Jaime Londono-gomez, Petitioner, v. Immigration and Naturalization Service, Respondent, 699 F.2d 475 (9th Cir. 1983)

This appeal presents two relatively narrow questions: (1) whether petitioner's conviction for aiding and abetting the distribution of cocaine is a deportable offense within the meaning of section 241(a) (11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (11); and (2) whether this court has jurisdiction to review an INS district director's denial of petitioner's application for deferred action where the application was filed and denied after issuance of a final order of deportation.

FACTS

Petitioner Jaime Londono-Gomez, a citizen of Colombia and permanent resident of the United States, was convicted of aiding and abetting the distribution of cocaine in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. In subsequent deportation proceedings, the INS found him deportable pursuant to section 241(a) (11) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) (11).

The Board of Immigration Appeals dismissed petitioner's appeal of the INS decision and entered a final order of deportation. Nineteen days later, petitioner applied to the district director for deferred action and a stay of deportation. That application was denied and petitioner pursued this appeal.

DEPORTATION PURSUANT TO Sec. 241(a) (11)

Section 241(a) (11) provides that any alien who is convicted of violating any law or regulation relating to the illicit possession of or traffic in narcotic drugs shall, upon order of the Attorney General, be deported.¹  Petitioner challenges his deportation on the ground that his conviction for aiding and abetting the distribution of cocaine is not one for violation of a law relating to traffic in narcotic drugs within the meaning of that section.

He relies principally on the case of Castaneda de Esper v. I & NS, 557 F.2d 79 (6th Cir. 1977). In Castaneda, the court held that a conviction for misprision of felony, the underlying felony being conspiracy to possess heroin, was not a conviction of a law relating to narcotic drugs within the meaning of section 241(a) (11). Id. at 84. The court noted that it has long been recognized by the courts that misprision of felony is a criminal offense separate and distinct from the specific felony concealed. Id. at 83.

Unlike the misprision of felony statute, the aiding and abetting statute does not define a separate offense but rather makes punishable as a principal one who aids or abets another in the commission of a substantive offense.²  See, e.g., Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (citing United States v. Cowart, 595 F.2d 1023, 1031 n. 10 (5th Cir. 1979)). See also Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S. Ct. 766, 770, 93 L. Ed. 919 (1949) (the aiding and abetting statute "states a rule of criminal responsibility for acts which one assists another in performing.").

Because the aiding and abetting statute does not define a separate offense, "an indictment under this section must be accompanied by an indictment for a substantive offense." United States v. Cowart, 595 F.2d at 1031 n. 10. Moreover, one convicted under the aiding and abetting statute is subject to the same penalties as one convicted under the statute defining the substantive offense. See 18 U.S.C. § 2(b). Thus, petitioner must be treated as though he violated the statute prohibiting the distribution of cocaine.

We hold, therefore, that petitioner's conviction for aiding and abetting the distribution of cocaine is one for violating a law relating to traffic in narcotic drugs within the meaning of section 241(a) (11). Accord, United States v. Gonzalez, 582 F.2d 1162 (7th Cir. 1978).

JURISDICTION TO REVIEW THE DISTRICT DIRECTOR'S DETERMINATION

Our jurisdiction to review directly the district director's denial of the application for deferred action must be based on section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). Section 106(a) provides that courts of appeals shall have sole and exclusive jurisdiction to review all final orders of deportation made pursuant to administrative proceedings under section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b).³ 

Because petitioner filed his application for deferred action 19 days after the final order of deportation had been entered, we must determine whether we may review a district director's determination made outside the confines of a section 242(b) proceeding.

The leading case interpreting the scope of our jurisdictional authority under section 106(a) is Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968). Cheng Fan Kwok was ordered deported following a section 242(b) proceeding. He then applied to the district director for a stay of deportation and the application was denied.

The Court concluded that the court of appeals did not have jurisdiction to review the district director's denial of the stay. It held that the judicial review provisions of section 106(a) embrace only those determinations made during a section 242(b) proceeding, including determinations made incident to a motion to reopen such proceedings. Id. at 216, 88 S. Ct. at 1976. The Court left open the possibility that a court of appeals might have pendent jurisdiction over denials of discretionary relief, where it already has before it a petition for review from a proceeding conducted under Sec. 242(b). Id. n. 16.

This court has directly reviewed discretionary determinations made outside section 242(b) proceedings only when the determinations have underlain a deportation order. See Ghorbani v. I & NS, 686 F.2d 784 (9th Cir. 1982). In such cases, "meaningful review of the order ... require [s] that the court examine the earlier decision." Id. at 792 (Poole, J., concurring). We have never reviewed discretionary determinations made after the close of section 242(b) proceedings, even under the doctrine of pendent jurisdiction.

Here, the district director's decision followed the issuance of the final deportation order and did not underlie that order. Therefore, the discretionary determination at issue here falls outside the limited category of discretionary determinations we have reviewed in the past.⁴  There is no reason to enlarge that category to permit direct review of the determination challenged here. Petitioner's first recourse must be to the district court.

We affirm the decision of the board.