Galvan-Escobar v. Gonzales , 151 F. App'x 327 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 17, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 05-60158
Summary Calendar
____________________
FELIPE NEPONUCENO GALVAN-ESCOBAR
Petitioner
v.
ALBERTO R GONZALEZ, U S ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A30 232 460
_________________________________________________________________
Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Felipe Neponuceno Galvan-Escobar (“Galvan”)
petitions the court for review of a final order of the Board of
Immigration Appeals finding him removable as charged and denying
his application for adjustment of status. For the following
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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reasons, we dismiss the petition for review.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Galvan, a native and citizen of Mexico, became a
permanent resident of the United States on September 10, 1973.
In May 1997, he was convicted in El Paso, Texas, for the third-
degree felony offense driving while intoxicated (“DWI”) and
received a three-year sentence. On February 18, 1999, while
still serving his sentence with the Texas Department of
Corrections in Huntsville, Texas, the Immigration and
Naturalization Service (“INS”) served Galvan with a Notice to
Appear, charging him with removability pursuant to
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act
(“INA”).1 8 U.S.C. § 1227(a)(2)(A)(iii). After a brief
individual hearing on May 5, 1999, the Immigration Judge (“IJ”)
found Galvan removable as charged, concluding that the DWI
conviction constituted a “crime of violence” under
§ 101(a)(43)(F) of the INA. 8 U.S.C. § 1101(a)(43)(F). The IJ
further held that Galvan was ineligible for cancellation of the
removal order given the nature of the charges.
On October 15, 1999, a three-member panel of the Board of
Immigration Appeals (“BIA”) affirmed the IJ’s decision,
specifically relying on In re Puente-Salazar, 23 I & N. Dec. 336,
1
Section 237(a)(2)(A)(iii) classifies any alien “who is
convicted of an aggravated felony at any time after admission” as
subject to deportation upon order of the Attorney General.
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Inter. Dec. 3412, 1999 WL 770709 (B.I.A. 1999), and Camacho-
Marroquin v. I.N.S., 188 F.3d 649 (5th Cir. 1999), which held
that a DWI conviction constituted a removable offense. The BIA
also found that the conviction precluded Galvan from obtaining an
adjustment of status in conjunction with a waiver under § 212(h)
of the INA.2 8 U.S.C. § 1182(h). Galvan was removed to Mexico
on October 22, 1999, at which time he was informed by immigration
officials that his resident alien card would no longer be valid
for entry into the United States.
Galvan returned to the United States on September 10, 2002,
using his previously issued resident alien card to evade
detection at the border. After the INS detected his presence,
Galvan admitted in a sworn statement that he was adequately
informed upon his deportation in 1999 that he could no longer use
his resident alien card to reenter the United States. On
February 20, 2003, the INS issued a Notice to Appear, charging
Galvan with removability pursuant to § 237(a)(1)(A), 8 U.S.C.
§ 1227(a)(1)(A), for fraudulently or wilfully misrepresenting a
material fact to procure entry under § 212(a)(6)(C)(i) of the
INA. 8 U.S.C. § 1182(a)(6)(C)(i). The IJ found Galvan removable
2
Section 212(h) states, in relevant part, that “[n]o
waiver shall be granted . . . in the case of an alien who has
previously been admitted to the United States as an alien
lawfully admitted for permanent residence if . . . the alien has
been convicted of an aggravated felony . . . .” 8 U.S.C.
§ 1182(h).
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and pretermitted his application for adjustment of status under
§ 245, 8 U.S.C. § 1255, because the record did not establish that
he had an approved immediate relative visa available at the time
the application was filed. On February 3, 2005, the BIA affirmed
the conclusions of the IJ and dismissed the appeal. This court
subsequently denied the petitioner’s motion for stay of
deportation pending review. Galvan then filed this timely appeal
to challenge the BIA’s decision.3
II. DISCUSSION
A. Standard of Review
We review the BIA’s legal conclusions de novo. Long v.
Gonzales, 420 F.3d 516, 519 (5th Cir. 2005). This court will,
however, defer to the BIA’s interpretation of immigration
statutes unless there exist compelling indications that the BIA’s
interpretation is incorrect. Campos-Guardado v. I.N.S., 809 F.2d
285, 289 (5th Cir. 1987) (citing Guevara Flores v. I.N.S., 786
F.2d 1242, 1250 n.8 (5th Cir. 1986)). In reviewing the BIA’s
factual findings, we determine whether they are supported by
3
Galvan does not challenge the portions of the BIA’s
decision denying his application of adjustment of status under
§ 245, 8 U.S.C. § 1255, nor the BIA’s denial of his waiver of the
application pursuant to § 212(h), 8 U.S.C. § 1182(h). Indeed,
our jurisdiction does not extend to the review of denials of
certain forms of discretionary relief specified in the statute.
See 8 U.S.C. § 1252(a)(2)(B)(i) (precluding judicial review of
“any judgment regarding the granting of relief under section
1182(h) . . . or 1255 of this title”); Manzano-Garcia v.
Gonzales, 413 F.3d 462, 466 (5th Cir. 2005). We therefore limit
our review to Galvan’s collateral challenge of his prior removal
order.
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“substantial evidence” in the record. Li v. Gonzales, 420 F.3d
500, 410 (5th Cir. 2005). We accept the factual findings of the
BIA “unless the evidence is so compelling that no reasonable fact
finder could fail to find otherwise.” Mikhael v. I.N.S., 115
F.3d 2999, 304 (5th Cir. 1997).
b. Collateral Challenge of the Prior Removal Order
Galvan contends that his prior removal proceeding in 1999
was fundamentally unfair and violated his due process rights.
His collateral attack on the proceedings is primarily based upon
a change in the law from this court’s decision in United States
v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) issued after he was
deported. Galvan maintains that the IJ’s reliance on an
erroneous interpretation of the law tainted his prior removal
proceedings, rendering direct review of the IJ’s order
effectively unavailable and causing him to suffer actual
prejudice.
Galvan’s challenge to his prior deportation order is
governed by 8 U.S.C. § 1326(d) and the Supreme Court’s decision
in United States v. Mendoza-Lopez, 481 U.S. 828 (1987). See,
e.g., United States v. Lopez-Ortiz, 313 F.3d 225, 228 (5th Cir.
2002); United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59
(5th Cir. 1999). An alien who illegally reenters the United
States may not challenge the validity of his deportation order
unless he demonstrates: (1) exhaustion of administrative
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remedies; (2) that the deportation proceedings deprived the alien
of the opportunity for judicial review; and (3) that the entry of
the order was fundamentally unfair. See 8 U.S.C. § 1326(d). The
Supreme Court in Mendoza-Lopez held that due process requires
review of deportation orders, noting that “where the defects in
an administrative proceeding foreclose judicial review of that
proceeding, an alternative means of obtaining judicial review
must be made available before the administrative order may be
used to establish conclusively an element of a criminal offense.”
Mendoza-Lopez, 481 U.S. at 838.
Because the government does not allege that Galvan has
failed to exhaust his administrative remedies, we proceed to
examine whether the deportation proceedings unfairly deprived him
of meaningful judicial review. Galvan’s argument, that the
substantive change in the law following the court’s holding in
Chapa-Garza made his deportation proceedings fundamentally unfair
in the first place, misapprehends the protections of § 1326(d)
and Mendoza-Lopez. Fundamental fairness is unquestionably a
“question of procedure.” United States v. Lopez-Ortiz, 313 F.3d
225, 230 (5th Cir. 2002). Removal hearings, being civil in
nature, accord less stringent procedural protections to aliens
than those available to a criminal defendant. Id. The Supreme
Court merely requires an alien facing deportation proceedings to
be provided with (1) notice of the charges against him, (2) a
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hearing before an executive or administrative tribunal, and (3) a
fair opportunity to be heard. Id. Galvan’s challenge relies
solely upon a change in the law subsequent to his removal
proceedings, which by all accounts in the record were fairly
conducted under the state of the law at the time. Therefore, we
find no reason to retroactively apply the new interpretation of
the statutory language announced in Chapa-Garza to Galvan’s prior
deportation order.4 See Hernandez-Rodriguez v. Pasquarell, 118
F.3d 1034, 1042 (5th Cir. 1997) (finding that retroactive
application “implicates concerns not present when the change
occurs while the decision is pending before the initial tribunal
or on direct appeal”); Reynoldsville Casket v. Hyde, 514 U.S.
749, 758 (1995) (“New legal principles, even when applied
retroactively, do not apply to cases already closed.”)
As Galvan argues and the government readily concedes, in
Chapa-Garza, the court overruled its earlier decision in Camacho-
Marroquin v. I.N.S., 188 F.3d 649 (5th Cir. 1999), withdrawn, 222
F.3d 1040 (5th Cir. 2000), which held that felony DWI was a
4
We also note that both the public and the BIA share a
particularly strong policy interest in the finality of
immigration proceedings. See I.N.S v. Abudu, 485 U.S. 94, 107
(1988) (“There is a strong public interest in bringing litigation
to a close as promptly as is consistent with the interest in
giving the adversaries a fair opportunity to develop and present
their respective cases.”). Our review of the record in the
instant matter reveals no procedural defects at any stage of the
proceedings that would compel disturbing the finality of Galvan’s
prior deportation order in light of the countervailing policy
interests at stake.
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“crime of violence” for purposes of deportation. Without
question, the decision in Chapa-Garza prospectively binds the
decisions of IJs and the BIA in future deportation hearings and
those currently pending appeal. See Hernandez-Rodriguez, 118
F.3d at 1042. The subsequent change in the law under Chapa-Garza
does not, however, cure Galvan’s knowing misrepresentation to the
immigration officials to procure reentry by using his invalidated
resident alien card. Cf. Witter v. I.N.S., 113 F.3d 549, 553
(5th Cir. 1997) (refusing to give “retroactive effect to an
annulment procured after entry to the United States to sanction a
willful misrepresentation made at the time of application for the
visa”).
Galvan’s first removal order became final on October 15,
1999, when the BIA dismissed his appeal and found him removable
as an aggravated felon. The final removal order was executed on
or about October 22, 1999, when Galvan was removed to Mexico.
Once removed from the country, Galvan’s case was effectively
finished. See Stone v. I.N.S., 514 U.S. 386, 398 (1995)
(“Deportation orders are self-executing orders, not dependent
upon judicial enforcement.”); Navarro-Miranda v. Ashcroft, 330
F.3d 672, 675 (5th Cir. 2003) (holding that removal proceedings
are “completed and final” after a person is actually deported
pursuant to a removal order). In this case, the record amply
demonstrates that the IJ and BIA fairly applied the law as it was
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constituted at the time of Galvan’s removal proceedings. See
Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173 (9th Cir.
2001) (declining to retroactively invalidate a prior order of
deportation based on a new rule announced in a subsequent case).
Finally, we find Galvan’s attempt to distinguish Navarro-
Miranda based upon its different procedural posture to be
unpersuasive. The two cases share a nearly identical factual
predicate, each concerning retroactive relief from a previously
valid removal order based on the intervening change in the law
under Chapa-Garza. In denying the petitioner’s effort to revisit
his already executed deportation order, the court in Navarro-
Miranda reasoned that “at the time Navarro’s final order of
removal was issued, his DWI conviction was considered to be an
aggravated felony.” Navarro-Miranda, 330 F.3d at 674-75.
Moreover, the court found its decision to be consistent with the
“well-established principle that ‘a final civil judgment entered
under a given rule of law may withstand subsequent judicial
change in that rule.’” Id. at 676 (citing Teague v. Lane, 489
U.S. 288, 308 (1989)). Although Galvan is technically correct
that Navarro-Miranda focused on the BIA’s denial of a motion to
reopen, while the instant matter involves a collateral attack on
the removal order, the distinction is one without substance. The
principles of finality articulated in Navarro-Miranda apply with
equal force in Galvan’s case. Thus, the court’s holding in
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Navarro-Miranda controls our disposition of this case.
III. CONCLUSION
For the foregoing reasons, we find no merit in petitioner
Galvan’s collateral challenge to his prior deportation order and
we DISMISS his petition for review.
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