Marmolejos v. INS
U.S. Court of Appeals for the First Circuit
Marmolejos v. INS
Opinion
USCA1 Opinion
October 31, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1728
GUARIONEX A. MARMOLEJOS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF FINAL ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
____________________
Guarionex A. Marmolejos on Application for Review of a Final ________________________
Order of Deportation and Memorandum in Support of Motion for Review of
Final Order of Deportation, pro se.
Vernon Benet Miles, Attorney, Office of Immigration Litigation, __________________
Civil Division, U.S. Department of Justice, on Motion for Summary
Dismissal and Motion to Dismiss for Lack of Jurisdiction, for
respondent.
____________________
____________________
Per Curiam. Petitioner, Guarionex A. Marmolejos, __________
petitions for review of a final order of deportation. He
currently is incarcerated pursuant to a state conviction for
drug trafficking offenses. He does not dispute that his
conviction renders him an aggravated felon for purposes of
the Immigration and Nationality Act ("INA"). Petitioner
raises essentially two issues on review.
1. Petitioner contends that the Immigration and
Naturalization Service ("INS") violated his Fifth Amendment
due process rights by delaying both the issuance of the order
to show cause and the scheduling of the deportation hearing.
Specifically, by the time of the hearing -- when petitioner
first indicated his intention to apply for a waiver of
deportation under 212(c), 8 U.S.C. 1182(c) -- he was
ineligible for such relief, having served more than five
years of his sentence.1 Although the show cause order
____________________
1. Section 212(c), in relevant part, provides:
Aliens lawfully admitted for permanent
resident [sic] 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 the provisions of
subsection (a) of this section (other
than paragraphs (3) and (9)(C)) . . . .
The first sentence of this subsection _________________________________________
shall not apply to an alien who has been _________________________________________
convicted of one or more aggravated _________________________________________
felonies and has served for such felony _________________________________________
or felonies a term of imprisonment of at _________________________________________
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issued prior to the five-year cut-off, petitioner maintains _____ __
that had it been issued earlier, he would have been able to
secure legal assistance and make a timely 212(c)
application. Also, petitioner argues that the show cause
order was constitutionally deficient because it never
informed him that there was a time limit for applying for the
waiver.
Before proceeding, we note what is not at stake in ___
this case. Petitioner does not contest that he is
deportable, nor does he dispute that he was ordered deported
only after a hearing which complied with statutory and
regulatory requirements. Petitioner also does not contend
that he never received notice of his right to apply for a
212(c) waiver. Rather, he complains about the timeliness of
the procedures used by the INS in initiating and hearing the
matter of his deportability. With this in mind, we turn to
the merits.
A review of the statutes and regulations reveals
that neither Congress nor the INS has required that a show
cause order should issue in sufficient time to allow an
aggravated felon to apply for a 212(c) waiver or that the
order should include notice of the time limit on 212(c)
eligibility. Although 242(i), 8 U.S.C. 1252(i), directs
____________________
least 5 years. _____________
(Emphasis added).
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the Attorney General to "begin any deportation proceeding as
expeditiously as possible after the date of the conviction,"
Congress has clarified that 242(i) does not create "any
substantive or procedural right or benefit that is legally
enforceable by any party" against the INS. See Immigration ___
and Nationality Technical Corrections Act of 1994, Pub. L.
No. 103-416, 225, 108 Stat. 4305, 4324 (1994). See also ___ ____
Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995) ( 225 makes ______ ___
clear that 242(i) does not place any obligations on the
government). See generally INS v. Miranda, 459 U.S. 14, 18 ___ _________ ___ _______
(1982); Pimental-Romero v. INS, 954 F.2d 564, 564 (1st Cir. _______________ ___
1991).
2. Petitioner's second contention is that his
conviction did not become final for immigration purposes
until the Massachusetts Supreme Judicial Court denied his
request for further appellate review of his conviction.
Because the denial occurred on September 8, 1993, petitioner
argues that the five-year period in 212(c) did not begin to
run until then. Thus, he concludes, he still is eligible to
apply for a 212(c) waiver.
Petitioner is correct that his conviction did not
become final until September 8, 1993. It is settled that "an
alien is not deemed to have been `convicted' of a crime under
the [INA] until his conviction has attained a substantial
degree of finality." Marino v. INS, 537 F.2d 686, 691 (2d ______ ___
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Cir. 1976). This occurs when "direct appellate review of the
conviction has either been exhausted or waived." White v. _____
INS, 17 F.3d 475, 479 (1st Cir. 1994). Here, as petitioner ___
points out, his conviction could only be considered final as
of September 8, 1993. This, however, does not end the
matter.
The last sentence of 212(c) states that an alien
is ineligible to apply for a waiver of deportability if he or
she "has been convicted of one or more aggravated felonies
and has served for such felony or felonies a term of ___
imprisonment of at least 5 years." 8 U.S.C. 1182(c)
(emphasis added). Plainly, two conditions must exist before
an alien is barred from applying for a 212(c) waiver -- his
or her felony conviction must be final for INA purposes and
he or she must have been imprisoned for the felony for five
years.
Thus, the five-year requirement applies to a "term
of imprisonment," not to a "conviction." The ordinary usage
of the phrase "term of imprisonment" refers, we think, to
time actually spent in prison for a particular offense.
Petitioner does not, nor would he for ordinary purposes such
as parole, contend that his "term of imprisonment" only
commenced on September 8, 1993, when the SJC denied the
appeal of his conviction. In sum, the term of imprisonment
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can begin before the conviction is affirmed on appeal and
that is what happened in this case.
It might be a closer question whether the five-year
term should run from the date on which a petitioner was held
for trial and from which he received credit against his term
following conviction. This is not a distinction urged by
petitioner in this case; no plain error is involved; and
given the apparent purpose of the statute, it is at least
doubtful whether petitioner could be granted a waiver since
he has now served more than five years from the date of his
conviction, even if the pre-conviction period is discarded.
Based on the foregoing the motion of the INS for
summary dismissal is granted. See Local Rule 27.1. The _______ ___
motion of petitioner for in forma pauperis status and the
motion of the INS to dismiss for lack of jurisdiction are
denied as moot. ______
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Reference
- Status
- Published