Opinion
No. 3-01-CV-1855-R
February 22, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Antonio Rodriguez has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The application has been referred to United States Magistrate Judge Jeff Kaplan for recommendation pursuant to 28 U.S.C. § 636 (b).
This case was originally assigned to Magistrate Judge Jane J. Boyle. By order dated October 3, 2001, the case was reassigned to Magistrate Judge Jeff Kaplan after Judge Boyle recused herself.
I.
Petitioner is a native and citizen of Mexico. (Resp. App. at 8). On February 19, 1982, petitioner married Frances Abrego, a United States citizen. ( Id. at 2). The couple divorced on May 5, 1983. ( Id. at 3-5). Two months after this divorce was final, petitioner applied for an immigrant visa based on his marriage to Abrego. ( Id. a 7-8). As part of the application, petitioner acknowledged that "any willfully false or misleading statement or willful concealment of material fact made by me herein may subject me to permanent exclusion from the United States and, if I am admitted to the United States, may subject me to criminal prosecution and/or deportation." ( Id. at 8). The application was granted and petitioner became a lawful permanent resident on July 21, 1983. ( Id. at 1).When petitioner applied for naturalization in 1991, he revealed that his marriage to Abrego ended in divorce on May 5, 1983. ( Id. at 16). The INS denied his application for naturalization and initiated deportation proceedings under section 241(a)(1)(A) (B) of the Immigration and Nationality Act ("INA"). ( Id. at 14-16). An immigration judge found that petitioner willfully misrepresented the status of his marriage and his residence in his visa application and ordered him removed to Mexico on September 10, 1993. ( Id. at 20-29). His request for a suspension of deportation was denied. ( Id.). Petitioner appealed this decision to the Board of Immigration Appeals. The Board affirmed. In re Rodriguez-Castillo, No. A38-104-449 (BIA Mar. 16, 2000) Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241.
Section 241(a)(1) of the INA provides, in pertinent part:
An alien . . . in and admitted to the United States shall, upon order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
* * * *
(A) Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable.
(B) Any alien who entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or any other law of the United States is deportable.8 U.S.C. § 1251 (a)(1)(A) (B), now codified at, 8 U.S.C. § 1227 (a)(1)(A) (B). An alien is "inadmissible" if he "by fraud or willfully misrepresenting a material fact, seeks to procure . . . a visa, other documentation, or admission into the United States . . ." 8 U.S.C. § 1182 (a)(19), now codified at 8 U.S.C. § 1182 (a)(6)(C).
The BIA also denied petitioner's application to reopen his application for suspension of deportation. In re Rodriguez-Castillo, No. A38-104-449 (BIA Jul. 13, 2000). An appeal to the Fifth Circuit was dismissed for lack of jurisdiction. Rodriguez v. Ashcroft, No. 00-60562 (5th Cir. May 18, 2001).
II.
Petitioner does not contest the fact that he can be deported based on misrepresentations contained in his visa application. Nor does he challenge the denial of his request for a suspension of deportation. Rather, petitioner maintains that he should have been informed of his eligibility for a "waiver of excludability" under sections 237(a)(1)(H) 212(c) of the INA, 8 U.S.C. § 1251 (a)(1)(H) 1182(c).
A.
Section 237(a)(1)(H) of the INA provided, in pertinent part:
The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens . . . may, in the discretion of the Attorney General, be waived for any alien . . . who —
— is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; . . .8 U.S.C. § 1251 (a)(1)(H), now codified at 8 U.S.C. § 1227 (a)(1)(H). As petitioner concedes, his mother did not become a lawful permanent resident of the United States until 1997 — four years after his deportation hearing. (Pet. Reply at 2). Consequently, petitioner was not eligible for a waiver under this statute.
B.
Petitioner further contends that the immigration judge should have informed him of his eligibility for a waiver of deportation under section 212(c) of the INA. This statute, which was in effect at the time of petitioner's deportation hearing, provided:
Aliens 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). Petitioner maintains that since he entered the United States more than seven years before his deportation hearing, he is eligible for a section 212(c) waiver notwithstanding that his initial entry was procured by fraud or misrepresentation. In support of this argument, petitioner relies on section 241(f) of the INA as interpreted by the Board of Immigration Appeals in Matter of Sosa-Hernandez, 20 I. N. Dec. 758 (BIA 1993).
Although the statute applied literally only to exclusion proceedings, it had been interpreted by the INS to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276, 150 L.Ed.2d 347 (2001), citing Matter of L, 11. N. Dec. 1, 2, 1940 WL 7544 (1940).
The Court initially observes that section 241(f) was repealed in 1990. The most analogous statute in effect at the time of petitioner's deportation hearing provided, in relevant part:
The Attorney General may, in his discretion, waive application of clause (i) of subsection (a)(6)(C) of this section [relating to exclusion of aliens who procured visa or entry into United States by fraud or willful misrepresentation of a material fact] —
— in the case of an immigrant who is the spouse, parent, or son or daughter of a United States citizen or of an immigrant lawfully admitted for permanent residence; . . .8 U.S.C. § 1182(i)(1). Petitioner correctly notes that the effect of this statute is not only to waive deportability, but also to waive the underlying fraud or misrepresentation. See Matter of Sosa Hernandez, 20 I. N. Dec. at 763 (interpreting section 241(f)). However, petitioner conveniently ignores the fact that he was not "the spouse, parent, or son or daughter of a United States citizen or of an immigrant lawfully admitted for permanent residence" at the time of his deportation hearing. As a result, he was not eligible for a section 212(c) waiver through this statute. The immigration judge was not required to advise petitioner of the availability of relief to which he was not entitled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.
SO ORDERED.