Ming-Hui Wu v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3479
M ING-H UI W U,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A72-217-514
A RGUED A PRIL 8, 2009—D ECIDED JUNE 8, 2009
Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Ming-Hui Wu is a native and
citizen of the People’s Republic of China. In 1992, the
former Immigration and Naturalization Service 1 began
1
As of March 1, 2003, the INS ceased to exist and its enforce-
ment functions were transferred to the Department of Home-
(continued...)
2 No. 08-3479
exclusion proceedings against Wu, resulting in an immi-
gration judge ordering Wu excluded from the United
States. Those proceedings were later reopened, and on
March 21, 2007, an IJ determined that Wu was not
eligible for cancellation of removal or suspension of
deportation and ordered him excluded from the United
States. The Board of Immigration Appeals affirmed. Wu
now petitions this court for relief, arguing that the IJ
and BIA erred in holding that he was ineligible for can-
cellation of removal. We deny his petition.
I. B ACKGROUND
On March 27, 1992, the INS detained Wu in New York
upon his entry to the United States. The INS released Wu
but initiated exclusion proceedings against him by filing
a Form I-122.2 The INS charged that Wu was excludable
for willfully misrepresenting a material fact to gain ad-
mission to the United States; not possessing a valid,
unexpired immigrant visa; and not possessing a valid,
unexpired travel document.
Wu failed to appear at a hearing before an immigration
judge on June 18, 1992. As a result, the IJ entered an
in abstentia order on June 22, finding Wu excludable
1
(...continued)
land Security (“DHS”). See Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135 (2002).
2
The I-122 was entitled a “Notice to Applicant for Admission
Detained/Deferred for Hearing Before an Immigration Judge.”
No. 08-3479 3
from the United States. A copy of that order was mailed
to Wu but was returned to the IJ marked “insufficient
address.”
Wu continued to live in the United States for the next
ten years until September 2002, when his attorney was
notified of the IJ’s 1992 in abstentia order in September 2002.
That October, claiming that he never received notice of the
hearing or the IJ’s order, Wu moved to reopen the exclu-
sion proceedings pursuant to 8 U.S.C. § 1229a(b)(5)(C) and
to stay his removal pursuant to 8 C.F.R. § 3.23(b)(1)(v)
(2002).3 In an order dated November 6, 2002, the IJ
found that Wu was properly notified of the exclusion
hearing because the notice was sent to the address he had
provided and never returned. Because Wu was not prop-
erly served with a copy of the order or notice of his right
to appeal, however, the IJ “most reluctantly” granted Wu’s
motion to reopen the exclusion proceedings. Wu’s case
was transferred to Chicago in response to an unopposed
motion by the government.
At a hearing on January 3, 2005, the IJ opined that Wu
was not eligible for cancellation of removal or suspension
of deportation. But the IJ continued the proceedings to
allow Wu to seek “repapering” under § 309(c)(3) of the
Illegal Immigration Reform and Immigrant Responsi-
bility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-
546, 3009-626 (1996), which would have provided Wu the
3
This provision is now 8 C.F.R. § 1003.23(b)(1)(v). See Aliens
and Nationality; Homeland Security; Reorganization of Reg-
ulations, 68 Fed. Reg. 9824, 9830 (Feb. 28, 2003).
4 No. 08-3479
opportunity to seek cancellation of removal.4 The DHS
refused to “repaper,” however, and at a hearing on
March 21, 2007, the IJ held that Wu was statutorily ineligi-
ble for cancellation of removal or suspension of deporta-
tion because he was in exclusion proceedings. The IJ
ordered Wu excluded and deported from the United States.
On August 28, 2008, the Board of Immigration Appeals
affirmed the IJ’s decision. The BIA agreed with the IJ that
Wu was statutorily ineligible for cancellation of removal
or suspension of deportation because he was in exclu-
sion proceedings. The BIA further found that “to the
extent that [Wu] raises substantive due process and equal
protection arguments . . . , we are without authority
to rule on the constitutionality of laws enacted by Con-
gress.”
II. A NALYSIS
On appeal, Wu argues that, in light of the IIRIRA, the IJ
and BIA erred in holding that he was ineligible for can-
cellation of removal. Wu claims that the IJ construed
4
“Repapering” is the process by which the Attorney General
may terminate prior exclusion proceedings and instead
initiate new removal proceedings. See IIRIRA § 309(c)(3). This
process allows aliens previously in exclusion proceedings
to apply for cancellation of removal, which would have other-
wise been unavailable prior to the effective date of IIRIRA.
Rodriguez-Munoz v. Gonzales, 419 F.3d 245, 247 n.4 (3d Cir.
2005); Alcaraz v. INS, 384 F.3d 1150, 1152-53 (9th Cir. 2004); Rojas-
Reyes v. INS, 235 F.3d 115, 125 (2d Cir. 2000).
No. 08-3479 5
his application for cancellation of removal as the “func-
tional equivalent” of an application for suspension of
deportation under the prior version of the Immigration
and Nationality Act (“INA”). Wu also argues that the IJ
erred in holding that he did not accrue no continuous
physical presence for purposes of his eligibility for can-
cellation of removal.5 As we discuss below, because
the IIRIRA is inapplicable to Wu, he is statutorily
ineligible for cancellation of removal.
We review the interpretation of the IIRIRA de novo, but
we give due deference to the interpretation by the
Attorney General and the BIA. Fieran v. INS, 268 F.3d 340,
344 (6th Cir. 2001); see also Borrego v. Mukasey, 539 F.3d 689,
691 (7th Cir. 2008) (“We review de novo questions of
law regarding the interpretation of the INA, giving defer-
ence to the Board’s reasonable interpretation of that
Act.”); Gutnik v. Gonzales, 469 F.3d 683, 690 (7th Cir. 2006)
(noting that we review interpretation of the INA de novo,
but that “ ‘[j]udicial deference to the Executive Branch is
especially appropriate in the immigration context’ ”
(alteration in original) (quoting INS v. Aguirre-Aguirre, 526
U.S. 415, 416 (1999))). Our review of factual findings is
limited to determining whether they are supported by
5
Wu also claims that the discretionary nature of IIRIRA
§ 309(c)(2), which gives the Attorney General the option to
apply new removal proceedings retroactively, creates an
equal protection problem. Wu did not raise this issue until
his reply brief and, therefore, has waived his right to pursue
this argument on appeal. See United States v. Diaz, 533 F.3d
574, 577 (7th Cir. 2008).
6 No. 08-3479
“substantial evidence.” Bradvica v. INS, 128 F.3d 1009, 1012
(7th Cir. 1997). Where, as here, the BIA “affirms, adopts,
and supplements the IJ’s decision,” we review the IJ’s
decision as supplemented by the BIA. Borrego, 539 F.3d at
691 (quotations omitted); see also Bakarian v. Mukasey, 541
F.3d 775, 781 (7th Cir. 2008).
Before Congress passed the IIRIRA, the INA distin-
guished between “deportation” and “exclusion.” See Sale v.
Haitian Ctrs. Council, Inc., 509 U.S. 155, 175 (1993) (explain-
ing the differences between deportable and excludable
aliens); Landon v. Plasencia, 459 U.S. 21, 25-26 (1982).
Deportation hearings were typically used against aliens
already physically present in the United States, while
exclusion hearings were usually held at the port of entry
to prevent admission. Landon, 459 U.S. at 25-26. The
Attorney General could temporarily parole an excludable
alien into the United States pending completion of exclu-
sion proceedings, but such a determination was not
legally considered admission into the country. 8 U.S.C.
§ 1182(d)(5)(A) (1994); see also Leng May Ma v. Barber, 357
U.S. 185, 186 (1958) (holding that an alien’s parole into
the United States “did not alter her status as an ex-
cluded alien”).
Although the INA provided that aliens in deportation
proceedings could apply for suspension of deportation, see
8 U.S.C. § 1254 (1994), it is well established that aliens in
exclusion proceedings were ineligible for this type of
relief. See, e.g., Ma, 357 U.S. at 189-90; Simeonov v. Ashcroft,
371 F.3d 532, 536-37 (9th Cir. 2004); Fieran, 268 F.3d at 344(“Under the old INA, the Attorney General had
No. 08-3479 7
the discretion to suspend the deportation of qualified
aliens . . . ; this discretion did not extend to excludable
aliens.”); Sherifi v. INS, 260 F.3d 737, 742 (7th Cir. 2001);6
Patel v. McElroy, 143 F.3d 56, 60 (2d Cir. 1998). This is
because parole is not considered “lawful entry of the alien
into the United States.” Simeonov, 371 F.3d at 536 (quota-
tions omitted).
By passing the IIRIRA in 1996, Congress eliminated the
distinction between “deportation” and “exclusion” pro-
ceedings and replaced them with a unified “removal
proceeding.” Sherifi, 260 F.3d at 741; see also Zamora-Mallari
v. Mukasey, 514 F.3d 679, 687 n.2 (7th Cir. 2008); Lara-Ruiz
v. INS, 241 F.3d 934, 944 (7th Cir. 2001). The IIRIRA
also replaced “suspension of deportation” with a new
discretionary form of relief, “cancellation of removal,”
which was more difficult to obtain. See Bronisz v. Ashcroft,
378 F.3d 632, 634 (7th Cir. 2004); Useinovic v. INS, 313
F.3d 1025, 1033 (7th Cir. 2002).
Wu’s arguments on appeal focus on his application for
cancellation of removal. For example, he attacks the IJ’s
6
Wu challenges the government’s reliance on Sherifi because
that case concerned suspension of deportation under the
Nicaraguan Adjustment and Central American Relief Act
(“NACARA”). However, the central issue in Sherifi was
whether NACARA changed “the well-established rule that
aliens in exclusion proceedings are not entitled to suspension
of deportation.” 260 F.3d at 742. Thus, Sherifi and the other
cases we cite interpreting NACARA provide support for the
long-established proposition that aliens in exclusion pro-
ceedings traditionally could not seek suspension of deportation.
8 No. 08-3479
statutory construction, claiming that his decision
ignored the IIRIRA’s abolition of the distinction between
exclusion and deportation. But his opening brief ignores
the critical point—that the IIRIRA’s effective date, which
applies prospectively, was April 1, 1997. See IIRIRA
§ 309(a), (c)(1); Fieran, 268 F.3d at 346.
The plain language of the IIRIRA unambiguously states
that, subject to two narrow exceptions we discuss below,
its provisions do not apply to aliens who are in exclusion
or deportation proceedings as of the effective date of the
Act. IIRIRA § 309(c)(1). The INS initiated exclusion pro-
ceedings against Wu on March 27, 1992—over five years
prior to the IIRIRA’s effective date. As these facts make
clear, the IIRIRA’s removal provisions do not apply to Wu.
Cf. Fieran, 268 F.3d at 346 (“Fieran was placed in exclusion
proceedings . . . long before the effective date of the
IIRIRA. The provision upon which he relies therefore
does not apply to his case.”).
In his opening brief, Wu summarily claims that the
IIRIRA’s new removal proceedings apply “to all aliens
whose cases are resolved after April 1, 1997.” Likewise, in
reply to the government, Wu claims that the “IIRIRA’s
effective date isn’t controlling here.” But he provides no
support for these contentions and ignores the statute’s
plain language. As always, we must give full effect to the
intent of Congress where it is clear from the statutory
language. United States v. Ranum, 96 F.3d 1020, 1029 (7th
Cir. 1996); see also Knutsen v. Gonzales, 429 F.3d 733, 736 (7th
Cir. 2005). Wu is therefore statutorily ineligible for can-
cellation of removal under IIRIRA § 309(c)(1) unless he
can show that one of the listed exceptions applies.
No. 08-3479 9
The IIRIRA provides only two narrow exceptions to its
general rule against retroactive application. Under
§ 309(c)(2), the Attorney General may elect to apply the
removal procedures for any case in which an evidentiary
hearing under the INA has not commenced. To invoke
this provision, the Attorney General must provide notice
to the alien at least thirty days before the commence-
ment of the hearing. Similarly, § 309(c)(3) allows the
Attorney General to terminate a previous proceeding in
which there has not been a final decision and reinitiate
new removal proceedings, a process commonly known
as “repapering.”
It is uncontested that the Attorney General has not
elected to “repaper” in this case, and § 309(c)(3) does not
apply. Wu maintains, however, that the government
elected to apply the removal procedures as allowed by
§ 309(c)(2). He bases this claim on (1) the government’s
failure to object to Wu’s motion to reopen his exclusion
proceedings under the new removal statute, and (2) the
government’s motion to transfer the proceedings to
Chicago after receiving Wu’s motion. But Wu did not
present this argument until his reply brief, nor did he
raise it before the IJ or BIA. Wu’s failure to timely raise
this argument results in waiver. See Ghani v. Holder, 557
F.3d 836, 839 (7th Cir. 2009) (explaining that because
the appellant “failed to raise this argument before the IJ
or the BIA,” it was waived); Diaz, 533 F.3d at 577 (stating
that arguments may not be raised for the first time in
a reply brief or they are waived).
Even if Wu had not waived this argument, however, it
would be unlikely to succeed. Section 309(c)(2) allows
10 No. 08-3479
the Attorney General to proceed under the removal
statute in cases in which an evidentiary hearing has not
yet commenced. In Wu’s case, a hearing took place on
June 18, 1992, and § 309(c)(2) therefore does not apply.7
Furthermore, the Act requires that the government
provide notice of its election to proceed with removal
proceedings at least thirty days before the date of the
hearing. IIRIRA § 309(c)(2). We doubt that the govern-
ment’s mere failure to object to Wu’s citation to
the removal statute or its motion to transfer venue are
the types of notice contemplated by Congress in § 309(c)(2).
III. C ONCLUSION
The INA provisions created by the IIRIRA, including
cancellation of removal, are inapplicable to aliens who
were in exclusion or deportation proceedings prior to the
IIRIRA’s effective date on April 1, 1997. The INS instituted
exclusion proceedings against Wu on March 27, 1992, and
neither of the IIRIRA’s exceptions to its prospective
application apply. Wu is therefore statutorily ineligible
for cancellation of removal, and his petition is D ENIED.
7
Although Wu claims that he never received notice of the
hearing, the IJ found otherwise. The IJ noted that while the
resulting in abstentia order was returned as undeliverable,
Wu received proper notice of the hearing because the INS
sent the notice to the address he provided and it was not
returned.
6-8-09