Opposition Brief — Richardson v. Reno

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Supreme ems ease | =

FILED

|. tFeB 25 2001

No. 99-887 | CLERK

Gn the Supreme Court of the Gnited States

RALPH RICHARDSON, PETITIONER

Vv.

JANET RENO, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

ERNESTO H. MOLINA, JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

Petitioner is a legal permanent resident alien who was

convicted in state court of a criminal offense involving co-

caine, left the United States for a brief period, and then

sought to return to the United States. Upon his return the

Immigration and Naturalization Service (INS) commenced

removal proceedings against him as an alien “seeking admis-

sion into the United States,” within the meaning of 8 U.S.C.

1101(a)(13) (1994 & Supp. IV 1998), and charged him with

inadmissibility based on his drug offense. The INS also

placed petitioner in detention, the INS District Director

declined to grant him parole, and an immigration judge held

that, under 8 C.F.R. 236.1, he had no authority to grant

bond, as petitioner was an alien seeking admission. The

questions presented are:

1. Whether the district court had authority under

28 U.S.C. 2241 to review petitioner’s claim that, as a matter

of statutory interpretation, he is an alien in the United

States, not an alien seeking admission into the United

States, and therefore he is entitled to a bond hearing before

an immigration judge.

2. Whether the district court had authority under

28 U.S.C. 2241 to review petitioner’s claims that, because

petitioner has been treated as an alien seeking admission

into the United States and thereby denied a bond hearing

before an immigration judge, petitioner has been deprived of

his rights under the Due Process Clause of the Fifth Amend-

ment and the Excessive Bail Clause of the Eighth Amend-

ment.

3. Whether petitioner was deprived of his rights under

the Due Process Clause or the Excessive Bail Clause be-

cause the decision to detain him, and to deny him release

pending the completion of his removal proceeding, was made

(I)

by an INS District Director (with the possibility of review

by the Board of Immigration Appeals) rather than an

immigration judge.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

Appendix

TABLE OF AUTHORITIES

Cases:

Adeniji, In re, Int. Dec. No. 3417 (B.LA. Nov. 3,

1999)

Carlson v. Landon, 342 U.S. 524 (1952)

Collado, In re, Int. Dec. No. 3333 (B.I.A. Feb. 26,

1998)

Felker v. Turpin, 518 U.S. 651 (1996)

Jean v. Nelson, 472 U.S. 846 (1985)

Joseph, In re, Int. Dec. No. 3387 (B.LA. Apr. 23,

1999)

Joseph, In re, Int. Dec. No. 3398 (B.1.A. May 28,

1999)

Reno v. American-Arab Anti-Discrimination Com-

mittee, 525 U.S. 471 (1999)

Reno v. Flores, 507 U.S. 292 (1993).

Richardson v. Reno, 1198S. Ct. 2016 (1999)

Rosenberg v. Fleuti, 374 U.S. 449 (1968) eesssc............

is)

Swain v. Pressley, 430 U.S. 372 (1977)

(IIT)

Page

—_

* as

B on

8 SNSSB BSB VR,

— —

b= ie)

- “

BBR

Cases—Continued:

United States v. Simon, 168 F.3d 1271 (11th Cir.),

cert. denied, 120 S. Ct. 114 (1999)

Wong Yang Sung v. McGrath, 339 U.S. 38 (1950) ...........

Yerger, Ex Parte, 75 U.S. (8 Wall.) 85 (1869) ....e..csescsesssseee

Zadvydas v. Underdown, 185 F.3d 279 (5th Cir.

1999), petition for cert. pending, No. 99-7791 ........-csscesseee

Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 9, Cl. 2 (Suspension of Habeas Corpus

Clause)

Art. ITI

Amend. V (Due Process Clause)

Amend. VIII (Excessive Bail Clause)

Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L.‘No. 104-182, 110 Stat. 1214:

§ 401(e), 110 Stat. 1268

§ 440(a), 110 Stat. 1276-1277

Hobbs Administrative Orders Review Act, 28 U.S.C.

2341-2351 (1994 & Supp. III 1997)

Illegal Immigration Reform and Immigrant Respon-

sibility Act, Pub. L. No. 104-208, Div. C, 110 Stat.

3009-546

§ 303(b)(2), 110 Stat. 3009-586

§ 303(b)(3), 110 Stat. 3009-586 to 3009-587 .........se..se.

§ 303(b)(3)(A)(ii), 110 Stat. 3009-587

§ 303(b)(3)(B)(), 110 Stat. 3009-587

§ 307, 110 Stat. 3009-612

§ 309(c)(4)(G), 110 Stat. 3009-626

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

8 U.S.C. 1101(a)(13) (1958)

8 U.S.C. 1101(a)(13) (1994 & Supp. IV 1998) ................

8 U.S.C. 1101(a)(13)(A) (Supp. IV 1998)

8 U.S.C. 1101(a)(13)(C)(v) (Supp. TV 1998) ............cosse-

8 U.S.C. 1101(a)(43)(B) (1994 & Supp. IV 1998) ..........

9, 21

Statutes and regulations—Continued: Page

8 U.S.C. 1105a (1994) 6

8 U.S.C. 1105a(a)(10) (1994) 24

8 U.S.C. 1182 (1994 & Supp. IV 1998) 18, 21

8 U.S.C. 1182(a) (1994 & Supp. IV 1998) 3

8 U.S.C. 1182(a)(2) (1994 & Supp. IV 1998) ....... 4, 6, 9, 14,

16, 17, 19, 27

8 U.S.C. 1182(a)(2A)G)(D (1994 & Supp. IV

1998) 8, 13

8 U.S.C. 1182(a)(2)(A)(i)(IT) (1994 & Supp. IV

1998) 8,13

8 U.S.C. 1182(a)(2)(B) (1994 & Supp. IV 1998) ............ 8

8 U.S.C. 1182(a)(2)(C) (1994 & Supp. IV 1998) ............ 3,8,

13, 18

8 U.S.C. 1182(d)(5) (1994 & Supp. IV 1998) 0.0.0.0... 8

8 U.S.C. 1226 (1994 & Supp. IV 1998) on... 16, 22, 23

8 U.S.C. 1226(a) (1994 & Supp. IV 1998) 00... 4,5,17

8 U.S.C. 1226(c) (1994 & Supp. IV 1998) ............... 5, 16, 17,

18, 24, 28

8 U.S.C. 1226(c)(1) (1994 & Supp. IV 1998) ............... 17, 19

8 U.S.C. 1226(¢)(1)(A) (Supp. IV 1998) 4,17

8 U.S.C. 1226(¢X1)B) (Supp. IV 1998) 4,17

8 U.S.C. 1226(c)(2) (1994 & Supp. IV 1998) ................ 17

8 U.S.C. 1226(e) (1994 & Supp. IV 1998) ....... ~~ 19, 28,24

8 U.S.C. 1227 (1994 & Supp. IV 1998) 18, 21

8 U.S.C. 1227(a) (1994 & Supp. IV 1998) 3

8 U.S.C. 1229a (Supp. IV 1998) 3

8 U.S.C. 1229a(a)(1) (Supp. IV 1998) 3

8 U.S.C. 1229b(a) (Supp. IV 1998) 4

8 U.S.C. 1229b(a(3) (Supp. IV 1998) ; 4, 28

8 U.S.C. 1252 (1994 & Supp. IV 1998) o......ececcossene 6, 23, 24

8 U.S.C. 1252(a)(1) (1994 & Supp. IV 1998) .....eeccccceeee 6

8 U.S.C. 1252(a(2)(C) (1994 & Supp. IV 1998) ........ 7, 8,

11,18

8 U.S.C. 1252(b)(2) (1994 & Supp. IV 1998) sceccccceuo. 13

Statutes and regulations—Continued: Page

8 U.S.C. 1252(b)(9) (1994 & Supp. IV 1998) .... 7, 11-12, 18,

19, 20, 21, 28, 24

8 U.S.C. 1252(g) (1994 & Supp. IV 1998) ........... 7, 10, 11,

12, 19, 20

28 U.S.C. 2241 10, 12, 15, 19, 20, 24

Fla. Stat. Ann. § 893.135(1)(b)(3) (West 1990) ...........csccesees 8

8 C.F.R.:

Pt. 1:

Section 1.1(q) 6

Pt. 3:

Section 3.19(h)(1)(i(B) 6

Section 3.19(h)(2)(i)(B) 18

Pt. 236 6

Section 236.1(c)(5)(i) (1998) 6

Section 236.1(d)(1) 6

Section 236.1(d)(2)(i) 6

Section 236.1(d)(8)(ii) 6

Miscellaneous:

63 Fed. Reg. (1998):

pp. 27,444-27,445 2

p. 27,449 6

Jn the Supreme Court of the United States

No. 99-887

RALPH RICHARDSON, PETITIONER

Vv.

JANET RENO, ATTORNEY GENERAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals from which review is

sought (Pet. App. 1-17) is reported at 180 F.3d 1811. An

earlier decision of the court of appeals (Pet. App. 18-118) is

reported at 162 F.3d 1338. The opinion of the district court

(Pet. App. 122-135) is reported at 994 F. Supp. 1466. The

report and recommendation of the magistrate judge (Pet.

App. 136-149) is unreported. Reprinted in appendices to this

brief are the initial decision of the immigration judge order-

ing petitioner deported (App., infra, 9a-11la), the decision of

the Board of Immigration Appeals affirming that decision in

part and remanding in part (App., infra, 12a-26a), the deci-

sion of the immigration judge on remand again ordering

petitioner deported (App., infra, 28a-60a), and decisions of

(1)

the District Director declining to release petitioner (App.,

infra, 5a-6a, 7a-8a, 64a-65a).

JURISDICTION

The judgment of the court of appeals was entered on July

14, 1999. A petition for rehearing was denied on August 25,

1999 (Pet. App. 176-177). The petition for a writ of certio-

rari was filed on November 23, 1999. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This case involves a challenge to the application and the

constitutionality of interim provisions of new immigration

laws, concerning the detention of lawful permanent resident

aliens who were convicted of controlled substance offenses,

left the United States for a brief trip abroad, and then

sought to return to the United States. The statutes and

regulations at issue here provide that such a criminal alien

seeking to return may be treated as an “arriving alien”

seeking admission into the United States, charged with

inadmissibility (rather than deportability) in his removal

proceedings, and placed in detention pending the outcome of

the removal proceedings, with the opportunity to apply to

the INS District Director for parole, but not a right to a

bond hearing before an immigration judge (IJ). Also at issue

in this case are new statutory provisions that significantly

restrict and streamline the timing and availability of judicial

review of legal and factual issues that may arise in such an

alien’s removal proceeding.

1. a. In 1996, the Immigration and Nationality Act (INA)

was comprehensively revised by the Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA), Pub.

L. No. 104-208, Div. C, 110 Stat. 3009. IIRIRA eliminated

the provisions under prior law for “deportation” proceedings

(covering aliens already in the United States) and

“exclusion” proceedings (covering aliens seeking to make an

entry into the United States), and instead created one new

form of proceeding, known as “removal.” See 8 U.S.C. 1229a

(Supp. IV 1998).

IIRIRA did retain some distinctions in removal pro-

ceedings, however, based on whether the alien had been

lawfully admitted into the United States. Aliens who have

already been lawfully admitted in the United States may be

removed from the United States if they are found to be

“deportable” on one or more grounds. See 8 U.S.C. 1227(a)

(1994 & Supp. IV 1998); 8 U.S.C. 1229a(a)(1) (Supp. IV 1998).

Aliens seeking admission into the United States may be

denied admission and removed if they are found to be

“inadmissible” on one or more grounds. See 8 U.S.C. 1182(a)

(1994 & Supp. IV 1998); 8 U.S.C. 1229a(a)(1) (Supp. IV 1998).

The grounds of inadmissibility and deportability, although in

large part overlapping, are not entirely coterminous. For

example, an alien seeking admission may be deemed

“inadmissible” if the immigration officer “knows or has

reason to believe” that the alien “is or has been an illicit

trafficker” in controlled substances, even if the alien has not

actually been convicted of such drug trafficking. See 8

U.S.C. 1182(a)(2)(C) (1994 & Supp. IV 1998). There is no

equivalent ground of “deportability” for an alien who has

been lawfully admitted into the United States.

IIRIRA defines “admission” and “admitted” to refer to

“the lawful entry of the alien into the United States after

inspection and authorization by an immigration officer.”

8 U.S.C. 1101(a)(13)(A) (Supp. IV 1998). ITRIRA further

provides that an alien lawfully admitted for permanent

residence “shall not be regarded as seeking an admission into

the United States for purposes of the immigration laws”

except under certain circumstances, including when the alien

“has committed an offense identified in [8 U.S.C.]

1182(a)(2).”. 8 U.S.C. 1101(a)(18)(C)(v) (Supp. IV 1998).

Thus, a lawful permanent resident alien who has committed

a criminal offense covered by Section 1182(a)(2), and who

leaves the country and thereafter seeks to return, is to be

regarded as an alien “seeking an admission into the United

States.” See In re Collado, Int. Dec. No. 3338, at 5-6 (B.I.A.

Feb. 26, 1998).

Some aliens who are removable (whether deportable or

inadmissible) based on a criminal offense may apply to the

Attorney General for discretionary relief from removal

(known as “cancellation of removal” under the new terminol-

ogy of IIRIRA). See 8 U.S.C. 1229b(a) (Supp. IV 1998). An

alien who is removable based on a conviction for an “aggra-

vated felony,” however, is ineligible for cancellation of re-

moval. 8 U.S.C. 1229b(a)(3) (Supp. IV 1998). The INA de-

fines “aggravated felony” to include illicit trafficking in a

controlled substance. 8 U.S.C. 1101(a)(43)(B).

b. In IIRIRA, Congress provided that an alien against

whom removal proceedings are commenced may be detained

pending a decision whether the alien is to be removed from

the United States. 8 U.S.C. 1226(a) (Supp. IV 1998).

IIRIRA further provides that any alien who is inadmissible

or deportable because of certain kinds of criminal conduct

(including an aggravated felony or controlled substance

offense) must be detained without bond pending the outcome

of the removal proceeding. 8 U.S.C. 1226(c)(1)(A) and (B)

(Supp. IV 1998). When Congress enacted that mandatory

detention provision in IIRIRA, however, it also authorized

the Attorney General to postpone its final implementation

for one or two years. See IIRIRA § 303(b)(2), 110 Stat. 3009-

586. To address the possibility that the Attorney General

might elect to do so, Congress enacted certain Transition

Period Custody Rules (TPCR) to apply in the interim. See

IIRIRA § 303(b)(8), 110 Stat. 3009-586 to 3009-587. The

TPCR authorized the Attorney General to release from

custody certain criminal aliens if they were “lawfully ad-

mitted to the United States” and satisfied the Attorney

General that they would not pose a danger to persons or

property and would appear for removal proceedings.

IIRIRA § 303(b)(8)(B)(i), 110 Stat. 3009-587. That dis-

cretionary relief from detention for aliens convicted of

aggravated felonies and controlled substance offenses is

available only to aliens taken into custody before or during

the period in which the TPCR were in effect. After

expiration of the TPCR, the mandatory-detention provision

of Section 1226(c) applies to similar aliens who are released

from criminal custody on or after the date that the TPCR

expired. See IIRIRA § 303(b)(2), 110 Stat. 3009-586."

The Attorney General exercised her authority to delay

the final implementation of the permanent detention rules of

IIRIRA for two years. She also promulgated regulations

governing the detention of criminal aliens under the TPCR.

Those regulations provided generally that, in the case of an

1 In our response to petitioner’s prior certiorari petition, we informed

the Court that, because the TPCR had expired, petitioner’s detention was

no longer governed by the TPCR, but was controlled by the mandatory-

detention provisions of Section 1226(c), and petitioner’s challenge based on

the TPCR was therefore moot. See Gov't Br. at 14, Richardson v. Reno,

119 S. Ct. 2016 (1999) (No. 98-1361). After the Court remanded this case

to the court of appeals, and indeed after the government filed its initial

brief on remand in the court of appeals, but before the government filed

its reply brief on remand, the INS reexamined its construction of the

effective dates of Section 1226(c). The INS then concluded that Section

1226(c) applies only to aliens who are released from criminal detention and

taken into INS custody after the expiration of the TPCR. See Gov't C.A.

Supp. Reply Br. 4-6 (July 1999) (informing court of appeals of

government’s change in position); In re Adeniji, Int. Dec. No. 3417, at 8-12

(B.I.A. Nov. 3, 1999) (accepting INS position); IIRIRA § 303(b)(2), 110

Stat. 3009-586 (“the provisions of such [Section 1226(c)] shall apply to

individuals released after such periods”). Because petitioner was taken

into custody during the period of effectiveness of the TPCR, his current

detention is not mandatory, but is governed by the Attorney General’s

general discretionary authority under Section 1226(a) to detain aliens who

are placed in removal proceedings.

alien who had been lawfully admitted to the United States

and was thereafter placed in detention pending his removal

proceedings, the alien, after an initial custody determination

made by an INS District Director, could apply to an LJ for

release upon bond. 8 C.F.R. 236.1(d)(1). The TPCR

regulations also provided, however, that an LJ would have no

authority to cases involving “arriving aliens,” 8 C.F.R.

236.1(c)(5)(i) (1998),? defined elsewhere in INS regulations to

mean “an alien who seeks admission to * * * the United

States * * * at a port-of-entry,” 8 C.F.R. 1.1(q). “Arriving

aliens,” under the TPCR, could apply only to a District

Director, not an LJ, for release on bond, and could appeal

from an adverse decision of the District Director to the

Board of Immigration Appeals (BIA). 8 C.F.R. 236.1(d)(1),

(d)(2)(i) and (d)(3)(ii). Accordingly, since a lawful permanent

resident alien who had been convicted of a criminal offense

covered by Section 1182(a)(2), and who left the country and

thereafter sought to return, was considered an “alien

seeking an admission” (see pp. 3-4, supra), under the TPCR

such an alien could apply only to the District Director (with

subsequent appeal to the BIA), not to an LJ, for release from

detention.

c. IIRIRA enacted significant changes to the provisions

governing judicial review of removal proceedings. IIRIRA

repealed former 8 U.S.C. 1105a (1994), which had governed

judicial review of final orders of deportation and exclusion.

110 Stat. 3009-612. In its stead, Congress enacted a new

8 U.S.C. 1252 (Supp. IV 1998). Section 1252(a)(1) provides

that “[jjudicial review of a final order of removal * * * is

2 Portions of 8 C.F.R. Part 236 were significantly revised in 1998. See

63 Fed. Reg. 27,449 (1998). The substance of the same restriction on the

LJs’ authority to review District Directors’ custody determinations con-

cerning arriving aliens under the TPCR remains in force at 8 C.F.R.

3.19%hX1XiXB).

governed only by” the provisions of the Hobbs Administra-

tive Orders Review Act, 28 U.S.C. 2341-2851 (1994 & Supp.

III 1997), which places exclusive review of final orders of

certain agencies in the regional courts of appeals (and not

the district courts). Section 1252(b)(9) underscores the

exclusive authority of the courts of appeals in removal

matters by providing that “[jJudicial review of all questions

of law and fact, including interpretation and application of

constitutional and statutory provisions, arising from any

action taken or proceeding brought to remove an alien from

the United States under this subchapter shall be available

only in judicial review of a final order under this section.” 8

U.S.C. 1252(b)(9) (Supp. IV 1998). And Section 1252(g)

further provides that, “[e]xcept as provided in this section

[z.¢., Section 1252] and notwithstanding any other provision

of law, no court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the decision or

_ action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any alien

under [the INA].”

IIRIRA also imposed significant restrictions on the

authority of the courts of appeals to review challenges to

removal orders entered against certain classes of criminal

aliens. In 8 U.S.C. 1252(a)(2)(C) (Supp. IV 1998), Congress

provided that, “[nlotwithstanding any other provision of law,

no court shall have jurisdiction to review any final order of

removal against an alien who is removable by reason of

having committed” certain criminal offenses, including con-

trolled substance offenses.’

$ Section 1252(a\(2\C) built on similar provisions enacted in Section

440(a) of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-182, 110 Stat. 1276-1277, and in Section

309(c)(4)(G) of IIRIRA, 110 Stat. 3009-626, which govern judicial review of

final orders of deportation entered before the full effective date of

ITRIRA, April 1, 1997. The government has argued that neither Section

2. Petitioner is a native and citizen of Haiti. He was

admitted to the United States in 1968 as a lawful permanent

resident. In 1990, he was convicted of violating Fla. Stat.

Ann. § 893.135(1)(b)(3) (West 1990), which prohibits selling,

purchasing, manufacturing, or delivering cocaine, and also

prohibits “actual or constructive possession of 28 grams or

more of cocaine.” See App., infra, 22a. Petitioner was sen-

tenced to five years in prison for the cocaine offense. Pet.

App. 21.

On October 26, 1997, petitioner attempted to enter the

United States after a two-day trip to Haiti. During peti-

tioner’s inspection for admission, he admitted to having been

convicted on his cocaine offense, as well as other offenses.

Petitioner was then detained. Pet. App. 123-124, 151. On

the same day, the INS commenced removal proceedings

against petitioner, charging him with inadmissibility under 8

U.S.C. 1182(a)(2)(A)(D and (II), (B) and (C) (1994 & Supp.

IV 1998) (referring respectively to a conviction of a crime

involving moral turpitude, a conviction of a controlled

substance offense, multiple criminal convictions, and engag-

ing in drug trafficking). App., infra, la-4a. On November

18, 1997, petitioner requested parole from the INS District

Director. While that request was pending, petitioner also

requested parole from an IJ. On November 24, 1997, the IJ

concluded that he had no authority under the TPCR to grant

petitioner parole pursuant to 8 U.S.C. 1182(d)(5) or release

440(a) of AEDPA nor Section 309(¢)(4)(G) of IIRIRA divested the courts

of appeals of jurisdiction to review threshold questions of alienage and

deportability to determine whether the preclusion of review provision in

fact applies to a petition for review at hand, and that neither Section

should be read to preclude the courts of appeals from entertaining consti-

tutional challenges made by criminal aliens to the INA itself. We take a

similar view of Section 1252(a)(2)(C), as added by IIRIRA. See Pet. App.

108-110 (court of appeals agreeing with that position in its prior decision in

this case).

ee ee Oe ee es = a

on bond, as petitioner was an “arriving alien,” having been

charged with inadmissibility based on criminal convictions

and activity covered by Section 1182(a)(2). Pet. 7; Pet. App.

171-172. On December 4, 1997, the District Director also

denied petitioner’s request for parole. The District Director

concluded, based on petitioner’s convictions, that his release

was not in the public interest, and that there were no

humanitarian reasons for granting parole. App., infra, 5a-6a.

Petitioner did not appeal to the BIA from the decision of

either the IJ or the District Director.

3. On November 26, 1997, petitioner filed a petition for a

writ of habeas corpus in district court. See Pet. App. 150-

170. Petitioner alleged that, insofar as he was treated under

the TPCR as an “arriving alien” seeking admission to the

United States (and therefore not entitled to a bond hearing

before an IJ) rather than a returning lawful permanent

resident alien, the TPCR regulations were contrary to the

“entry” doctrine of Rosenberg v. Fleuti, 374 U.S. 449 (1963).

See Pet. App. 167.‘ He also contended that his treatment as

an arriving alien under the TPCR violated equal-protection

principles by creating a class of lawful permanent residents

who are not afforded a hearing before an IJ because of their

brief departure from the United States, while affording such

a hearing to lawful permanent residents who have not

departed the United States. Jd. at 158. He further alleged

that the denial of a bond hearing before an IJ and his

detention without bail violated procedural due process,

substantive due process, and the Excessive Bail Clause of

the Eighth Amendment. Jd. at 161-166.

* Under Fleuti, which construed the term “entry” in the INA as it

existed prior to IIRIRA, a permanent resident alien who made a brief,

casual, and innocent trip abroad and then sought to return to the United

States was deemed not to be seeking an “entry” into the country upon his

return. See 374 U.S. at 451-461 (discussing 8 U.S.C. 1101(a)(13) (1958)).

On February 13, 1998, the district court granted the writ

of habeas corpus and ordered a hearing to be held by an LJ

on the issue whether petitioner was an “arriving alien.” Pet.

App. 122-135. The district court ruled that it had jurisdiction

to entertain the claims in petitioner’s habeas corpus petition.

Id. at 125. (Although the district court did not cite a specific

statutory provision for its jurisdiction, it presumably relied

on the general federal habeas corpus statute, 28 U.S.C.

2241.) On the merits, the district court ruled that the

regulations’ treatment of criminal aliens such as petitioner as

“arriving aliens” is contrary to the INA. The court con-

cluded that, when Congress enacted ITRIRA, it did not

intend to supersede the Fleuti rule, under which lawful per-

manent resident aliens returning to the United States from a

brief, casual, and innocent trip abroad were not treated as

aliens seeking entry into the United States. Pet. App. 132-

134.

4. Respondents appealed the grant of habeas corpus to

the court of appeals (which granted a stay of the district

court’s order pending appeal). On December 22, 1998, the

court of appeals vacated the district court’s order for lack of

jurisdiction. The court of appeals ruled that 8 U.S.C. 1252(g)

(Supp. IV 1998) had divested the district court of authority

to hear petitioner’s challenges under 28 U.S.C. 2241. Pet.

App. 18-118.

After reviewing IIRIRA’s far-reaching changes to the

immigration laws (Pet. App. 28-56), the court concluded that

Section 1252(g) is “plain and clear” and “provides for judicial

review for aliens only in the court of appeals and only after a

final removal order.” Jd. at 60. The court rejected peti-

tioner’s reliance on the rule against repeals of habeas corpus

jurisdiction by implication, concluding that Section 1252(g)

was phrased sufficiently broadly to include a bar to review

by way of habeas corpus. Id. at 63-64. The court also re-

jected petitioner’s argument that Section 1252(g) “affects

only final renioval orders” and does not address “interim

detention orders” such as those denying bond and parole. Jd.

at 63 n.100.

The court of appeals then rejected petitioner’s contention

that the elimination of the district court’s habeas jurisdiction

over his claim would contravene the Due Proeess Clause,

Article III, and the Suspension of Habeas Corpus Clause.

Pet. App. 65-88. The court concluded that, altheugh Section

1252(a)(2)(C) had imposed significant restrictions on the

court of appeals’ review of challenges to removal orders

entered against criminal aliens, the judicial review remain-

ing available to an alien in petitioner’s position on such a

petition for review (see pp. 7-8 n.3, supra) is a constitution-

ally sufficient alternative to habeas corpus. Pet. App. 108-

109.

The court also rejected (Pet. App. 76) petitioner’s argu-

ment that limiting his opportunity to request bond to a

written submission to the INS District Director rather than

providing a hearing before an IJ deprived him of due

process. The court further held (id. at 77 n.119) that “Con-

gress acts well within its plenary power in mandating de-

tention of a criminal alien with an aggravated felony

conviction facing removal proceedings,” and that mandatory

detention “poses no constitutional issue.” Ibid. (citing

Carlson v. Landon, 342 U.S. 524, 545 (1952) (ellipsis and

internal quotation marks omitted)).

5. Petitioner filed a petition for a writ of certiorari.

While that petition was pending, this Court decided Reno v.

American-Arab Anti-Discrimination Committee, 525 U.S.

471 (1999) (AADC). In AADC, the Court rejected a broad

reading of Section 1252(g) as covering “all deportation-

related claims,” id. at 478, and instead construed that Section

to cover only “three discrete actions that the Attorney Gen-

eral may take: her ‘decision or action’ to ‘commence proceed-

ings, adjudicate cases, or execute removal orders.’” Jd. at

482 (quoting Section 1252(g); emphasis added in AADC).

The Court contrasted Section 1252(g) with Section

1252(b)(9), which it described as an “unmistakable ‘zipper’

clause,” channeling into the courts of appeals all issues

arising from any actions taken or proceedings brought to

remove alien from the United States. Jd. at 483. Because

this Court’s decision in AADC superseded the Eleventh

Circuit’s construction of Section 1252(g), the government

urged the Court to grant petitioner’s certiorari petition,

vacate the decision of the court of appeals, and remand the

case for further consideration in light of AADC. The Court

disposed of the petition in that manner-on June 1, 1999. 119

S. Ct. 2016 (1999); Pet. App. 173.

6. On remand from this Court, the court of appeals again

concluded that the district court lacked jurisdiction over

petitioner’s claims under 28 U.S.C. 2241, but it based its con-

clusion principally on Section 1252(b)(9), rather than Section

1252(g). Pet. App. 1-17. The court stated that Section

1252(b)(9) provides “clear evidence of Congress’ desire to

abbreviate judicial review to one place and one time: only in

the court of appeals and only after a final removal order and

exhaustion of all administrative remedies.” Jd. at 6 (internal

quotation marks and brackets omitted). Thus, the court

ruled, “[jJudicial review of the issues raised in [petitioner’s]

§ 2241 petition must await a final BIA removal order and can

occur in the court of appeals through a petition to review

that final order.” Jd. at 8.

The court again concluded that IIRIRA’s limitation on

district court habeas corpus jurisdiction under 28 U.S.C.

2241 is not unconstitutional on its face or as applied to peti-

tioner. Pet. App. 9. The court observed that Section

1252(a)(2)(C) “does not remove all judicial review” for crimi-

nal aliens, and that at a minimum, judicial review remains

available after entry of a final removal order “to determine if

the specific conditions exist that bar jurisdiction in the court

of appeals.” Ibid. Moreover, after entry of a final remoyal

order, the court of appeals could then consider whether that

remainder of judicial review satisfies the Constitution; if not,

petitioner could then pursue “adequate and effective judicial

review of statutory and constitutional issues” in the court. of

appeals, pursuant to Section 1252(b)(2) and (b\(9). Ibid.

The court also rejected petitioner’s argument that claims

challenging detention fall outside the scope of Section

1252(b)(9). Pet. App. 12-13. The court observed that peti-

tioner’s claims involve “mainly whether the INS properly

detained Richardson as an ‘arriving alien’ and whether the

denial of bond and parole by the INS District Director,

without a subsequent individualized hearing before an

Immigration Judge, violated Richardson’s constitutional

rights.” Id. at 18. The court ruled that those claims fall

within Section 1252(b)(9) because that Section “is not limited

to any particular form of proceeding; rather it applies to ‘any

action taken or proceeding brought to remove an alien.’” Jd.

at 15 (quoting Section 1252(b)(9)). “Any action taken” to

remove an alien, the court held, “encompasses detention as

the first step in the removal process.” Jd. at 15-16.

7. While the government’s initial appeal to the court

of appeals was pending, on January 8, 1998, an LJ found peti-

tioner inadmissible pursuant to 8 U.S.C. 1182(a)(2)(A)(i)(1)

(conviction of crime involving moral turpitude), 1182(a)(2)(A)-

(i(II) (conviction of controlled substance offense), and

1182(a)(2)(C) (Supp. IV 1998) (engaging in drug trafficking).

The IJ also found petitioner statutorily ineligible for can-

cellation of removal based on the conclusion that his cocaine

offense was an aggravated felony. Petitioner was ordered

deported to Haiti. App., infra, 9a-10a.

On May 5, 1999, the BIA affirmed the IJ’s decision in sev-

era) respects, but sustained petitioner’s appeal on one issue,

and remanded the case for further proceedings. Among

other things, the BIA concluded that petitioner was indeed

an “alien seeking admission” under 8 U.S.C. 1101(a)(18)

(Supp. IV 1998). App., infra, 18a-20a. Relying on its deci-

sion in In re Collado, supra, the BIA ruled that IIRIRA had

repealed the “entry” doctrine as articulated in Fleuti, and

replaced the concept of “entry” with a new definition of

“admission.” Under the new “admission” definition, a lawful

permanent resident who was convicted of a criminal offense,

leaves the United States, and seeks to return is “to be re-

garded as an alien seeking admission into the United States,

without further inquiry into the nature and circumstances of

a departure from and return to this country.” Jd. at 19a.

Since petitioner had been convicted of a controlled substance

offense covered by Section 1182(a)(2), the BIA concluded

that he “is to be regarded as an alien seeking admission.”

Ibid.

The BIA agreed with petitioner, however, that there was

insufficient evidence to conclude that the controlled sub-

stance offense of which he was convicted constituted an

aggravated felony, barring him from eligibility for the

discretionary relief of cancellation of removal. The BIA

observed that the Florida statute under which petitioner

was convicted reached both trafficking offenses such as sale

of cocaine, and also simple possession of more than 28 grams

of cocaine, which would not be an aggravated felony under

the INA if it was a first offense. The BIA remanded the case

to the LJ on this issue, and expressly held that the INS was

not precluded from adducing additional evidence to demon-

strate that petitioner was convicted of an aggravated felony.

App., infra, 20a-25a.

On remand, the IJ initially concluded that petitioner had

not been convicted of an aggravated felony and was there-

fore eligible for cancellation of removal (see App., infra, 27a),

but on November 15, 1999, after taking additional evidence,

the IJ reversed himself and concluded that petitioner was

indeed an aggravated felon (id. at 34a-86a).5 The IJ also

determined that petitioner should not be granted cancella-

tion of removal as a matter of discretion. Jd. at 37a-60a. The

IJ therefore again ordered petitioner deported. Jd. at 60a.

Petitioner’s appeal from the IJ’s decision is currently pend-

ing before the BIA.®

ARGUMENT

Petitioner urges the Court to decide whether the court of

appeals erred in concluding that the district court lacked

jurisdiction under 28 U.S.C. 2241 to entertain his statutory

and constitutional claims arising out of the Attorney Gen-

eral’s decision to treat him as an “arriving alien,” and there-

by not to afford him the opportunity for a bond hearing

before an IJ that is afforded to aliens in the United States

who were convicted of similar crimes. Petitioner also chal-

lenges that decision on the merits. The specific claims raised

by petitioner, however, have little prospective significance,

because, for purposes of detention, the distinction under the

TPCR between legal permanent aliens convicted of drug

offenses who are seeking to return to the United States and

similar aliens placed in removal proceedings in the United

® The IJ relied on Eleventh Circuit case law to the effect that a

conviction for possession of a controlled substance, if punished as a felony

under state law, is deemed an aggravated felony. See App., infra, 35a-36a;

United States v. Simon, 168 F.3d 1271 (11th Cir.), cert. denied, 120 S. Ct.

114 (1999). The BIA had previously declined to follow the Simon decision.

App., infra, 24a-25a. The IJ also relied on other circuit case law to the

effect that possession of an amount of cocaine too large for personal use

may be considered illicit trafficking and therefore treated as an

aggravated felony. Id. at 35a.

® Petitioner also made a new request to the District Director for

release on bond. The District Director initially decided that petitioner

should be released on a $25,000 bond, App., infra, 6la-64a, but a few days

later, after receiving additional information about petitioner’s convictions,

revoked petitioner’s bond, id. at 65a.

States has expired. After expiration of the TPCR, both

classes of criminal aliens are now covered by the mandatory

detention provisions of 8 U.S.C. 1226 (Supp. IV 1998). While

the INA does continue to make distinctions between arriv-

ing aliens and aliens placed in removal proceedings in the

United States for purposes of detention, this case does not

raise those issues. In addition, the court of appeals’ juris-

dictional decision is correct and does not conflict with any

decision of another court of appeals or this Court. Peti-

tioner’s arguments on the merits of his claims were not

addressed by the court of appeals, and in any event are

incorrect. Further review is therefore not warranted.

1. Petitioner’s claims ultimately derive from the fact

that, as a legal permanent resident alien who sought to re-

turn to the United States and was charged with inadmissibil-

ity based on Section 1182(a)(2), he was treated as an “arriv-

ing alien,” was placed in detention, and under the TPCR,

was limited to requesting parole from the District Director

rather than bond from an IJ. Petitioner observes that if he

had been placed in removal proceedings in the United

States, he would have had the opportunity for a bond

hearing before an IJ. For the purpose of detention of

criminal aliens pending their removal proceeding, however,

that distinction has little ongoing relevance. The distinction

was pertinent to petitioner’s detention because the Attorney

General elected to postpone the operation of the permanent

mandatory-detention provisions of Section 1226(c) and to

proceed for a two-year period under the TPCR, which gave

immigration authorities (whether a District Director or an

IJ) discretion to release aliens charged with inadmissibility

or deportability based on drug offenses.

That discretion no longer exists in the cases of many

criminal aliens released from criminal detention and taken

into INS custody after expiration of the TPCR (with

exceptions not pertinent here),’ whether or not the alien is

returning from a trip abroad. Under Section 1226(c)(1), the

Attorney General “shall take into custody” any alien who is

inadmissible based on Section 1182(a)(2) (which covers the

cocaine conviction forming one of the bases of petitioner’s

removal proceeding) or who is deportable by reason of

having been convicted of one of various crimes, including any

controlled substance offense. See 8 U.S.C. 1226(c)(1)(A) and

(B) (Supp. IV 1998). Thus, if petitioner were released from

criminal custody today, and removal proceedings were then

commenced against him, now that the TPCR expired, he

would be subject to mandatory detention under Section

1226(c)(1) because of his cocaine conviction, whether he was

in the United States or was instead seeking to return from a

trip abroad.®

For purposes of the detention of criminal aliens, therefore, -

the distinction between “arriving aliens” and those placed in

removal proceedings in the United States has lost much of

its significance.” That is not to say that the distinction has

7 Under the permanent detention provisions, the Attorney General

may release a criminal alien (whether deportable or inadmissible) covered

by Section 1226(c) in order to provide protection to a person such as a

witness or cooperating individual. See 8 U.S.C. 1226(c\(2) (Supp. IV 1998).

Petitioner has not asserted that his release could be justified on such a

basis.

® As we have explained above (p. 5 n.1, supra), the mandatory-

detention provision of Section 1226(c) applies only to aliens released from

custody after expiration of the TPCR. Petitioner’s detention is therefore

not covered by Section 1226(c). Accordingly, this case does not present an

appropriate occasion to consider any issues that might arise concerning

the applicability or constitutionality of mandatory detention under Section

1226(¢\1).

® Aliens other than criminal aliens may also be detained in the

discretion of the Attorney General, pending the outcome of their removal

proceedings. See 8 U.S.C. 1226(a) (Supp. IV 1998). For non-criminal

aliens, the distinction between “arriving aliens” and other aliens retains

lost significance for all purposes. The removal of “arriving

aliens,” including aliens such as petitioner, continues to be

governed by the standards of inadmissibility in Section 1182,

whereas the removal of aliens who have been admitted and

are in the United States continues to be governed by the

standards of deportability in Section 1227. Moreover,

petitioner has been charged with grounds of inadmissibility,

not deportability. See App., infra, 8a-4a. One of the grounds

of inadmissibility against petitioner, based on Section

1182(a)(2)(C), has no precise analogue under Section 1227,

and the LJ found petitione » inadmissible on that basis (among

others). See App., infra, 10a, 60a.

Petitioner has the opportunity in his removal proceedings,

however, to contest the charge that he is “inadmissible” as

an “arriving alien.” Indeed, he raised that contention on his

previous appeal to the BIA, which rejected it based on its

decision in In re Collado, supra. See App., infra, 19a-20a.

In addition, in our view, petitioner will be able to raise that

argument in a petition for review of any final removal order

in the court of appeals. The court of appeals will not be

precluded from considering it under Section 1252(a)(2)(C),

because that issue goes to an element of the threshold

question whether his criminal offense is “covered in section

1182(a)(2),” and therefore whether the statutory jurisdic-

tional bar therefore applies to his case. See 8 U.S.C.

1252(a)(2)(C) (Supp. IV 1998) (precluding judicial review of

“any final order of removal against an alien who is removable

by reason of having committed a criminal offense covered in

section 1182(a)(2)”). There accordingly would be no occasion

significance for purposes of detention, because an IJ may not review a

District Director’s custody determination concerning an arriving alien

placed in removal proceedings. See 8 C.F.R. 3.19(h)(2)(iB). Because

petitioner is a criminal alien who would be subject to mandatory detention

under Section 1226(c) had he been released from criminal detention after

expiration of the TPCR, that distinction has no pertinence to this case.

for the Court in this case, in its present posture, to address

whether the Attorney General has properly concluded that

legal permanent resident aliens convicted of criminal of-

fenses covered in Section 1182(a)(2) who leave the United

States and seek to return should be treated as “arriving

aliens.” Because the merits of all of petitioners’ claims either

have little ongoing significance in the detention context or

may be resolved later on review of a final order of removal,

this Court’s review is not warranted.

2. The court of appeals concluded that the district court

lacked jurisdiction under 28 U.S.C. 2241 to entertain peti-

tioner’s challenges to the Attorney General’s decision to

treat him as an arriving alien—which meant, among other

things, that petitioner was not afforded a bond hearing be-

fore an IJ. That jurisdictional ruling does not warrant this

Court’s review.

a. Contrary to petitioner’s contention (Pet. 15-17), the

court of appeals’ decision does not conflict with Parra v.

Perryman, 172 F.3d 954 (7th Cir. 1999), or Zadvydas v.

Underdown, 185 F.3d 279 (5th Cir. 1999), petition for cert.

pending, No. 99-7791. Parra presented a challenge to the

constitutionality of ITRIRA’s mandatory-detention provi-

sion, Section 1226(c)(1), not the validity of the Attorney

General’s decision to classify aliens like petitioner as “arriv-

ing aliens.” The Seventh Circuit concluded that neither Sec-

tion 1226(e) nor Section 1252(g) precluded district court

jurisdiction to entertain challenges to the constitutionality of

Section 1226(c)(1) itself, “as opposed to decisions imple-

menting that subsection.” 172 F.3d at 957. In this case, by

contrast, most of petitioner’s claims proceed from the pre-

mise that the Attorney General incorrectly decided to apply

one regime rather than another to his case. Nor did the

Seventh Circuit address Section 1252(b)(9), on which the

court of appeals principally relied in this case to conclude

that the substance of petitioner’s claims could be entertained

on a petition for review of a final removal order.

Zadvydas presents a constitutional challenge to the INS’s

continued detention of an alien, after entry of a final order of

deportation against him, because no other country would

agree to accept the alien. The Fifth Circuit held that Section

1252(g) did not preclude the district court from entertaining

a challenge to that detention on habeas corpus; it did not

address Section 1252(b)(9). 185 F.3d at 285. In that case,

however, the alien’s constitutional claim necessarily could

not have been covered by Section 1252(b)(9), because while

Section 1252(b)(9) requires the consolidation of all legal and

factual questions arising out of the alien’s removal pro-

ceedings in one petition for review of the final order of

removal, the alien was challenging only his detention after

entry of his final order of deportation. Questions arising out

of the alien’s detention after the removal proceeding and any

judicial review thereof have been completed do not implicate

the “zipper clause” of Section 1252(b)9).”

b. The court of appeals correctly concluded that Section

1252(b)(9) precludes district court review (even under

28 U.S.C. 2241) of petitioner’s specific challenges to his de-

tention. Section 1252(b\9) provides:

1 Petitioner also suggests (Pet. 16-17) that the decision below conflicts

with decisions of several circuits holding that AEDPA and the provisions

of IIRIRA governing deportation cases commenced before April 1, 1997,

did not withdraw the district courts’ authority to entertain statutory and

constitutional challenges to deportation orders under 28 U.S.C. 2241. As

petitioner notes (Pet. 16-17), however, those decisions did not involve

detention issues under the new permanent removal provisions of IIRIRA,

and therefore have little relevance to this case. This Court recently

denied review of a petition directly raising the issue of the district courts’

authority under Section 2241 to entertain such challenges. See LaGuerre

v. Reno, No. 99-418 (Feb. 22, 2000).

Judicial review of all questions of law and fact,

including interpretation and application of constitutional

and statutory provisions, arising from any action taken

or proceeding brought to remove an alien from the

United States under this subchapter shall be available

only in judicial review of a final order under [Section

1252).

8 U.S.C. 1252(b)(9) (Supp. IV 1998). That capacious lan-

guage captures the claims raised by petitioner. Petitioner

has claimed (Pet. App. 167) that he is not an “arriving alien”

under the INA, and therefore the INS may not charge him

as “inadmissible” under Section 1182; rather, he must be

charged as a “deportable” alien under Section 1227. Peti-

tioner has also contended (id. at 158-161) that, if the INA

does treat him as an “arriving alien,” then the INA violates

equal protection by distinguishing him from legal permanent

resident aliens who have not left the United States." Those

claims go directly to the question whether petitioner is

removable under the theories put forth by the INS in his

removal proceeding. Petitioner may raise those objections in

his removal proceedings and on a petition for review, and

should the court of appeals agree with petitioner that the

" Petitioner argues (Pet. 19-22) that Section 1252(b)(9) does not

preclude the district court from deciding whether principles of procedural

due process, substantive due process, or the Excessive Bail Clause require

that an IJ, rather than the District Director, determine whether he should

be detained pending the outcome of his removal proceeding. Those argu-

ments, however, are necessarily derivative of petitioner’s claim that he

should not be treated as an “arriving alien” under the INA; petitioner

argues that the Attorney General erred in assigning him to the class of

arriving aliens, and that he should be afforded the greater procedural

rights appropriate to his allegedly proper status. See Pet. 22 (petitioner

“challenges solely the constitutionality of depriving lawful permanent

residents of their right to a bond hearing merely because of a regulatory

characterization that they are seeking entry”) (emphasis added).

INA or the Constitution precludes him from being removed

as an inadmissible arriving alien, then any removal order

entered against him on that basis will be overturned.

Petitioner argues (Pet. 22), however, that Section

1252(b)(9) does not expressly reach detention decisions, and

therefore a district court may decide whether the INS’s

decision to detain him as an inadmissible alien comports with

the INA and the Constitution. That argument, however,

misapprehends the nature of the INS’s decision to detain an

alien at the commencement of his removal proceeding, as

authorized by Section 1226 and the TPCR. In detaining such

an alien, the INS does not make a definitive, conclusive

determination that the alien is in fact inadmissible; that

determination is made in the alien’s removal proceeding.

Rather, when the INS detains an alien under Section 1226, it

does so because there is “reason to believe” the alien is inad-

missible or deportable on a certain ground. See Jn re Joseph,

Int. Dec. No. 3387, at 9-10 (B.I.A. Apr. 23, 1999); 68 Fed.

Reg. 27,444-27,445 (1998); cf. Reno v. Flores, 507 U.S. 292,

313 (1993) (noting that, in deciding whether to detain a

juvenile alien, the INS asks: “Is there reason to believe the

alien deportable?”). The INS determines whether the docu-

ments and materials supporting the charge of inadmissibility

or deportability on their face establish that the alien falls

within a category of aliens who should be detained.” In this

case, the record of petitioner’s conviction and the informa-

tion supplied by petitioner to the INS officer when he sought

12 The alien may appeal the District Director’s detention decision to the

BIA, however, and the BIA may elect to make a de novo determination

whether the alien is in fact inadmissible, if the record will support such a

determination. Cf. Jn re Joseph, Int. Dec. No. 3898, at 7-8 (B.1.A. May 28,

1999) (explaining BIA’s role on INS’s appeal from LJ’s detention decision).

In addition, if after the removal proceeding the LJ determines that the

alien is not removable, the LJ may order the alien released from detention,

subject to the INS’s right to appeal to the BIA. See id. at 8.

to return to the United States facially indicated that peti-

tioner was inadmissible, and therefore provided the INS

with sufficient warrant to detain him pending the completion

of his removal proceeding.

Petitioner, however, seeks to have the federal courts

make a definitive determination now as to whether he is an

“arriving alien” under the INA (or may be validly treated as

such under the Constitution), even though his removal pro-

ceedings have not been completed. It is implausible that the

Congress that enacted Section 1252 also intended that the

federal courts would make such a determination while re-

moval proceedings are stil] pending. If the courts were to

determine, in the context of review of a detention decision,

that as a matter of statutory or constitutional interpretation

petitioner may not be treated as an arriving alien, then

petitioner’s removal proceeding would have to be terminated

before its completion, because the same legal questions

would govern petitioner’s removability. In effect, peti-

tioner’s construction of Section 1252(b)\9) would allow aliens

who are detained under Section 1226, pending the comple-

tion of their removal proceedings, to make collateral attacks

on those proceedings. That construction is contrary to Con-

gress’s intent in Section 1252 to limit “the deconstruction,

fragmentation, and hence prolongation of removal proceed-

ings.” AADC, 525 U.S. at 487."

» Petitioner also argues (Pet. 21 & n.17) that the court of appeals’

reading of Section 1252(bX9) renders superfluous Section 1226(e), which

appeals, on petition for review) from deciding, on habeas corpus, legal and

factual questions that would bear on the merits of the alien’s removal

proceeding, even if they arise in the detention context. Section 1226(e)

separately precludes judicial review by any court of detention decisions

c. Petitioner argues (Pet. 19-21) that the decision below

conflicts with Felker v. Turpin, 518 U.S. 651 (1996), and Ex

Parte Yerger, 75 U.S. (8 Wall.) 85 (1869), which disapproved

repeals by implication of habeas corpus jurisdiction. That

doctrine has no application to this case, for the ouster of the

district courts’ authority to entertain petitioner’s claims is

clear and express. As the court of appeals explained (Pet.

App. 8-9), the “unmistakable zipper clause” of Section

1252(b)(9), displacing from the district courts all claims that

might arise in a removal proceeding and channeling them to

the courts of appeals, makes sufficiently clear that Congress

has replaced review inder 28 U.S.C. 2241 with another

regime for review of all statutory and constitutional issues

that arise in removal proceedings. Cf. Swain v. Pressley,

430 U.S. 372 (1977). Section 1252(b)(9) does not refer to

Section 2241 or to habeas corpus in haec verba, but this

Court has never held that statutory recitation of certain

that might not bear directly on the alien’s removability, such as whether

the alien merits discretionar” release on bond.

Moreover, not every caim concerning an Alien’s detention (even

pending his removal proceeding) is necessarily shielded from review by

either Section 1226(e) or Siction 1252(b)(9). For example, a claim that

mandatory detention underSection 1226(c) is facially unconstitutional is

reviewable on habeas corms. See Parra, supra. A claim that INS

detention was based on a onstitutionally impermissible factor such as

race would also be reviewalle on habeas corpus. Cf. Jean v. Nelson, 472

U.S. 846 (1985). Such clains do not go the merits of the alien’s removal

proceeding.

In this respect, it is ueful to contrast Section 1252 with old Section

1105a(aX10), before it was mended by AEDPA. Before AEDPA, Con-

gress had expressly presered at least some access to habeas corpus in

district court. See 8 U.S.’. 1105a(a)(10) (1994). In Section 401(e) of

AEDPA, however, Congres repealed Section 1105a(a)(10), in a provision

entitled “Elimination of Cutody Review By Habeas Corpus.” 110 Stat.

1268.

words is necessary to find a replacement of habeas corpus

with another regime of judicial review.

Nor, contrary to petitioner’s contention, does the court of

appeals’ construction of Section 1252 raise any serious issue

under the Suspension of Habeas Corpus Clause. Petitioner

argues (Pet. 23) that the Constitution requires that he have

the opportunity to test the legality of his detention before

completion of his removal proceeding. Thus, he maintains,

he must be given the opportunity now to argue to the federal

courts that he is not properly classed as an arriving alien.

But as we have explained, the question for the INS in

detaining petitioner at the commencement of his removal

proceeding (and, therefore, the question whether petitioner’s

detention is proper) is not whether he is an inadmissible

arriving alien but whether there is reason to believe that he

is an inadmissible arriving alien. See pp. 22-23, supra. The

INS clearly has reason to believe that petitioner is an

inadmissible arriving alien, for petitioner was convicted of an

offense that appears on its face to be an aggravated felony

(indeed the IJ has concluded that it was an aggravated

felony, see pp. 14-15, supra), and both the INA and the

Attorney General’s regulations on their face appear to

require that a legal permanent resident alien convicted of an

aggravated felony who seeks to return to the United States

from abroad may be placed in detention, and that only the

District Director has the authority to release him (subject to

review by the BIA). See pp. 4-6, supra. This is not a

situation in which the INS has detained someone wholly

without warrant, or without any reason to believe that re-

moval proceedings have been commenced against the alien

on a proper basis.

3. Petitioner also seeks this Court’s review (Pet. 25-30)

of the merits of his claims that the INA and the Constitution

prevent the Attorney General from treating him as an alien

seeking admission to the United States, and denying him the

opportunity for a bond hearing before an IJ that is afforded

lawful permanent resident aliens placed in removal

proceedings in the United States. Because the court of

appeals concluded in the decision under review that it lacked

jurisdiction of this case, it did not reach the merits of those

claims, and so this case would be an inappropriate vehicle for

resolution of those claims.” Moreover, as we have explained,

the court of appeals’ jurisdictional ruling was correct. In any

event, petitioner’s claims are without merit.

Petitioner first argues, based on Fleuti, supra, and Kwong

Hai Chew v. Colding, 344 U.S. 590 (1958), that the INS may

not treat him differently than a lawful permanent resident

alien who never left the United States, and that he is

therefore entitied to all the process afforded to such a lawful

permanent resident alien. Neither Fleuti nor Chew held,

however, that as a constitutional matter, Congress must

afford lawful permanent resident aliens who are returning to

the United States the same procedural rights afforded such

aliens present here. In Chew, the Court held that a regula-

tion permitting the detention and exclusion of aliens without

any hearing did not apply to lawful permanent resident

aliens returning to the United States. Jd. at 602-608; see

also Landon v. Plasencia, 459 U.S. 21, 31 (1982) (describing

reasoning of Chew). The Court also stated in Chew that the

alien was “entitled to due process without regard to whether

or not, for immigration purposes, he is to be treated as an

entrant alien, and we do not now reach the question whether

he is to be so treated.” 344 U.S. at 600. There is no dispute

here, however, that petitioner is entitled to due process,

even if he is treated as an arriving alien. See Plasencia, 459

U.S. at 31-38. The Constitution itself, however, does not

' The court did discuss the merits of those claims in its previous deci-

sion, but only in passing and in language that is clearly dictum. See Pet.

App. 74-75.

prevent either Congress or the INS from treating even

lawful permanent resident aliens returning to the United

States differently from those placed in deportation pro-

ceedings here, as long as they are afforded due process.

Fleuti also was not a constitutional holding. See 374 U.S.

at 451 (addressing statutory question to avoid constitutional

issue reached by lower court). There, the court concluded

that the INA’s definition of an alien seeking to make an

“entry” into the United States did not reach a permanent

resident alien who had left the United States briefly but had

no “intent to depart in a manner which can be regarded as

meaningfully interruptive of the alien’s permanent resi-

dence.” Jd. at 462. Fleuti, however, was superseded as a

matter of statutory interpretation in IIRIRA, which

abolished the “entry” doctrine and replaced it with the con-

cept of “admission.” Moreover, IIRIRA expressly provided

that a lawful permanent resident alien who had been

convicted of an offense covered in Section 1182(a)(2), and

who left the United States and sought to return, should be

treated as an alien seeking admission. See Collado, supra,

Int. Dec. No. 3338, at 5-6. Nor can there be any question of

Congress’s constitutional authority to classify such an alien

as one seeking admission, as long as the alien is provided due

process in his removal proceeding when he seeks to return.

See Plasencia, 459 U.S. at 81.

The procedures surrounding the District Director’s deci-

sion to detain or release an alien such as petitioner comport

with constitutional requirements. The District Director first

determines, as we have explained (p. 22, supra), whether the

INS has “reason to believe” that the alien is inadmissible as

an arriving alien convicted of an offense covered by Section

1182(a)(2). See IIRIRA § 303(b)(3)(A)(ii), 110 Stat. 3009-587.

That decision can be made on the basis of a review of the

records of petitioner’s conviction. In addition, the District

Director may release the alien only if the alien establishes

that he “will not pose a danger to the safety of other persons

or of property and is likely to appear for any scheduled

proceeding.” See IIRIRA § 308(b)(3)(B)(i), 110 Stat. 3009-

587. Due process does not require that such a determination

be made by an IJ after taking oral testimony. The District

Director can consider any information brought to his

attention by the alien. The alien may also appeal the District

Director’s detention decision to the BIA, which is indepen-

dent of the INS."®

We also observe that the only court of appeals that has

addressed the matter has upheld mandatory detention

under Section 1226(c) of certain aliens, including those (like

petitioner) charged with removal based on an aggravated

felony conviction. See Parra, 172 F.8d at 958. An alien

found removable based on an aggravated felony conviction is

ineligible for discretionary cancellation of removal. See

8 U.S.C. 1229b(a)(3) (Supp. IV 1998). As the court observed

in Parra, “[bjefore the IIRIRA bail was available to [aliens]

as a corollary to the possibility of discretionary relief from

6 Petitioner’s attempt (Pet. 26-27) to rely on Wong Yang Sung v.

McGrath, 339 U.S. 33 (1950), falls wide of the mark. In that case, the

Court held that Congress had required that deportation hearings conform

to the provisions of the Administrative Procedure Act (APA) requiring

separation of prosecutorial and adjudicative functions. That case involved

a hearing on the merits of the deportation charge, not a decision on the

question whether the alien should be held in interim detention. Moreover,

that decision was superseded by the Immigration and Nationality Act of

1952, which made the APA’s separation-of-functions provision inapplicable

to deportation hearings, and permitted a “ ‘special inquiry officer’ to take

the dual role of prosecutor and hearing officer,” subject to the supervision

of the INS District Director. See Marcello v. Bonds, 349 U.S. 802, 305

(1955); see also id. at 311 (upholding that practice against due process

challenge). Finally, the alien can appeal the District Director’s detention

decision to the BIA, which is independent of the INS. That avenue of

appeal ensures that the alien has access to whatever standards of

impartiality might be required by the Constitution.

deportation; now that this possibility is so remote, so too is

any reason for release pending removal.” Parra, 172 F.3d at

958. But if the Constitution does not require that an alien

charged with removal based on an aggravated felony con-

viction be given individualized consideration at all of a

request for release pending the outcome of his removal

proceeding (since mandatory detention of such an alien is

constitutional), a fortiori it does not require that any such

individualized consideration that is available be assigned to

an IJ rather than the District Director, with review by the

BIA. And the Constitution permits Congress to authorize

detention, pending removal, of aliens based on the particular

charge of removability against the alien, without the need

for a factual showing that a particular alien who falls within

that class would either fail to appear for the removal hearing

or would cause specific harm to the community if released.

See Carlson v. Landon, 342 U.S. 524, 534, 541 (1952).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENER

ALISON R. DRUCKER

ERNESTO H. MOLINA, JR.

Attorneys

FEBRUARY 2000

APPENDIX

U.S. Department of Justice

Immigration and Naturalization Service Notice to Appear

In removal proceedings under section 240 of the

Immigration and Nationality Act

File No: 4.17 566 876

In the Matter of:

Respondent: RICHARDSON, RALPH currently residing

at: [REDACTED]

(Number, street, city, state, and ZIP code)

[REDACTED]

; (Area code and phone number)

&) 1. Youarean arriving alien.

O 2. You are an alien present in the United States who

has not been admitted or paroled.

O 8. You have been admitted to the United States, but

are deportable for the reasons stated below.

The Service alleges that you:

1. Are not a citizen or national of the United States.

2. You are a native of HAITI and a citizen of HAITI.

SEE CONTINUATION FORM I-831 ATTACHED

On the basis of the foregoing, it is charged that you are

subject to removal from the United States pursuant to the

following provision(s) of law:

SEE CONTINUATION FORM I-831 ATTACHED

O This notice is being issued after an asylum officer has

found that the respondent has demonstrated a credible

fear of persecution.

O Section 235(b)(1) order was vacated pursuant to:

O 8sCFR 208.0(f)(2) O 8 CFR 235.3(b)(5)(iv)

YOU ARE ORDERED to appear before an immigration

judge of the United States Department of Justice at:

33191

(Complete Address of Immigration Court, Including Room Number, if any)

on TO BE SET at ___ to show why you should not be

(Date) (Time)

removed from the United States based on the charge(s) set

forth above.

/s/ FELICIA SKINNER, SOI

FELICIA SKINNER, SOI

(Signature and Title of Issuing Officer)

MIAML FL

(City and State)

Date: OCTOBER 26, 1997

See reverse for important information

U.S. Department of Justice

Immigration and Naturalization Service Continuation

Page for Form

1-862

A_REPLY OSE ES:

Alien’s Name File Number Date

RICHARDSON, RALPH | A17 566876 OCTOBER 26, 1997

ALLEGATIONS CONTINUED:

3. You applied for admission to the United States on 10/26/97

at MIA-IAP as a returning permanent resident.

4. At the time of your application for admission the consular

or immigration officer had reason to believe that you were or had

been an illicit trafficker of a controlled substance, or were or had

been a knowing assister, abettor conspirator, or colluder with

other in the illicit trafficking of a controlled substance, to wit: you

were convicted on 7/3/91 of conspiracy to traffick cocaine and

sentenced to 5 yrs. with 3 yrs. served.

5. You admitted committing the following acts: possession of

marijuana, loitering and prowling, eluding police, and probation

violation for which you were returned to jail to serve the

remainder of your 5 year sentence.

6. Those acts constitute the essential elements of crimes

involving moral turpitude.

PROVISIONS CONTINUED:

Section 212(a)(2)(C) of the Immigration and Nationality Act, as

amended, as an alien who the consular or immigration officer

knows or has reason to believe is or has been an illicit trafficker in

a controlled substance, or knows or has reason to believe is or has

been a knowing assister, abettor, conspirator, or colluder in the

illicit trafficking of a controlled substance.

Section 212(a(2AXiM1) of the Immigration and Nationality Act,

as amended, as an alien who has been convicted of, or who admits

having committed, or who admits committing acts which consti-

tute the essential elements of a crime involving moral turpitude

(other than a purely political offense).

Section 212(g) (2)(A)i(ID of the Immigration and Nationality Act,

as amended, as an alien who has been convicted of, or admits

having committed, or admits committing acts which constitute the

essential elements of, a violation or a conspiracy or attempt to

violate any law or regulation of a state, the United States, or a

foreign country relating to a controlled substance (as defined in

section 102 of the Controlled Substances Act, 21 U.S.C. 802.

Section 212(a)(2)(B) of the Immigration and Nationality Act, as

amended, as an alien who has been convicted of two or more

criminal offenses for which the aggregate sentences to confine-

ment actually imposed were five years or more.

Signature Title

ILLEGIBLE IMMIGRATION INSPECTOR

2 of 2 Pages

Form 1-831 Continuation Page (Rev. 6/12/92

[Seal Omitted]

United States Department of Justice

Immigration and Naturalization Service

Krome Service Processing Center

18201 SW 12 Street

Miami, Florida 33194

December 04, 1997

Kurzban Kurzban Weinger and Tetzeli, P.A.

Plaza 2650

2650 SW 27 th Avenue

Second Floor

Miami, Florida 33133

RE: Ralph RICHARDSON

A 17 566 876

Dear Mr. Kurzban, ESQ

This responds to your letter of November 13, 1997,

requesting parole for the above named person, who is

detained in Service custody. Please be advised that,

after careful review and consideration, parole will not

be extended to this individual at this time.

The detention of persons not clearly admissible to the

United States is mandated by Section 235(b) of the

Immigration and Nationality Act. The factors to be

weighed by the District Director in evaluating requests

for release from detention are set forth at Title 8, Code

of Federal Regulations, part 212.5(a). After taking

these factors into consideration in reviewing the parole

request for the above applicant, I have concluded that a

favorable exercise of discretion is not warranted.

Accordingly, the request for parole is hereby denied.

Sincerely,

Si) CARYL THOMPSON

FOR THE DISTRICT DIRECTOR

Caryl Thompson

Acting Officer in Charge

Krome SPC

[Seal Omitted]

Memorandum

United States Department of Justice

Immigration and Naturalization Service

18201 S.W. 12 th. Miami, Fla. 33194

December 4th, 1997

Kurzban Kurzban Weinger and TetzelO, P.A.

Plaza 2650

2650 SW 27th Avenue, Second Floor

Miami, Florida 33133

RE: RALPH RICHARDSON, A17 566 876

SUPPLEMENT TO PAROLE REQUEST DENIAL

LETTER

Dear Mr. Kurzban,

This letter is a supplement to the parole denial letter,

which was mailed to your office on December 4th, 1997.

The parole of aliens into the United States is justified

only on a case by case basis for urgent humanitarian

reasons or significant public benefit.

On October 26th, 1997, Mr. Richardson applied for

admission as a returning permanent resident with an

expired I-151 (Alien Resident Card) and a valid Haitian

passport. This caused him to be referred to the

Secondary Immigration Inspector for a more detailed

interview on his application for admission. During this

secondary interview, Mr. Richardson freely admitted to

having been convicted of conspiring to traffick cocaine

for which he was sentenced to five years imprisonment,

of which he served three years. Subsequent to his

admission of being convicted of a serious drug offense,

Mr. Richardson provided other information pertaining

to his criminal history. In 1984 he was arrested and

charged with possession of a firearm. He was again, in

1985, arrested and charged with possession of a con-

trolled substance (marijuana). In 1992 and 1993 he was

arrested and convicted of possession of a controlled

substance (crack cocaine). Pursuant to Section

101 (a) (48) of the Immigration anc Nationality Act, Mr.

Richardson has been convicted of an aggravated felony.

The release of Mr. Richardson into the community will

he of no significant public benefit. Mr. Richardson has

not shown that his release would be warranted based

upon urgent humanitarian reasons. Additionally, he is

not eligible for any form of relief under the Immigration

and Nationality Act. Consequently, he would have no

incentive to appear for Immigration hearings.

Based on the above facts and circumstances of your

client’s case, a favorable exercise of discretion is not

warranted at this time. Accordingly, the request for

parole submitted on behalf of Mr. Richardson is denied.

Respectfully,

/s) CHARLENE MONROE

CHARLENE MONROE

FOR THE DISTRICT DIRECTOR

Charlene Monroe

Acting Officer in Charge

Krome Service Processing Center

IMMIGRATION COURT

18201 S.W. 12TH ST

MIAMI, FL 33194

In the Matter of

Case A17-566-876

RICHARDSON, RALPH

Respondent IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on

1/8/1998

This memorandum is solely for the convenience of the

parties. If the proceedings should be appealed or re-

opened, the oral decision will become the official opinion

in the case.

[X]

(]

(X]

The respondent was ordered removed from the

United States to Haiti

Respondent’s application for voluntary departure

was denied and respondent was ordered removed

to alternative to

Respondent’s application for voluntary departure

was granted until upon posting a bond in the

amount of $ with an alternate order of

removal to

Respondent’s application for asylum was ( )

granted ( )denied ( )withdrawn.

Resepondent’s application for withholding of

removal was ( )granted ( )denied ( )withdrawn.

Respondent’s application for cancellation of re-

moval under section 240A(a) was ( )granted

(X)denied ( )withdrawn. Statutorily ineligible

( ]

10a

Respondent’s application for cancellation of re-

moval was ( )granted under section 240A(b)(1)

( )granted under section 240A(b)(2) ( )denied

( withdrawn. If granted, it was ordered that the

respondent be issued all appropriate documents

necessary to give effect to this order.

Respondent’s application for a waiver under

section ____ of the INA was ( )granted ( )denied

(withdrawn or ( )other.

Respondent’s application for adjustment of status

under section of the INA was ( )granted

( denied ( ) withdrawn. If granted, it was ordered

that respondent be issued all appropriate docu-

ments necessary to give effect vo this order.

Respondent’s status was rescinded under section

246.

Respondent is admitted to the United States as a

__ until ;

As a condition of admission, respondent is to post a

Respondent knowingly filed a frivolous asylum

application after proper notice.

Respondent was advised of the limitation on

discretionary relief for failure to appear as

ordered in the Immigration Judge’s oral decision.

ings were terminated.

Other: 212(a)(2)(C), 212(a)(A)(i)UD,

212(a)(2)(A)G)().

Date:

Appeal: WAPVED Appeal By Respondent Due

By: 2/9/98

\s\ KENNETH S. HUREWITZ

KENNETH S. HUREWITZ

Immigration Judge

12a

U.S. Department of Justice

Executive Office for Immigration Review Decision of the Board of

Immigration Appeals

Falls Church, Virginia 22041

eee

File: A17566876-— Krome Date: MAY 5 1999

Inre: RALPH RICHARDSON

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Helena Tetzeli, Esquire

Kurzban, Kurzban, and Weinger, P.A.

2650 SW 27th Street, 2nd Floor

Miami, Florida 33133

ON BEHALF OF SERVICE:

Elena R. Stinson

Assistant District Counsel

CHARGE:

Notice: Sec. § 212(a)(2)(A)G)(I), I&N Act [8

U.S.C. 1182(a)(2)(A)@))}Crime in-

volving moral turpitude

Sec, 212(a)(2)(A)G)UD, I&N Act [8 U.S.C.

§ 1182(a)(2)(A)(i)(II]—Controlled

substance violation

Sec, 212(a)(2)(B), IGN Act [8 U.S.C. §

1182(a)(2)(B)]—Multiple criminal

convictions

13a

Sec. 212(a)(2)(C), I&N Act [8 U.S.C. §

1182(a)(2)(C)}—Controlled substance

trafficker

APPLICATION: Termination; cancellation of removal

The respondent timely appeals the Immigration

Judge’s decision finding him inadmissible and ordering

him removed from the United States. The respondent

also appeals the Immigration Judge’s decision pre-

termitting his application for relief from removal under

section 240A of the Immigration and Nationality Act, 8

U.S.C. § 1229b. The appeal will be sustained in part

and the record remanded. The respondent’s request for

oral argument is denied. |

I. BACKGROUND

The respondent is a native and citizen of Haiti. The

respondent was admitted for lawful permanent resi-

dence on January 21, 1968 (Tr. at 20). The record re-

flects that on July 3, 1991, the respondent was con-

victed in the Circuit Court, First Judicial Circuit of

Escambia County, Florida for trafficking in cocaine in

violation of section 893.135(1)(b)(8) of the Florida stat-

utes (1990)'. The respondent was sentenced to 5 1/2

years imprisonment for this offense.

On October 26, 1997, after a visit to Haiti, the

respondent was detained by the Immigration and

1 The Immigration and Naturalization Service alleges in the

Notice to Appear (Form I-862) that the respondent was convicted

of conspiracy to traffic in cocaine. The record of conviction

indicates that the respondent was convicted under section

893.135(1)(b)(3) of the Florida Statutes (1991). The section for

conspiracy is under section 893.135(5) of the Florida Statutes. The

record of conviction contains no indication that the respondent's

conviction was for conspiracy.

14a

Naturalization Service while applying for admission.

The respondent was issued a Notice to Appear (Form I-

862) and placed in removal proceedings. The Service

alleges that the respondent is inadmissible under

section 212(a)(2)(C) of the Act, 8 U.S.C. § 1182(a)(2)(C),

because there is reason to believe that he is a controlled

substance trafficker. The respondent is also alleged to

be inadmissible under section 212(a)(2)(A)@@ of the

Act, as an alien who has committed a crime involving

moral turpitude, section 212(a)(2)(B) of the Act as an

alien who has multiple convictions whose aggregate

sentences to confinement are 5 years or more, and

section 212(a)(2)(A)(i)(ID of the Act, as an alien who has

been convicted of a controlled substance violation. The

Immigration Judge found that the respondent was an

alien seeking admission and sustained all the grounds of

inadmissibility except for the multiple convictions

ground under section 212(a)(2)(B) of the Act. Finding

that the respondent’s conviction was an aggravated

felony, the Immigration Judge pretermitted the respon-

dent’s application for cancellation of removal. The

respondent has appealed the Immigration Judge’s

decision to this Board. :

il. THE RESPONDENT'S ARGUMENTS ON

APPEAL

The respondent asserts on appeal that the Immigra-

tion Judge erred in finding that he was an alien seeking

admission under section 101(a)(13) of the Act, 8 U.S.C.

§ 1101(a)(13), as amended by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

enacted as Division C of the Departments of Com-

merce, Justice, and State, and the Judiciary Appropria-

tions Act for 1997, Pub. L. No. 104-208, 110 Stat. 3009-

546, 3009-575 (““IIRIRA”). The respondent maintains

lda

that under the doctrine established by the United

States Supreme Court’s decision in Rosenberg v. Fleuti,

374 U.S. 449 (1963), he should not be regarded as

making an “admission” into the United States. Alterna-

tively, the respondent denied that he is inadmissible on

the grounds alleged. The respondent maintains that

the record of conviction submitted by the Service in

support of the grounds of inadmissibility do not pertain

to him. The respondent also argues that the record of

conviction has not been properly authenticated pur-

suant to federal regulations, thus, is inadmissible as

evidence of a conviction. Although the respondent con-

cedes that he was convicted of possession of a

controlled substance, he denies the allegation that he

was convicted of trafficking in cocaine (Tr. at 24).

Lastly, the respondent argues that he is statutorily

eligible for cancellation of removal under section

240A (a) of the Act.

III. THE SERVICE’S ARGUMENTS ON APPEAL

In a short memorandum of law the Service adopts the

Immigration Judge’s decision. The Service maintains

that the Board’s decision in Matter of Collado, Interim

Decision 3333 (BIA 1997), is controlling in this case. As

such, the Service argues that the respondent is an ar-

riving alien. The Service also argues that the record of

conviction submitted by them in support of the allega-

tions contained in the charging document meets the

statutory and regulatory requirements for admissibility

as proof of the respondent’s criminal conviction.

IV. ANALYSIS

Despite his prior admission for permanent residence

the respondent in this case has the burden of proving

16a

that he is “clearly and beyond doubt entitled to be

admitted into the United States and is not inadmissible

under section 212.” See section 240(c)(2)(A) of the Act,

8 U.S.C. § 1229a(c)(2)(A); 8 C.F.R. § 240.8(b); see also,

Matter of Rosas, Interim Decision 3384 (BIA 1999). We

find that the respondent in this case has failed to

sustain that burden.

A. Admissibility of the record of conviction

The record of conviction submitted by the Service in

this case indicates that a person named Ralph R.

Richardson was convicted on July 3, 1991, of trafficking

in cocaine. The respondent argues that this record of

conviction does not relate to him (Respondent’s Br. at

5). The respondent, whose name is Ralph Richardson,

alleges that he has no middle name or initial. The

respondent admits to a controlled substance conviction

but maintains that it was for possession, not trafficking.

Where a deportation charge is based on documentary

evidence bearing a name identical to that of a respon-

dent, a reasonable inference may be made that such

evidence relates to that respondent. See Matter of

Leyva, 16 I&N Dee. 118, 121 (BIA 1977) (finding that a

record of conviction that has a different first and middle

name but the same last name is sufficient to establish

that the record pertains to the respondent); Matter of

Lopez, 15 I&N Dec. 183, 184 (BIA 1975) (where the

names of the respondent and the person whose record

of conviction is introduced into evidence are identical an

inference may be drawn that the documents relate to

the respondent, absent evidence to the contrary). The

record of conviction in this case contains the respon-

dent’s first and last name. The respondent admitted to

being arrested and charged in 1991. The respondent

17a

admits that this arrest was for a controlled substance

offense (Tr. at 22). The respondent also admitted

pleading nolo contendere before Judge Bell in a

criminal court in Escambia County, Florida (Tr. at 24-

25). We note that all this information is reflected in the

record of conviction submitted by the Service. More-

over, in a sworn statement made by the respondent to

an immigration officer he admits to being convicted of a

controlled substance offense (Exh. 3). Therefore, de-

spite his assertions to the contrary the respondent has

failed to provide any evidence that the record of con-

viction does not pertain to him. In light of all the evi-

dence contained in the record we sustain the Immigra-

tion Judge’s conclusion that the record of conviction for

Ralph R. Richardson relates to the respondent.

The respondent also asserts that the record has not

been properly certified as required under 8 C.F.R.

§§ 287.6 and 3.41. As a result, the respondent argues

that the record of conviction is not admissible to estab-

lish inadmissibility under the Act. The record of con-

viction contained in this case is a four page document.

The last page contains a certification stamp, a raised

seal of the court embossed over the certification, and a

signature by the clerk for the Escambia Circuit and

County Court (Exh. 2). Section 240(c)(8)(B)(vi) of the

Act, 8 U.S.C. § 1229a(c)(3)(B)(iv), allows for any “docu-

ment or record prepared by, or under the direction of,

the court in which the conviction was entered that

indicates the existence of a conviction” to be used as

proof of a criminal conviction in immigration pro-

ceedings. Although 8 C.F.R. § 287.6 requires that such

records be certified, there is no requirement that the

certification be placed on any particular page in the

record. The record of conviction in this case is in

18a

chronological order with each page numbered. There is

no indication that anything has been altered or is

missing from the record. As such, we find that the copy

of the respondent’s record of conviction has been

properly attested to by an official having legal custody

of that record and is admissible to support the grounds

of removal alleged in this case. See 8 C.F.R. § 287.6;

Matter of Lopez, supra, at 184.

B. Applicability of section 101 (a)(13) of the Act

We reject the respondent’s argument that under the

doctrine established by the United States Supreme

Court’s decision in Rosenberg v. Fleuti, supra, he

should not be regarded as making an “admission” into

the United States. In our published decision, Matter of

Collado, supra, we noted that the immigration laws

concerning entry were changed with the enactment of

section 301(a) of the ITRIRA. Previous to this enact-

ment, the term “entry” was defined at section

101(a)(13) of the Act, 8 U.S.C. § 1101(a)(13) (1994).

However, by the time of the respondent’s return to the

United States on October 26, 1997, the term “entry”

was no longer in effect. Instead, the term “entry” was

repealed and in its place the terms “admission” and

“admitted” were added.

Section 101(a)(13) of the Act, as amended by the

IIRIRA, defines the terms “admission” and “admitted”

with respect to an alien, as the lawful entry of an alien

into the United States after inspection and authoriza-

tion by an immigration officer. Section 101(a)(13)(C) of

the Act regards aliens lawfully admitted for permanent

residence in the United States as not “seeking an

admission into the United States for purposes of the

immigration laws” unless the alien has committed an

19a

offense identified under section 212(a)(2) of the Act. An

exception to this rule exists for aliens granted relief

under section 212(h) or 240A(a) of the Act. See Matter

of Collado, supra.

In Collado we held that the United States Supreme

Court’s decision in Rosenberg v. Fleuti, supra did not

survive as a judicial doctrine after the enactment of the

newly codified section 101(a)(13) of the Act. This Board

further held that a lawful permanent resident of the

United States described in sections 101(a)(13)(C)(@)-(iv)

of the Act was to be regarded as an alien seeking

admission into the United States, without further in-

quiry into the nature and circumstances of a departure

from and return to this country. See Matter of Collado,

supra.

While the respondent’s appeal was pending, the

United States District Court for the Southern District

of Florida granted a petition for habeas corpus filed by

the respondent addressing the unrelated issue of cus-

tody. See Richardson v. Reno, 994 F. Supp. 1466 (S.D.

Fl. 1998). In its decision, the Federal District Court

rejected this Board’s reasoning in Matter of Collado,

supra, and held that the United States Supreme

Court’s decision in Rosenberg v. Fleuti supra, was

applicable to this case. See Richardson v. Reno, supra

at 1472. The respondent on appeal reiterates this argu-

ment. In support of his contention the respondent has

included a copy of the District Court’s decision.

We are not persuaded by the respondent’s sub-

mission of the District Court’s decision rejecting our

holding in Matter of Collado. The United States Court

of Appeals for the Eleventh Circuit has recently re-

versed and vacated that decision. In a panel decision

20a

the Eleventh Circuit held that the District Court lacked

jurisdiction to hear the respondent’s habeas corpus

claim inasmuch as the IIRIRA repealed habeas jurisd-

iction over immigration proceedings. See Richardson v.

Reno, 162 F.3d 1338 (11th Cir. 1998). Therefore, our

decision in Matter of Collado is still applicable in this

jurisdiction and this Board is not collaterally estopped

from applying its reasoning to the present case. See

Palciauskas v. INS, 939 F.2d 963 (11th Cir. 1991) (ap-

plying the doctrine of collateral estoppel to immigration

proceedings); see also, Matter of K-S-, 20 I&N Dec. 715

(BIA 1993) (the Board of Immigration Appeals is not

bound to follow the published decision of a United

States District Court in cases arising within the same

district).

The record reflects that the respondent has been

convicted of a controlled substance offense involving

cocaine. The respondent is, therefore, inadmissible

under an offense defined in section 212(a)(2). In light of

these facts we find that the respondent is to be

regarded as seeking an admission to the United States

for purposes of the immigration laws without further

inquiry into the nature and circumstances of his

departure and return to this country. See section

101(a)(13)(C)(v) of the Act; Matter of Collado, supra.

C. Cancellation of Removal

Lastly, we turn to the respondent’s arguments

regarding his statutory eligibility for cancellation of

removal pursuant to section 240A(a) of the Act. Section

240A(a) of the Act provides that a lawful permanent

resident may seek cancellation of removal if he (1) has

been an alien lawfully admitted for permanent resi-

dence for not less than 5 years; (2) has resided in the

2la

United States continuously for 7 years after having

been admitted in any status; and (3) has not been

convicted of any aggravated felony. See Matter of C-V-

T-, Interim Decision 3342 (BIA 1998).

The Immigration Judge determined that the respon-

dent’s controlled substance conviction was an aggra-

vated felony and pretermitted his application for can-

cellation of removal (I.J. at 7-8). The respondent, how-

ever, argues that since his criminal conviction pre-dated

the effective date of the IIRIRA, it cannot be used to

bar his eligibility under the Act.

We find that the record contains insufficient evidence

to support a finding that the respondent had been

convicted of an aggravated felony. We, therefore, need

not reach the merits of the respondent’s argument on

the temporal scope of the aggravated felony bar to

relief from removal under Section 240A(a) of the Act.

Section 101(a)(43)(B) of the Act includes in the

definition of aggravated felony the “illicit trafficking in

a controlled substance (as defined in section 802 of Title

21), including a drug trafficking crime (as defined in

section 924(c) of Title 18).” In determining whether a

state drug offense qualifies as an aggravated felony

under section 101(a)(43)(B) of the Act, this Board has

essentially established a two-pronged test. See Matter

of L-G-, Interim Decision 3254 (BIA 1995). Under the

first prong, a state drug offense is an aggravated felony

if it is a felony under state law and has a sufficient

nexus to unlawful trading or dealing in a controlled sub-

stance to be considered “illicit trafficking” as commonly

defined. Matter of L-G- supra. The second prong of

the test, requires that a state drug offense qualify as a

“drug trafficking crime” under 18 U.S.C. § 924(c)(2),

22a

punishable as a felony under the Controlled Substance

Act (21 U.S.C. § 801 et seq.), the Controlled Substances

Import and Export Act (21 U.S.C. § 951 et seq.), or the

Maritime Drug Law Enforcement Act (46 U.S.C. App.

1901 et seq.). See Matter of L-G-, supra; Matter of

Davis, 20 I&N Dec. 586 (BIA 1992); Matter of Barrett,

20 I&N Dec. 171 (BIA 1990).

In this case, the respondent was convicted under

section 893.135(1)(b)(3) of the Florida Statutes. Section

893.135(1)(b)(3) requires that a criminal defendant

knowingly sell, purchase, manufacture, deliver, or bring

into the state, or knowingly be “in actual or construc-

tive possession of, 28 grams or more of cocaine as de-

scribed in section 893.03(2)(a)(4)” or of any other mix-

ture containing cocaine. We note that the statute under

which the respondent was convicted is divisible; mean-

ing it encompasses offenses that include drug traffick-

ing as defined under section 101(a)(43)(B) of the Act, as

well as offenses that do not. See Matter of Teixeira,

Interim Decision 3273 (BIA 1996) (divisibility analysis

applied to firearms); Matter of Short, 20 I&N Dec. 136

(BIA 1989) (divisibility analysis applied to crimes in-

volving moral turpitude); Matter of Mena, 17 I&N Dec.

38 (BIA 1979) (divisibility analysis applied to controlled

substance offenses). For example, a criminal defendant

may be convicted under section 893.135(1)(b)(8) for sell-

ing, purchasing, manufacturing, or delivering cocaine.

All of these offenses would constitute an aggravated

felony under the Act under either prong of Matter of L-

G-, supra. However, the statute also criminalizes being

in actual or constructive possession of 28 grams or more

of cocaine. To prove a defendant was in “constructive

possession” of cocaine, all that is needed under Florida

law is proof that the defendant had dominion and con-

23a

trol over the cocaine; knew it was within his presence,

and had knowledge of its illicit nature. See Green v.

State, 667 So.2d 208 (Fla. Dist. App. 1995). Possession

of a controlled substance lacks a sufficient nexus to

unlawful trading or dealing in a controlled substance to

be considered “illicit trafficking” as commonly defined.

Matter of L-G- supra. Thus, the first prong of Matter of

L-G- is not satisfied. Unless a respondent has had

prior drug convictions, possession of more than 5 grams

of a mixture or substance which contains “cocaine base”

is the sole possession offense under 21 U.S.C. § 844(a)

which is punishable as a felony. Id.

Where a statute under which an alien was convicted

is divisible, we look to the record of conviction, and to

other documents admissible as evidence in proving a

criminal conviction, to determine whether the specific

offense for which the alien was convicted will sustain a

ground of inadmissibility. This approach does not

involve an inquiry into facts previously presented and

tried. Instead the focus is on the elements required to

sustain the conviction. See Matter of Pichardo, Interim

Decision 3275 (BIA 1996).

Looking to the record of conviction in this case we

note that there is no indication of what specific crime

under section 893.135(1)(b)(3) the respondent was con-

victed of committing. There is nothing in the record in-

dicating that the respondent’s single drug conviction

under Florida law involved cocaine base. There is,

likewise, no evidence that the respondent’s conviction

was for selling, purchasing, manufacturing, or deliver-

ing cocaine”. Therefore, on this record we cannot find

2 We note that the record of conviction does state that the re-

spondent was convicted of “trafficking” in cocaine. However, sec-

24a

that his offense is analogous to a felony under the Con-

trolled Substance Act. See Matter of Batista-Hernan-

dez, Interim Decision 3321 (BIA 1997). In light of these

facts we find that the respondent’s conviction cannot be

construed as an aggravated felony as defined under sec-

tion 101(a)(43)(B) of the Act. We note that the respon-

dent consistently maintained that he was convicted of

possession. The record of conviction provides no infor-

mation that refutes his contention.

We recognize that the United States Court of Ap-

peals for the Eleventh Circuit has recently held that a

felony conviction for possession of a controlled sub-

stance is an aggravated felony. See United States v.

Simon, 168 F.3d 1271 (11th Cir. 1999) (rejecting argu-

ment that a state drug offense must be classified as a

felony by the Controlled Substance Act). However, we

note that Simon involved the term aggravated felony

as used in U.S.S.G. §2L1.2(b)(1)(A) (1997) and not the

Immigration and Nationality Act. Moreover, we note

that the Eleventh Circuit adopted the approach taken

by the First Circuit in United States v. Restrepo-

Aguilar, 74 F.3d 361 (1st Cir. 1996) (term aggravated

felony includes a state felony drug possession offense

that would only be a misdemeanor under federal law),

which rejected the reasoning of Matter of L-G-, supra,

because the Board’s reasoning was inconsistent with

the Second Circuit’s holding in Jenkins v. INS, 32 F.3d

11 (2d Cir. 1994) (alien’s state conviction for a drug

offense that is a felony under state law, but a misde-

meanor under federal law, qualifies as a conviction for

an aggravated felony). The Second Circuit, however,

tion 893.135(1)(b) labels the actual or constructive possession of

cocaine as a “trafficking” offense.

25a

has since vacated its holding in Jenkins. See Aguirre v.

INS, 79 F.3d 315 (2d Cir. 1996). Since the Eleventh

Circuit has not issued a decision rejecting our inter-

pretation of section 101(a)(43)(B) of the Act, as articu-

lated in Matter of L-G-, supra, and cases cited therein,

we decline to follow precedent that interprets the Sen-

tencing Guidelines and not the Immigration and Na-

tionality Act.

The respondent was admitted as a lawful permanent

resident to the United States in 1968. There is no

indication in this record that the respondent has failed

to reside continuously in the United States since that

time. Consequently, upon the evidence contained in

this record we find that the respondent is currently

statutorily eligible for cancellation of removal under

section 240A(a) of the Act.

V. CONCLUSION

We sustain the Immigration Judge’s determination

that the respondent is inadmissible under section

212(a)(2)(A)(i)(II) of the Act, as a controlled substance

offender. However, in light of our determination that

the respondent’s criminal conviction may or may not be

a controlled substance trafficking offense, we decline to

sustain the Immigration Judge’s decision finding the

respondent inadmissible under sections 212(a)(2)(C) and

212(a)(2)(A)(i)(D of the Act. Since the statute under

which the respondent was convicted is divisible, we

likewise cannot find that the respondent’s criminal of-

fense constitutes a drug trafficking crime under section

101(a)(43)(B) of the Act. We note that on remand the

Service is not precluded from introducing evidence

establishing that the respondent has indeed been

convicted of illicit trafficking in a controlled substance

26a

and is, thus, deportable as an alien convicted of an

aggravated felony after admission. However, as the

record currently stands, the respondent is statutorily

eligible to apply for cancellation of removal pursuant to

section 240A(a) of the Act. Accordingly, the following

order shall be entered.

ORDER: The respondent’s appeal is sustained.

FURTHER ORDER: The record is remanded to the

Immigration Judge for further proceedings consistent

with the foregoing opinion and for entry of a new

decision.

FOR THE BOARD

27a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

Miami Florida

A 17-566-876

IN THE MATTER OF: RICHARDSON, RALPH,

RESPONDENT

IN REMOVAL PROCEEDINGS

(Jun. 8, 1999]

The Court finds pursuant to the Board of Immigra-

tion Appeals decision, dated May 5, 1999, that the re-

spondent is statutorily eligible to apply for Cancellation

of Removal pursuant to section 240A(a) of the Act.

This relief is discretionary and a hearing will be held

on July 19, 1999, at 9:00 a.m.

Dated: June 8, 1999

\s\_ KENNETH S. HUREWITZ

KENNETH S. HUREWITZ

US. Immigration Judge

28a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

KROME SERVICE PROCESSING CENTER

MIAMI, FLORIDA

A17-566-876

IN THE MATTER OF: RICHARDSON, RALPH,

RESPONDENT

IN REMOVAL PROCEEDINGS

ON BEHALF OF THE RESPONDENT:

Helena Tetzeli Esquire

2650 S.W. 27th Ave 2nd Floor

Miami, Florida 33133

ON BEHALF OF THE SERVICE

Loren Coy Esquire

Assistant District Counsel

Miami, Florida

Charges:

Section 212(a)(2)(C) of the Immigration and Nation-

ality Act, as amended, as an alien who the consular

officer or Immigration officer knows or has reason

to believe is or has been an illicit trafficker in a

controlled substance or knows or has reason to

believe is or has been an assister, aider, abettor,

colluder, conspirator, in the illicit trafficking of a

controlled substance.

29a

Section 212(a)(2)(A)(i)(I) of the Act, as an alien who

has been convicted of or admits having committed or

admits committing acts which constitute essential

elements of a crime involving moral turpitude other

than a purely political offense.

Section 212(a)(2)(A)(Gi)(IT) of the Act, as an alien who

has been convicted of or admits having cormmitted or

admits committing acts which constitute the

essential elements of a violation or a conspiracy to

violate any law or regulation of a state, the United

States or a foreign country relating to a controlled

substance.

Section 212(a)(2)(B) of the Act, as an alien convicted

of two or more criminal offenses for which the ag-

gregate sentence to confinement actually imposed

was five years or more.

Section 212(a)(6)(C)(i) of the Act, in that you are an

alien who, by fraud or willfully misrepresenting a

material fact seeks to procure or has sought to

procure or has procured a visa or other documenta-

tion or admission into the United States or other

benefit under the Act.

APPLICATIONS:

Termination

Cancellation of Removal pursuant to section

240A(a) of the Act.

DECISION OF THE IMMIGRATION JUDGE

The respondent, a native and citizen of Haiti, who

was first admitted to the United States as a permanent

30a

resident on January 21, 1968 at age two. On October 26,

1997, the respondent was returning to the United

States as a returning resident. At that time, the

Service stopped him and held him in custody issuing an

NTA on October 26, 1997, charging him with inad-

missibility as charged above, other than section

212(a)(6)(C)(i), which was added subsequently. At a

hearing before the undesigned, the respondent, through

counsel, conceded that he was a native and citizen of

Haiti, not a citizen of the United States, that he was a

permanent resident, that he was returning to the

United States on that date. Counsel denied the

conviction, and also denied that he should be considered

an arriving alien.

On January 8, 1998, this Court found the respondent

to be inadmissible and statutorily ineligible for can-

cellation of removal, and ordered him removed from the

United States. The Board of Immigration Appeals, in a

decision dated May 5, 1999, found the respondent to be

an arriving alien, subject to removal only under section

212(a)(2)(A)(i)(I1), for having been convicted of a drug

offense. The Board also found the respondent not to be

an aggravated felon, and, therefore, eligible for can-

cellation of removal, and remanded the case back to this

Court. Since the Board ruled on the issue of entry, the

Court will not address that issue in this decision. It was

addressed in the Court’s previous decision.

At the resumed hearing, counsel for the respondent

made a motion that this Judge recuse himself because

the Court’s law clerk had been offered employment

with the Service, at the completion of his clerkship. In

the instant case the Court had not even reached a deci-

sion when the law clerk left, and he was not involved in

3la

the final decision. A Judge should only recuse himself

where there is a clear showing of personal bias or

prejudice. Matter of K-, 5 I&N Dec. 347 (BIA 1953).

There has been no such showing. There has been no

showing that the law clerk was prejudice [sic] in favor

of the Service based on his future employment. The

motion to recuse must, therefore, be denied.

The Service on remand submitted additional evi-

dence including a conviction for loitering and prowling,

and carrying a concealed weapon, Remand ex. #18, to

support a charge under section 212(a)(2)(B). Since the

respondent was sentenced to more than five years in

prison pursuant to his conviction for trafficking in

cocaine, Remand ex. #6, he is inadmissible under section

212(a)(2)(B) of the Act. The Service withdrew the

charge under section 212(a)(6)(C)(i) of the Act. The

Service elected not to challenge the Board’s ruling re-

garding respondent’s inadmissibility pursuant to sec-

tion 212(a)(2)(A)G@)(1) of the Act.

The Service introduced additional evidence pursuant

to the Board’s ruling, to support their position that the

respondent was subject to removal under section

212(a)(2)(C), and was an aggravated felon, and, there-

fore, ineligible for cancellation of removal. The Board

in their decision said, “We note that on remand the

Service is not precluded from introducing evidence

establishing that the respondent has indeed been

convicted of illicit trafficking in a controlled substance

and is, thus, deportable as an alien convicted of an

aggravated felony after admission.” This despite the

fact that the respondent is an arriving alien, and is not

subject to section 237 of the Act.

32a

The Service first introduced conviction records, indi-

cating a conviction for carrying a concealed firearm, and

unlawful possession of cannabis, August 6, 1985, Re-

mand ex. #19, and for unlawful sale of cannabis, August

13, 1986, Remand ex. #16. Respondent’s counsel was

given an opportunity to review these records and at a

resumed hearing. On September 3, 1999, counsel sub-

mitted remand exhibits 16A, and 19A, judgements by

the Circuit Court dated September 1, 1999, vacating

these convictions.

The Service then introduced, the police report for the

respondent’s conviction for trafficking in cocaine,

Remand ex. 20, indicating that the 581 grams of cocaine,

for which he was convicted of was crack cocaine, a

mixture containing cocaine base.

attended DEA Drug Unit Commanders school. He

worked with customs, DEA, and OCIDEF. Mr. Aiken

identified the respondent, and, testified that he re-

ceived information that cocaine was being brought into

Pensecola Airport. He found 581 grams of crack

cocaine with Mitchell Thevenin Remand ex. #5. Mr.

Thevenin stated the Mr. Richardson had supplied the

drugs. He obtained a warrant for Mr. Richardson’s

arrest, who lived in South Florida, Pembroke Pines. He

was arrested on the warrant and transported to

Pensecola.

33a

At first Mr. Richardson was not cooperative, but the

later cooperated, identifying Charles White as the per-

son who was to receive the cocaine. He admitted that

the cocaine seized from Thevenin had been supplied by

him (Mr. Richardson). Mr. White was a major local

supplier, and received a 15 year sentence for trafficking

in cocaine. Mr. Richardson admitted to Mr. Aiken, that

he had an ongoing relationship with Mr. White.

Mr. Aiken testified that he personally tested the

drugs and it was crack cocaine. He also testified that

this was a small town (1000 people), with a major drug

problem.

Additionally, the Service introduced a deposition

taken from Mr. Richardson, in Mr. White’s case Re-

mand ex. #9. In this deposition the [sic] Mr. Richardson

said that he was born in Brooklyn, New York, Page 4

line 13, and that he used the name Richard, page 4 line

3. He went on to say that he had a previous arrest in

Miami in 1986 for possession of marijuana for which he

received probation, and a CCW in 1985 or 1986. (page

5). He then stated that he arranged for Mr. Thevenin to

transport drugs to Pensecola for Mr. White. (Page 7).

Mr. Richardson said that he obtained the drugs from

different people, Stick a black male, and from some

Cubans including Jose. He had no one in particular

(page 8 lines 22, 23). He said that he received 17 or 18

oz. Of crack cocaine (page 9 lines 16-20). Mr. Thevenin

made trips for him and received varying amounts of

money depending on the quantity (pages 10 and 11). He

then was questioned regarding who would have testi-

fied against him including Mr. Thevenin, and how he

got arrested.

34a

He then stated that he had not made a deal for his

testimony, but hoped to get a break (page 20). He

stated that he met Mr. White three years earlier

through a woman named Paula Warrer, a girlfriend of

Mr. White. He said that he was already involved in

selling drugs, (page 22 lines 17-25). He starting bring-

ing drugs to Pensecola in 1986 (page 23 line 5). He was a

small dealer, 2 or 3 oz. at that time, and Paula told him

that Mr. White could make him a lot of money (page 24).

In 1989 he had about 5 or 6 oz. of crack cocaine worth

about $6500 (page 26). He testified regarding other

individuals. He testified that he derived his income

from drugs from June 1989 to September 1990, based on

up to 10 trips for Mr. White (page 38). He later said

that there were other trips and that he earned $10,000

per trip and had no other income. On cross examination

by the Service, he admitted the facts stated in his

deposition and admitted to being a drug dealer.

AGGRAVATED FELONY ANALYSIS

In the Board’s decision, page 7, they said, an alien

convicted for possession is not an aggravated felon,

“unless a respondent has a prior drug conviction, or

possess more than 5 grams of a mixture containing

crack cocaine.”

Since respondent’s counsel was able to vacate

respondent’s two prior drug convictions, he does not fall

within the first provision as set out by the Board. The

Service continues to argue that respondent’s conviction

is an aggravated felony because it involved more that 5

grams of crack cocaine, as evidenced by the police

report and the testimony of Mr. Aiken. Respondent’s

counsel cites Matter of Texeira, I.D. 3273 (BIA 1996),

and Matter of Short, 20 I&N Dec. 186 (BIA 1989), for

35a

the proposition that a police report is not part of the

record of conviction. The Court must agree that pur-

suant to Matter of Texeira, “the police report is not part

of a record of conviction.” The respondent’s deposition

in Mr White’s case is also clearly not part of his record

of conviction.

Since the Board’s precedent does not allow this Court

to use the above evidence to demonstrate that the re-

spondent was convicted for trafficking in crack cocaine,

the Court can not find that the respondent was con-

victed for an aggravated felony, based on possessing

more than 5 grams of cocaine base.

The Court, however, does concur with the Service’s

position, as laid out in their brief accompanying their

interlocutory appeal, that a trafficking in cocaine

conviction based on possession in excess of a certain

amount, clearly indicates that such possession was not

for personal use. Federal Courts have held that intent

to distribute drugs may be inferred solely from

possession of a large quantity of a controlled substance.

U.S. v. Kowa Thao, 712 F.2d 369 (8th Cir. 1983), U.S. v.

DeLeon, 641 F.2d 330 (5th Cir. 1981), U.S. v. Edwards,

602 F.2d 458 (1st Cir. 1979), U.S. v. Love, 599 F.2nd 107

(5th Cir) cert denied 444 U.S. 944 (1979).

Additionally, the Court believes that it is bound by

the 11th Circuit’s ruling in United States v. Simon, 168

F.3rd 1271 (1999). In this decision the Court found that

a felony conviction under Florida law for possession of

cocaine was an aggravated felony, as defined under 18

U.S.C. 924(c)(2). The Court specifically said, “the com-

mentary to section 2L1.2(b)(1)(A) defines aggravated

felony as it is defined in 8 U.S.C. 1101(a)(43)(B).” This

section, 101(a)(43)(B) of the Act, includes any drug

36a

trafficking crime as defined in section 924(c) of Title 18.

While the Board and the Judge are not bound by circuit

court decisions outside their jurisdiction, they are

bound by the Circuit’s decision which covers the juris-

diction of the hearing. The respondent has been con-

victed of an aggravated felony.

INADMISSABILITY UNDER SECTION 212(a)(2)(C)

OF THE ACT

Section 212(a)(2)(C), states that one is subject to

removal if an immigration officer knows or has reason

to believe that an alien has been an illicit trafficker in

any controlled substance or is or has been a knowing

assister, abettor, conspirator, or colluder, with others in

the illicit trafficking in any controlled substance.

A conviction is not required for such a finding, Matter

of Rico, 16 I&N Dec. 181 (BIA 1977). In Rico, the

applicant was not convicted for a drug offense, but the

Board found reason to believe based on testimony and

evidence. In the instant case the evidence, clearly

establishes that the respondent was earning his living

in the late 80’s by selling crack cocaine in Florida. The

respondent’s own deposition, Remand ex. #9, estab-

lishes this fact. The testimony of Mr. Aiken, also,

clearly satisfies the provisions of section 212(a)(2)(C) of

the Act. In Rico, the Board said, “Unlike the criminal

judicial proceeding where a defendant must be found

guilty beyond a reasonable doubt, an administrative

finding of excludability must be based upon reasonable,

substantial, and probative evidence.” The evidence,

including his conviction for at least possessing 581

grams of cocaine, including crack, and his admissions

relating to the selling of crack cocaine, demonstrates

not only a reasonable belief that the respondent traf-

37a

ficked in cocaine, but such belief is beyond a reasonable

doubt.

The respondent is inadmissible pursuant to section

212(a)(2)(C) of the Act.

CANCELLATION OF REMOVAL

While the Court has found the respondent to have

been convicted of an aggravated felony, and thus

ineligible for cancellation of removal, a full hearing was

held based on the Board’s remand. The Court notes

that the Board in its remand was aware of the 11th

Circuits ruling in Simon, but did not follow it. After

careful reading of that case, this Court feels that Simon

is controlling. In order to avoid any future hearings,

the Court will now address the issue of cancellation of

removal assuming he is statutorily eligible for the

relief.

Janice Richardson respondent’s wife testified that

she was born in Pensecola and met Mr. Richardson in

1988, marrying him January 15, 1991. They have one

child together, Miriah, and he has one child, JoAnna,

and she has one child, Chris. They all lived together.

She did not know of his prior criminal record.

They moved to Atlanta in 1992 to change their life.

He was arrested the second time for violation of

probation in 1992, when they were visiting her mother

in Pensecola for Thanksgiving. He was then sentenced

to a term in prison. This changed her life, especially

financially. She had to work two jobs, and the children

were upset. Friends helped take care of the children.

After his release things got better, and they lived a

38a

normal family life. They played basketball and Thurs-

day was family day, where they all did things together.

Ralph had a good relationship with Chris (stepson).

Since the respondent’s detention by the Service, Chris

has suffered. His grades have slipped, and he does not

want to participate in sports, where his father had been

the coach. He hides under the desk, cries a lot, and

secludes himself. Chris has visited his father about 3

times. He has gone to counseling, and the teachers

know of his problems.

Chris wants to see his father, but he gets depressed

afterwards, and it takes him time to get back into his

routine. Her husband calls everyday to make sure the

children go to school. She leaves at 5 AM to go to work.

She can not afford things such as gymnastics and other

activities. She did not have these problems when Ralph

was home.

She now cleans buildings that Ralph used to do, as

well as doing her other job. She does this twice a week.

She also works for Family and Children Services as an

administrator. They had a snow cone business but lost

it when he was detained. She is in a bad financial situa-

tion, and is even behind on her mortgage payments.

Chris’s father is not involved in his life. The only

father Chris knows is her husband. Ralph has a good

relationship with JoAnna. She now lives with her

mother in Miami, because she can not take care of all

the children. JoAnna wants to come home to Atlanta.

She is very quiet and is upset about her father. Ralph

always supported his daughter prior to being arrested.

JoAnna went to school in Atlanta.

39a

Miriah is young, cries ,and wants her father, but does

not understand. She was upset when a bond was set by

the Service, and then revoked. The whole family was

upset as they were planning a get together when he

was released.

In Atlanta they did everything together, including

going to church. Ralph took care of the kids, as well as

cleaning the house. He came home earlier than her, and

helped out at home. It is terrible not having Ralph

home. She is totally stressed and has no life. She had

to give up basketball, including the possibility of

playing in the WNBA with the Liberty. If Ralph were

there she could have pursued this as he always

supported her. She now has callouses on her hands

because of hard work.

She would not go to Haiti with Ralph. Conditions are

very bad in Haiti. She does not speak Creole, but while

he does speak it, he does not speak it very well.

Ralph would help anyone in the community. He left

in the middle of the night to help a stranded friend, and

everyone loved him.

Ralph expressed remorse and cries saying he is

sorry. He would not get involved in criminal activity

again. He often complains about things at Krome,

including his health.

If Ralph were deported she would not go on as today.

She would move to Pensecola with her mother and

would have to start over again. She considered suicide

because of the stress, and also thought that maybe this

would allow her husband to be released. While she

considered divorce, she has not filed papers because she

40a

wants to continue to live with him in the United States.

She is aware of two arrests, although she does not know

what happened in 1990, prior to their marriage. When

they were dating she saw him about every three

months, when he would come for a week.

She testified regarding his second arrest for violation

of probation in 1992. She testified that they were leav-

ing for Atlanta after Thanksgiving, from her sister’s

house in Pensecola. He took a friend Tony to his hotel,

and then did not come back as he said he would. She

drove by the hotel, but Tony was not there, although he

did not check out. She then found out that Ralph has

been arrested for fleeing the police. Her husband told

her he knew nothing of the drugs in the car, although

he fled. He fled when Tony said, “don’t stop I have

something in the car.”

Ralph has no business office, and uses an answering

service. He runs the business from his home. He has

never had an office in Atlanta. She was shown a copy of

a 1996 tax return that he submitted, Remand ex. #7.

He filed as a head of household, address 2263 Comet

Way, Atlanta, Georgia 30318. They never filed a joint

return. She does not know where the above address is.

She filed tax returns on her own using her home

address. She files single claiming 2 children, Chris, and

Miriah. She has not submitted any tax returns.

She married the respondent while in jail, and Miriah

was born while he was in jail. Miriah was over one year

old when he was released, in March 1992. He was

working continuously prior to his detention by the

Service. |

4la

The respondent called a friend, Rick Clark, as a wit-

ness. Mr. Clark has a designer jewelry business in

Atlanta, Georgia, who hired Mr. Richardson to clean his

business. Mr. Richardson originally worked for the

prior contractor. When the contract expired, Mr.

Richardson bid on the job and was hired. He knows

Mr. Richardson since 1995. He believes that Mr.

Richardson is a hard working, trustworthy, and highly

motivated person. He knows of the respondent’s other

businesses including, his auto detailing business, snow

cone business, and this executive cleaning business.

Although he did not know of the respondent’s

arrests, and may not have hired him, he does not regret

his decision. Respondent’s wife took over the cleaning

of his offices, when the respondent was arrested. His

detention by the Service created tremendous hardship

for the family. He offered Janice, respondent’s wife

money, and she did accept a loan. The money was paid

back. Janice and he have talked and she has unloaded

her feeling with him.

On cross examination he testified that he learned of

the respondent’s arrest record only after he was

detained by the Service. He had the contract for about

2 or 3 years. He pays $6000 per month and has 5000

square feet. He knows that respondent has other

accounts including one of about 50,000 square feet. He

learned of the respondent’s criminal record for drugs,

and firearms from Janice after his arrest by the Ser-

vice. He was asked why, a recommendation he sub-

mitted, Remand ex. 12, only mentioned firearms. He

stated that Janice did not originally tell him about the

drug arrest. Respondent’s criminal record came out

piecemeal, when the respondent was not released by

42a

the Service. He has never visited the respondent’s

house, and only knows that he lives in the Northern

part of the city.

Respondent next called Mario Laurencau, his cousin

who is Director Phoenix Clinic (nurse). He was Deputy

General counsel for Haiti in Miami from May 1991 to

August 1995. He does not know if respondent speaks

Creole. He testified that the resporident has no family

in Haiti. He stated that up to 1995 deportees to Haiti

were detained on return, but were released. He lived

with the respondent, while he was in school. He last

saw the respondent about 4 years ago. He does not

know the names of respondent’s children, and does not

know about his criminal record. He testified that he

talks to Mr. Richardson about once a month at Krome.

The respondent then called Gerald Aquino, a United

States citizen, who is married to Mr. Richardson’s

cousin. He helped the respondent move to Miami in

1982, and helped take care of his children. Mr. Aquino

is an IRS Tax Revenue agent, and lives in Miramar,

Florida. He knows the respondent very well. How-

ever, he only saw him a few times after respondent

moved to Atlanta. He talked to him at Mr. Richard-

son’s father’s funeral. He testified that Mr. Richard-

son’s children love him, but he has not talked to Mrs.

Richardson or the children since respondent’s deten-

tion. He knows that the respondent was arrested, and

he believes it was for drugs. He thinks Mr. Richardson

spent three years in jail. Respondent’s parents had 9

children, and had financial problems. The respondent’s

aunt and uncle helped out. Respondent’s mother had

emotional problems, and could not take care of the

children, so their aunt and uncle did. He last saw

43a

respondent at his father’s funeral. He never visited

him in Georgia, or while detained. He was aware that

the arrest was for crack cocaine, and knows that Mr.

Richardson made a bad mistake. He testified that Mr.

Richardson violated probation by being with someone

he was not suppose to be with, and that he, therefore,

fled the police.

He does not know what Mr. Richardson did for a

living from 1988 to 1990. He believes, however, that

Mr. Richardson is a good person, who made a mistake.

He testified that he thinks respondent’s brother Angel

is addicted to drugs. He talked to respondent at

Krome, and thinks he has changed.

He testified that Mr. Richardson had a car wash

business in Atlanta. He saw a change in Mr. Richard-

son after his uncle’s death in 1987. It was he uncle, Mr.

Joseph, who helped support the family.

Karlie Richardson, respondent’s sister then testified.

She is 40 years old, lives in Boyton Beach, Florida, and

is a property manager for HUD. She came with re-

spondent to the United States, when she was 8 and he

was 2. They were raised in Brooklyn, New York. She

says that respondent did not know that he was born in

Haiti. He graduated High School in Miami, having

moved from New York at age 14. He came to live in

Miami with his aunt and uncle because it was a good

place to live. Their mother suffers from depression and

slight retardation. Their parents moved to Florida in

1981 or 1982, but Ralph remained with his aunt of uncle.

Their father had a stroke in 1982, and was in a nursing

home for a long time before passing away about 1997.

Mr. Richardson came to visit his father about once

every 6 weeks while in Atlanta.

44a

They are a close family, and although he is a younger

brother, he is always there for her. He broke down and

apologized to the family for what he had done. She

knows he went to visit someone in Pensecola, when he

violated probation, but he was there visiting his wife’s

parents. She speaks to him 3 times a week, and he is

really depressed about his children, especially Chris.

Mr. Richardson attends church.

James (Jimmy), respondent’s younger brother goes

to school in Georgia, and Ralph was like a father to him.

When James was arrested for graffiti, Ralph disciplined

him. She would be devastated if he were deported,

because he is always there for her. He has no one in

Haiti, and his Creole is very poor.

She speaks to his children and they are suffering.

Chris is very withdrawn. JoAnna’s grades went down.

JoAnna now lives with her biological mother. Miriah

always cries, and wants her daddy. His wife, Janice is

stressed out and has to work 8 jobs. Chris who is 10

years old sometimes has to take care of Miriah. Their

mother would go into depression if he were deported.

He would be homeless in Haiti.

On cross examination she testified that her younger

brother enrolled in college in Georgia, so that the re-

spondent could help him. However, due to his deten-

tion by the Service, he has not been able to assist his

brother.

She was naturalized because it was important to her,

but no one told Ralph that he was not born in the

United States. She worked for the Immigration Court

as an interpreter, so she had to be a United States

citizen. She does not approve of respondent’s actions,

45a

and she has not told her 12 year old son, about the

respondent’s criminal record.

She testified about her brother’s activities in the

1990s, but did not know about the earlier arrests in

1984 and 1986. Ralph’s criminal attorney explained

everything about the case to her. She believes every-

one makes mistakes and should be given another

chance. He told her he would not do it again.

She knew about his violation of probation, but be-

lieves he was simply with someone who had drugs, and

that he did not know about the drugs, and was not

involved. He has changed and tells his children not to

use drugs. He went to Haiti in 1997 for a mass in his

father’s memory. Ralph helped his family during his

father’s illness.

Chris, respondent’s stepson then testified. He identi-

fied the respondent, and call him dad, and stated that

he loves him and misses him. His father coached his

basketball team and everyone on the team misses him.

It is not fun to be in little league sports without his

father.

His sister Guithele Ruiz testified. She is a Human

Resource Director in Pembroke Pines. She has a good

relationship with the respondent. Ralph has a good

relationship with her children. He is a male role model

for her son. He is a good father and husband. His par-

ents were not told about the incident (arrest), because

of their illness. Ralph came and apologized to his par-

ents.

She takes respondent’s daughter, Miriah to Krome to

visit her father. When Miriah and Chris come to

46a

Florida, Chris stays with her brother, Harvey, but she

does not know if Chris comes to visit his father. Chris

sometimes has to stay at home in Atlanta with his

sister, when Jan is working. This is difficult. Mr.

Richardson calls home in the morning to make sure that

Chris and Miriah go to school, since Jan often leaves

before the children.

Ralph has been a strong male figure and it would be

devastating to his wife, children and mother if he were

deported. Miriah is withdrawn without her father.

JoAnna is talking with older men, something she would

not do if Ralph were there. Chris (Jan’s son) was out of

control before Ralph entered the scene. He listens to

Ralph, who is the only father he knows. She has never

seen Chris’s real father. Ralph would have nobody in

Haiti, and would not be able to take care of himself.

She has worked for the Florida Voluntary Action

Caribbean Initiatives Program, as a voluntary. She has

been in Haiti 4 times in the last 2 years with this group.

She testified that Haiti is not a safe place, and that her

brother might not by safe there. Conditions are bad

and there is no safety. On cross examination she sated

that she was safe because it was a short visit and she

was with a group at a hotel.

She is very proud of the respondent, since he was

able to start 2 businesses to support himself. He lives

in Atlanta and his house is worth between 80 and 85

thousand dollars.

Her mother has mental problems and is in total

denial about Ralph. She thinks he is in the army. They

do not tell her the truth, and she is on medication.

47a

Ralph used to help his mother by buying things in-

cluding food.

Her son, Andy, 21, wants to marry, and thinks so

much of Ralph’s opinion that he even brought his

girlfriend to see Ralph while Ralph was detained.

Andy thinks of Ralph as a good friend who he would

miss greatly.

Ralph could not survive in Haiti, as his Creole is

poor, and has no one to help him. He would have to live

on the street.

Ralph always thinks of his family, children, and wife,

not himself. He is worried that he will get sick like his

mother because of his detention. His mother blames

herself for Ralph’s detention as he accompanied her to

Haiti. She testified to this after saying that her mother

thought he was in the army.

On cross examination she said, everyone makes mis-

takes, and they may still be a good person. When he

was arrested, Jan was pregnant. He was a wonderful

dad and husband. She learned of his criminal problems

after the fact, and spoke to his attorney in Pensacola,

and Ralph plead guilty to the charges.

On a second trip to Pensacola, Ralph’s dad saw him,

while he was awaiting trial. She did not know exactly

what Ralph was convicted of, and was not aware that

crack cocaine was involved. She did not know what the

length of his probation was, and was not aware that he

fled the police while on probation. Ralph never really

explained to her what happened.

She said everyone makes mistakes, and they can still

be a good person. This was repeated many times. She

only talks positive things with Ralph. She did not know

that he had a gun in the car when he was first arrested

in Pembroke Pines, while taking kids to a game. She

said that it was okay, however, because Ralph lived in a

dangerous neighborhood where guns were necessary,

Her father had a stroke, and, therefore, they did not tell

him about Ralph.

Jan (his wife) was pregnant while he was in jail in

1991. Joanna now lives with her real mother, while

Chris and Miriah live with Jan. Jan is under a great

deal of stress due to Ralph’s incarceration by the Ser-

vice. She knows nothing about Mr. White, and did not

know he was selling drugs to make money. She is

afraid for Ralph, if he is forced to return to Haiti.

The respondent then testified regarding his request

for Cancellation of Removal. On direct examination he

testified calmly, quietly, and presented a very sympa-

thetic case. He was a different person on cross becom-

ing very abrasive, and evasive. On direct examination

he testified that he came to the United States from

Haiti, in 1968, at age 9. He has no memories of Haiti,

but his first recollections are of Brooklyn where he was

raised. He has 8 brothers and sisters. His father was a

professor, and his mother a teacher. He grew up in

Brooklyn in a close family. His parents did run into

problems, marital, and his father left when he was

about 6 years old. His mother had medical problems, so

uncle in Florida, from age 18 to 16, (1984), when his

aunt died. He went to school in Florida, and graduated

49a

from North Miami Senior High, after dropping out of

North Miami Beach High School His problems started

after his aunt died. He speaks little Creole, and always

thought he was a United States citizen. Most of his

friends were American and not Haitians.

He testified that he registered with selective service,

assuming he had been born in Brooklyn. He starting

cutting school at age 17, using drugs and hanging

around with the wrong people. He met a girl named

Sharon, and had a child JoAnna. He started working at

Wendy’s to support his child. He never married Sharon.

He then finished High School, and took courses at

Miami Dade Community College. He started to have

money problems, despite having two jobs, at Wendy’s

and with Miami Dade College, and he then began to sell

drugs.

He lived in a tough neighborhood, Washington Park,

where selling drugs was easy. After his break up with

Sharon, JoAnna came to live with him. She lived with

him after his release from jail, but she now lives with

her mother because he is detained. He has a daughter

with his wife, Miriam, and a stepson Chris. In 1992, he

was released from jail and moved to Georgia to begin a

new life. He did not want to go back to South Florida,

and his brother Mark lived in Atlanta. He took various

jobs, including selling flowers, and taking pictures. He

made contacts and then opened a car wash. Business

was slow in the winter, so he started a car detailing

business, and a cleaning service. He started Exclusive

Touch, which his wife still runs. However, many of the

accounts have been lost, because of his detention. In

1997, he had 4 contracts and 10 employees. Today he

only has one contract with Mr. Townsend who pre-

50a

viously testified. He also had three employees at the

detailing business, which he does not have today.

Life was good in Atlanta, and he got involved in the

community, coaching and then becoming commissioner

in the the North Cross Community. Chris quit baseball

because his father was not there to coach, however, he

is now trying out for football. Before his detention he

worked Monday to Saturday, from 8 to 3:30. He was,

therefore, able to spend time with his children. He

would help them with their homework, help with the

cooking and take them to the park. On Sunday they

would go to church, eat and spend time together. He

earned about $30,000, and his wife earned about

$15,000. He started a snow cone business, from which

he made about 5 to 7 thousand dollars. He brought the

business for $2000, and paid $650 a month on season,

and $400 off season. He lost the business after his

detention.

Miriah and JoAnna were involved in sports. All the

children have been effected by his detention. Chris is

shy, and upset, and he has raised Chris since age 1.

Miriah is always crying and misses him. He needs

special reading classes, since he is not there to help

read with him. JoAnna lives with her biological mother,

since he is not there. She would prefer to live in

Atlanta, and he is worried about the neighborhood in

Florida, where she now lives. He can not control her

since he is detained. Sharon is good woman, but they

live in a bad neighborhood, where she is exposed to

many things including men.

He testified that Janice is not doing well, and that she

tried to commit suicide twice. She was hospitalized for

a breakdown because he is not home. He calls home

5la

twice a day to make sure that the children go to school,

and get home okay. All his brothers and sisters and

mom live in Florida. Prior to his detention he visited

Florida to see his dad, who suffered a stroke. He died

in January 1997. He has no family in Haiti. In 1996,

they had a big Thanksgiving in Florida, for the entire

family at a hall. There were 50 people. This was so

good because it was his father’s last Thanksgiving.

He is especially close to Karlie, who has helped to

raise his youngest brother Jimmy. Jimmy attends

Moore head College in Atlanta. Jimmy decided to go

there because he (respondent), lived there and could

help him. Ralph testified that he helped Jimmy, as well

as Karlie’s kids. Jimmy had a problem and he exercised

a strong hand, verbally, to let him know that he should

not get into trouble with the law. His mother is not

doing well either. She feels that she is to blame, since

was the one that wanted to go to Haiti to participate in

a mass for he husband. His mother is like a child and

needs care.

He testified that conditions in Haiti are bad,

crowded, and smelly. You had to buy water, and

outside of the hotel, Haiti is very bad and poor. He was

shocked by what he saw. People are begging, and he

could not support himself there.

He has an extensive criminal record, and he testified

that he let his family down. All he wants to do now is

help his family. He should be allowed to start a new life

as he wants to. He regrets what he did. His entire

family is here and he wants to see his daughter get

married, and his sons to accomplish their goals. He has

attempted to rehabilitate himself, and has serve the

community. He would not repeat his mistakes as he has

52a

a new community, and new friends. His second arrest

for violating probation was a big mistake. He had no

contact with that individual for over five years. While

in Pensacola for Thanksgiving, he met him again and he

asked for a ride. The police came behind him and he

started to pull over. His friend said not to stop because

there were drugs in the car. He did not know that his

friend had drugs with him. The police did not prosecute

him for the drugs, but violated his probation, and

charged him with fleeing the police. He found out that

the police had been watching his friend, and he was not

involved. He has had no arrests since his release in

1994, following his probation violation.

He testified that Janice and the children would not

move to Haiti if he were deported, therefore, his depor-

tation would demolish the family. He stated that he

had made bad choices in his younger years, and has

tried to put that behind him. He wants to live the right

life and not lie, and wants to always tell the truth. It is

a life sentence if he is deported. Conditions in Haiti are

bad, and it would be a tragedy for him and his wife if he

were deported. She might even have another break-

down. She collapsed at work 2 months ago due to

stress.

On cross examination the respondent testified that he

was born in 1966, and came to this country in 1968. He

understands Creole but does not speak it. His mother

speaks Creole and some English. He has 6 older

brothers and sisters who all speak Creole, though usu-

ally only with their mother.

He used marijuana for the first time in high school,

11th grade. He continued the use until college when he

stopped. He used it almost everyday while in high

58a

school. He never used any kind of cocaine including

crack because it did not appeal to him. He sold powder

cocaine beginning at age 20, while living in North

Miami Beach. He purchased abut 1/8 gram and resold it

in the neighborhood, to known individuals, never chil-

dren. He did not consider it “selling,” but simply an

exchange. He did admit that he received money. He

began selling crack cocaine in 1989. He did this because

of a lack of money and his environment. He received

crack from friends. He bought whatever he could

afford. He admitted he was a drug dealer. He then

began selling crack out of town. He bought drugs in

North Miami Beach, and sold them in Pensacola. He

took 1 oz. broke it up into $10 pieces (rock), and sold it

for between $800 and $1000, for which he paid about

$500. He would have someone else transport the drugs

to Pensacola. Occasionally, he would sell it himself. He

did this 5 or 10 times. He dealt with someone named

Evelyn, last name unknown. She found him buyers. He

sold at Truman Arms, a residential area at night. For

abut two months in 1989 he sold drugs himself in

Pensacola.

He then became a middleman supplying drigs to be

sold in Pensacola. He met a Charles White who wanted

the drugs. He learned that he could make a lot of

money. His wife introduced him the Paula Warner, her

cousin, who introduced him to Charles White. He was

then questioned regarding his deposition taken in Mr.

White’s case ex. #19. His testimony with regard to this

deposition was very unclear. He did not deny what was

in the deposition, and in fact admitted that it was true.,

However, when asked direct questions, he was not sure

of the facts. He did add certain facts. He testified that

he went up to about 6 ounces, valued at between $5500

54a

and $6500. He said that he saw Mr. White on 6 or 8

times, and paid others to take the drugs to Pensacola.

Mr. Thevenin was an associate of his, who took drugs to

Pensacola for him to give to Mr. White. The last time

he took 17 ounces, about 581 grams, worth over $15,000.

He made a couple of thousand on the deal. He does not

know who the drugs were sold to. Mr. White received a

15 year sentence, while he got 5 1/2 years followed by

probation.

He was concerned about his daughter JoAnna but

sold drugs anyway. His daughter was in the car at the

time of his arrest, and it upset her a lot. He did have a

gun in the car but it was legally registered. He was

sentenced to 5 1/2 years, but released in 1992. He then

moved to Atlanta in March, living with his brother.

Janice, Chris, and Miriah accompanied him. In Novem-

ber 1992, he was arrested for fleeing the police. He met

a friend for no purpose, at a store, and then met him

again the following morning. His friend asked for a ride

to his girlfriend’s house. This individual took a cab to

his sister’s house where he was staying. The respon-

dent then gave him a ride. He was unable to explain

why his friend did not simply take a cab to his girl-

friend’s house. The police stopped him and his friend,

Tony told him not to stop because he (Tony) had drugs.

He was scared so he did not stop immediately. His

friend threw drugs out of the car. He stopped abut one

block away. He was arrested released OR, and put back

in jail. This hurt his family again.

When first arrested his mother visited, but was not

told what actually happened. His first arrest was in

1984 for loitering, prowling, and carrying a concealed

weapon. In 1985 he was arrested and plead to charges

55a

involving marijuana, and in 1986 he plead to charges

involving unlawful sale of cannabis. Both convictions

were vacated. See exhibits 16 and 19.

When he was arrested for trafficking in cocaine,

Janice was pregnant and he married her while in jail,

and Miriam was born while he was still in jail. At the

time of this arrest he was traveling with his daughter

and his indicated address was that of his daughter, and

her mother Sharon. He testified that he did not actu-

ally live with Sharon at that time, but that his name

was on the lease.

He testified that he had no disciplinary problems in

prison, or detention. The Service then introduced exhi-

bit #21 a record of Discipline against the respondent, for

smoking in unauthorized area. In addition he was

transferred from Krome, after an altercation with an

officer after visitation. He said that he was asked to

strip for a search, and he refused because he had never

been asked before. He says that he believes the officer

was a homosexual. He became very upset in Court, and

said that the District Director, and the Trial Attorney

were treating him unfairly. He also had a problem in

the cafeteria at Krome, with Carol West, who helped

run the cafeteria. He testified that no one could agree

with her. He said that he voluntarily left since she was

not going to. He was actually disciplined for eating

where he was not allowed to. He testified that every-

one did it. His attitude was that this was not his fault.

He always lived with Janice after their marriage. He

was asked about the one tax return which he sub-

mitted, indicated an address of 2263 Way, Atlanta,

Georgia. This after he was asked where he lived in

Atlanta, and he said, 2125 Willow Trail Drive, and 1127

56a

Harbin Road. He first said, that well he stayed at

different places when having problems with his wife.

His wife, did not even know where that address was.

Later he said the address was that of his partner, and

he slept on the couch sometimes. He would spend a

couple of days away, a couple of times. This tax return

also shows him to be head of household, although he

was actually married. He testified that his accountant

filed it out, but interestingly, the page containing the

preparers name, and his signature was not supplied.

He filed separately because did not want to mix his

business with his personal affairs. He testified that he

has been mistreated by the Service, and that they

should have released him.

Counsel for the respondent subpoenaed officers of

the Immigration Service from Krome to testify regar-

ing his behavior at Krome. The Court signed these, and

the officers were available. However, after talking to

these individuals., counsel elected not to call them.

The respondent has applied for Cancellation of Re-

moval pursuant to section 240A(a) the Act. This section

allows the judge to waive all grounds of inadmissibility,

for an alien who has been a lawful permanent resident

for 5 years, and has resided lawfully in the United

States for seven years, prior to the commission of the

acts which subject him to removal from the United

States, and has not been convicted of an aggravated

felony. This relief is discretionary in nature.

While the Court has found the respondent statutorily

ineligible for the relief because he has been convicted of

an aggravated felony, a full hearing was held based on

the Board’s remand. Even if statutorily eligible for the

relief, the respondent still must demonstrate that he

57a

merits, the relief as a matter of discretion. In Matter of

C-V-T-, Int. Dec. 3342 (BIA 1998), the Board held that

the standards developed to evaluate a waiver under the

old section 212(c), are appropriate for the exercise of

discretion under section 240A(a). The burden remains

on the respondent to demonstrate that he merits the

relief. The Court must balance the favorable factors,

including, residence of long duration, hardship to the

respondent or her family, property or business ties,

service in the armed forces, service of value to the

community, and any other factors attesting to her good

moral character, against the adverse factors including

the nature of the immigration violation, any criminal

record, or other evidence of bad moral character.

Matter of Marin 16 I&N Dec. 581 (BIA 1978). Matter

of Edwards, 20 1&N Dec. 191 (BIA 1990), Matter of

Bascom, 19 I&N Dec. 628 (BIA 1988).

In Matter of Marin, supra., the Board laid out the

positive factors including residence of long duration,

hardship to family member, business ties, property ties,

employment and evidence of community service. In the

instant case the respondent has resided in the United

States for 30 years, having entered the United States

an infant. He has extensive family, and business ties in

the United States, even though there is no proof of

taxes regarding these business.

The positive factor of his residence in the United

States and family ties, must be balanced against the

adverse factors, including her criminal and immigration

record. Matter of Marin, 16 I&N Dec. 581 (BIA 1978),

Matter of Edwards, 20 I&N Dec. 191 (BIA 1990), Mat-

ter of Bascom, 19 I&N 628 (BIA 1988). The respon-

dent’s serious criminal conviction for trafficking in

58a

cocaine requires outstanding or unusual equities as set

out in Matter of Buscemi. The Service does not contest

the fact that his residence, of 30 years since an infant is

an outstanding equity. The Court concurs in this find-

ing. However, a finding of outstanding equities does

not automatically require that the relief be granted.

In the instant case the respondent has admitted, and

the evidence establishes, that he was a drug dealer over

along period of time. Even after being convicted he

violated probation by associating with a friend involved

with drugs. The serious adverse effects of drugs in this

country has been noted by the Board in Matter of U-M-,

20 I&N Dec. 327, 330 (BIA 1991). The Board said, “The

harmful effect to society from drug offenses has

consistently been recognized by Congress in the clear

distinctions and disparate statutory treatment it has

dawn between drug offenses and other crimes.” The

definition of an “aggravated felony” under 101(a)(43),

makes drug trafficking an aggravated felony, without

any sentence, while many other crimes require a

sentence of one year or more. The respondent no only

has one conviction, but admits having been earning his

living by selling drugs for a substantial period of time.

This factor alone is enough to deny the relief as a

matter of discretion.

The Court also finds that there are other discre-

tionary factors, which must be considered. The respon-

dent does have extensive family ties to this country,

and would have a difficult time in Haiti. However,

while his direct testimony was very moving, on cross

examination his true colors came through. He testified

on direct that he wants to live a true life with no lies.

However on cross examination, he denied any discipli-

59a

nary problems in jail or at Krome, when in fact he had

more than one. While they may be minor offenses, he

did not reveal them when asked. In addition he

submitted only one tax return, and that was incom-

plete. This return also contains misinformation, in that

he does not indicate that he was married. This may

have resulted in a lower tax. He testified regarding his

many businesses, but has produced no evidence, specifi-

cally tax returns relating to these businesses. His one

return shows gross income of $27,180 from Exclusive

Touch, yet he testified that he had 8 to 10 employees.

There was a snow cone business with no evidence of a

tax return. His own witness Mr. Clark testified that he

paid the respondent $6,000 per year for cleaning 5000

square feet, and the Mr. Richardson had other custom-

ers, one of over 50,000 square feet. He has produced no

evidence that this income was reported.

In addition, on direct examination he paints a picture

of the ideal family. When confronted with his tax

return indicating a different address, he says, that he

spent time away from Janice when he had problems.

He finally stated that the address was that of a partner

where he sometimes slept on the couch. His explana-

tion of what happened when he violated probation does

not ring true. His friend Tony takes a cab to his sister

in laws house, to ask for a ride to his girlfriend’s house.

His wife testified she did not want him to go because

they were heading home to Atlanta. She also testified

that he was suppose to take Tony to his hotel. It was

not clear as to why they simply did not take Tony in the

car and drop him off before heading for Atlanta. He

also was unable to explain why if he had no knowledge

of the drugs, he simply did not stop and explain this.

60a

While the respondent’s drug conviction in the 1980s

were vacated in 1999 , the fact remains that at one point

he plead to these charges, and now admits that he was

doing drugs at that time. He has a long history of using

and selling drugs. These cases must be considered in

deciding whether to grant the relief as a matter of

discretion.

In conclusion while the respondent has extensive

family ties, and he and his family would suffer greatly if

he were deported, he does not merit a waiver pursuant

to section 240A(a) of the Act as a matter of discretion

Since the respondent has waived any other forms of

relief the following orders will be issued:

It is hereby ORDERED that the Respondent’s

application for Cancellation of Removal pursuant to

section 240A(a) of the Act be DENIED.

It is ORDERED that the Respondent be

REMOVED from the United States pursuant to sections

212(a)(2)(C), 212(aX(2)(A) GID, and 212(a)(2)(B) of the

Act.

Dated this 15th day of November 1999

Kenneth S. Hurewitz

United States Immigration

Judge

[Seal Omitted]

US Department of Justice

Immigration and Naturalization Service

Miami District Office

7880 Biscayne Boulevard

Miami, Florida 33138

July 22, 1999

Ralph Richardson

C/O US INS

Krome Service Processing Center

Dear Mr. Richardson:

Please be advised that the Service has determined that

you may be paroled from Service custody upon the

posting of a bond in the amount of twenty-five thousand

dollars ($25,000). This decision may not be appealed. If

bond is posted in your behalf, the following conditions

will apply:

You present yourself at any and all immigration

hearings concerning your case

You advise EOIR and this office in writing of any

change in residence within 5 days

“You present yourself at any and all requests of the

INS

You comply with any decisions made concerning

your case

tT ee

62a

If you fail to comply with these conditions, the bond

posted in your behalf may be breached.

Sincerely

For Leroy Frederick

Assistant District Director

Detention and Deportation

63a

Ralph Richardson File No: A.17 566 876

Date: JUL 20 1999

Pursuant to the authority contained in section 236 of

the Immigration and Nationality Act and part 236 of

title 8, Code of Federal Regulations, I have determined

that pending a final determination by the Immigration

Judge in your case, and in the event you are ordered

removed from the United States, until you are taken

into custody for removal, you shall be:

O detained in the custody of this Service.

{ released under bond in the amount of $25,000.00.

O released on your own recognizance.

“Custody determination review based on the change in

interpretation of Section 303(b)(2) of the Illegal Immi-

gration Reform and Immigrant Responsibility Act of

1996 (IIRIRA)”

You may request a review of this determination

by an Immigration Judge.

O You may not request a review of this deter-

mination by an Immigration Judge because the Immi-

gration and Nationality Act prohibits your release from

custody.

/s/

(Signature of authorized officer)

(Title of authorized officer)

(INS office location)

64a

decision by an Immigration Judge.

6 I acknowledge receipt of this notification.

ae mi ~~ A (Date)

RESULT OF CUSTODY REDETERMINATION

On custody status/conditions for release were

reconsidered by:

O Immigration Judge O District Director

The results of the redetermination/reconsideration are:

C No change - Original determination upheld

C Detain in custody of this Service.

0 Bond amount reset to

C Release - Order of Recognizance.

C Release - Personal Recognizance.

OC) Other:

(Signature of officer)

[Seal Omitted]

US DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

18201 SW 12th Street

Miami, Florida 33194

July 26, 1999

TO: Ralph Richardson, A 17 566 876

Krome Service Processing Center, Miami,

FROM: Edward A. Stubbs

Officer in Charge

Krome Service Processing Center

SUBJECT: Change in custody conditions, revocation

of immigration bond

Dear Mr. Richardson,

Due to the recent receipt by the Service of unsealed

certified records of convictions acquired from the State

of Florida, which impacts heavily on your immigration

status, your case has been reconsidered and your

release on bond is no longer warranted.

Be advised that the previous bond of $25,000.00 is

hereby revoked.

/s/ EDWARD A. STUBBS

Edward A. Stubbs,

Office in Charge, Krome SPC

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.