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USCA1 Opinion
December 8, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1721
HING CHEUNG WONG,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Robert J. Napolitano, on Memorandum in Support of Motion for
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Stay, for petitioner.
Stuart M. Gerson, Assistant Attorney General, Robert Kendall,
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Jr., Assistant Director, and Charles E. Pazar, Office of Immigration
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Litigation, Civil Division, Department of Justice, on Memorandum in
Opposition to Motion for Stay, for respondent.
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Per Curiam. Petitioner Hing Cheung Wong seeks a stay of
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deportation under 8 U.S.C. 1105a(a)(3) pending our review
of an order of the Board of Immigration Appeals (BIA) denying
his request for discretionary waiver. On August 10, 1992, we
stayed the order of deportation on a provisional basis and
directed the parties to file memoranda addressing
petitioner's challenges to the BIA's decision. Having now
reviewed the administrative record along with the parties'
memoranda, we find that the instant petition raises no
serious legal question. We therefore vacate the provisional
stay and deny petitioner's application for a stay pending
review.
I. Background
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Petitioner is a 39-year-old native and citizen of Hong
Kong who has been a legal permanent resident in the United
States since 1968. The record discloses that he has
committed three legal offenses since his arrival. In March
1977, he pled guilty in Maine state court to a charge of
possessing less than one and one-half ounces of marijuana--a
civil violation for which he was ordered to perform community
service. In May 1979, he pled guilty to a charge of
shoplifting and was fined $100.1 And in August 1984, he
pled guilty to the charge of acquiring scheduled drugs
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1. This offense, which involved the removal of a pair of
sneakers from a department store, led to his conviction under
Me. Rev. Stat. Ann. tit. 17-A, 353, for "theft by
unauthorized taking." Crimes in Maine are categorized, in
order of decreasing severity, from Class A to Class E. The
shoplifting violation was denominated a Class E offense.
(codeine) by deception, for which he received a one-year
suspended sentence and two years of probation.2
Relying on these latter two convictions, the INS in
December 1985 charged petitioner with being deportable as an
alien "who at any time after entry [has been] convicted of
two crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct ...." 8 U.S.C.
1251(a)(4) (since recodified at id. 1251(a)(2)(A)(ii)).3
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At a hearing before an immigration judge (IJ) in March 1987,
petitioner conceded his deportability under this provision
and requested a discretionary waiver pursuant to 8 U.S.C.
1182(c). Following the receipt of testimony from petitioner,
his wife and his father, the IJ denied such relief as a
matter of discretion, finding that the adverse factors
outweighed the equities in petitioner's favor. The BIA
summarily endorsed the IJ's ruling, and petitioner now seeks
a stay ofthe order of deportationpending review in thiscourt.
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2. The record reveals that petitioner obtained "Tylenol #4
with codeine" by use of a forged medical prescription. Such
action violated Me. Rev. Stat. Ann. tit. 17-A, 1108, and
constituted a Class C crime.
3. The INS later filed an additional charge of
deportability, contending that petitioner's conviction for
acquiring scheduled drugs by deception rendered him
deportable under 8 U.S.C. 1251(a)(11) (since recodified at
id. 1251(a)(2)(B)(i)). This provision applies to
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convictions for various controlled-substance offenses. The
immigration judge, however, deemed 1251(a)(11)
inapplicable. That ruling is not part of the instant
petition for review.
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II. Availability of Automatic Stay
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The filing of a petition for review acts as an automatic
stay of an order of deportation "unless the alien is
convicted of an aggravated felony, in which case the [INS]
shall not stay the deportation ... unless the court otherwise
directs." 8 U.S.C. 1105a(a)(3). The INS contends that
petitioner's 1984 state conviction for acquiring scheduled
drugs by deception constitutes an "aggravated felony." It
therefore asserts that petitioner is ineligible for an
automatic stay, even though the provision eliminating such
stays in cases of aggravated felons was added in 1990 (six
years after the conviction involved here). As petitioner has
not disputed either of these points, we pause only to note
that both appear supportable.
The term "aggravated felony" is defined in 8 U.S.C.
1101(a)(43) as, inter alia, "any drug trafficking crime as
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defined" in 18 U.S.C. 924(c)(2). That provision in turn
defines a "drug trafficking crime" as, inter alia, "any
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felony punishable under the Controlled Substances Act (21
U.S.C. 801 et seq.)." Under 21 U.S.C. 843(a)(3), it is a
felony "to acquire or obtain possession of a controlled
substance by misrepresentation, fraud, forgery, deception, or
subterfuge." This crime is directly analogous to
petitioner's 1984 state conviction. Moreover, the definition
of aggravated felony goes on to read: "Such term applies to
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offenses described in the previous sentence whether in
violation of Federal or State law." 8 U.S.C. 1101(a)(43).
The fact that petitioner's conviction occurred in state
court, therefore, does not preclude a finding of aggravated
felony under federal law.
The aggravated-felony provisions were introduced in
1988. See Anti-Drug Abuse Act of 1988 (ADAA), Pub. L. No.
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100-690, 102 Stat. 4181. The elimination of the automatic
stay for aggravated felons (along with the inclusion of state
crimes in the aggravated-felony definition) was effected by
the Immigration Act of 1990 (IMMACT), Pub. L. No. 101-649,
104 Stat. 4978. Some initial uncertainty arose as to the
degree to which the amendment eliminating the automatic stay,
see id. 513(a), 104 Stat. 5052, was retroactive. IMMACT
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provided that such change was applicable to petitions for
review "filed more than 60 days after the date of the
enactment of this Act." Id. 513(b). Yet this directive
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failed to specify when the conviction must have occurred.
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Noting this fact, one court held that the 1990 amendment
eliminating the automatic stay for aggravated felons did not
apply to persons whose convictions predated the ADAA's
effective date of November 18, 1988. See Ayala-Chavez v.
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INS, 945 F.2d 288 (9th Cir. 1991)
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In December 1991, however, new legislation amended this
provision so that it would apply "to convictions entered
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before, on, or after" IMMACT's effective date. Miscellaneous
and Technical Immigration and Naturalization Amendments of
1991, Pub. L. No. 102-232, 306(a)(11), 105 Stat. 1751.
This amendment "take[s] effect as if included in the
enactment of the Immigration Act of 1990." Id. 310(1), 105
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Stat. 1759. Arguably, some question still remains as to
whether the automatic stay is inapplicable (1) to all
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aggravated felony convictions, whenever they occurred, or (2)
only to those occurring after November 18, 1988. See Ayala-
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Chavez, 945 F.2d at 293-94 (discussing two other provisions
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of IMMACT having similar "before, on, or after" effective
dates). However, the Ninth Circuit has since held that the
Technical Amendments effectively overruled its Ayala-Chavez
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decision, and that "a party convicted of an aggravated felony
is precluded from obtaining an automatic stay of deportation,
regardless of the date of conviction." Arthurs v. INS, 959
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F.2d 142, 143 (9th Cir. 1992) (6/88 conviction). Other
courts have agreed. See Zegarski v. INS, 965 F.2d 426, 427
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(7th Cir. 1992) (per curiam) (8/86 convictions); Ignacio v.
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INS, 955 F.2d 295, 297-98 (5th Cir. 1992) (per curiam) (9/83
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convictions). Cf. Martins v. INS, 972 F.2d 657, 659-60 (5th
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Cir. 1992) (per curiam) (because of 4/86 conviction,
petitioner was an aggravated felon ineligible to apply for
asylum). Moreover, the Arthurs case involved a state drug
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conviction and so held, by implication, that the 1990
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amendment including state crimes within the definition of
aggravated felony was also fully retroactive.4 Cf. United
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States v. Bodre, 948 F.2d 28, 32 (1st Cir. 1991) (statutes
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retroactively making past criminal activity a new basis for
deportation have been upheld), cert. denied, 112 S. Ct. 1487
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(1992). Given this caselaw, and given his failure to raise
the issue, we conclude that petitioner is not entitled to an
automatic stay.
III. Propriety of Discretionary Stay
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We have stated in a different context that, where denial
of a stay "will utterly destroy the status quo, irreparably
harming" appellant, but granting a stay "will cause
relatively slight harm" to appellee, the appellant "need not
show an absolute probability of success" on the merits; it is
enough if "there are serious legal questions presented."
Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir.
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1979); accord Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1, 4
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n.2 (1st Cir. 1982) (probability of success need not be shown
"where the harm to plaintiffs is particularly severe and
disproportionate"). The Fifth Circuit has suggested such a
lower standard might apply in the 1105a context, see
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Ignacio, 955 F.2d at 299 & n.5, and the INS here has adverted
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to the Providence Journal standard in its memorandum (albeit
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4. That amendment (unlike the one eliminating the automatic
stay) was made effective "as if included in the enactment of"
the ADAA. IMMACT, 501(b), 104 Stat. 5048.
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without addressing its applicability). Yet we need not
decide which standard should govern, inasmuch as petitioner
has failed to present a "serious legal question," let alone
establish a probability of success.
In exercising its discretion whether to grant relief
from deportation under 8 U.S.C. 1182(c), the BIA
"balance[s] the adverse factors evidencing an alien's
undesirability as a permanent resident with the social and
humane considerations presented in his behalf." Matter of
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Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (quoted in Hazzard
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v. INS, 951 F.2d 435, 438 (1st Cir. 1991)). The IJ found
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that a number of factors strongly militated in petitioner's
favor. He has resided in this country since age 15, for a
total of 24 years. His parents, grandparents, and four
siblings all reside here as well; he has no relatives in Hong
Kong. He served in the Navy from September 1971 to January
1973. Petitioner married a native-born United States citizen
in 1985, and the two have lived together ever since. At the
time of the 1987 hearing, they had had one child together,
his wife had a second child from a previous relationship who
lived with them, and she was pregnant with a third. After
earlier bouts of underemployment, petitioner resumed working
full-time at a family restaurant in 1986 (as a food
preparer); he has been the sole support for his family since
that time.
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Arrayed against these equities were the following
adverse factors. As mentioned, petitioner was convicted of a
serious drug-related crime in 1984 and two less significant
offenses earlier.5 While he received an honorable discharge
from the Navy, that discharge was prompted by petitioner's
use of marijuana. Although petitioner claimed to have been
rehabilitated from such drug use, the IJ found otherwise. In
a July 1986 report, his probation officer reported a
"reluctance [on petitioner's part] to deal with substance
abuse issues," elaborating as follows:
I have contacted Mr. Wong's [substance abuse]
counselor, who states that Mr. Wong has made
virtually no progress. Their assessment is that he
is still in the denial stage, that he admits
continued regular use of marihuana and that he
justifies his use by insisting that it is a way of
life in his culture. Of even greater concern is
that Mr. Wong's reluctance to deal with substance
abuse issues is apparently longstanding.... Given
the problems that drug use has caused this
individual to date, it is truly unfortunate that he
shows no insight or willingness to change.
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5. Petitioner, conceding deportability, has not challenged
the denomination of his shoplifting offense as a "crime of
moral turpitude." We note that such a characterization,
while not unanimously endorsed, finds support in the caselaw
of this circuit, see Pino v. Nicolls, 215 F.2d 237, 245 (1st
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Cir. 1954), rev'd on other grounds, 349 U.S. 901 (1955)
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(petty larceny of twelve golf balls); Tillinghast v. Edmead,
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31 F.2d 81, 83-84 (theft of fifteen dollars), and that of
other courts, see, e.g., Mattis v. INS, 774 F.2d 965, 967
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(9th Cir. 1985) (shoplifting); Morasch v. INS, 363 F.2d 30,
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31 (9th Cir. 1966) (petty larceny); Ablett v. Brownell, 240
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F.2d 625, 630 (D.C. Cir. 1957) (petty theft). See also 3 C.
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Gordon & S. Mailman, Immigration Law and Procedure
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71.07[3][d], at 71-161 & n.306 (1992) (describing petty
larceny as crime of moral turpitude, while noting criticisms
of that view).
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And at the hearing, petitioner acknowledged that he continued
to use marijuana (albeit on an occasional basis). The IJ
determined that, on balance, these adverse factors outweighed
the equities. The BIA agreed, concluding that petitioner's
"criminal record, his history of drug abuse, and his
continuing disregard of the controlled substance laws of this
country warrant a denial of relief as a matter of
discretion."
Petitioner advances several specific challenges to this
decision, none of which proves persuasive. First, he
contends that the IJ accorded excessive weight to his 1977
marijuana offense, improperly regarding it as equivalent in
severity to his 1984 drug conviction. Petitioner apparently
draws such an inference from the simple fact that the IJ
listed both of these offenses as separate adverse factors.
Yet such an inference is misplaced: the IJ took full note of
the suggestion that the marijuana offense involved a
noncriminal violation,6 and the record reveals no lack of
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6. It is clear that petitioner's offense was not criminal in
nature. Maine decriminalized the possession of up to one and
one-half ounces of marijuana as of May 1, 1976. See 1975 Me.
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Laws c. 499, 2383 (amending Me. Rev. Stat. Ann. tit. 22,
2383). See also 1989 Me. Laws c. 344, 2 (lowering the
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threshold to one and one-quarter ounces). Compare Me. Rev.
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Stat. Ann. tit. 17-A, 1106(3) (any person in possession of
more than the threshold amount is presumed to be unlawfully
"furnishing" a scheduled drug). The offense to which
petitioner pled guilty occurred on June 28, 1976, some two
months after decriminalization took effect.
Some confusion has occurred on this point. At the
agency hearing, petitioner's counsel suggested, first, that
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understanding as to the nature of each offense. To the
extent petitioner contends that the IJ abused his discretion
by regarding the marijuana offense as an adverse factor at
all, we likewise disagree. Notwithstanding its
decriminalization in Maine, the fact remains that marijuana
possession continued to be against the law--both as a civil
violation under state law, see Me. Rev. Stat. Ann. tit. 22,
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2383(1), and as a criminal violation under federal law, see
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21 U.S.C. 844.7 Accordingly, for the purpose of deciding
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the marijuana offense was criminal in nature, then that it
was a civil violation. And the government, while not
addressing the issue below, erroneously asserts on appeal
that decriminalization occurred subsequent to petitioner's
offense. Although the IJ apparently did not confirm the date
of this change in state law, he did assume arguendo that the
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1976 offense was civil in nature. Any confusion on this
point was thus without prejudice.
7. We note that, in the interval between the IJ's decision
and that of the BIA, an increased tolerance for possession of
small amounts of marijuana was likewise introduced into
federal law. While such possession remains a criminal
violation, the ADAA in 1988 added a provision permitting the
Attorney General to seek civil rather than criminal penalties
in such cases. See Pub. L. No. 100-690, 102 Stat. 4384
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(codified at 21 U.S.C. 844a). And while possession of
marijuana in whatever amount formerly provided a basis for
deportability, see 8 U.S.C. 1251(a)(11) (Supp. 1989), the
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1990 IMMACT exempted from that provision "a single offense
involving possession for one's own use of 30 grams
[approximately 1.06 ounces] or less of marijuana." Pub. L.
No. 101-649, 602(a), 104 Stat. 5080 (recodified at 8 U.S.C.
1251(a)(2)((B)(i)).
These developments (to which petitioner has not
referred) do not undermine the agency's decision here. As
mentioned, his deportability was not predicated on his
marijuana offense, but rather on his two other convictions.
And this more lenient approach does not render marijuana
possession (or use) irrelevant in the context of deciding
whether discretionary relief from deportation should be
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whether discretionary relief from deportation should be
granted, we think the IJ was warranted in regarding
petitioner's marijuana offense as a relevant adverse factor.
In a similar vein, petitioner argues that the IJ
accorded exaggerated weight to his ongoing use of marijuana.
For much the same reasons just discussed, this argument
likewise fails. The IJ found that, despite its
decriminalized status, petitioner's use of marijuana for at
least fifteen years reflected a lack of genuine
rehabilitation. Given the continued illegality of marijuana
possession, we find no abuse of discretion in the IJ's
consideration of such evidence. To the extent petitioner
questions the IJ's conclusion as to lack of rehabilitation,
we note that the probation officer's statement strongly
supports that finding. Moreover, petitioner's acknowledged
use of marijuana shortly before the agency hearing--some
months after having been ordered to show cause why he should
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not be deported--reflects a certain brazenness which further
reinforces the IJ's conclusion.
Finally, petitioner complains that the BIA failed to
consider the absence of negative information (and the
resulting inference of rehabilitation) during the five years
this case was pending before the BIA. Yet, as far as the
instant record reveals, petitioner filed no motion to
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awarded.
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reconsider or reopen based on any such new evidence. As
such, the BIA was obviously justified in deciding the case on
the basis of the original record.
In reviewing the BIA's discretionary decision to deny a
waiver under 1182(c), we consider only whether that
decision was arbitrary, capricious, or an abuse of
discretion. See, e.g., Martinez v. INS, 970 F.2d 973, 974
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(1st Cir. 1992); Hazzard, 951 F.2d at 438. The denial will
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be upheld "unless it was made without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis." Williams v. INS, 773 F.2d 8, 9 (1st
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Cir. 1985) (quoted in Martinez, 970 F.2d at 974). For the
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foregoing reasons, we find that the decision here suffers
from none of these defects. The agency considered all
relevant factors and articulated a supportable rationale for
its decision. As we find that petitioner has failed to
present a serious legal question, the motion for a stay
pending review is denied.
The provisional stay of deportation entered on August
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10, 1992 is vacated, and petitioner's motion for a stay
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pending review is denied. Petitioner's motions to stay the
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appellate process and to continue the stay of deportation are
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likewise denied. Petitioner shall show cause within three
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weeks from the date of this decision why the instant petition
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should not be dismissed.
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Document Info
Docket Number： 92-1721
Filed Date： 12/8/1992
Precedential Status： Precedential
Modified Date： 9/21/2015