Alan Farquharson v. U.S. Attorney General ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 06, 2001
No. 00-11807 THOMAS K. KAHN
________________________ CLERK
INS No. A35-731-425
ALAN FARQUHARSON,
Petitioner-Appellant,
versus
U.S. ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondents-Appellees.
________________________
Petition for Review of an Order of the
Immigration and Naturalization Service
_________________________
__________________________________________________________________
_
________________________
No. 00-13647
________________________
D. C. No. 00-01387 CV-KMM
ALAN FARQUHARSON,
Plaintiff-Appellant,
versus
U.S. ATTORNEY GENERAL, John Ashcroft,
DISTRICT DIRECTOR FOR THE IMMIGRATION
AND NATURALIZATION SERVICE, Robert Wallis,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 6, 2001)
Before ANDERSON, Chief Judge, CARNES, Circuit Judge, and NANGLE*,
District Judge.
ANDERSON, Chief Judge:
Alan Farquharson petitions this Court to review a deportation order of the
Board of Immigration Appeals ("BIA"). The BIA ordered Farquharson deported to
Jamaica on the grounds of his entry into the United States without submitting to
inspection and his conviction of a controlled substance violation. The BIA also
held that, as an alien deportable for entry without inspection, Farquharson was
ineligible for an equitable waiver of deportation. Farquharson filed a petition with
this Court for review of the BIA’s decision. After review, we affirm the BIA’s
decision that
Farquharson is deportable. We also hold that Farquharson’s ineligibility for a
2
______________________________
*Honorable John F. Nangle, U.S. District Judge for the Eastern District of Missouri, sitting by
designation
waiver of deportation under § 212(c) of the INA does not violate his right to equal
protection. Finally, we hold that the BIA did not deny Farquharson’s
constitutional right to a fundamentally fair hearing.
I. BACKGROUND
Alan Farquharson, a native and citizen of Jamaica, was admitted to the
United States as a lawful permanent resident on August 23, 1977. On November
17, 1980, he was flying a plane loaded with marijuana from Jamaica to Florida
when he encountered engine trouble and was forced to crash-land about fifty miles
from his intended landing site in Florida. Farquharson testified at his hearing that
he radioed for help before the crash and that, after the crash, he and his copilot
stayed with the plane for a few minutes, then walked to a nearby highway and
attempted to flag down a car for assistance. A utility worker who witnessed the
crash notified the local police, who initiated a search for the plane’s occupants.
Farquharson and his copilot were apprehended by a police search party about a half
hour after the crash. Farquharson was convicted of unlawful possession of
marijuana in an amount of more than twenty grams. He was sentenced to five
years of probation.
3
On October 2, 1986, the Immigration and Naturalization Service (“INS”)
issued an Order to Show Cause charging that Farquharson was deportable because
he was convicted of a controlled substance violation and because he entered the
United States without inspection. Both grounds for Farquharson’s removal arose
out of the 1980 incident. The Immigration Judge issued a decision on October 2,
1991, finding Farquharson deportable and finding him ineligible for relief under
§§212(c) and 244(a)(2) of the INA.1 Farquharson appealed, arguing that his flight
into Florida was not an “entry” within the meaning of INA § 101(a)(13), so that he
could not be deported for “entering” this country without inspection. He further
argued that, if he was found deportable for entry without inspection, he should be
eligible for equitable relief from deportation under INA § 212(c). The BIA
affirmed the Immigration Judge’s decision and dismissed Farquharson’s appeal on
March 20, 2000, finding that he had made an entry into the United States on
November 17, 1980. The BIA also affirmed the Immigration Judge’s conclusion
that Farquharson was ineligible for a waiver of deportation under INA § 212(c).
1
At the time of Farquharson’s deportation proceedings, INA § 244(a)(2) gave the
Attorney General discretionary authority to order “suspension of deportation” based on certain
specified grounds if, inter alia, the alien had been “physically present in the United States for a
continuous period of not less than ten years” after becoming deportable. INA § 244(a)(2), 8
U.S.C. § 1254(a)(2) (1990). The Immigration Judge found, and Farquharson does not dispute,
that Farquharson was ineligible for § 244(a)(2) relief because he failed to meet the ten-year
continuous physical presence requirement. On appeal, Farquharson argues only that he should
be eligible for relief under § 212(c).
4
Farquharson has filed a petition for review with this Court.2 He argues that
he is not deportable for entry without inspection because he did not make an
“entry” into the United States within the meaning of the immigration statute. He
also argues in each petition that even if he is deportable, he is entitled to apply for a
waiver of deportation under former INA § 212(c).
II. DISCUSSION
A. Farquharson’s Deportability
1. Jurisdiction
Before addressing the merits of Farquharson’s appeal, we must consider
whether we have jurisdiction to hear his petition. Section 106 of the Immigration
and Nationality Act (“INA”), 8 U.S.C. § 1105(a), as amended by section 309 of the
Illegal Immigration Reform and Immigration Responsibility Act of 1996
(“IIRIRA”) governs this Court’s jurisdiction. Although most of IIRIRA’s
provisions apply only to proceedings commenced on or after April 1, 1997,
2
After filing this petition, Farquharson also filed a petition with the district court for a
writ of habeas corpus, 28 U.S.C. § 2241, in which he raised the same arguments he raised in his
petition for review with this Court. The district court dismissed Farquharson’s habeas petition
for lack of subject matter jurisdiction because his petition for direct review was pending before
this Court. Farquharson appealed from the judgment of the district court, and that appeal (No.
00-13647) was consolidated with his petition for review (No. 00-11807). In addressing
Farquharson’s petition for review we reach all of the issues raised in Farquharson’s habeas
petition; therefore, we dismiss as moot Farquharson’s appeal of the district court’s dismissal.
5
IIRIRA adopted transitional rules which apply in the case of an alien who is in
exclusion or deportation proceedings before April 1, 1997, where the final order is
entered after October 31, 1996. See Alanis-Bustamante v. Reno, 201 F.3d 1303,
1306 (11th Cir. 2000). IIRIRA’s transitional rules apply to Farquharson because
his deportation proceedings were commenced before April 1, 1997, and the final
deportation order was entered after October 31, 1996.
IIRIRA’s transitional rules provide that “there shall be no appeal permitted
in the case of an alien who is inadmissible or deportable by reason of having
committed a criminal offense” described in specific enumerated sections. IIRIRA
§309(c)(4)(G), reprinted in 8 U.S.C. § 1101 note. Notwithstanding this restriction,
this Court retains jurisdiction to determine whether an alien is deportable under the
immigration statute. See Lettman v. Reno, 168 F.3d 463, 465 (11th Cir. 1999).
Because judicial review is limited by statutory conditions, courts retain jurisdiction
to determine whether those conditions exist. See id. As explained in Lettman, this
determination involves considering whether the petitioner is (1) an alien (2)
deportable (3) by reason of a criminal offense listed in the statute. See id. We thus
have jurisdiction over Farquharson’s petition for direct review to determine
whether the BIA correctly concluded that Farquharson is deportable.
6
2. Standard of Review
On the merits, the Immigration Judge found that Farquharson was deportable
both for his controlled substance conviction and for making an entry without
inspection. Each of these was a statutory basis for deportation. See 8 U.S.C.
§1251(a)(2), (11) (1990).3 Farquharson argued that he did not make an “entry”
into the United States within the meaning of the immigration statute, and therefore
that he was not deportable on that basis. In dismissing Farquharson’s appeal, the
BIA rejected this argument and affirmed that Farquharson was deportable for entry
without inspection. In our review of the BIA’s decision, we review the BIA’s
statutory interpretation de novo, but we defer to the BIA’s interpretation if it is
reasonable. See Asencio v. INS, 37 F.3d 614, 616 (11th Cir. 1994). We review
the BIA’s factual determinations under the substantial evidence test. See Lorisme
v. INS, 129 F.3d 1441, 1444 (11th Cir. 1997). To reverse a factual finding by the
BIA, this Court must find not only that the evidence supports a contrary
3
Throughout this opinion, unless otherwise indicated, we refer to the edition of the
United States Code applicable to Farquharson. The Immigration Act of 1990, Pub. L. 101-649,
104 Stat. 4978 (1990), renumbered and in some instances revised the grounds upon which an
alien may be deported. The Act provided that these amendments did not apply to deportation
proceedings for which notice had been provided to the alien before March 1, 1991. The INS
gave notice to Farquharson on October 2, 1986; thus, the 1990 pre-amendment statute applies to
Farquharson. In that statute, section 1251(a)(2) provided for deportation of any alien who
“entered the United States without inspection or at any time or place other than as designated by
the Attorney General. . . .” Section 1251(a)(11) made deportable any alien who “has been
convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit
possession of or traffic in narcotic drugs or marijuana.”
7
conclusion, but that it compels one. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1,
112 S. Ct. 812, 815 n.1, 117 L. Ed. 2d 38 (1992).
3. Merits
The BIA has established that an entry within the meaning of 8 U.S.C.
§1101(a)(13) requires: (1) a crossing into the territorial limits of the United States;
(2) (a) inspection and admission by an immigration officer, or (b) actual and
intentional evasion of inspection at the nearest inspection point; and (3) freedom
from official restraint. See Matter of Z-, 20 I. & N. Dec. 707, 708 (BIA 1993).
Farquharson argues that the BIA erred in finding that he entered without inspection
when he crash-landed in Florida in November 1980 because he did not
intentionally evade inspection and because he was not free from official restraint.
Farquharson first challenges the Immigration Judge’s factual finding,
affirmed by the BIA, that he intentionally evaded inspection. Farquharson argues
that the evidence in this case shows that he did not intentionally evade inspection.
Evasion of inspection occurs when an alien avoids the ordinary route to the nearest
point of inspection or otherwise attempts to circumvent the normal inspection
process. See Cheng v. INS, 534 F.2d 1018, 1019 (2nd Cir. 1976). Even a
temporary evasion of the inspection process suffices to produce an entry. U.S. v.
8
Kavazanjian, 623 F.2d 730, 739 (1st Cir. 1980) (stating that aliens who fled from a
U.S. airport and subsequently applied for political asylum at a regional INS office
effected an “entry”). Farquharson’s own testimony, corroborated by his copilot,
indicates that he entered the United States flying a plane which was involved in a
drug smuggling operation. He did not have proper travel documents, and he had
not filed the customary flight plan before his trip. He did not intend to land at an
airport, but at a private landing strip where the drugs would be disbursed. When
problems occurred with the plane, he landed in a field. A few minutes after
landing, he and his copilot left the plane, and there is no evidence to suggest that
they left en route to the nearest point of inspection. They surrendered a short time
later to a police search party. The fact that Farquharson was smuggling drugs into
the United States shows that he had no intention of submitting himself for
immigration inspection. His conduct after landing is consistent with this intent to
evade inspection. We conclude that substantial record evidence supports the
finding that Farquharson intentionally evaded inspection.
Farquharson next argues that he was not free of official restraint on his entry
into the United States because his plane was under surveillance by federal officials.
In support of this argument, Farquharson cites Matter of Pierre, 14 I. & N. Dec.
467 (BIA 1973), for the proposition that an alien has not entered the United States
9
within the meaning of the immigration statute unless he is free from both actual
and constructive restraint. See id. at 469. As in Matter of Pierre, constructive
restraint may consist of surveillance which, though unknown to the alien, causes
the alien to lack the freedom “to go at large and mix with the population.” Id. In
this case, however, the record does not show that Farquharson was under
surveillance at the time of his entry.4 The BIA noted that there was record
evidence suggesting that federal law enforcement officers had monitored
Farquharson’s movements on prior occasions and had placed Farquharson’s plane
on a U.S. Customs“lookout” sheet because he was suspected of being a drug
dealer. However, we agree with the BIA that this evidence is insufficient to
indicate that Farquharson was under surveillance, and therefore under constructive
restraint, when he landed his plane in Florida in November 1980. To the contrary,
the record establishes that Farquharson’s landing was witnessed only by a private
individual – a utility worker – and that Farquharson was not located by officials
until approximately one-half hour after he landed.
In view of the foregoing, we affirm the BIA’s conclusion that Farquharson
intentionally evaded inspection and that he was free from official restraint when he
4
Because we affirm the BIA’s finding that Farquharson was not under surveillance, we
need not address the legal significance vel non if he had been under surveillance in this context.
10
entered the United States on November 17, 1980. We thus affirm the BIA’s
decision that Farquharson is deportable for making an entry without inspection.
See 8 U.S.C. § 1251(a)(2) (1990).
B. Farquharson’s Eligibility for Relief Under § 212(c)
1. Jurisdiction
Even if he is deportable under the statute, Farquharson argues that the BIA
unconstitutionally interpreted § 212(c) of the INA to deny him relief from
deportation that is available to similarly situated aliens. He argues that, to preserve
his right to equal protection, § 212(c) must be construed to permit him to apply for
a waiver. The government concedes, and we agree, that our jurisdiction extends to
review of substantial constitutional questions raised by a petitioner on direct
review. See Richardson v. Reno, 180 F.3d 1311, 1316 n.5 (11th Cir. 1999)
(noting that INA § 242(a)(2)(C), like IIRIRA § 309(c)(4)(G), “does not foreclose
constitutional challenges to the statute itself or other substantial constitutional
issues from being raised in the court of appeals”) (“Richardson II”), cert. denied,
--- U.S. ----, 120 S. Ct. 1529, 146 L. Ed. 2d 345 (2000). Richardson II establishes
that, like the Seventh Circuit, we will consider such claims on direct review. See
id.; LaGuerre v. Reno, 164 F.3d 1035, 1040 (7th Cir. 1998) (dismissing a § 2241
11
petition for lack of jurisdiction but noting that review of substantial constitutional
claims had been available in a petition for direct review), cert. denied, 528 U.S.
1153, 120 S. Ct. 1157, 145 L. Ed. 2d 1069 (2000). See also Galindo-Delvalle v.
Attorney Gen., 213 F.3d 594, 598 (stating that, in Richardson II, “we have
determined that, despite INA § 242(a)(2)(C), we retain jurisdiction to evaluate
constitutional challenges to the INA,” but finding that the petitioner lacked
standing to raise constitutional issues).5 As discussed below, there is a split among
the circuits with respect to the equal protection issue raised by Farquharson; in this
light, we conclude that his constitutional question is substantial. We therefore
resolve Farquharson’s constitutional challenge in this direct appeal.
2. History of § 212(c)
5
In LaGuerre v. Reno, the Seventh Circuit noted that “[i]f, as we believe in agreement
with the government, the deportee can seek review of constitutional issues in the court of appeals
directly, as under the prior regime governing judicial review of deportation, then the layering of
judicial review proposed by the petitioners is avoided, judicial review is curtailed as Congress
intended, but enough of a safety valve is left to enable judicial correction of bizarre miscarriages
of justice.” 164 F.3d at 1040.
Our conclusion that we have jurisdiction to hear Farquharson’s substantial constitutional
claim on direct review provides such a safety valve and confirms our observation, in Richardson
II, that even without § 2241 jurisdiction over an alien’s claims, an alien may still receive
substantial judicial review. See Richardson II, 180 F.3d at 1316 (stating that “Lettman
establishes that, even when an alien faces a putative bar to judicial review like IIRIRA §
309(c)(4)(G), the alien still receives substantial judicial review”).
12
The current circuit split was foreshadowed by a history of differing
interpretations of § 212(c). Section 212(c) of the INA grants the Attorney General
discretion to admit permanent resident aliens who temporarily travel abroad and
seek readmission, even if they are otherwise subject to exclusion under the statute.6
Although § 212(c) by its literal terms offers relief only from exclusion, during the
last four decades the INS has permitted aliens subject to deportation to apply for
§212(c) relief. This expansion was justified under the theory that, if the INS
allowed a resident alien to reenter the country despite his excludability and then
initiated deportation proceedings, the alien should not be placed in a worse position
than if he had been excluded in the first place. See Matter of G- A-, 7 I. & N. Dec.
274 (BIA 1956); Matter of S-, 6 I. & N. Dec. 392 (BIA 1954; Att’y Gen.1955).
This extension, however, produced inequities in its application. While one
resident alien who became deportable and then voluntarily left the country became
eligible for waiver upon reentry, another alien who was deportable for the same
reason but never left the country had no recourse. Finding this distinction “not
rationally related to any legitimate purpose of the statute,” the Second Circuit
6
The edition of § 212(c) applicable to Farquharson provided that “[a]liens lawfully
admitted for permanent residence who temporarily proceeded abroad voluntarily and not under
an order of deportation, and who are returning to a lawful unrelinquished domicile of seven
consecutive years, may be admitted in the discretion of the Attorney General without regard to”
selected statutory grounds for exclusion. 8 U.S.C. § 1182(c) (1990).
13
struck it down as violating the Due Process Clause. Francis v. INS, 532 F.2d 268,
272 (2d Cir. 1976). The BIA adopted the reasoning of Francis and extended §
212(c) relief to deportable aliens regardless of whether they had left the United
States after committing the act rendering them deportable. See Matter of Silva, 16
I. & N. Dec. 26, 30 (BIA 1976). Under the rationale of Francis and Silva,
therefore, deportable aliens could receive § 212(c) exclusion-type relief. However,
because the basis for the extension of relief was to equalize the treatment of aliens
who were deportable versus excludable on equivalent grounds, the BIA extended §
212(c) relief only to aliens whose deportability was based on a ground for which a
comparable ground for exclusion existed. See Matter of Wadud, 19 I. & N. Dec.
182, 184 (BIA 1984); Matter of Granados, 16 I. & N. Dec. 726, 728 (BIA 1979).
In 1990, the BIA departed from its precedent to hold that § 212(c) relief was
available to all aliens facing deportation (unless the ground was one specifically
excluded in 212(c)). See Matter of Hernandez-Casillas, 20 I. & N. Dec. 262, 268
(BIA 1990). This unexpected liberality was soon curtailed, however, as the
Attorney General reversed the BIA,7 and the reversal was affirmed by the Fifth
7
Congress has vested in the Attorney General the authority to decide legal questions
arising under the immigration laws. See 8 U.S.C. § 1103(a). The Attorney General has
delegated this function to the Board; however, the Attorney General retains the authority to
review final decisions of the BIA, either upon the Attorney General’s initiative or by request.
See 8 C.F.R. §3.1(h).
14
Circuit. See In re Hernandez- Casillas, 20 I. & N. Dec. 262, 280-93 (BIA 1991),
aff’d mem., 983 F.2d 231 (5th Cir. 1993). The issue in Hernandez-Casillas, as in
this case, was whether § 212(c) relief should be available to aliens deportable on
the ground of entry without inspection. See id. at 280. Because there is no
comparable ground for exclusion, the Attorney General concluded that § 212(c)
relief should not be available but that, pursuant to the BIA’s former precedent, a §
212(c) waiver is available only to aliens whose deportability was based on a
ground for which a comparable ground for exclusion exists. See id. at 291-92.
The Seventh Circuit addressed this precise issue in Leal-Rodriguez v. INS,
990 F.2d 939 (7th Cir. 1993), and agreed with Hernandez-Casillas that a deportable
alien’s ineligibility for a § 212(c) waiver does not violate his right to equal
protection. See id. at 952. However, the Second Circuit has held that a § 212(c)
waiver is available in a deportation based on entry without inspection, despite the
lack of an analogous ground for exclusion. See Bedoya-Valencia v. INS, 6 F.3d
891, 897 (2d Cir. 1993) (extending the Francis rule to hold that an alien deportable
for illegal entry was not rendered ineligible for a § 212(c) waiver by his illegal
entry, where he was also deportable for a drug conviction that did not render him
ineligible for the waiver).
15
Other circuits, including this Circuit, have addressed the issue in the context
of a firearms violation (a deportation ground for which no analogous ground for
exclusion exists), and have uniformly followed the Attorney General’s lead,
concluding that a § 212(c) waiver is not available in deportations for firearms
violations because there is no analogous ground for exclusion. See Gjonaj v. INS,
47 F.3d 824, 827 (6th Cir. 1995); Rodriguez-Padron v. INS, 13 F.3d 1455, 1460-61
(11th Cir. 1994); Chow v. INS, 12 F.3d 34, 38 (5th Cir. 1993); Rodriguez v. INS, 9
F.3d 408, 412 (5th Cir. 1993); Campos v. INS, 961 F.2d 309, 316-17 (1st Cir.
1992); Cabasug v. INS, 847 F.2d 1321, 1327 (9th Cir. 1988). See also Matter of
Montenegro, 20 I. & N. Dec. 602, 605 (BIA 1992) (stating that under Hernandez-
Casillas an alien who is deportable for a firearms conviction is ineligible for
§212(c) relief because there is no analogous ground for exclusion).
3. Standard of Review
As in Hernandez-Casillas, Farquharson is deportable on the statutory ground
of entry without inspection, for which there is no analogous ground for exclusion.
Following the Attorney General’s rule in Hernandez-Casillas, the Immigration
Judge decided, and the BIA affirmed, that Farquharson is ineligible for a § 212(c)
waiver because there is no ground for exclusion comparable to the entry without
16
inspection ground for deportation. Notwithstanding Hernandez-Casillas,
Farquharson argues that denying him the opportunity to pursue a § 212(c) waiver
violates his right to equal protection of the laws. He argues that the BIA
unconstitutionally interpreted the statute to deny him relief from deportation that is
available to similarly situated lawful permanent residents. Specifically, he argues
that it is irrational to deny him a § 212(c) waiver on illegal entry grounds, when his
more serious ground for deportation – the drug conviction – would not disqualify
him for § 212(c) relief. Because Farquharson raises solely a question of law, our
review is plenary. See Ardestani v. INS, 904 F.2d 1505, 1508 (11th Cir. 1990),
aff’d, 502 U.S. 129, 112 S. Ct. 515, 116 L.Ed.2d 496 (1991). A statutory
distinction such as that challenged by Farquharson is evaluated under the minimal
scrutiny test, and will survive an equal protection challenge if the classification
drawn by the statute is rationally related to a legitimate state interest. City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254,
87 L. Ed. 2d 313 (1985).
4. Merits
Farquharson argues that the Equal Protection Clause mandates that he be
eligible for § 212(c) relief even though no analogous ground exists for exclusion.
17
In Hernandez-Casillas, the Attorney General responded to a challenge by a
petitioner who argued, like Farquharson, that he should be eligible for a § 212(c)
waiver although he was deportable for entry without inspection. See 20 I. & N.
Dec. at 268. In that case, the petitioner argued that because he admitted to a more
serious offense – smuggling aliens into the United States – which would not render
him ineligible for the waiver, he should remain eligible for the waiver despite his
illegal entry. See id. The Attorney General rejected this argument, reasoning that
the equal protection concerns articulated in Francis and Silva were satisfied by
making the § 212(c) waiver available in deportation cases for all grounds that
would qualify for the waiver in exclusion cases. See id. at 287-88. In Francis and
Silva, where deportable aliens were denied waivers on grounds that would not have
rendered them ineligible for a waiver of exclusion, the denial turned on the
“irrelevant circumstance” that the petitioners had temporarily left the United
States, while in the case of a deportation for entry without inspection, the denial
was based on the relevant circumstance of the “illegal nature of [the] reentry.” See
id. at 288. In this light, the Attorney General emphatically concluded that equal
protection was satisfied by the extension of the § 212(c) waiver granted by Francis
and Silva – i.e., in situations where an analogous ground existed for exclusion –
and that a further extension was not constitutionally required. See id. (stating that
18
“[u]nder no plausible understanding of equal protection principles must
discretionary relief be made available in deportation cases where the ground for
deportation could not be . . . asserted at all in an exclusion case”). Absent a
constitutional justification, the Attorney General refused to depart further from the
statutory framework which expressly provided different grounds for suspension of
deportation versus a waiver of exclusion. See id. at 289.
We find this reasoning convincing. We have no difficulty in concluding that a
denial of eligibility for § 212(c) relief based on illegal entry is rationally related to a
legitimate government interest. It is reasonable that the government would decline to
offer a waiver to aliens deportable for entry without inspection, since illegal entry
violations directly and fundamentally undermine the enforcement efforts of the INS.
See Leal-Rodriquez, 990 F.2d at 946 (stating that “the inspection process is critical to
the integrity of the immigration system” and noting that Congress viewed entry without
inspection as “one of ‘the more important grounds for deportation’”) (citations omitted).
Further, as the First Circuit observed, § 212(c) has already been “stretched beyond its
language” in response to equal protection concerns, and further judicial redrafting
would serve only to pull the statute further from its moorings in the legislative will.
Campos, 961 F.2d at 316. The Seventh Circuit cited Campos with approval, and
refused to extend § 212(c) relief to an alien deportable for entry without inspection,
19
stating that no equal protection justification exists for further judicial extension of the
statute. See Leal-Rodriquez, 990 F.2d at 952. We agree with Leal-Rodriquez, and we
hold that the BIA’s decision that Farquharson is ineligible for a waiver of deportation
under § 212(c) of the INA does not violate Farquharson’s right to equal protection.8
III. CONCLUSION
For the foregoing reasons, in appeal No. 00-11807, we affirm the Board of
Immigration Appeals’ final order of deportation. The appeal from the district court’s
judgment dismissing the § 2241 petition, No. 00-13647, is dismissed as moot.9
8
Farquharson suggests in conclusory fashion that he is making an argument based on
statutory construction, as well as his equal protection argument. However, we have carefully
examined all of Farquharson’s briefs on appeal, and we conclude that the only specific argument
which Farquharson makes is that it is irrational to deny him eligibility for a §212(c) waiver on
the basis of the illegal entry ground for deportation, when his more serious ground for
deportation – the drug conviction – would not disqualify him for §212(c) relief. The argument is
an equal protection argument. Indeed, the repeated refrain in Farquharson’s briefs is that such
denial is “irrational and unconstitutional.” Notwithstanding his conclusory assertion at one point
in one of the briefs that he is also asserting a statutory challenge, we doubt that a statutory
challenge is presented here. And to the extent that there might be a statutory challenge, it is
indistinguishable from the equal protection argument which we have rejected, and therefore we
deem any statutory argument moot and decline to address it.
Farquharson’s suggestion that the immigration proceedings against him were
fundamentally unfair does not on these facts constitute a substantial constitutional challenge.
Indeed, his arguments in this regard border on the frivolous and we decline to address them.
9
As discussed supra note 3, Farquharson filed a habeas petition with the district court
after filing his petition for direct review with this Court, raising the same arguments in each
petition. Because we reject his arguments in our direct review, we dismiss as moot his appeal
from the district court’s dismissal of his habeas petition.
20
AFFIRMED IN PART and DISMISSED AS MOOT IN PART.
21