intent to create a contribution right collateral to the remedy" that Congress did not enact in the first place. Id., --- U.S. at ----, 113 S. Ct. at 2088.

The Court therefore "attempt [ed] to infer how the 1934 Congress would have addressed the issue had the 10b-5 action been included as an express provision in the 1934 Act." Id. at ---- - ----, 113 S. Ct. at 2089-90. As relevant here, the Court focused upon "promot [ing] clarity, consistency and coherence for those who rely upon or are subject to 10b-5 liability, and ... effect [ing] Congress' objectives in enacting the securities laws." Id. at ----, 113 S. Ct. at 2090 (citations omitted).

The only clearly discernible Congressional intention regarding the denial of Sec. 1182(c) waivers is that they are not available in exclusion proceedings to aliens who are excludible because of security and related grounds or because of international child abduction, or have served a term of imprisonment of at least five years upon conviction of one or more aggravated felonies. See supra notes 3 and 4. In Hernandez-Casillas, the BIA majority decided that Sec. 1182(c) waivers should be available in deportation proceedings except as to grounds of deportation that are substantially equivalent to grounds of exclusion for which Sec. 1182(c) relief is explicitly barred. See 1990 WL 385764 at * 3. This approach would result in extending Sec. 1182(c) eligibility to all grounds of deportation except those set forth in Sec. 1251(a) (4) (security and related grounds).

In reversing the BIA and ruling that Sec. 1182(c) waivers are available only for grounds of deportation for which there are substantially equivalent grounds of exclusion, the Attorney General stated that only two grounds of deportation fail to satisfy this requirement, entry without inspection, Sec. 1251(a) (1) (B), and certain firearm offenses, Sec. 1251(a) (2) (C). See id. at 25 n. 4. There is, however, at least one other nonequivalent ground of deportation--willful failure to notify the Attorney General of a change of address, Secs. 1251(a) (3) (A), 1305 (1988). See Cabasug, 847 F.2d at 1323-24.

In thus limiting the Sec. 1182 relief available in deportation proceedings, the Attorney General did not address the Congressional purposes underlying the enactment of the immigration laws. Rather, as noted supra, he articulated a determination not to depart further from the statutory text, and the absence of any constitutional (equal protection) mandate to do so. See 1990 WL 385764 at * 24.

As a result of Francis and Silva, building upon a history of administrative decisions, there has already been a considerable departure from the text of Sec. 1182(c), which now applies to deportation as well as exclusion proceedings despite the absence of any textual justification for this extension. Further, since Congress considered only grounds for exclusion when it enacted Sec. 1182(c), it could not conceivably have had any intent regarding the availability of Sec. 1182(c) discretion to a resident alien charged with illegal entry. Indeed, any such intention would be logically impossible. As the Seventh Circuit pointed out in Leal-Rodriguez, "entry without inspection [is] a ground for deportation which, as a matter of logic, cannot be a ground for exclusion, since the moment the violation occurs the offender is already inside the United States." 990 F.2d at 949. This analysis also applies to the deportation ground of wilful failure to notify the Attorney General of a change of address.

Absent any Congressional indication to the contrary, we believe that coherence and consistency are promoted by allowing the exercise of Sec. 1182(c) discretion with respect to the deportation ground of entry without inspection. Francis effected a significant alteration of the legal framework in this area, and in the absence of any Congressional revisitation of that framework in the aftermath of Francis, courts must cope with the interstitial issue posed by grounds of deportation that have no counterparts among the statutory grounds for exclusion. At least with respect to entry without inspection, a ground of deportation that could not conceivably have such an analogue, there is no basis in statutory text or legislative purpose to preclude the modest extension of the Francis rule that Bedoya-Valencia seeks on this appeal.

We recognize, of course, as we did in Francis, see 532 F.2d at 273 & n. 8, the paramount authority of the executive and legislative branches of our national government with respect to immigration matters, and the correspondingly limited role of the judiciary. See Fiallo v. Bell, 430 U.S. 787, 792, 97 S. Ct. 1473, 1478, 52 L. Ed. 2d 50 (1977). We also recognize, however, that federal courts can play an important role in interstitial implementation of a legislative design, especially when that design has already been altered by a constitutionally based court decision. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S. Ct. 863, 870, 96 L. Ed. 1153 (1952) (Jackson, J., concurring) ("While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.").

The ruling that we make today poses no challenge to the legislative and executive branches, or to the Attorney General's special role within the executive branch with respect to legal interpretation of the immigration statutes. See Sec. 1103(a). We note that this opinion addresses the ramifications of a prior constitutional decision of this court, rather than the original statute concerning whose interpretation the Attorney General has conceded expertise. We note also that the Attorney General regards the legitimacy of this court's opinion in Francis as an open question, see Hernandez-Casillas, 1990 WL 385764 at * 23 ("I do not here reach the question of the validity of Francis and Silva."), despite its adoption by seven circuit courts in addition to the one that initially announced it. In sum, following the lead of the Supreme Court in Musick, we undertake only to achieve coherence regarding the impact of our prior ruling in Francis upon a ground of deportation that, by logical necessity, can have no counterpart ground of exclusion.

The INS points out that the prevention of illegal entry is an important policy of our immigration laws. All of the statutory grounds for deportation, however, are rooted in considerations of public policy. We are confident that the Attorney General and her delegates will accord those considerations appropriate weight in their exercise of Sec. 1182(c) discretion. We hold only that Bedoya-Valencia is entitled to that exercise.

Conclusion

The petition for review is granted. The case is remanded to the BIA for further proceedings not inconsistent with this opinion.