# Opposition Brief — Richardson v. Reno > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0449%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1036 ## Text 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) II 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) 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) - 8 x8 Swain v. Pressley, 430 U.S. 372 (1977) (IIT) Page 15 la —_ * 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 V 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 VI 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 | 3 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) 2 he 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 3 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 4 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 5 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). 7 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 8 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 9 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)). 10 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 11 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 12 482 (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 13 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 id 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 15 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. 16 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 17 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 18 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. 19 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). 21 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). 22 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. 23 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 24 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. 25 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 26 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. 27 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 28 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. 29 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: 2a 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 8a 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 4a 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 5a [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 6a 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 7a [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, 8a 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 9a 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] (J (] (J (J (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 [J ( ] [J 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 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 hard [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0449%3A2. Public record. Not legal advice.