USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUITT
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No. 93-1274
UNITED STATES OF AMERICA,
Appellee,
v.
AURELIO VIEIRA-CANDELARIO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Damon M. D'Ambrosio, by Appointment of the Court, with whom
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Martin D. Harris, Esquire, Ltd. was on brief for appellant.
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Stephanie S. Browne, Assistant United States Attorney, with whom
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Edwin J. Gale, United States Attorney, and Craig N. Moore, Assistant
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United States Attorney, was on brief for the United States.
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September 28, 1993
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CAMPBELL, Senior Circuit Judge. Defendant-
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appellant Aurelio Vieira-Candelario was indicted in the
United States District Court for the District of Rhode Island
for unlawful reentry into the United States following
deportation, in violation of 8 U.S.C. 1326. Vieira moved
to quash the indictment and to dismiss, collaterally
attacking the deportation order upon which the indictment was
based. The district court denied the motions. United States
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v. Vieira-Candelario, 797 F. Supp. 117 (D.R.I. 1992). Vieira
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entered into a plea agreement in which he pleaded guilty to
the indictment but reserved the right to appeal from the
denials of his motions to quash the indictment and to
dismiss. We affirm.
I.
I.
Vieira, a native and citizen of the Dominican
Republic, lived in the United States as a lawful permanent
resident alien for almost twenty-six years. His wife and
children are United States citizens, and Vieira himself
served in the United States Army during the Vietnam-war era.
Vieira, however, was convicted in 1989 of two drug-related
offenses. One of these was for possession of heroin with
intent to deliver, an aggravated felony.
Vieira's convictions made him deportable under the
Immigration and Naturalization Act ("the Act"). See
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241(a)(4)(B) (aggravated felony), now codified as 8 U.S.C.
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1251(a)(2)(A)(iii)(1991); and 241(a)(11) (controlled
substance violation), now codified as 8 U.S.C.
1251(a)(2)(B)(i) and (ii)(1991). After a hearing on
September 20, 1989, an immigration judge entered an order
deporting Vieira. The judge ruled that Vieira was ineligible
to seek discretionary relief under 212(c) of the Act, 8
U.S.C. 1182(c), as aggravated felons were ineligible for
such relief. The judge advised Vieira that any appeal from
this order had to be filed by October 2, 1989.
The next day, Vieira filed a notice of appeal with
the Board of Immigration Appeals ("the BIA"). As grounds for
the appeal, Vieira specifically challenged the judge's ruling
on the unavailability of 212(c) relief, claiming the judge
was wrong as a matter of law. That issue was never reached
because on October 24, 1989, Vieira voluntarily withdrew his
appeal. At all times during this process, Vieira was
represented by counsel.
Vieira was deported on October 27, 1989. On March
24, 1992, INS agents found Vieira in Providence, Rhode
Island, took him into custody, and charged him with violating
8 U.S.C. 1326. In the present criminal proceeding, Vieira
seeks collaterally to attack the original order of
deportation, arguing that it cannot properly serve as the
basis for his indictment under 1326.
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II.
II.
Under section 212(c) of the Act, certain aliens who
have legally resided in the United States for seven years or
more may seek relief from deportation because of family ties,
long term residence, service in the armed forces, and the
like. See generally, Matter of Marin, 16 I. & N. Dec. 581
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(1978). As written, section 212(c) literally affords relief
only to long-term legal aliens who temporarily leave the
United States and who, but for 212(c), would be inadmissible
upon return as a result of some violation of law.
Nevertheless, for reasons buried in the history of
immigration law, 212(c) relief is also available to some
legal aliens who have not left the country but who become
subject to deportation as a result of criminal convictions.
See Campos v. I.N.S., 961 F.2d 309, 312-13 (1st Cir. 1992);
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Francis v. I.N.S., 532 F.2d 268 (2d Cir. 1976). Such relief
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is only available, however, if the ground for deportation is
one for which an alien could initially have been excluded
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from the country under section 212(a) of the Act, 8 U.S.C.
1182(a). See Campos, 961 F.2d at 312-15 (refusing to extend
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212(c) relief to alien charged with illegal possession of a
firearm, an offense not listed in 212(a)).
At Vieira's deportation hearing, the immigration
judge held that Vieira was, as a matter of law, ineligible to
apply for discretionary relief under section 212(c). The
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immigration judge believed, erroneously as it now appears,
that Vieira's aggravated felony conviction was an offense for
which there was no corresponding ground of excludability
under section 212(a). The judge based his decision on the
BIA opinions of Matter of Wadud, 19 I. & N. Dec. 182 (1984)
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and Matter of Granados, 16 I. & N. Dec. 726 (1979), in which
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felons were held to be ineligible for section 212(c) relief
because their offenses (which were of a type different from
Vieira's heroin offense here) were not specifically listed in
section 212(a).
The district court found, and the government now
concedes, that the immigration judge was mistaken insofar as
he determined that there was no corresponding ground for
excludability in section 212(a) of Vieria's aggravated drug
offense. See Matter of Meza, Int. Dec. 3146 (BIA May 22,
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1991). Had Vieira pursued his appeal, he would likely have
been allowed to seek discretionary section 212(c) relief
although with what result on the merits we cannot, of course,
know.
In seeking to quash and dismiss his present
indictment for unlawful reentry following deportation, Vieira
does not attack the deportation order on the ground that it
was error at the time of the deportation hearing to have
denied him an opportunity to petition under section 212(c),
but rather contends that, while the denial may have been
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correct then, it was subsequently rendered incorrect by a
change in the law. In 1990, after Vieira had been deported,
Congress amended section 212(c) to provide that discretionary
relief would not be available to an alien who had been
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convicted of an aggravated felony and had served five years
or more in prison. See The Immigration Act of 1990, Pub. L.
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No. 101-649, 511(a), 104 Stat. 4978, 5052. Vieira argues
that this amendment must be construed, by implication, to
mean that aggravated felons who had not served five years in
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prison like Vieira were eligible for section 212(c)
relief even if their offenses were not listed in section
212(a).
Vieira points to Matter of Meza, Int. Dec. 3146
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(BIA May 22, 1991), as the indicator of the changed policy.
There, in a case very similar to Vieira's, the BIA allowed an
alien who had been convicted of a drug-related aggravated
felony to apply for 212(c) relief. Vieira argues that the
purported change in INS policy between the earlier cases of
Wadud and Granados and the later case of Meza effectively
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robbed him of judicial review. In effect, he contends that
the allegedly changed policy of the 1990 amendment and the
Meza case should be applied retroactively so as to invalidate
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his deportation order rendered without a 212(c) hearing.
We do not find this argument persuasive. The 1990
amendments and Meza do not appear to have signaled any
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material change in INS policy. To be sure, the 1990
amendment, by cutting off relief to aggravated felons
incarcerated for five or more years, recognized by
implication that some aggravated felons might otherwise be
eligible for 212(c) relief and, indeed, that this eligibility
might continue to be true for those not incarcerated for five
or more years. But as we noted in Campos, the amendment
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"said nothing about wanting to enlarge the relief authorized
under 212(c)." Campos, 961 F.2d at 315. Congress "can
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only be said to have expressed a continued desire to limit
212(c) relief to the listed grounds of exclusion." Id.
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To understand Meza, there is no need to hypothesize
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any fundamental policy change. The BIA found that drug-
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related aggravated felonies, for one of which Meza was
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convicted, were included within a specific subsection of
212(a) describing drug-related offenses. Meza, Int. Dec.
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3146 at 3 (holding that a drug-related aggravated felony
could provide the basis for relief under 212(a)(23),
recodified as 1182(a)(2)(A)(i)(II)). Meza was a
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straightforward application of the existing law that 212(c)
relief was available solely to those offenses specifically
listed in 212(a). Meza was entirely consistent with Wadud
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and Granados, neither of which cases involved aggravated
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felonies of the particular kind mentioned in 212(a).
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That Meza did not indicate a change in deportation
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policy is confirmed by Matter of Hernandez-Casillas, Int.
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Dec. Att. Gen. March 18, 1991. The Attorney General of the
United States reversed a decision of the BIA overruling Wadud
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and Granados and maintained that 212(c) relief continued to
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be available only for those offenses specifically identified
in section 212(a). This Court recently upheld the Attorney
General's construction of section 212(c). Campos, 961 F.2d
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at 314-15.
We agree with the district court and the
prosecution that the immigration judge appears simply to have
misapplied 212(c) under then-existing doctrine. He should
have offered Vieira an opportunity to petition for
discretionary relief. Had Vieira pursued his appeal, the BIA
presumably would have overruled the immigration judge and
allowed Vieira to apply for 212(c) relief, as it did when a
similar issue was appealed in Meza.
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The immigration judge appears regrettably to have
committed an error of law in this respect, but it was not the
type of error that provides any basis for collateral attack
on the judge's deportation order in a subsequent criminal
prosecution brought under 8 U.S.C. 1326. To provide such a
basis, the error must have violated the alien's due process
rights, being "so fundamental" that it "effectively
eliminates the right of the alien to obtain judicial review."
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United States v. Mendoza-Lopez, 481 U.S. 828, 837-39 & n.17,
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107 S. Ct. 2148, 95 L. Ed. 2d 772 (1987). "Our cases
establish that where a determination made in an
administrative proceeding is to play a critical role in the
subsequent imposition of a criminal sanction, there must be
some meaningful review of the administrative proceeding." Id.
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at 837-38 (citations omitted) (emphasis in original).
Here, in contrast to the situation in Mendoza-
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Lopez, the immigration judge's putatively erroneous decision
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did not "effectively" rob Vieira of his right to review.
Vieira filed a notice of appeal. He later deliberately
withdrew the appeal. He was represented by counsel
throughout. As Vieira voluntarily abandoned his right to
obtain review of the deportation order, we see no way to hold
that he was deprived of meaningful review of the
administrative proceeding contrary to the due process clause.
The order entered in that proceeding was, therefore, valid
and binding on Vieira, who violated it at his peril when he
illegally reentered the United States.
Affirmed.
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