Opinion
Civil Action No: SA-03-CA-1182-XR
December 1, 2003
ORDER
On November 26, 2003, the Applicant Jorge Luis Barrera-Hinojosa ("Applicant") filed an application for writ of habeas corpus and an application for a temporary restraining order ("TRO"). The Applications for Writ of Habeas Corpus and for a TRO are DENIED (Docket No. 1).
Jurisdiction
This Court has jurisdiction to review the Applicant's petition for writ of habeas corpus. 28 U.S.C. § 2241; Cano-Miranda v. Ashcroft, 262 F.3d 477 (5th Cir. 2001).
Procedural History and Background
According to the Petition, the Applicant, a citizen of Mexico, has lived in the United States since he was thirteen years old. The Applicant was first placed in deportation proceedings in 1990 following a 1989 conviction for possession of marijuana. In that proceeding, he filed a waiver of inadmissability under former § 212(c) of the Immigration and Naturalization Act. The waiver in that case was granted. Three years later, he committed a second offense and was convicted of possession with the intent to distribute. He received 22 months in jail and a suspended sentence of three years. The Applicant applied for a second waiver of inadmissability but it was denied based on the finding that the passage of the Antiterrorism and Effective Death Penalty Act of 1996 made him ineligible for § 212(c) relief. The Applicant does not challenge that specific finding. In February of 1997, his probation was revoked due to a positive urinalysis result for cocaine. He completed one year of incarceration and was released and delivered into INS custody.
Since that time the United States Supreme Court decided I.N.S. v. St. Cyr, 121 S.Ct. 2271 (2001), establishing the Applicant's eligibility for § 212(c) relief. An Immigration Judge reopened a merits hearing for a waiver of inadmissability of the Applicant's second conviction on July 16, 2002. Although the Immigration Judge ruled that the Applicant was statutorily eligible to seek § 212(c) relief, he denied the relief on August 16, 2002, based on discretionary factors. This decision was timely appealed to the Board of Immigration Appeals ("BIA") which summarily affirmed the decision on January 6, 2003.
Analysis and Discussion
The Applicant argues that his due process rights were violated when he was not delivered a full and complete transcript of the deportation proceedings from the BIA. He also contends that 8 C.F.R. § 1003.1 (e)(4) was inapplicable to his case and that the BIA had no authority to summarily affirm the Immigration Judge. He argues that 8 C.F.R. § 1003.1(e)(4) only applies when an issue on appeal is "squarely controlled by existing Board or federal court precedent." He argues that because he raised an alleged novel due process argument, his appeal did not fit into this standard.
Was there a due process violation?
The Applicant argues that the BIA violated his due process rights when it did not provide a full transcript of the deportation proceedings. Although a transcript was prepared and delivered to the Applicant, the Applicant's attorney claimed that four (4) pages were missing from the 214 page transcript. The essential requirements of procedural due process under the Constitution are notice and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The Applicant makes no argument that he was denied notice or an opportunity to be heard. Instead, he argues that the BIA violated his rights by refusing to hold the decision in abeyance until a full and complete transcript of the deportation proceedings could be served on him or his counsel. Because the Applicant was represented by counsel, who submitted a brief in support of his appeal, the Court affirms the BIA holding that the Applicant was not prejudiced by the lack of a full transcript. In fact, because this argument was raised at the BIA proceeding, the Court finds that the Applicant received the essential requirements of due process; notice and an opportunity to be heard. See also United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003) ("Fundamental fairness is a question of procedure. Removal hearings are civil proceedings, not criminal; therefore, procedural protections accorded an alien in a removal proceeding are less stringent than those available to a criminal defendant. The Supreme Court has stated that due process requires that an alien who faces deportation be provided (1) notice of the charges against him, (2) a hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard.").
According to the BIA, the transcript contained in the record of proceedings was complete.
Was the opinion properly affirmed without opinion?
The Applicant argues that on January 23, 2003, the BIA improperly relied on 8 C.F.R. § 1003.1 (e)(4) when it summarily affirmed the Immigration Judge's decision. That provision provides that a single Board Member may affirm the decision of an Immigration Judge, without opinion, if the Board Member determines the result reached was correct, that any errors in the decision were harmless or immaterial and that "A) the issues on appeal is squarely controlled by existing . . . precedent; or B) the factual and legal questions raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case." 8 C.F.R. § 1003.1(e)(4)(i)(A) and (B).
The Applicant's denial of § 212(c) relief by the Immigration Judge is not being contested. Instead, the Applicant argues that the Board Member who summarily affirmed the Immigration Judge's opinion did not have that authority. The Applicant argues that the BIA violated the due process clause by not holding its decision in abeyance until he could receive a complete transcript. This argument has no legal basis as was discussed above. The Applicant then seems to argue that because of this novel argument, the BIA could not summarily affirm his denial of § 212(c) relief. However, the Applicant did not raise the due process violation argument at the BIA hearing, rather, he only raised the denial of § 212(c) relief. The denial of § 212(c) relief was based on existing court precedent and was not novel, therefore, the BIA had the authority to summarily affirm the opinion.
The Fifth Circuit has noted that § 212(c) is "`couched in conditional and permissive terms. As a piece of legislative grace, it convey[s] no rights, it confer[s] no status,' and its denial does not implicate the Due Process clause." United States v. Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003).
In addition, although the Applicant argues that the issue must be "squarely controlled by existing Board or federal court precedednt" he ignores the second section which states that a Board Member may summarily affirm the opinion if the "factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion". 8 C.F.R. § 1003.1 (e)(4)(i)(A)-(B). The Applicant asked the BIA to hold its decision in abeyance until he or his attorney could receive a full transcript. The Board considered the implications of this argument and in its opinion held that because the Applicant's counsel submitted a brief in support of his appeal, the alleged error of an incomplete transcript was harmless and/or not substantial. The Applicant's brief, which he provided with this application, clearly set forth the grounds for a reversal of the Immigration Judge and the missing four (4) pages from the 214 page transcript did not prejudice him. Because the Applicant's argument is not novel, and the BIA had authority to summarily affirm the denial of § 212(c) relief, the Applicant's petition for writ of habeas corpus is denied.
Is the Applicant entitled to a Temporary Restraining Order?
The Applicant has also filed an application for a temporary restraining order, claiming that injunctive relief is appropriate because his petition raises a constitutional question. In order for this Court to issue a TRO, the petitioner must establish the following four factors: 1) a substantial likelihood of success on the merits; 2) a substantial threat that failure to grant the injunction will result in irreparable injury; 3) the threatened injury outweighs any damage that the injunction may cause the opposing party; and 4) the injunction will not disserve the public interest. Allied Marketing Group, Inc. v. DCL Marketing, Inc., 878 F.2d 806, 809 (5th Cir. 1989). Because a TRO is an extraordinary remedy, it will be granted only if the movant carries its burden of persuasion on all four factors. Id. The same reasons that support the Court's denial of the Applicant's application for writ of habeas corpus support denial of his application for a temporary restraining order.
Accordingly, the Applicant's motion is DENIED in all respects (Docket No. 1).