Mansour v. Gonzales ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0456p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
Petitioner, -
GHASSAN MANSOUR,
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No. 05-3674
v.
,
>
ALBERTO GONZALES, United States Attorney -
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Respondent. -
General,
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On Petition for Review from the
Board of Immigration Appeals.
No. A23 194 490.
Submitted: November 1, 2006
Decided and Filed: December 14, 2006
Before: GILMAN and GRIFFIN, Circuit Judges; GWIN, District Judge.*
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COUNSEL
ON BRIEF: Mark Jacob Thomas, Chicago, Illinois, for Petitioner. Erica B. Miles, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. In 1995, Ghassan Mansour, a native and citizen
of Iraq, was issued a final order of deportation based upon his aggravated-felony conviction for
conspiracy to possess a controlled substance with the intent to distribute. Mansour had served just
over five years in prison as punishment for this offense. In September of 1997, this court
dismissed—for lack of jurisdiction—Mansour’s petition to review his deportation order. The
Immigration and Naturalization Service (INS) denied his motion to reopen the deportation
proceedings in October of 1998.
Despite the deportation order, Mansour remained in the United States until 2000, when he
briefly crossed the border into Mexico. When he attempted to reenter the United States, Mansour
*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.
1
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falsely claimed to be a U.S. citizen. Border officials paroled him into the country, where he later
pled guilty to one count of making a false claim of U.S. citizenship. In January of 2005, due to
changes in the immigration regulations, Mansour filed a special motion with the Board of
Immigration Appeals (BIA) to reopen his deportation proceedings. The Department of Homeland
Security (DHS) opposed the motion, arguing that Mansour is ineligible to seek the relief he
requested.
The BIA denied Mansour’s motion. It concluded that because Mansour’s trip into Mexico
effectively executed the outstanding deportation order, there were no deportation proceedings to
reopen. The BIA further concluded that the new immigration regulations afforded Mansour no
avenue of relief. Mansour timely petitioned for review by this court. For the reasons set forth
below, we DENY the petition for review.
I. BACKGROUND
Mansour lives in Warren, Michigan. He was born in Baghdad in 1969 and entered the
United States at Detroit, Michigan as a lawful permanent resident in August of 1981. On July 18,
1988, Mansour pled guilty to one count of conspiracy to possess a mixture containing a controlled
substance with the intent to distribute, in violation of Mich. Comp. Laws § 333.7403(2)(a)(i). He
was sentenced on August 19, 1988 to serve between five and twenty years in prison. The Michigan
state-court judge credited Mansour with 49 days of time served prior to his conviction. Mansour
was in prison for five years and a day. He was released on July 1, 1993.
In June of 1990, while Mansour was still incarcerated, the INS commenced deportation
proceedings against him by issuing an Order to Show Cause. The INS claimed that Mansour was
deportable under INA § 241(a)(11) (now codified as amended at 8 U.S.C. § 1227(a)(2)(B)(i)).
Section 241(a)(11) states that any alien convicted of an offense relating to a controlled substance,
except for a single offense of marijuana possession under 30 grams, is deportable. Mansour
admitted the INS’s factual allegations and conceded his deportability, as well as the INS’s
classification of him as an aggravated felon.
In August of 1991, the INS moved to administratively close the deportation proceedings
pending a possible resentencing of Mansour, and the Immigration Judge (IJ) granted the motion.
The record does not reveal whether or not Mansour was actually resentenced. By the time
deportation proceedings resumed, Mansour had retained new counsel who was not familiar with had
happened on the resentencing issue.
The INS filed a motion to recalendar the deportation proceedings. Shortly after Mansour was
released from prison in July of 1993, the IJ granted the motion. The IJ subsequently found Mansour
deportable as charged. Mansour argued that, although he was deportable, he was eligible for
discretionary relief under INA § 212(c). 8 U.S.C. § 1182(c). Section § 212(c), later repealed,
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.”
8 U.S.C. § 1182(c) (repealed 1996). An alien “who ha[d] been convicted of one or more aggravated
felonies and ha[d] served . . . a term of imprisonment of at least 5 years,” however, was ineligible
for such discretionary relief. Id.
In January of 1995, the IJ ordered Mansour deported to Iraq, finding that he was statutorily
ineligible for § 212(c) relief because he had been convicted of an aggravated felony and had served
at least five years in prison. The BIA affirmed the IJ’s decision. Mansour’s petition for review was
subsequently dismissed by this court for lack of jurisdiction. See Mansour v. INS, 123 F.3d 423, 424
(6th Cir. 1997). Section 440(a)(10) of the Antiterrorism and Effective Death Penalty Act of 1996
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(AEDPA), provides that “[a]ny final order of deportation against an alien who is deportable by
reason of having committed a criminal offense covered in [the Immigration and Nationality Act]
section § 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by [INA] section 241(a)(2)(A)(ii)
for which both predicate offenses are covered by [INA] section 241(a)(2)(A)(i), shall not be subject
to review by any court.” Id. at 424 (citation omitted) (brackets in original). Because the INS issued
Mansour’s final order of deportation as a result of a felony conviction covered by § 440(a) of
AEDPA, this court held that it had no jurisdiction to review his deportation order. See id. at 426.
In October of 1997, Mansour filed a motion to reopen his deportation proceedings with the
BIA in light of the Attorney General’s decision in In re Soriano, 21 I. & N. Dec. 516 (BIA 1996,
A.G. 1997). The Attorney General in Soriano directed the BIA to reopen cases where an alien had
been placed into deportation proceedings prior to April 24, 1996, the effective date of AEDPA, and
had conceded deportability. Id. AEDPA § 440(d) repealed INA § 212(c). Under Soriano, eligible
aliens could reopen their deportation proceedings only “for the limited purpose of permitting him
or her to contest deportability.” Soriano, 21 I. & N. at 540. The purpose was “to eliminate even the
remote possibility that an alien who had a colorable defense to deportability may have conceded
deportability in reliance on the availability of section 212(c) relief.” Id. Mansour’s motion was
denied by the BIA because he was ineligible for § 212(c) relief well before the enactment of
§ 440(d) of AEDPA due to his felony conviction and time spent in prison. This meant that the 1995
order of deportation remained final. See 8 C.F.R.§§ 1003.1(d)(2)(H), (d)(2)(ii), and (d)(7). The INS
failed to execute the order of deportation, however, and Mansour remained in the United States.
In June of 2000, Mansour became engaged to Vanessa Ramos, a U.S. citizen from El Paso,
Texas. Mansour claims that while he was in El Paso attending his engagement party, he “became
drunk and accidentally travelled to Mexico.” When he attempted to reenter the United States,
Mansour falsely declared that he was a U.S. citizen. Border officials soon discovered that he was
not a citizen. Although Mansour was a legally admitted permanent resident when he first came to
the United States in 1981, the final order of deportation resulting from his drug conviction rendered
Mansour inadmissible. Mansour was then paroled into the United States, where he pled guilty in
June of 2001 to one count of making a false claim of U.S. citizenship, in violation of 18 U.S.C.
§ 911. He received a sentence of six months’ home detention and three years’ probation.
Mansour claims that he pled guilty only after INS officials offered to release him in exchange
for his guilty plea. He returned to Michigan and married Vanessa Ramos in 2001. They now have
two young children who are U.S. citizens.
In January of 2005, Mansour filed a special motion to reopen his deportation proceedings
pursuant to 8 C.F.R. § 1003.44, which allows eligible aliens who pled guilty or nolo contendere to
certain crimes before April 1, 1997 to apply for relief. Mansour argued that under the Supreme
Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), he is now eligible for relief under the
“special 212(c) rules.” In St. Cyr, the Supreme Court held that former INA § 212(c) relief remained
available to aliens “whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible” for a waiver of inadmissibility “at the
time of their plea under the law then in effect.” Id. at 326. Section 1003.44, then, effectively
codified the Court’s holding in St. Cyr. See Lawrence v. Gonzales, 446 F.3d 221, 225 (1st Cir.
2006) (“The regulation, which applies St. Cyr, [states] that the alien must have pled guilty ‘pursuant
to a plea agreement made before April 1, 1997.’”).
The DHS, which took over the functions of the INS in 2003, argued that Mansour’s motion
should be denied pursuant to 8 C.F.R. § 1003.44(k)(2), which excludes from eligibility for special
relief “[a]liens issued a final order of deportation or removal who then illegally returned to the
United States.” In May of 2005, the BIA denied the motion, concluding that there were no
deportation proceedings to reopen because Mansour’s brief foray into Mexico had effectively
No. 05-3674 Mansour v. Gonzales Page 4
executed the outstanding deportation order. The BIA also found that “the new regulations do not
provide [Mansour with] any avenue of relief.” This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review the BIA’s decision to grant or deny a motion to reopen under the abuse-of-
discretion standard. Haddad v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006). Abuse-of-discretion
review requires us to decide whether the denial of the motion “was made without a rational
explanation, inexplicably departed from established policies, or rested on an impermissible basis
such as invidious discrimination against a particular race or group.” Id. (citation and quotation
marks omitted).
In contrast, we review legal issues de novo. Id. Substantial deference is given, however, to
the BIA’s interpretation of the INA and accompanying regulations. Sad v. INS, 246 F.3d 811, 814
(6th Cir. 2001). The BIA’s interpretation of the statute and regulations will be upheld unless the
interpretation is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 815.
B. The statutory and regulatory framework
Section 101(g) of the INA, 8 U.S.C. § 1101(g), provides as follows:
[A]ny alien ordered deported or removed (whether before or after the enactment of
this chapter) who has left the United States, shall be considered to have been
deported or removed in pursuance of law, irrespective of the source from which the
expenses of his transportation were defrayed or of the place to which he departed.
The Supreme Court has held that “[d]eportation orders are self-executing orders, not
dependent upon judicial enforcement.” Stone v. INS, 514 U.S. 386, 398 (1995). It is well settled
that when an alien departs the United States while under a final order of deportation, he or she
executes that order pursuant to the law. See Mrvica v. Esperdy, 376 U.S. 560, 563-64 (1964)
(declaring that an alien seaman’s departure executed the order of deportation when he left the United
States “irrespective of the source from which the expenses of his transportation were defrayed or
of the place to which he departed”); see also In re Palma, 14 I. & N. Dec. 486, 487 (BIA 1973)
(holding that an alien self-executed his deportation order by departing the United States, even
though he returned the same day); In re Wang, 17 I. & N. Dec. 565, 567 (BIA 1980) (ruling that the
alien’s departure from the country while under a deportation order “imparted a finality to the
deportation proceedings predating his departure and result[ed] in his departure being considered ‘in
pursuance of law’”).
Once an alien departs, thereby executing the order of deportation, he “loses his right to
contest the lawfulness of the proceedings.” Wang, 17 I. &. N at 567. “Departure from the United
States of a person who is the subject of deportation proceedings subsequent to the taking of an
appeal, but prior to a decision thereon, shall constitute a withdrawal of the appeal, and the initial
decision in the case shall be final to the same extent as though no appeal had been taken.” 8 C.F.R.
§ 1003.4. In other words, “when a person who is under a deportation order, from which he has
appealed to the BIA, voluntarily leaves the United States, he has been deported, the deportation is
final, and an appeal to the BIA has been withdrawn” under 8 C.F.R. § 1003.4. Aguilera-Ruiz v.
Ashcroft, 348 F.3d 835, 837 (9th Cir. 2003) (citation omitted).
“[T]he BIA lacks jurisdiction to consider any motion filed on [an alien’s] behalf to reopen
his removal proceedings” once deportation is final. Navarro-Miranda v. Ashcroft, 330 F.3d 672,
675 (5th Cir. 2003). An alien is generally precluded, then, from filing a motion to reopen his or her
No. 05-3674 Mansour v. Gonzales Page 5
deportation proceedings once the alien has left the country. See 8 C.F.R. § 1003.2(d) (“A motion
to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject
of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United
States.”). Mansour, however, sought to reopen as an alien eligible for special relief under 8 C.F.R.
§ 1003.44. This regulation allows certain eligible aliens to file a special motion to reopen under
former § 212(c) of the INA “with respect to convictions obtained by plea agreements reached prior
to a verdict at trial prior to April 1, 1997.” 8 C.F.R. § 1003.44(a).
But relief is available under this section only to aliens “who formerly were lawful permanent
residents, who are subject to an administratively final order of deportation or removal, and who are
eligible to apply” for the former § 212(c) discretionary relief. Id. Section 1003.44(k), however,
precludes the following categories of aliens from eligibility to seek relief under § 212(c):
(1) Aliens who have departed the United States and are currently outside the
United States;
(2) Aliens issued a final order of deportation or removal who then illegally
returned to the United States; or
(3) Aliens who have not been admitted or paroled.
8 C.F.R. § 1003.44(k). The Department of Justice’s comments published with this rule explained
that “the decision to preclude aliens under a deportation or removal order from obtaining section
212(c) relief is grounded in Congress’s intent to limit its availability to those not under deportation
orders.” Section 212(c) Relief for Aliens With Certain Criminal Convictions Before April 1, 1997,
69 Fed. Reg. 57826, 57828 (Sept. 28, 2004).
C. Jurisdiction to hear a special motion to reopen deportation proceedings
Mansour does not dispute that he voluntarily, if unwittingly, entered Mexico in June of 2000,
nor does he contest that during that period of time he was subject to a final order of deportation.
Like the petitioner in Aguilera-Ruiz, who left the United States for only a few hours in order to buy
party supplies in Tijuana, Mexico, Mansour’s departure executed his order of deportation. See
Aguilera-Ruiz, 348 F.3d at 837-38. The BIA therefore did not abuse its discretion in concluding that
because the outstanding deportation order had been executed, it was required to deny Mansour’s
special motion to reopen in light of the fact that “there are no deportation proceedings pending that
can be reopened.” (emphasis added); see also Palma, 14 I.&N. at 487.
Mansour attempts to avoid this result by characterizing his sojourn into Mexico as a “casual,
innocent, and brief departure from the United States” that does not operate as a bar to seeking relief.
This language is taken from the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449
(1963). Fleuti was a legal permanent resident who had been continuously present in the United
States since his arrival, except for one brief trip to Mexico. Id. at 450. The INS attempted to deport
Fleuti because it alleged that he was within a statutorily defined class of excludable aliens at the time
he returned from Mexico. Id. But an alien in Fleuti’s situation could qualify for an exception to the
entry requirements of INA § 101(a)(13), thereby gaining lawful reentry to the United States, if he
could prove that his departure from the United States was not “intended or reasonably to be expected
by him.” Id. at 452. The Court held that “an innocent, casual, and brief excursion by a resident alien
outside this country’s borders may not have been ‘intended’ as a departure disruptive of his resident
alien status and therefore may not subject him to the consequences of an ‘entry’ into the country on
his return.” Id. at 462.
Mansour’s short trip into Mexico might very well have been “innocent, casual, and brief,”
and he presumably did not intend for it to be “disruptive of his resident alien status.” His reliance
No. 05-3674 Mansour v. Gonzales Page 6
on Fleuti, however, is misplaced. Fleuti was simply an excludable alien, not a deportable one.
Mansour, on the other hand, was under a final deportation order. On this point, Mansour’s case is
indistinguishable from Aguilera-Ruiz, where the Ninth Circuit noted the significant difference
between Fleuti and the case before it:
Fleuti’s situation was, however, significantly different from Aguilera-Ruiz’s. While
both were legal permanent residents with a good deal at stake, the alien in Fleuti was
not deportable, just excludable. Aguilera-Ruiz was inadmissible and removable.
Fleuti was not in immigration proceedings when he left the country, whereas
Aguilera-Ruiz was subject to an order of deportation.
Aguilera-Ruiz, 348 F.3d at 837.
Mansour implies that there is some sort of exception in a deportation order for unwitting
departures from the country, but he cites no caselaw, statute, or regulation in support of this
proposition. Fleuti, in short, does not apply to this case. Because Mansour concedes that he
traveled to Mexico, he effectively executed his outstanding deportation order, thus leaving no
deportation proceedings to reopen. See Navarro-Miranda, 330 F.3d at 675 (“[T]he execution of a
removal order resolved any remaining case or controversy between Navarro and the INS.”) The
BIA therefore did not abuse its discretion in concluding that it had no jurisdiction to grant Mansour’s
motion to reopen. See, e.g., id. (affirming the decision of the BIA that deportation “deprived the
[BIA] of any further jurisdiction over motions brought relating to [Navarro’s] removal
proceedings”).
D. Application of 8 C.F.R. § 1003.44(k)(2)
As set forth above, 8 C.F.R. § 1003.44(k) excludes three categories of aliens who would
otherwise be eligible to apply for a special motion to reopen deportation proceedings in order to
pursue discretionary relief via former INA § 212(c). The DHS, in its answer to Mansour’s special
§ 212(c) motion, argued that Mansour was ineligible for this relief under 8 C.F.R. § 1003.44(k)(2),
which excludes from eligibility “[a]liens issued a final order of deportation or removal who then
illegally returned to the United States.” Mansour claims that this section is inapplicable to him
because he did not illegally return to the United States, as is purportedly evidenced by the DHS
allowing him back into the country in 2003.
We disagree. Mansour attempts to create an ambiguity by implying that his parole into the
United States to stand trial for making a false claim of U.S. citizenship renders his entry legal.
Again, however, he cites no caselaw in support of this proposition, and the language of the INA
compels a contrary result. INA § 212(d)(5)(A), 8 U.S.C. § 1182(d)(5)(A), vests the Attorney
General with the power to temporarily parole aliens into the United States on a case-by-case basis,
but also provides that “such parole . . . shall not be regarded as an admission of the alien.” Parole
of an alien into the country for judicial proceedings, as is the case with Mansour, then, is not a
“lawful entry of the alien into the United States.” INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A);
see also Simeonov v. Ashcroft, 371 F.3d 532, 536 (9th Cir. 2004) (holding that an alien paroled into
the United States pending completion of exclusion proceedings did not lawfully enter the United
States and was therefore ineligible for withholding of deportation).
In this case, Mansour was subject to a final order of deportation. He departed for Mexico,
even if for just a short while, and attempted to reenter the United States, at which point he falsely
claimed that he was a U.S. citizen. Mansour was not “admitted” into the United States, but was
paroled into the country to stand trial. He pled guilty to the charge of making a false claim of
citizenship. Section 1003.44(k)(2), which excludes from eligibility for § 212(c) relief those aliens
who are under a final order of deportation and who illegally reenter the United States, thus applies
No. 05-3674 Mansour v. Gonzales Page 7
to Mansour. The BIA therefore correctly concluded that 8 C.F.R. § 1003.44 did not provide
Mansour with any new avenue of relief.
III. CONCLUSION
For all of the reasons set forth above, we DENY the petition for review.