Chong v. Dist Dir INS NJChong v. Dist Dir INS NJ
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- Before:
- Magill, Becker, Rendell
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 00-1428
LEE MOI CHONG, Appellant v. DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION SERVICE, ANDREA QUARANTILLO
On Appeal from the United States District Court for the District of New Jersey (D.C. No. 99-cv-03466) District Judge: William G. Bassler
Argued: December 1, 2000
Before: BECKER, Chief Judge, RENDELL, and MAGILL,* Circuit Judges
(Opinion Filed: September 5, 2001)
Stanley H. Wallenstein, Esq. (Argued) 41-43 Beekman Street 3rd Floor New York, NY 10038 Counsel for Appellant
OPINION OF THE COURT
MAGILL, Senior Circuit Judge.
Lee Moi Chong appeals the District Court‘s denial of her habeas petition seeking relief from a final order of removal by the Board of Immigration Appeals (the “Board“). Chong argues that the Board violated her due process rights, the Immigration and Nationality Act (the “INA“), and Immigration and Naturalization Service (the “INS“) regulations in determining that she is ineligible for withholding of removal. We affirm.
I.
Chong, a Malaysian citizen, became a permanent resident of the United States in 1991. In May 1997, a federal district court convicted Chong of conspiracy to distribute heroin and possession of heroin with intent to distribute, in violation of
Based on Chong‘s drug convictions, the INS commenced removal proceedings. The INS claimed that it could remove Chong because her convictions constituted aggravated felonies and related to a controlled substance. See
Chong subsequently filed a motion with the IJ requesting a hearing to determine her eligibility for withholding of removal. The INA provides that “the Attorney General may not remove an alien to a country if the Attorney General decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
the alien, having been convicted by a final judgment of a particularly serious crime[,] is a danger to the community of the United States. . . . [A]n alien who has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least five years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of the sentence imposed, an alien has been convicted of a particularly serious crime.
After granting Chong a stay of removal, the IJ denied Chong an individualized hearing, reasoning that her drug convictions constitute per se “particularly serious crimes.” The IJ certified his decision to the Board. Subsequently, the Board issued two opinions that hold that determining whether an alien convicted of an aggravated felony and sentenced to less than five years imprisonment has been convicted of a “particularly serious crime” requires an individualized examination of the nature of the conviction, the sentence imposed, and the circumstances and
On July 12, 1998, the Board modified, but affirmed, the IJ‘s decision. The Board held that Chong was ineligible for withholding of removal because she had committed a “particularly serious crime.” The Board noted that although Chong‘s two-year sentence is below the five-year term that the INA requires to be considered a per se “particularly serious crime,” the district court departed from the minimum sentence due to Chong‘s assistance to the government. The Board stated: “This is different from a sentence reduction due to a minor role in the offense or other mitigating factors.” The Board also examined the complaint against Chong and asserted that “over several years, [Chong] handled money derived from selling drugs and arranged telephonic connections for people involved in the conspiracy to promote the distribution of large amounts of heroin.” Alternatively, the Board held that Chong failed to show that a return to Malaysia would threaten her freedom due to her Chinese ethnicity.
Chong then filed a habeas petition in the District Court under
II.
A. Jurisdiction
We initially must examine a number of jurisdictional issues to determine whether we can entertain Chong‘s appeal. First, the Supreme Court recently resolved a circuit split by holding that neither the Antiterrorism and Effective Death Penalty Act of 1996 nor the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 repeal district courts’ jurisdiction to review aliens’ habeas petitions filed under
We acknowledge that we previously have suggested that it is within our discretion to consider a mootness question not raised by the parties. See, e.g., Jersey Cent. Power & Light Co. v. Lacey, 772 F.2d 1103, 1107 n.8 (3d Cir. 1985) (“As mootness is a jurisdictional question, we may consider it sua sponte.“) (emphasis added). However, the Supreme Court has held that courts must decide Article III standing issues, even when not raised by the parties, before turning to the merits. Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 90 (1998) (stating that ” `a court is bound to ask and answer [a jurisdictional question] for itself, even when not otherwise suggested’ “) (citation omitted); see also Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001) (“Although neither party argues that Steele‘s appeal is moot, we are required to raise issues of standing sua sponte if such issues exist.“). Therefore, we proceed to examine whether Chong‘s deportation renders her appeal moot.
Initially, we must address Chong‘s argument that we should entertain her appeal because we previously maintained jurisdiction over a deportee‘s habeas petition in Marrero v. INS, 990 F.2d 772 (3d Cir. 1993). In Marrero, this Court held that it would have jurisdiction to review a deportation order after the alien has been deported if the record revealed a colorable due process claim, despite the since repealed
Under
Even when a litigant is unable to meet the requirements of the general mootness inquiry, the litigant may invoke an exception to the mootness doctrine to gain judicial review. There are four exceptions to the mootness doctrine, so that a court will not dismiss a case as moot if: (1) secondary or “collateral” injuries survive after resolution of the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified class action suit. Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1246 n.6 (3d Cir. 1996). In this case, Chong contends that her petition presents a live case or controversy under the general mootness inquiry. Alternatively, Chong argues that sufficient collateral consequences flow from the Board‘s order of removal so that even though the INS already has deported her, we may entertain her appeal.
In Spencer, the Supreme Court held that insufficient collateral consequences resulted from the petitioner‘s parole revocation to avoid mootness. Id. at 14-17. In so holding, the Court criticized precedent that presumed the existence of collateral consequences and that accepted “the most generalized and hypothetical of consequences as sufficient to avoid mootness.” Id. at 10. In particular, the Court criticized its decision in Sibron v. New York, 392 U.S. 40 (1968), where the Court held that the “mere `possibility’ ” of adverse collateral consequences is sufficient to preclude a finding of mootness. Id. at 55 (citation omitted). Nevertheless, the Spencer Court did not overrule Sibron, instead distinguishing it by noting that although a court may presume collateral consequences in the context of a criminal conviction, the same cannot be said of parole revocation. 523 U.S. at 12.
This Court interpreted Spencer‘s collateral consequences analysis in Steele v. Blackman, where the INS deported the petitioner after he filed a habeas petition seeking reversal of the Board‘s determination that his drug convictions amounted to an aggravated felony. 236 F.3d at 132. In holding that the petitioner “alleged facts sufficient to show a continuing injury and serious collateral consequences,” we stated:
Erroneous conviction of an aggravated felony will have several continuing and serious legal consequences for [the petitioner], including serving as a permanent bar preventing his return to the United States to visit his family. See
8 U.S.C. § 1182(a)(9)(A) (Supp. II 1996)
(imposing a permanent bar on admissibility for aggravated felons). A determination that [the petitioner‘s] conviction did not constitute an aggravated felony would alleviate many of these collateral effects.
We hold that sufficient collateral consequences flow from the Board‘s order of removal to make Chong‘s appeal a live case or controversy under
We recognize that Steele does not necessarily compel our holding because of the different factual scenarios presented. In Steele, the petitioner challenged the Board‘s determination that he committed an aggravated felony. 136 F.3d at 132. The INA bars aggravated felons from entering the United States for ten years.
By contrast, Chong does not contest the Board‘s finding that she committed an aggravated felony. Therefore, the Board‘s unchallenged finding that Chong committed an aggravated felony would bar Chong from reentering the United States. Moreover, if we reversed the Board‘s finding that Chong committed a “particularly serious crime,” it seemingly would be too late for the Attorney General to withhold removal, since Chong already has been deported. Nevertheless, we suppose that, were we to reverse the Board‘s decision, the Attorney General could exercise his discretion and grant “withholding” of removal and allow Chong to reenter the United States. Accordingly, we hold that Chong‘s inability to reenter the United States for ten years after her deportation is a sufficient collateral consequence stemming from the Board‘s order of removal to render Chong‘s petition justiciable under
B. The Merits
Turning to the merits of the appeal, Chong argues that the Board violated (1) her due process rights, (2) the INA, and (3) INS regulations. We address these arguments in turn.
Chong claims that the Board violated her due process rights by not giving her notice that it would decide whether she committed a “particularly serious crime” without remanding to the IJ and by not providing her with an opportunity to be heard on the “particularly serious crime” issue. We review de novo whether the Board violated Chong‘s due process rights. See Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000).
Aliens facing removal are entitled to due process. Chlomos v. United States Dep‘t of Justice, INS, 516 F.2d 310, 313 (3d Cir. 1975). The Supreme Court has observed:
We are dealing here with procedural requirements prescribed for the protection of the alien. Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty--at times a most serious one--cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.
Bridges v. Wixon, 326 U.S. 135, 154 (1945). “The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). Specifically, due process requires that Chong: (1) be entitled to factfinding based on a record produced before the Board and disclosed to her; (2) be allowed to make arguments on her own behalf; and (3) have the right to an individualized determination of her interests. See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).
Chong contends that the Board violated her due process rights by affirming the IJ‘s decision without remanding to the IJ for an individualized hearing. We disagree. An individual‘s due process right to be heard does not ensure a hearing in all contexts, as such a requirement “would grind judicial and administrative gears to a screeching halt.” Elliott v. Kiesewetter, 98 F.3d 47, 60 (3d Cir. 1996).
In this case, Chong received a live hearing before the IJ, at which point she was afforded the opportunity to argue that her drug convictions did not rise to the level of “particularly serious crimes,” and to present evidence to the IJ supporting her position. The IJ created a record of the proceedings, which was then transmitted to the Board for review. In deciding that Chong had committed a “particularly serious crime,” the Board looked at the specific facts of Chong‘s case--engaging in the “individualized determination” that Abdulai requires--rather than blindly following a categorical rule, i.e., that all drug convictions qualify as “particularly serious crimes.” 239 F.3d at 549. Due process requires no more. See id. at 549-50; see also Ladha v. INS, 215 F.3d 889, 903-04 (9th Cir. 2000) (holding that once an alien receives a full and fair hearing in front of an IJ, due process is satisfied).
Holding otherwise would give Chong the proverbial “second bite at the apple.” Once an alien has had a chance to offer evidence and raise arguments on the “particularly serious crime” issue during a removal proceeding, we can see no persuasive reason for requiring that she receive a second hearing on the question. Nor do we think that due process necessitates such a redundant procedural measure.
Chong also argues that the Board violated her due process rights by not giving her the opportunity to submit evidence to the Board. In fact, the Board did not prevent Chong from submitting evidence relevant to the “particularly serious crime” analysis. However, since Chong believed that the Board would remand her case to the IJ for a hearing, Chong did not submit any evidence to the Board. Perhaps the Board should have provided notice to Chong that it would decide the “particularly serious crime” issue without remanding to the IJ, thereby indicating to Chong that she should submit any evidence she wished to be considered. But the Board‘s failure to provide notice to Chong does not constitute a due process violation. Chong had the opportunity to present any evidence concerning the “particularly serious crime” determination to the IJ, and the
2. Did the Board Err in Interpreting the INA?
Chong argues that the Board violated
The INA is silent concerning how the Board should determine whether an alien has committed a “particularly serious crime” when a court has convicted the alien of an aggravated felony for which the court sentenced the alien to less than five years imprisonment. The statute simply notes that the Attorney General is not precluded “from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.”
The Board has explained that when determining whether a crime is “particularly serious,”
consideration of the individual facts and circumstances is appropriate . . . This inquiry does not involve an examination of the respondents’ family or community ties, or the risk of persecution in the alien‘s native country. To make this determination, we look to the conviction records and sentencing information.
Further, we do not engage in a retrial of the alien‘s criminal case or go behind the record of conviction to redetermine the alien‘s innocence or guilt.
In re L-S-, Interim Decision 3386, 1999 WL 219344 (BIA Apr. 16, 1999). As this language demonstrates, In re L-S- simply requires that an individualized examination or determination of the “particularly serious crime” issue be conducted, not that an individualized hearing be held. We conclude that the Board‘s interpretation of
Moreover, we conclude that the Board‘s interpretation of
To the extent that Chong contends that the Board violated its precedent by not conducting an individualized determination of her case, we disagree. In fact, the Board did conduct an independent determination of the facts and circumstances of Chong‘s case. The Board noted that although Chong‘s two-year sentence was below the five-year term that requires an aggravated felony to be considered a per se “particularly serious crime,” the district court departed from the minimum sentence due to Chong‘s assistance to the INS. The Board stated: “This is different from a sentence reduction due to a minor role in the offense or other mitigating factors.” The Board examined the complaint against Chong and asserted that “over
3. Did the Board Violate INS Regulations?
Finally, Chong claims that the Board violated
“[O]ur standard of review is even more deferential when an agency is interpreting a regulation rather than a statute that it administers.” Abdulai, 239 F.3d at 552. An agency‘s interpretation of its own regulation is “controlling . . . unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). The government, although acknowledging that the Notice of Certification did not provide Chong with the notice that
The Board could not have determined that Chong had the opportunity to make representations “before the Board” because at the time the IJ certified his decision, Chong had not submitted any documents to the Board. The INA defines the “Board” as “the Board of Immigration Appeals,” and has a separate definition for “immigration judge.”
However, we hold that to warrant reversal, the
In Waldron v. INS, 17 F.3d 511 (2d Cir. 1994), the Second Circuit rejected the habeas petitioner‘s request to reverse the Board when the IJ did not provide the petitioner with a Notice of Certification under
when a regulation is promulgated to protect a fundamental right derived from the Constitution or a federal statute, and the INS fails to adhere to it, the challenged deportation proceeding is invalid and a remand to the agency is required . . . . On the other hand, where an INS regulation does not affect fundamental rights derived from the Constitution or a federal statute, we believe it is best to invalidate a challenged proceeding only upon a showing of prejudice to the rights sought to be protected by the subject regulation.
17 F.3d at 518.2 The court then turned to decide whether fundamental rights with constitutional or federal statutory origins are implicated by
We agree with the Second Circuit that
Chong argues that the IJ‘s failure to provide her with notice that she could make representations before the Board prejudiced her because, had she been given the opportunity to present evidence to the Board, she would have submitted the Pre-Sentence Investigation Report, which states that Chong was a “minor participant” in the heroin scheme. Additionally, Chong claims that she would have produced several witnesses who would have testified to the basis by which the prosecuting authorities found that she was a minor participant. But since Chong fails to address the Board‘s alternate holding that she does not have a valid claim for withholding of removal, we hold that the
Before the IJ, Chong conceded that her drug convictions constituted aggravated felonies. See
Chong sought to avoid deportation by requesting withholding of removal. The INA prohibits the Attorney General from removing an alien if he “decides that the alien‘s life or freedom would be threatened in that country because of the alien‘s race, religion, nationality, membership in a particular social group, or political opinion.”
Instead, Chong claims that the Board erred in holding that she committed a “particularly serious crime.” But by focusing on the Board‘s determination that she committed a “particularly serious crime,” rather than on the Board‘s holding that her freedom would not be threatened in Malaysia due to her Chinese ethnicity, Chong puts the cart before the horse. Chong must show that the Board erred in determining that her freedom would not be threatened in Malaysia due to her Chinese ethnicity before demonstrating that the exception for aliens who commit “particularly serious crimes” does not pertain to deny her withholding of removal. Thus, even though the IJ violated
III.
We have jurisdiction to hear Chong‘s habeas petition because the Board‘s order of removal creates collateral consequences that render her appeal a live case or controversy under Article III. The Board has not violated Chong‘s due process rights or the INA. Although the IJ did violate INS regulations, this violation did not prejudice Chong. Accordingly, we AFFIRM the District Court‘s denial of Chong‘s petition.
Clerk of the United States Court of Appeals for the Third Circuit