Feng Hsin Chen v. Ashcroft , 85 F. App'x 700 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 13 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
FENG HSIN CHEN,
Petitioner-Appellant,
v. No. 03-2078
(D. N.M.)
JOHN ASHCROFT, United States (D.Ct. No. 02-CV-434-MV/LFG)
Attorney General; LUIS GARCIA,
District Director, El Paso District,
Immigration and Nationalization
Service,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, PORFILIO, and BRORBY, Senior Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
therefore ordered submitted without oral argument.
Appellant Feng Hsin Chen, a citizen of Taiwan represented by counsel,
appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2241. 1 We affirm the district court’s decision.
Mr. Chen is a native and citizen of Taiwan who entered the United States in
1982, at the age of twenty-three, as a lawful permanent resident. On September
25, 1995, after pleading guilty, a Georgia state district court convicted Mr. Chen
of possession and sale of marijuana, possession of marijuana with intent to
distribute, and possession of a firearm during the commission of a crime. Mr.
Chen received a sentence of fifteen years imprisonment, of which the state court
suspended thirteen years.
On September 4, 1998, the Immigration and Naturalization Service
instituted removal proceedings against Mr. Chen; on April 15, 1999, the
1
Because Mr. Chen is subject to a federal deportation order and is considered in
Immigration and Naturalization Service custody, see Aguilera v. Kirkpatrick, 241 F.3d
1286, 1291-92 (10th Cir. 2001), a certificate of appealability is not required to appeal the
district court’s denial of his § 2241 habeas petition. See id. at 1292; Bradshaw v. Story,
86 F.3d 164, 166 (10th Cir. 1996).
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Immigration Court entered an order of removal pursuant to § 237(a)(2)(B)(i) 2 and
§ 237(a)(2)(A)(iii) 3 of the Immigration and Nationality Act of 1990, Pub. L. No.
101-649, 104 Stat. 4978. On February 16, 2001, the Board of Immigration
Appeals affirmed the order of removal, noting Mr. Chen’s deportation was also
based on § 237(a)(2)(c) 4 for his firearm conviction.
Mr. Chen filed his § 2241 petition requesting relief in the New Mexico
federal district court. In his petition, Mr. Chen claimed the Immigration Court
erred in ruling him ineligible for a discretionary waiver under § 212(c) of the
Immigration and Naturalization Act, previously codified at 8 U.S.C. § 1182(c)
(1995). In his petition, Mr. Chen did not raise an international law argument, but
in a subsequent pleading, Mr. Chen claimed the Immigration Court erred in not
allowing him an opportunity to advance an argument that his deportation would
violate certain immigration treaties.
2
This section is currently codified at 8 U.S.C. § 1227(a)(2)(B)(i) (2003). During
the period Mr. Chen pled guilty, it was codified at 8 U.S.C. § 1251(a)(2)(B)(i) (1995).
3
This section is currently codified at 8 U.S.C. § 1227(a)(2)(A)(iii) (2003). During
the period Mr. Chen pled guilty, it was codified at 8 U.S.C. § 1251(a)(2)(A)(iii) (1995).
4
This section is currently codified at 8 U.S.C. § 1227(a)(2)(C) (2003). During the
period Mr. Chen pled guilty, it was codified at 8 U.S.C. § 1251(a)(2)(C) (1995).
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The New Mexico federal district court referred Mr. Chen’s petition to a
magistrate judge who issued a “Magistrate Judge’s Findings and Recommended
Disposition” (Recommendation), in which the magistrate judge recommended
denying the petition and dismissing Mr. Chen’s action with prejudice. In so
doing, the magistrate judge found Mr. Chen is a “removable alien,” convicted of
the aggravated felony of possession of a firearm in the commission of a crime.
He noted Mr. Chen’s guilty plea and conviction predated the passage of the Anti-
Terrorism and Effective Death Penalty Act and the Immigration Reform and
Immigrant Responsibility Act, which repealed § 212(c) (codified at 8 U.S.C.
§ 1182(c)) – a provision giving the Attorney General the ability to provide
discretionary relief to aliens facing deportation. Because Mr. Chen’s guilty plea
preceded those Acts, the magistrate judge determined neither Act applied
retroactively to Mr. Chen, and, therefore, a discretionary waiver of deportation
under § 212(c) (8 U.S.C. § 1182(c)) existed at the time Mr. Chen pled guilty.
However, the magistrate judge found Mr. Chen ineligible for discretionary relief
because he received a firearms conviction, which would render him ineligible for
discretionary relief before or after enactment of either Act.
As to the application of international treaties, the magistrate judge
determined the immigration judge allowed Mr. Chen to advance his international
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law argument and, therefore, rejected the argument as grounds for habeas relief.
In his objections to the Recommendation, Mr. Chen advanced a different
argument, claiming the immigration judge did allow him to advance his
international law argument, but improperly failed to consider it. In support of his
international law claim and in reviewing the magistrate judge’s Recommendation,
Mr. Chen directed the district court to consider the Universal Declaration of
Human Rights and the International Covenant of Civil and Political Rights.
After reviewing Mr. Chen’s objections, the district court entered both an
“Order” and Judgment adopting the magistrate judge’s Recommendation. In
denying Mr. Chen’s § 2241 petition and dismissing the action with prejudice, the
district court determined “the bedrock basis for the [Recommendation] was the
fact that [Mr. Chen’s] firearms conviction precluded any review under § 212(c).”
Relying on Hain v. Gibson, 287 F.3d 1224, 1243 (10th Cir. 2002), cert. denied,
537 U.S. 1173 (2003), the district court also concluded the International Covenant
on Civil and Political Rights did not override or supercede federal statutory
immigration law because Congress never enacted implementing legislation for
that treaty.
On appeal, Mr. Chen raises the following issue:
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Whether a lawful permanent resident alien can be removed from the
United States if convicted of a firearms offense under 8 U.S.C.
§ 237(a)(2)(C), without a consideration of discretionary relief under
Section 212(c) of the INA (previously at 8 U.S.C. § 1192(c)) even
though various international treaty and covenant obligations of the
United States and other international practice may be interpreted to
require consideration of discretionary relief.
In raising this issue, Mr. Chen claims the district court erred in determining the
International Covenant on Civil and Political Rights was “not self-executing,” and
by failing to address his international law argument based on the Universal
Declaration of Human Rights, the European Convention on Human Rights, the
American Declaration of Rights and Duties of Man, and the American Convention
on Human Rights.
We review the district court’s dismissal of a habeas corpus petition de
novo. See Bradshaw, 86 F.3d at 166. We may affirm a district court’s decision
denying a § 2241 petition on any grounds supported by the record. See Aguilera,
241 F.3d at 1290.
In this case, the facts and applicable law are straightforward and support
the district court’s decision. In 1995, Mr. Chen pled guilty and was convicted in
Georgia state court for possession and sale of marijuana and possession of
marijuana with intent to distribute, under Ga. Code Ann. § 16-13-30 (1995), and
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possession of a firearm during the commission of a crime, under Ga. Code Ann.
§ 16-11-106 (1995). 5 Under the federal statutory provisions in place at the time
of Mr. Chen’s guilty plea, an alien convicted of possession of a weapon in
violation of any law was clearly deportable. See 8 U.S.C. § 1251(a)(2)(C) (1995).
Moreover, § 212(c) – the discretionary waiver provision in effect at that time –
clearly states the Attorney General’s authority to exercise discretion “shall not
apply to an alien convicted of one or more aggravated felonies.” See 8 U.S.C.
§ 1182(c) (1995). It is well established that at the time of Mr. Chen’s guilty plea
and conviction, the discretionary waiver did not apply to aliens convicted of a
firearms violation, including state firearms convictions. See Gjonaj v. INS, 47
F.3d 824, 827 (6th Cir. 1995) (state conviction); Rodriguez v. INS, 9 F.3d 408,
413 (5th Cir. 1993) (state conviction); Campos v. INS, 961 F.2d 309, 314-15 (1st
Cir. 1992) (state conviction); Cabasug v. INS, 847 F.2d 1321, 1325 (9th Cir.
1988) (state conviction). As a result, in reviewing the statutes applicable at the
time of Mr. Chen’s guilty plea and conviction, as well as current statutes, it is
clear he was then, and is now, ineligible for a discretionary waiver of his
5
While the record does not indicate the Georgia state statute under which Mr.
Chen was convicted for possession of a firearm during the commission of a crime, it is
clear Ga. Code Ann. § 16-11-106 (1995) is the applicable statute. See, e.g., Wallace v.
State, 455 S.E.2d 615, 616 (Ga. Ct. App. 1995) (noting conviction for possession of a
firearm during the commission of a crime falls under § 16-11-106); Waye v. State, 464
S.E.2d 19, 22 (Ga. Ct. App. 1995) (same).
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deportation order.
With respect to his international argument, we note the district court
correctly relied on this court’s decision in Hain, 287 F.3d at 1243, by concluding
the International Covenant on Civil and Political Rights did not override nor
supercede federal statutory immigration law because Congress never enacted
implementing legislation for that treaty. Admittedly, the district court did not
address Mr. Chen’s additional argument his deportation is illegal under the
Universal Declaration of Human Rights, which he also raised in his objections to
the magistrate judge’s Recommendation and before the Immigration Court. 6 We
conclude the district court did not err in failing to address this or the other
documents relied on by Mr. Chen, based on the grounds provided below.
We begin by noting that even if Mr. Chen raised his international law
argument before the Immigration Court, nothing in the record establishes he
raised it before the Board of Immigration Appeals, including the board’s decision
which makes no reference to any such argument. We have held “[t]he failure to
6
Although Mr. Chen claims he also based his international law argument to the
Immigration Court on the European Convention on Human Rights, the record provided
does not support his contention.
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raise an issue on appeal to the Board [of Immigration Appeals] constitutes failure
to exhaust administrative remedies ... and deprives the Court of Appeals of
jurisdiction to hear the matter.” Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2
(10th Cir. 1991).
Moreover, Mr. Chen did not make his international law argument in his
§ 2241 petition, and only advanced it before the magistrate judge in one of his
response pleadings, in the following cursory paragraph:
Petitioner would also advance other international law arguments,
including but not limited to, provisions in the American Declaration
of Rights and Duties of Man, Chapter 1, Article II (right to equality
before the law) and Article XVIII (right to a fair trial), the American
Declaration on Human Rights, Article VII, and the American
Convention on Human Rights, Article XXII. While admittedly
persuasive in nature only, Petitioner would also advance international
law arguments base[d] on European Convention on Human Rights,
Article 3, which recognizes that the length of residence in the
country increases the weight of an alien’s right to stay.
Despite the numerous documents relied on in this paragraph, in his objections to
the Recommendation, Mr. Chen relied only on the Universal Declaration of
Human Rights and the International Covenant of Civil and Political Rights to
advance his international law argument.
It is clear Mr. Chen provided the magistrate judge and district court a
perfunctory, secondary international-law argument not raised in his petition,
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which he only developed during the course of litigation. On appeal, the entirety
of his appeal brief focuses only on an international-law argument – not the issues
raised in his petition. In the past, we have concluded such an undeveloped and
secondary argument is insufficient to preserve an argument on appeal. Cf. Tele-
Communications, Inc. v. Comm’r of Internal Revenue, 104 F.3d 1229, 1233-34
(10th Cir. 1997).
However, even if Mr. Chen did exhaust his international law argument and
we deemed it sufficiently preserved for appeal, we find his argument nevertheless
lacks merit because this court is not bound by the documents on which he relies.
The United States has not ratified the American Convention on Human Rights,
opened for signature December 19, 1966, and, therefore, we are not bound by it.
See Flores v. S. Peru Copper Corp., 343 F.3d 140, 162-64 (2d Cir. 2003).
Similarly, the Universal Declaration of Human Rights is merely a resolution of
the United Nations, and the American Declaration of the Rights and Duties of
Man and American Declaration of Human Rights are simply multinational
declarations; none is binding on the United States or on this court. Id. at 165 &
n.36, 167-68 & n.38, 169. As to the European Convention on Human Rights, it is
an instrument applicable only to its regional state parties and not intended to
create new rules of customary international law. Id. at 170. Not only are these
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documents non-binding, but under the circumstances of this case, we find them
unpersuasive in convincing us Mr. Chen could qualify for a discretionary wavier
or otherwise avoid deportation based on his prior firearms conviction.
For the reasons stated, and for substantially the same reasons articulated in
the magistrate judge’s November 7, 2002 Recommendation and the district court’s
January 30, 2003 Order, we AFFIRM the district court’s Judgment denying Mr.
Chen’s petition and dismissing his action with prejudice, and DISMISS this
appeal. The mandate shall issue forthwith.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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