Chow v. I.N.S. ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-4816
Summary Calendar
KIN SANG CHOW,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
(November 23, 1993)
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Kim Sang Chow, a native of Hong Kong and citizen of the United
Kingdom, entered the United States on June 16, 1971, as a lawful
permanent resident. On November 10, 1977, he was convicted of
possession of a .25 caliber automatic pistol. Subsequently, he was
convicted of using a telephone to facilitate distribution and
possession with intent to distribute heroin in violation of 21
U.S.C. § 843(b).
Deportation proceedings commenced against Chow on July 17,
1992. An immigration judge ("IJ") denied his application for
waiver of deportation, and the Board of Immigration Appeals ("BIA")
affirmed that denial. Chow petitions for review of the BIA's
decision. Finding that the decision was within the BIA's discre-
tion, we deny the petition.
I.
Chow was charged with deportability under § 241(a)(2)(B)(i) of
the Immigration and Nationality Act (the "Act"), 8 U.S.C.
§ 1251(a)(2)(b)(i), based upon the controlled substances violation.
He was further charged with deportability under § 241(a)(2)(iii) of
the Act, 8 U.S.C. § 1251(a)(2)(iii), as an aggravated felon.
Finally, Chow was charged with deportability under § 241(a)(2)(C)
of the Act, 8 U.S.C. § 1251(a)(2)(C), because of the firearms
conviction.
The deportation hearing commenced on August 17, 1992, at
Oakdale, Louisiana. Chow was represented by his current counsel,
Lawrence Fabacher. The hearing was adjourned when Chow's counsel
agreed to submit a memorandum arguing against deportability. The
memorandum was filed on September 2, 1992.
Chow filed a motion for change of venue on September 15, 1992.
His counsel argued that Chow, who had been released on bond, had
returned to his permanent residence in Illinois and had retained
Illinois counsel. Chow argued that the deportation hearing should
be held in Illinois.
On September 17, 1992, Chow's Louisiana counsel, Fabacher,
filed a motion to withdraw as counsel of record. The INS opposed
the proposed venue change on September 18, 1992. The deportation
hearing resumed on September 21, 1992, in Louisiana. The IJ stated
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that he wanted Fabacher to continue representing Chow until
deportability was resolved.
On October 12, 1992, Chow's Illinois counsel, Robert Ahlgren,
filed a motion for change of venue to Chicago. The hearing resumed
in Louisiana on October 16, without Chow's presence. Fabacher was
present via telephone, and another Louisiana attorney represented
Chow in the courtroom. The IJ announced that Ahlgren had called
the previous day to say that he would be present in his office at
the time of the hearing. In face, he was not present in his office
at that time.
The IJ said that he had taken the motion to change venue under
advisement because he wished to determine whether Chow was
deportable and, if so, whether he was eligible for relief from
deportation. The IJ also refused to grant Fabacher's motion to
withdraw.
Based upon Chow's 1977 weapons conviction, the IJ found him
deportable as charged under § 241(a)(2)(C) as an alien convicted of
a firearms violation. The IJ also found that Chow was deportable
under § 241(a)(2)(B)(i) as an alien convicted of a controlled
substance violation on the basis of his drug-related conviction.
The IJ further determined that that drug-related conviction did not
support a finding of deportability under § 241(a)(2)(A)(iii) for
conviction of an aggravated felony.
The IJ ordered deportation to the United Kingdom and denied
Chow's application for relief from deportation under 8 U.S.C.
§ 1182(c). Chow appealed this decision to the BIA, which received
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briefs and heard oral argument, then dismissed the appeal on
April 13, 1993.
II.
Chow first contends that the BIA erred in concluding that the
IJ correctly determined that his 1977 conviction for possession of
a pistol supported a finding of deportability under § 241(a)(2)(C).
A two-prong standard of review applies to cases such as these.
Iredia v. INS, 981 F.2d 847 (5th Cir. 1993).
First, interpretations of ambiguous law by an executive agency
are accorded considerable weight and deference. Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
This court has accepted the Chevron standard and upheld reasonable
agency interpretations of governing law when that law did not speak
unequivocally to the question at hand. National Grain & Feed Ass'n
v. Occupational Safety & Health Admin., 866 F.2d 717 (5th Cir.
1988).
After considering the legal standard under which the INS
should operate, we review the BIA's findings under the substantial
evidence test, Rojas v. INS, 937 F.2d 186 (5th Cir. 1991) (per
curiam), which requires only that the BIA's conclusion be based
upon the evidence presented and that it be substantially reason-
able, Animashaun v. INS, 990 F.2d 234 (5th Cir. 1993), petition for
cert. filed (Aug. 9, 1993) (No. 93-5539).
Chow argues that because his conviction occurred prior to
enactment of § 241(a)(2)(C), the legislation is not retroactive and
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therefore is inapplicable to him. Furthermore, Chow argues that
§ 241(a)(2)(C) of the Act originally was embodied in § 241(a)(14).
Chow asserts that that section later was expanded by § 2348 of the
Anti-Drug Abuse Act of 1988, which was made applicable only to
aliens convicted on or after the date of the enactment of that Act.
The BIA correctly noted, however, that Chow was not found
deportable under former § 241(a)(14); instead, he was found
deportable under § 241(a)(2)(C), which was made applicable to
proceedings for which notice was provided to the alien on or after
March 1, 1991. See § 602(d) of the Immigration Act of 1990.
Section 241(a)(2)(C) provides,
Any alien who at any time after entry is convicted under
any law of purchasing, selling, offering for sale,
exchanging, using, owning, possessing, or carrying in
violation of any law, any weapon, part, or accessory
which is a firearm or destructive device (as defined in
Section 921(a) of Title 18) is deportable. [Emphasis
added.]
That section, enacted in 1990, completely supersedes all former
versions of legislation dealing with deportation for firearm
offenses. We conclude that the BIA was justified in finding that
Chow violated § 241(a)(2)(C) and that the BIA's decision was
reasonable in accordance with Chevron.
III.
Chow next challenges the INS's interpretation of § 212(c) of
the Act, 8 U.S.C. § 1182(c), which is a question of law reviewed de
novo. Fonseca-Leite v. INS, 961 F.2d 60 (5th Cir. 1992). Yet,
because Congress has delegated the administration of the statutory
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scheme to the INS, its interpretation is entitled to strong
deference. Chevron, 467 U.S. at 844. See also INS v. Cardoza-
Fonseca, 480 U.S. 421 (1987). The IJ found, and the BIA agreed,
that Chow was ineligible for a waiver under § 212(c) because there
is no exclusion provision in § 212(a) corresponding to the
deportation ground for conviction of a firearms violation.
Section 212(c) allows the Attorney General, in his discretion,
to grant relief from orders of deportation to "aliens lawfully
admitted for permanent residence who temporarily proceed abroad
voluntarily and not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of seven consecutive
years." We have recognized that a § 212(c) waiver is available in
deportation proceedings only to those aliens who have been found
deportable under a charge of deportability for which there is a
comparable ground of excludability. In re Hernandez-Casillas, 983
F.2d 231 (5th Cir. 1993) (unpublished).
The First Circuit has addressed the issue of whether § 212(c)
authorizes the granting of discretionary relief to aliens convicted
of possession of a firearm without a license. In Campos v. INS,
961 F.2d 309 (1st Cir. 1992), the petitioner was convicted in Rhode
Island for carrying a .22 caliber Bernadelli pistol without a
license, in violation of a state statute.1 On June 8, 1990, the
INS issued an order requesting him to show cause why he should not
be deported.
1
Campos also was convicted in state court for possession of heroin
with intent to distribute and possession of cocaine in February 1989.
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At his June 29, 1990 deportation hearing, Campos admitted that
he was deportable on the grounds enumerated in the order to show
cause. He expressed, however, a desire to apply for relief from
deportation under § 212(c). The INS concluded that the firearms
conviction removed Campos from any possibility of § 212(c) relief.
Campos appealed, alleging that Congress never intended to
deprive aliens convicted of illegal possession of a firearm of the
possibility of seeking § 212(c) relief. The First Circuit affirmed
the BIA's interpretation of § 212(c) and held that it did not
authorize relief to aliens facing deportation for firearms
violations, in that such ground of deportation was not one of the
grounds of exclusion referenced in the statute. Similarly, we
reject Chow's argument that § 212(c) can be applied in cases where
there is no comparable ground of excludability.
IV.
The BIA also found that Chow's deportability under
§ 241(a)(2)(B)(i), as an alien convicted of a controlled substance
violation, was established by his conviction under 21 U.S.C.
§ 843(b) for using a telephone to facilitate the crimes of
distribution of and possession with intent to distribute heroin.
We recently explained the BIA's balancing test for considering
applications under § 212(c):
The immigration judge must balance the adverse factors
evidencing an alien's undesirability as a permanent
resident with the social and humane considerations
presented in his behalf to determine whether the granting
of section 212(c) relief appears in the best interests of
the country. . . . Among the factors deemed adverse to
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a respondent's application have been the nature and
underlying circumstances of the exclusion ground at
issue, the presence of additional significant violations
of this country's immigration laws, the existence of a
criminal record, and if so, its nature, recency, and
seriousness, and the presence of other evidence indica-
tive of a respondent's bad character or undesirability as
a permanent resident of this country . . . . Favorable
considerations have been found to include such factors as
family ties within the United States, residence of long
duration in this country (particularly when the inception
of residence occurred while the respondent was of young
age), evidence of hardship to the respondent and family
if deportation occurs, service in this country's Armed
[sic] forces, a history of employment, the existence of
property or business ties, evidence of value and service
to the community, proof of a genuine rehabilitation if a
criminal record exists, and other evidence attesting to
a respondent's good character.
Diaz-Resendez v. INS, 960 F.2d 493, 495-96 (5th Cir. 1992) (quoting
In re Marin, 16 I&N Dec. 581 (BIA 1978) (ellipses in Diaz-
Resendez)). We also stated that "applicants for discretionary
relief who have been convicted of serious drug offenses must show
`unusual or outstanding equities.'" Id. at 496. Given Chow's
conviction under § 241(a)(2)(B)(i), along with his extensive
criminal record, the BIA would have been justified in denying
relief to him under § 212(c), even if he would have been eligible
to apply for a waiver.
V.
Chow also argues that the IJ erred in proceeding to a
conclusory hearing without ruling on his pending motion for change
of venue or his motion to withdraw as counsel of record. We employ
the abuse of discretion standard in reviewing procedural chal-
lenges.
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The decision of whether to grant a change of venue is
committed to the IJ's sound discretion and will not be overturned
except for an abuse of that discretion. Baires v. INS, 856 F.2d 89
(9th Cir. 1988). Given this broad discretion, we conclude that it
was not unreasonable for the IJ to proceed with a determination of
deportability prior to ruling on Chow's motion to change venue.
Similarly, the BIA did not abuse its discretion in affirming
the IJ's refusal to hear the motion to withdraw prior to determin-
ing the issue of deportability. Not only did the IJ grant Chow's
Illinois attorney the opportunity to attend the deportation hearing
via telephone, but the IJ ordered that the Louisiana attorney
represent Chow at the hearing.
VI.
Finally, Chow asserts that the IJ erred in failing to afford
him the opportunity to apply for political asylum. Again, this
procedural challenge is reviewed pursuant to the abuse of discre-
tion standard.
Chow has failed to cite any authority that would have required
the IJ to explain asylum procedures to him. It is well established
that an IJ does not have an obligation to explain asylum procedures
unless the immigrant expresses some reluctance to return to his
homeland. Ogbemudia v. INS, 988 F.2d 595 (5th Cir. 1993).
Although Chow declined to name a country for deportation, he did
not express any reluctance to being returned to the United Kingdom.
We conclude that it was not an abuse of discretion for the BIA to
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affirm the order that Chow be returned to the United Kingdom.
For the foregoing reasons, the petition for review is DENIED.
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