Nwandu v. Crocetti ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VALENTINE C. NWANDU, 
Plaintiff-Appellant,
and
DIANE NWANDU,
Party in Interest-Appellant,  No. 00-7041
v.
LOUIS D. CROCETTI, JR.,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-00-1372-CCB)
Argued: March 1, 2001
Decided: April 20, 2001
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Michael Laurence Post, SIDLEY & AUSTIN, Washing-
ton, D.C., for Appellants. John Stephen Hogan, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Oscar L.
2 NWANDU v. CROCETTI
Amorow, AMOROW & KUM, P.A., Hyattsville, Maryland, for
Appellants. David W. Ogden, Assistant Attorney General, John J.
Andre, Senior Litigation Counsel, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Valentine C. Nwandu, a citizen of Nigeria, appeals the district
court’s denial of his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. For the reasons set forth below, we affirm the judg-
ment of the district court.1
I.
Danish authorities found 692 grams of heroin in Valentine C.
Nwandu’s ("Nwandu") possession when he attempted to enter Den-
mark using a fake Nigerian passport issued in the name of Valentine
Azuka Hayes in February 1983. On May 17, 1983, Nwandu was con-
victed of the offense of heroin smuggling and sentenced to a period
1
Nwandu was placed in exclusion proceedings prior to April 1, 1997,
and his final order of exclusion was issued after October 30, 1996. Judi-
cial review of his case is therefore governed by the transitional provi-
sions of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546
(1996). See IIRIRA § 309 (stating that the transitional changes for judi-
cial review are applicable to final orders of exclusion or deportation
entered more than 30 days after the date of enactment of IIRIRA).
NWANDU v. CROCETTI 3
of four years incarceration. Denmark deported Nwandu to Nigeria in
June 1985.2
In July 1985, Nwandu fraudulently obtained a student visa to enter
the United States by failing to reveal his prior drug trafficking convic-
tion in Denmark. Subsequently, he married an American citizen and,
after his student visa had expired, filed a visa petition and an applica-
tion for adjustment of status. On May 11, 1994, while this adjustment
application was pending, Nwandu applied for and was granted
advance parole to leave the United States in order to attend his
father’s funeral in Nigeria. Advance parole permitted Nwandu to
leave the United States without abandoning his application for adjust-
ment of status. When Nwandu returned from Nigeria on May 31,
1994, he was "paroled" into the United States in accordance with the
terms of his advance parole.
Shortly thereafter, the Immigration and Naturalization Service
("INS") conducted an investigation on Nwandu’s adjustment of status
application, which included an adjustment interview on September 6,
1994. During this interview, Nwandu revealed his 1983 drug convic-
tion for the first time. Nwandu was inadmissible to the United States
due to, inter alia, his prior drug conviction in Denmark, 8 U.S.C.
§ 1182(a)(2)(A)(i)(II), and the fact that his initial entry into the United
States as a student was obtained by fraud. 8 U.S.C. § 1182(a)(6)(C).
Consequently, in July 1995, the INS denied Nwandu’s visa applica-
tion. Later, in June 1996, the INS terminated Nwandu’s parole status
and placed him in exclusion proceedings pursuant to former section
236 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(1995). Of special relevance to this appeal, Nwandu was charged with
being inadmissible to the United States pursuant to 8 U.S.C.
§ 1182(a)(2)(A)(i)(II) on account of his earlier drug conviction.
At an exclusion hearing, the Immigration Judge sustained that
charge and found Nwandu to be excludable. Subsequently, Nwandu
pursued an application for adjustment of status in conjunction with a
2
Nwandu is permanently barred from entering Denmark based on his
conviction, J.A. 108 n.1, and the Danish record of conviction also notes
that Nwandu is a person in flight from prosecution in England for posses-
sion of five kilograms of hashish in 1982. S.A. 9.
4 NWANDU v. CROCETTI
request for waiver under 8 U.S.C. § 1182(h). Nwandu argued at this
second hearing that his 1983 conviction in Denmark for smuggling
heroin had been expunged, a claim belied by the government’s ability
to obtain — and provide to the Immigration Judge — a properly certi-
fied copy of a 1983 record of conviction for smuggling heroin under
the name "Valentine Chukwudu Nwandu." S.A. 8-13 (emphasis
added). Nwandu offered into evidence only a 1999 Danish document
purporting to state that "No entry appears in the Central Crime Regis-
ter" under the name "Valentine Chukwuka Nwandu."3 S.A. 22
(emphasis added). Based on the totality of the evidence, which
included the conviction record, the criminal court’s notation that
Nwandu acted as a courier, and Nwandu’s I-485 application, in which
he stated that he omitted mention of his conviction when obtaining his
visa to come to the United States, the Immigration Judge found that,
"notwithstanding the respondent’s certificate of criminal record,
which states that there is no criminal record pertaining to him, that the
allegations contained in the amended Notice to Appear are sustained
and that the respondent is excludable as charged." S.A. 4-5.
Nwandu’s application for adjustment of status was then pretermitted
because no waiver is available under section 212(h) of the INA, 8
U.S.C. § 1182(h), for a drug conviction involving heroin. S.A. 5.
Nwandu timely appealed this decision to the Board of Immigration
Appeals ("BIA"). The BIA held that Nwandu had been properly
placed in exclusion proceedings, that the Immigration Judge had
properly found him excludable on account of his heroin smuggling in
Denmark, and that his adjustment application was properly pretermit-
ted. The BIA denied Nwandu’s motion to reconsider, and he filed a
petition for a writ of habeas corpus in the United States District Court
for the District of Maryland, which was denied. This appeal followed.
II.
A.
Nwandu first argues that he was not subject to exclusion proceed-
ings upon denial of his adjustment application and revocation of
3
Nwandu’s search may have been unsuccessful because the record of
conviction used a different middle name than his records search.
NWANDU v. CROCETTI 5
advance parole, and that, even if he was, he was given insufficient
notice that he would be subject to exclusion proceedings if his peti-
tion for adjustment of status were denied. The relevant regulation,
however, clearly states that an exclusion proceeding, not a deportation
hearing, was the appropriate means for deciding Nwandu’s status
once his application for adjustment of status was denied. The regula-
tion is unequivocal:
The departure of an [adjustment] applicant who is not under
deportation proceedings shall be deemed an abandonment of
his or her application constituting grounds for termination,
unless the applicant was previously granted advance parole
by the Service for such absence, and was inspected upon
returning to the United States. If the application of an indi-
vidual granted advance parole is subsequently denied, the
applicant will be subject to the exclusion provisions of sec-
tion 236 of the Act. No alien granted advance parole and
inspected upon return shall be entitled to a deportation
hearing.
8 C.F.R. § 245.2(a)(4)(ii) (1994) (emphasis added).4 Thus, once
Nwandu’s adjustment application was denied by the INS, Nwandu
was subject to exclusion proceedings.
Nwandu also claims that he was given insufficient notice that he
could be subject to exclusion proceedings. Nwandu’s advance parole
document provided that
[t]his authorization will permit you to resume your applica-
tion for adjustment of status on your return to the United
States.
WARNING: Pursuant to 8 CFR 245.3(a)(2), if your applica-
tion for adjustment of status is denied, you will be subject
4
In contrast, the regulation at issue in Joshi v. INS, 720 F.2d 799, 804
(4th Cir. 1983) (discussing former 8 C.F.R. § 245.2(a)(3)), was held to
provide that if an applicant was deportable before his authorized absence,
he remained deportable after his return.
6 NWANDU v. CROCETTI
to exclusion proceedings under Section 236 of the Immigra-
tion and Nationality Act.
J.A. 110 (emphasis in bold in original).5 While Nwandu’s notice did
cite to an incorrect regulation, rather than to 8 C.F.R.
§ 245.2(a)(4)(ii), we find this to be of no legal significance given that
the substance of the applicable regulation was clearly conveyed.6
B.
Nwandu provides no better support for his claim that additional
protections were owed to him prior to the Immigration Judge’s deci-
sion to pretermit his application for adjustment of status and request
for a section 212(h) waiver.
In the first place, as a statutory matter, we have no doubt that the
Immigration Judge properly pretermitted Nwandu’s adjustment appli-
cation and request for waiver. In order to be statutorily eligible for
adjustment of status, an applicant must be admissible to the United
States. 8 U.S.C. § 1255(a). Nwandu was found inadmissible to the
United States as a result of his Danish conviction for smuggling her-
oin. See 8 U.S.C. § 1182(a)(2)(A)(i)(II).7 No waiver exists for this
5
We also agree with the district court that 8 C.F.R. § 245.2(a)(4)(ii)
(1994) was a legitimate exercise of the Attorney General’s authority, and
a valid regulation for purposes of placing Nwandu in exclusion proceed-
ings.
6
While Nwandu seeks to rely on an earlier decision of this court where
the notice of exclusion was deemed insufficient, the form provided in
Joshi, 720 F.2d 799, is clearly distinguishable from the one provided in
this case. The form provided to Joshi was "unintelligible," providing:
"However, you will then be considered an applicant for entry and if your
adjustment in expulsion proceedings [sic]." 720 F.2d at 802. Despite the
incorrect citation in Nwandu’s advance parole documents, Nwandu was
clearly apprised that he would be subject to exclusion proceedings and
Joshi — with its quite different notice and different applicable regulation
— is inapposite. Moreover, unlike Joshi, Nwandu was represented by
counsel at the time he received the advance parole warning. J.A. 181.
7
It has long been the case that a conviction for smuggling heroin ren-
ders an alien inadmissible to the United States, albeit under varying sub-
sections within, and versions of, section 1182, and we have no doubt that
Nwandu was inadmissible in 1983.
NWANDU v. CROCETTI 7
ground of inadmissibility when the conviction at issue involves her-
oin. See 8 U.S.C. § 1182(h) (waiver allowed for conviction of simple
possession of less than 30 grams of marijuana).
Second, with respect to Nwandu’s constitutional claim regarding
expungement, we note that — even if the facts alleged presented a
cognizable due process claim — we could find no due process viola-
tion. For the Immigration Judge did hear evidence with respect to the
claimed expungement of the Danish conviction and, weighing the evi-
dence, resolved the issue in favor of the government. We could not
say that the ample procedural protections afforded by the hearings
before the Immigration Judge, Nwandu’s opportunity to present evi-
dence, and the review by the BIA, are constitutionally deficient, par-
ticularly where Nwandu himself cannot explain how he was
prejudiced in fact, or what more he would do if given the opportunity.
Indeed, even at the time of oral argument, Nwandu’s counsel was
unable to describe a single avenue he would pursue, action he would
take, or information he expected to obtain, to strengthen his claim of
expungement, beyond the evidence already presented to, and consid-
ered by, the Immigration Judge.
We need not resolve that issue, however, because, more fundamen-
tally, an adverse ruling on Nwandu’s claim of expungement — based
on Nwandu’s failure to present evidence sufficient to prove expunge-
ment to either the Immigration Judge or the BIA, both of whom found
that Nwandu was convicted of smuggling heroin — presents no cog-
nizable due process claim. Indeed, such an adverse ruling does not
constitute any constitutional violation at all. We decline to review
under the aegis of a habeas corpus petition pursuant to section 2241
what amounts to a factual finding by the Immigration Judge that a
conviction for heroin smuggling was extant, not expunged.8 See
8
Even if the facts were otherwise, we are unconvinced that the
expungement of a foreign drug-related conviction is effective to prevent
a finding of inadmissibility pursuant to section 212(a)(2)(A)(i)(I). Under
the statutory definition of "conviction" set forth in section 101(a)(48)(A)
of the Act, 8 U.S.C. § 1101(a)(48)(A), no apparent effect is given to
court actions which purport to expunge, dismiss, cancel, vacate, dis-
charge, or otherwise remove a guilty plea or other record of guilt or con-
viction. Nor do we believe that Nwandu’s conviction for trafficking in
8 NWANDU v. CROCETTI
Bowrin v. U.S. Immigration and Naturalization Service, 194 F.3d
483, 490 (4th Cir. 1999) ("Only questions of pure law will be consid-
ered on § 2241 habeas review. Review of factual or discretionary
issues is prohibited.").
C.
Nwandu also argues that because his guilty plea to possession for
heroin in Denmark was tendered prior to the enactment of the Antiter-
rorism and Effective Death Penalty Act of 1996 ("AEDPA"), our
decision in Tasios v. Reno, 204 F.3d 544 (4th Cir. 2000), renders him
eligible for discretionary waiver under former 8 U.S.C. § 1182(c)
(repealed 1996), even if he is not eligible for waiver under 8 U.S.C.
§ 1182(h). In Tasios, we held that section 440(d) of AEDPA did not
bar relief under former section 1182(c) for lawful permanent residents
who pled guilty to aggravated felonies, or who conceded deportability
prior to AEDPA’s effective date, because it was impermissibly retro-
active; under section 1182 as amended, discretionary relief is not
available for aliens convicted of drug trafficking offenses.
However, AEDPA does not impose a similar retroactive effect in
this case because Nwandu, unlike Tasios, and unlike the individual at
issue in Cyr v. Immigration and Naturalization Service, 229 F.3d 406(2d Cir. 2000), cert. granted, 121 S. Ct. 848 (2001), has never been
a lawful permanent resident, and section 1182(c)’s discretionary relief
was never available to him. Former section 1182(c) provides only
that:
Aliens lawfully admitted for permanent residence status
who temporarily proceeded abroad voluntarily and not
under an order of deportation, and who are returning to a
heroin — an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(B) —
would be eligible for expungement pursuant to the Federal First Offender
Act ("FFOA"), 18 U.S.C. § 3607, either. For section 3607 applies on its
face only to violations of section 21 U.S.C. § 844 (possession) and only
to offenses committed by persons less than 21 years-old at the time of
the offense; Nwandu was convicted for smuggling heroin, and was 27
years old at the time of the offense.
NWANDU v. CROCETTI 9
lawful unrelinquished domicile of seven consecutive years,
may be admitted in the discretion of the Attorney General
without regard to the provisions of subsection (a) of this sec-
tion (other than paragraphs (3) and (9)(C)). Nothing con-
tained in this subsection shall limit the authority of the
Attorney General to exercise the discretion vested in him
under section 1181(b) of this title. The first sentence of this
subsection shall not apply to an alien who has been con-
victed of one or more aggravated felonies and has served for
such felony or felonies a term of imprisonment of at least 5
years.
8 U.S.C. § 1182(c) (repealed 1996) (emphasis added). Because
Nwandu was never a lawful permanent resident, and never entitled to
the benefit of former section 1182(c), Tasios simply does not dictate
the result in this case.
Nwandu implicitly acknowledges this, but argues that "[a]lthough
this section expressly applied to aliens who are lawful permanent resi-
dents, [ ] its general principles and approach to deportation waivers
should also apply" in his case — even though he is not a lawful per-
manent resident. See Appellant’s Brief at 26-27. However, AEDPA’s
repeal of section 1182(c) cannot be seen, with respect to Nwandu, to
"impair rights a party possessed when he acted, increase a party’s lia-
bility for past conduct, or impose new duties with respect to transac-
tions already completed," because discretionary relief was not
available to Nwandu prior to AEDPA either. Landgraf v. USI Film
Prods., 511 U.S. 244, 269 (1994). As a result, Tasios is unavailing for
Nwandu.9
9
Nwandu also argues that he is being improperly detained by the INS.
However, since Nwandu was placed in exclusion proceedings prior to
April 1, 1997, the detention provision of former 8 U.S.C. § 1226(e)
(1995) is applicable. See IIRIRA § 309(a). That provision provides that
because Nwandu is subject to a final order of exclusion and has been
convicted of an aggravated felony, his detention pending removal is
mandatory. See 8 U.S.C. § 1226(e). We have reviewed Nwandu’s other
claims and find them to be without merit.
10 NWANDU v. CROCETTI
CONCLUSION
For the foregoing reasons, the district court’s order denying appel-
lant’s motion for a writ of habeas corpus is affirmed.10
AFFIRMED
10
The INS claims that IIRIRA § 309(c)(4)(A) divested the district court
of habeas corpus jurisdiction. We are constrained to disagree based on
settled law in this circuit, set forth in Bowrin v. U.S. Immigration and
Naturalization Service, 194 F.3d 483, 489 (4th Cir. 1999) (habeas juris-
diction under section 2241 remains intact absent express congressional
intent in the language of either AEDPA or the IIRIRA to eliminate it).
The government’s reliance, through negative implication, on section
1105a(b), which was made inapplicable to Nwandu by IIRIRA
§ 309(c)(4)(A), is misplaced because it does not constitute express con-
gressional intent to eliminate section 2241 jurisdiction, and thus fails to
meet the standard set forth in Bowrin. Consequently, federal habeas cor-
pus review pursuant to 28 U.S.C. § 2241 remains available to Nwandu,
albeit only on questions of pure law (i.e., statutory and constitutional
claims). Bowrin, 194 F.3d at 490. For, while 8 U.S.C. § 1105a(a) and (c)
do not expressly provide for habeas review under 28 U.S.C. § 2241, nei-
ther do they expressly prohibit it, likely because they are concerned with
procedures for the judicial review of orders on direct appeal, and not
with habeas relief as provided by section 2241.