Llerenas-Ceballos v. INS ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
No. 95-60290
Summary Calendar
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GUSTAVO LLERENAS-CEBALLOS,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
_________________________________________________________________
Petition for Review of an Order
of the Board of Immigration Appeals
(A34 011 098)
_________________________________________________________________
December 20, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM*:
Petitioner Gustavo Llerenas-Ceballos ("Llerenas-Ceballos")
petitions for review of the final order of the Board of Immigration
Appeals dismissing his appeal from the Immigration Judge's order of
deportation. We affirm.
FACTS AND PROCEDURAL HISTORY
Llerenas-Ceballos, a thirty-eight year old Mexican citizen,
was admitted to the United States as a lawful permanent resident in
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1973. He pleaded guilty and was convicted in federal court of
conspiracy to possess with intent to distribute a controlled
substance in violation of 21 U.S.C. §§ 864, 841(a)(1). On April
10, 1989, he was sentenced to serve 151 months imprisonment and
five years of supervised release. Llerenas-Ceballos has remained
in federal prison since his sentencing.
In 1992 Llerenas-Ceballos requested transfer to a Mexican
prison pursuant to the United States-Mexico Prisoner Transfer
Treaty. His request was denied on December 23, 1992 by the
Criminal Division of the U.S. Department of Justice based on his
"substantial ties to the U.S." Respondent Immigration and
Naturalization Service ("INS") issued a detainer against Llerenas-
Ceballos on December 10, 1993.
On December 16, 1993, the INS issued an Order to Show Cause
charging Llerenas-Ceballos with deportability under 8 U.S.C. §
1251(a)(2)(A)(iii) and (a)(2)(B)(i), for having been convicted of
an aggravated felony and a controlled substance violation. After
a hearing was conducted before an Immigration Judge ("IJ") on
November 14, 1994, the IJ found Llerenas-Ceballos deportable. The
IJ further found Llerenas-Ceballos ineligible for a waiver of
deportation under § 212(c) of the Immigration and Nationality Act
("INA"), 8 U.S.C. § 1182(c), because he had been convicted of an
aggravated felony, for which he had been incarcerated for over five
years. The Board of Immigration Appeals ("BIA") affirmed the
decision of the IJ, finding that Llerenas-Ceballos's deportability
had been established, and that he was ineligible for relief from
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deportation, and dismissed the appeal.
STANDARD OF REVIEW
The issue in the instant case is whether Llerenas-Ceballos is
statutorily ineligible for a waiver of deportation under 8 U.S.C.
§ 1182(c) because he had served more than five years in prison for
his aggravated felony conviction prior to the IJ's consideration of
his case in deportation proceedings. The BIA found that the
statute barred Llerenas-Ceballos from applying for a waiver of
deportation as mandated by Congress when it enacted the aggravated
felony bar. Our review of the BIA's decision is very limited.
Rodriguez v. I.N.S., 9 F.3d 408, 410 (5th Cir. 1993) (internal
citations omitted). We must give deference to the BIA's
interpretation of immigration statutes unless there exists
compelling indications that the BIA's interpretation is incorrect.
Campos-Guardado v. I.N.S., 809 F.2d 285, 289 (5th Cir.), cert.
denied, 484 U.S. 826, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987) (citing
Guevara Flores v. I.N.S., 786 F.2d 1242, 1250 n.8 (5th Cir. 1986),
cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987)).
DUE PROCESS
Llerenas-Ceballos contends that the INS denied him due process
by not proceeding with his deportation proceedings until after he
became ineligible for a waiver of deportation due to having served
five years in prison. We find Llerenas-Ceballos was not denied due
process because he is not eligible to apply for a waiver. Indeed,
"he is not entitled to any process because he is not eligible under
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the statute to apply for discretionary relief." Rodriguez, 9 F.3d
at 413. The language of § 1182(c) clearly precludes eligibility
for relief to Llerenas-Ceballos, as it plainly states that the
discretionary waiver "shall not apply to an alien who has been
convicted of one or more aggravated felonies and has served a term
of at least five years." 8 U.S.C. § 1182(c). Once Llerenas-
Ceballos was imprisoned for five years, he became ineligible for a
waiver of deportation.
EQUAL PROTECTION
Llerenas-Ceballos next contends that the INS denied him equal
protection by its uneven enforcement of 8 U.S.C. § 1182(c). He
argues that § 1182(c) creates two classes of convicted aliens:
those who are brought before the IJ before they have served five
years on their sentences, and thus can apply for a waiver of
deportation and; those, like Llerenas-Ceballos, who do not have the
opportunity to appear before the IJ until after they have served
five years or more, and thus cannot apply. "Congress is not
required to treat all aliens alike; it is only required to give a
facially legitimate and bona fide reason for treating them
differently." Rodriguez, 9 F.3d at 414 (citing Fiallo v. Bell, 430
U.S. 787, 794-95, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977)). Congress
enacted the aggravated felony bar in § 1182(c) to deny relief to
those aliens who commit serious crimes and who serve five years in
prison, representing a legitimate exercise of Congress' authority
to "expel or exclude aliens" who have egregiously violated the
hospitality of the United States, and who pose a danger to the
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community. Fiallo, 430 U.S. at 792. Even if, as Llerenas-Ceballos
argues, the timing of the commencement of deportation proceedings
creates two classes of aliens under the statute, we find, as did
the BIA, that Congress has mandated such a result.
ESTOPPEL
Alternatively, Llerenas-Ceballos contends that the INS and the
Immigration Court should be estopped from denying the IJ
jurisdiction to address the merits of his claim of waiver from
deportation due to the INS's conduct in delaying the initiation of
his deportation proceedings. In support of his contention,
Llerenas-Ceballos argues that the INS failed to act expeditiously
in initiating his deportation proceedings, and failed to advise him
that he would lose his right to apply for a waiver after five years
of incarceration. He claims that he has made a prima facie showing
of his eligibility for a waiver due to his hardship and
rehabilitation, and the Department of Justice's recognition of his
"substantial ties to the U.S." in denying his request for transfer
to Mexico.
"[T]o state a cause of action for estoppel against the
government, a private party must allege more than mere negligence,
delay, inaction, or failure to follow and internal agency
guideline." Fano v. O'Neill, 806 F.2d 1262, 1265 (5th Cir. 1987).
This "affirmative misconduct" cannot be proven by a showing of mere
delay. See I.N.S. v. Miranda, 459 U.S. 14, 18-19, 103 S.Ct. 281,
74 L.Ed.2d 12 (1982). Llerenas-Ceballos has offered no evidence
that tending to show that he was targeted or singled-out in any way
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by the INS, nor has he offered evidence that any immigration
official engaged in misconduct. We find no conduct by the INS or
the Immigration Court that can even arguably be characterized as
affirmative misconduct. Thus, we decline to consider Llerenas-
Ceballos's estoppel claim.
CONCLUSION
For the reasons articulated above, the final order of the
Board of Immigration Appeals is AFFIRMED.
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