Opinion
3-02-CV-1140-I
January 8, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for habeas corpus relief brought pursuant to 28 U.S.C. § 2241.
Statement of the Case: Petitioner, a native and citizen of Vietnam and a permanent resident alien, pled guilty to the offense of burglary of a building in Tarrant County, Texas, on April 26, 1999. Adjudication of guilt was deferred pursuant to art. 42.12 § 5(a), Texas Code of Criminal Procedure, and he was placed on probation for a term of eight years. See Respondent's Appendix at 001-007.
On or about May 7, 1999, Bui was served with a notice to appear, charging that he was removable because he had been convicted of a crime involving moral turpitude. Appendix at 009-012. Following hearings before an Immigration Judge, an order of removal was issued on December 1, 1999. He appealed the order to the Board of Immigration Appeals (BIA) which ultimately denied relief on the merits on April 12, 2002, and his appeal was dismissed. Appendix at 021.
Findings and Conclusions: Petitioner seeks relief from a final order of removal upon his claim that 8 U.S.C. § 1101 (a)(48) is unconstitutional. He asserts four theories in support of his claim. He concedes that the Fifth Circuit's decision in Moosa v. INS, 171 F.3d 994 (5th Cir. 1999), is binding precedent on this court and that its holding recognizes that a deferred adjudication of a criminal charge pursuant to art. 42.12 § 5(a), supra, constitutes a "conviction" under § 1101(a)(48), supra. However, he claims that the result reached in Moosa is inapposite because neither the parties nor the Court addressed the grounds asserted in support of his petition.
Although the Fifth Circuit did not address Petitioner's full faith and credit clause (United States Constitution art. 14, § 1) claim nor his Tenth Amendment claim in Moosa, it is clear that acceptance of either theory would fly in the teeth of the ratio decidendi of its holding, i.e. ". . . in the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law." (Citations omitted). Moosa, 171 F.3d at 1008. See also White v. INS, 17 F.3d 475, 479 (1st Cir. 1994).
The Tenth Amendment has no application to federal immigration law. Congress's legislative power in enacting immigration-related laws is at least as pervasive and encompassing as in any conceivable field. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 1449 (1993).
The two cases that Bui cites to support his full faith and credit clause claim are inapposite. In re Rodriguez-Ruiz, Int. Dec. 3436, 2000 WL 1375514 (BIA 2000) involved an alien who had been convicted in New York state court in which he received a probated sentence. Shortly thereafter the INS issued a notice to appear, charging that he was removable as an aggravated felon. Prior to the Immigration Judge's decision finding Rodriguez to be subject to removal, the convicting state court vacated the conviction and term of probation.
In the case of the alien petitioners addressed in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000), the criminal charges were dismissed and their convictions were expunged prior to disposition by the BIA of their appeals from the adverse decisions of Immigration Judges. Id. at 732-733 Bui's deferred adjudication of the offense of burglary of a habitation, on the other hand, remains outstanding and in full force and effect.
The record before the court shows that Bui's effort to collaterally attack his conviction was denied on November 2, 1999, by the state court in which he was convicted. See Respondent's Appendix at 13, prior to the Immigration Judge's decision rendered on December 1, 1999. Id. at 14-16. Neither side asserts that any subsequent effort to vacate his deferred adjudication has been pursued.
Petitioner's due process argument is without merit and warrants no further discussion.
His final theory under which he seeks a judicial finding that § 1101(a)(48), supra, is unconstitutional is predicated on a claim of denial of equal protection under the Fifth Amendment. As the magistrate judge understands his arguments, Bui's equal protection claim is based on two alternate grounds: (1) the INS should have allowed him to seek a waiver of removal through a repetition by his American citizen spouse and by his re-application for adjustment of status, and (2) that 8 U.S.C. § 1182 (h) does not treat lawful permanent alien residents in the same manner as illegal aliens in the face of the commission of criminal offenses.
It appears that the short answer, which is dispositive of Bui's equal protection argument is that he has no standing to assert this claim since neither he nor his wife sought waiver or readjustment. In an effort to circumvent the standing issue, Petitioner argues that the Immigration Judge was obligated to advise him of the provisions of § 1182(h).See Petitioner's brief filed May 31, 2002, at page 14.
It is clear from the statute, § 1182(h), that Bui is not a person who is entitled to a waiver of removal. His claimed entitlement to such a waiver is premised on the arguments advanced in his brief under his Tenth Amendment claim and the full faith and credit clause argument, which are lacking in merit. The Tenth Circuit aptly noted that: "A deportation hearing is unlike a law school exam; the immigration judge is not required to construct elaborate theories, marshall obscure facts and develop an arguable basis for relief from deportation." Michelson v. INS, 897 F.2d 465, 468 (10th Cir. 1990). These observations are perhaps even more salient in Bui's case, since unlike the alien in Michelson who represented himself before the Immigration Judge, Bui was represented by counsel at four separate hearings held in 1999.
A judge of this court has previously held that an alien similarly situated to Bui was not entitled to relief under § 1182(h). See Rodriguez v. Ashcroft, No. 3-01-CV-1855-R; Order Adopting Magistrate Judge's Findings, Conclusions and Recommendation filed on March 15, 2002. That petitioner's appeal from the adverse judgment entered was dismissed on June 7, 2002, for want of prosecution. No. 02-10437.
Finally, Bui's argument that § 1182(h) is irrational and arbitrary has been rejected by every circuit court which has addressed the issue. See Jankowski-Burczyk v. INS, 291 F.3d 172, 178-81 (2nd Cir. 2002); Moore v. Ashcroft, 251 F.3d 919, 924-26 (11th Cir. 2001); Lara-Ruiz v. INS, 241 F.3d 934, 946-48 (7th Cir. 2001). RECOMMENDATION:
The only contrary reported decision cited by Bui is Song v. INS, 82 F. Supp.2d 1121 (C.D. Cal. 2000). The Ninth Circuit rejected this argument in Finau, 270 F.3d 859, 862-63 (9th Cir. 2001), withdrawn at 277 F.3d 1146 (9th Cir. 2002). His suggestion that one may infer that the court's subsequent withdrawal of its former opinion implies that that court might now agree with the district court's opinion in Song is a matter of sheer speculation since it is clear that the former opinions were withdrawn due to mootness. 277 F.3d 1146.
For the foregoing reasons it is recommended that the District Court deny and dismiss Bui's petition for habeas corpus relief
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.