*1 Petitioner, JOHNSON, Brigette Karin AND IMMIGRATION SERVICE,

NATURALIZATION

Respondent. 91-70112, 91-70563.

Nos. Appeals, States Court

Ninth Circuit. 7,May

Argued and Submitted 29, 1992. July

Decided *2 ALARCON, NORRIS, and

Before: O’SCANNLAIN, Judges. Circuit O’SCANNLAIN, Judge: Circuit are asked to whether violation decide by of the Travel Act an alien can be deportable offense. of a decision seeks review

Johnson Immigration Naturalization and Service (“INS”) ordering deportation. She also to whether the Board of asks us review (“BIA”) in Immigration Appeals erred proceeding reopening to new consider evidence. citizen who emi-

Johnson is German in 1979 grated to the States and resident status. permanent attained later transported an automobile she boyfriend. to for her from Texas California compartment a hidden The car contained transport proceeds used to which was ongoing drug boyfriend’s transac- from her tions. pled guilty to an information “traveling] in in- charged her with with the intention of commerce ...

terstate from the proceeds derived and con- of narcotics distribution unlawful of in violation substances....” trolled Act, 1952.1 Johnson U.S.C. § Mihalia, E. Cindy Cipriani, Marcelle M. in court Okla- the federal district also told Larrabee, Cary, Ames & Gray, N. Peter boyfriend my homa that “believed Cal., petitioner. Diego, for Frye, San money put it going to use car] [the E. Pa- Charles M. McConnell David The court sentenced in from narcotics.” it Litigation, U.S. zar, of Office and a imprisonment years to four D.C., Justice, Washington, for Dept, of sentence $4,000 fine. Six months spondent. institution jail-type to be served in were years one-half by three and followed probation. on, establishment, any ment, carrying Act, or effect The Travel U.S.C. activity, pertinent part: unlawful read in attempts per- performs or foreign and thereafter (a) interstate or travels in Whoever subparagraphs specified any any facility or in interstate form acts or uses commerce mail, commerce, including (3), (2), with in- more foreign (1), be fined not shall $10,000 to— than five imprisoned for not more tent any (1) proceeds unlawful distribute years, or both. activity; or activity” (b) "unlawful in this section As used involving enterprise (1) any means business establish, manage, promote, otherwise substances....” or controlled narcotics on, manage- promotion, carry or facilitate the 1952(b)(1). It is substances." ordered Johnson INS then in interstate com- deported one not be violated when travels why she cause should show proceeds to distribute the The matter was merce with intent this criminal violation. Diego activity. San unlawful from Oklahoma

transferred 1952(a)(1). mo criminal conduct Pursuant to that motion. on Johnson’s *3 of and controlled sub- tion, attorney proof filed her involved narcotics in “travelpng] filed with pled guilty Johnson residence. She California stances. Drug showing, a INS, with the part as of her ... intention interstate commerce (“DEA”) affidavit Agency from proceeds derived Enforcement in greater a extent implicated her to of narcotics and the unlawful distribution ” drug dealing activities. Ul have no boyfriend’s controlled substances.... or Johnson was in timately, concluding June that Johnson hesitancy in was Judge Immigration by an deported relating to a violating dered a law convicted of and National (“U”) under the controlled substance. 1251(a)(11),2due to her Act, ity 8 U.S.C. § argues nevertheless that Johnson Act. of the Travel violation covering general law Act is a the Travel depor- IJ’s order of appealed the Johnson just drug-relat activity than other criminal in Janu- BIA which affirmed to the tation cannot be con and therefore ed conduct peti- April Johnson 1991. ary The mere unpersuaded. We are sidered. reopen proceeding BIA to tioned the Act outlaws other fact the Travel not to waive the decision and to reconsider does not travel of criminal interstate forms fol- appeal This consolidated deportation. cases, also, a appropriate in it is not mean depor- of the BIA’s reaffirmation lowed relating to controlled substances. law petition its denial of order and tation analogize her attempts to also Johnson reopen proceeding.3 an alien was cases con-

situation to where II (concealment) of a felo- misprision victed illegally carrying ny, 18 U.S.C. § A of a felo- during commission firearm a of the argues that violation Johnson 924(c), escaped deporta- yet ny, 18 U.S.C. § predicate properly be a Act cannot Travel INS, Esper v. 557 De tion. Castaneda 8 U.S.C. deportation under offense Carrillo, Cir.1977); Matter F.2d 79 ... 1251(a)(ll) it is not a “law since § (BIA 1978).4 These N Dec. 625 16 & substance.” relating to a controlled distinguishable. Notwith- clearly cases are the un- drug-related nature of standing the specifically Act defines conduct, of conviction offenses derlying “any enter activity as business unlawful mention controlled pertain to nor did not controlled involving narcotics or prise Press, question. Galvan v. in (1988), after the events when Johnson effect U.S.C. 1251 in § 2.8 737, 742-43, 522, 531, L.Ed. S.Ct. 98 U.S. pertinent part: deported, in ordered reads (1954) (“the no post Clause ... has ex facto (including (a) Any United States in the alien Hence, deportation.”). the INS application to shall, crewman) the order of alien an in applied 1251 as effect properly section General, Attorney deported who— be when in effect in 1985 not the 1988 and version criminal act. committed her is, entry any time after hereafter or addict, pursuant been, any jurisdiction to 8 U.S.C. drug or who at We have 3. a narcotic has of, 1105a. § violation or convicted of a has been time violate, regulation of a conspiracy law country State, foreign States or were decided under 4. We note the United cases these (as 1251(a)(ll) defined U.S.C. relating § version of 8 to a controlled substance an earlier 21). all-encompassing in its defini- not as Title which was 802 of section deportation drug as is the current offense though consequences of tion of a related Even Anti-Drug Act of Abuse punishments, a See The version. as be as extreme criminal can deportation proceeding 99-570, 1986 U.S.C.C.A.N. No. and no Pub.L. a civil action Stat.) (codified (100 at 8 as amended applying a problem from post ex facto arises (1988)). immigration occurs change law which in the attorney offered an affida- offense of convic- vit. Johnson’s substances. incriminating expressly relating containing testimony a crime vit tion was for substances, boy- for direct in- garding Johnson’s involvement controlled transaction, not for drug drug dealings sup- in a into evidence to volvement friend’s activity. criminal type other port some her motion to transfer venue of the hearing Diego. to San that violation of Consequently, we hold argues nevertheless the use of the the circumstances the Travel Act under process. affidavit was a due violation deporta- a basis for properly before us points out that was not allowed to She tion under cross-examine the witnesses who testified force the DEA to B in the affidavit or to *4 in- identity of the confidential disclose not argument that she did Johnson’s formant. the Trav specific intent to violate have the Her contention is Act is without merit. el unpersuaded by are Johnson’s We simple reading of the infor by a foreclosed argument. Although hearings are not BIA pled guilty and the mation to which she evidence, governed by strict rules of Bali- guilty plea. to enter her petition she filed INS, 1231, F.2d 1233 Cir. za v. 709 charged that she “trav- The information 1983), procedure is analogy an to court an auto- eled in interstate commerce [in It is appropriate this well-settled case. to contain been modified which had mobile] may “[a]ppellants criminal not that even purpose for the compartment hidden of their seek reversal on the basis own money, with the carrying large amounts evidentiary errors.” States v. Mil proceeds de- intention 1219, 1234(9th Cir.1985)(dam ler, 771 F.2d of nar- the unlawful distribution rived from testimony by defense counsel aging elicited In and substances....” cotics controlled cross). Burgess v. Premier on See also Guilty John- her Petition to Plea Enter (9th Cir.1984)(at 826, Corp., 727 F.2d 834 boyfriend my said: “I believed son may right to raise torney waive client’s in from going put money use it it was eliciting evi by issue of error inadmissible added). (Emphases These ad- narcotics.” dence). specific intent missions suffice establish Act.5 to violate the Travel doc- recently reiterated “[t]he a defendant prevents error trine of invited event, court was re- In the district his complaining of error that was from an testimony pur- and evidence quired to hear Reyes-Alva- v. own fault.” United States taking when to the rules suant federal (9th Cir.1992) (citing rado, 963 F.2d plea. That court could guilty Montecalvo, 545 F.2d United States making guilt “without judgment enter cert, denied, (9th Cir.1976), 431 U.S. 685 satisfy it that there inquiry as shall such (1977)). 229 53 L.Ed.2d 97 S.Ct. plea.” Fed. a factual basis for held that admission 11(f). Reyes-Alvarado, In we court was satisfied That R.Crim.P. post-arrest statement pled guilty and properly had of a co-defendant’s that Johnson for all the error when the was a basis not reversible Bruton that there factual was element,- elements, including by appellant’s intent statement was elicited Act. of the Travel F.2d at a violation 963 attorney. Reyes-Alvarado, appellant’s “tactics back- 1187. When an Ill in- complain of error he he cannot fire[]” have it both “A cannot duced: defendant challenges the IJ’s Johnson further at 1187. ways.” DEA affida- Id. upon a and the BIA’s reliance contrast, guilty INS, pled to an F.2d Lennon v. 527 5. Johnson’s reliance on Act, which does in- (2d Cir.1975) misplaced. offense under The conviction 187 1952; Lennon, clude an intent element. the INS based its deci- Co., visa, Specialty F.2d entry United States v. Gibson based an was on sion to refuse 1974). (9th Cir. element. Id. at without intent British law an NORRIS, Judge, A. Circuit applies greater even WILLIAM reasoning This with proceed litigant in an INS dissenting: a civil force to DEA attorney offered the ing. Johnson’s Board of disagree that the prove connection affidavit deport alien on the basis of Appeals may an pro so that with southern California evidence, simply be- inadmissible otherwise ceeding transferred. would be placed into the cause that evidence complain that heard to cannot later be attorney. by file the alien’s case consid that the INS’s and tactic backfired It was was error. of this affidavit eration proceedings need not follow Deportation and not a violation “fundamentally fair” evidence, gov are rules of traditional but and the BIA to for the IJ process due statutes, regula executive erned federal when John this evidence consider tions, procedural judicially-mandated Baliza, F.2d herself offered it. son Cf. sources of law requirements. All relevant (fundamentally unfair when at 1233-34 should have had clear that Johnson make hearsay affidavit with government offered opportunity to confront witnesses investigate). attempt no to authenticate requires that against her. 8 U.S.C. § IV shall hearings “the alien to examine opportunity have a reasonable the IJ Johnson contends *5 him and to cross- failing depor against to waive witnesses the BIA erred equities of her situation. presented by due to the the tation examine witnesses 1182(c). petitions for She also 242.16. 8 C.F.R. government.” See also reopen her BIA’s refusal to of the review hearsay that state Similarly, we have held to consider new evi deportation proceeding BIA affidavit cannot be such as the ments dence. “fundamen upon if such use is not relied deportation the BIA affirmed IJ’s I.N.S., The F.2d v. tally fair.” Cunanan April January 1991. On decision on I.N.S., Cir.1988); (9th Baliza deporta- petition reopen the in her Cir.1983). 1231, 1233(9th Accord F.2d fol- offered the proceeding, Johnson tion government introduces ingly, when the (1) had that she lowing “new evidence”: attempt does not hearsay statement (2) citizen; that States married United at the de produce the relevant witnesses child; (3) that had a and her husband hesitated to portation hearing, we have not business; they opened had below with instruc remand to the court Act the Travel violation probation for hearsay cannot be that the documents tions however, BIA, early. The was terminated government at unless the relied aware of the birth already been had relevant witnesses. tempts produce the of her and the termination child Johnson’s 1375; Baliza at Cunanan depor- it affirmed the IJ’s probation before Nevertheless, again the BIA tation order. majority nor the government Neither deny- before all four elements considered evidence used argues reopen pro- motion to ing Johnson’s any more case is the court Johnson’s ceeding. hearsay evidence fair than the reliable or that the BIA did are satisfied statute, traditionally we, and the which deciding not to waive its discretion abuse Instead, majority rests content ject. refusing to nor in deportation in this case that the evidence with the fact BIA decision proceeding. reopen attorney, by Johnson’s was introduced reasoning its that John- sets out adequately government. rather than heavy carry her burden did not son case, majori- “outstanding this demonstrating equities” the facts of Given sub- outweigh serious controlled unpersuasive. ty’s would distinction Ayala- she committed. offense stance affidavit into attorney introduced INS, 944 F.2d v. United States Chavez achieving a purpose of file for the limited Cir.1991). 640-41 This venue Diego. change of venue to San the sub- entirely distinct from motion was AFFIRMED. pro- Immigration Appeals sequent Board as have been

ceeding, and should treated Indeed, the administra- by the BIA.

such pro- regulations governing

tive intro- recognize that information

ceedings purpose should not into a file for one

duced example, For purposes. used for other

be pro- and bond proceedings custody

both “separate and as

ceedings must be viewed hearing pro- any deportation

apart from 318(d). See, 8 C.F.R.

ceeding.” e.g., restriction is no identical there

While due to the likely proceedings, this

venue rarely involve proceedings

fact that venue presents This case evidence.

prejudicial pro- a venue in which

the unusual instance prejudicial such evi-

ceeding does involve un- this case is Simply because

dence.

usual, however, us to de- is no reason for regulations, spirit of the

part from the can introduced is that evidence be purposes, and that and limited

for distinct subsequently be it should not

when it is unfettered use.

available for *6 instructions remand with would a “reason- government has made

unless the hearsay declar- produce its effort to

able [ ]

ant,” the BIA reconsid- Cunanan on the reliance

er the case without

affidavit. COONEY, Plaintiff-Appellant,

Donald R. Director, EDWARDS, Regional

C.R. Prisons, et Bureau of Western

al., Defendant-Appellee.

No. 91-35413. Appeals, States Court

Ninth Circuit. *. July 1992

Submitted July Decided per. Cooney, pro R. Donald Atty., Kobbervig, Asst. U.S. D.

Judith Or., defendant-appellee. Portland, * 34(a); Fed.R.App.P. Cir.R. 34-4. 9th unanimously agrees ment. that this case panel argu- oral without appropriate for submission