Opinion
No. C 00-00464 CRB
August 24, 2001
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Now before the Court is the petitioner's petition for a writ of habeas corpus seeking a stay of deportation pending his motion to reopen his deportation proceedings before the Board of Immigration Appeals ("BIA"). Having carefully considered the several rounds of briefing filed by the parties, and after clarifying the various issues in a Memorandum and Order for Further Briefing and Evidence ("July 23 Order") filed on July 23, 2001, the petition for a writ of habeas corpus is hereby DENIED.
The issue presented by the petition is whether the BIA abused its discretion by denying the petitioner's request for a stay of deportation. Under pre-IIRIRA law (which applies to the petitioner by virtue of the date on which the United States Immigration and Naturalization Service ("INS") commenced deportation proceedings against him), if the BIA denied the stay for a reason contrary to law, the district court may review that denial and order a stay. See Batoon v. INS, 707 F.2d 399, 401 (9th Cir. 1983).
The Court described the factual and procedural history of this case in some detail in the July 23 Order and need not repeat that history here. This order should be read in conjunction with the July 23 Order.
As outlined in the July 23 Order, the BIA reinstated the decision of an Immigration Judge ("IJ") ordering the petitioner removed on the basis that he was not eligible for relief under former Immigration and Nationality Act ("INA") section 212(c), 8 U.S.C. § 1182(c). The BIA determined that the petitioner was ineligible for such relief since he was deportable as an aggravated felon, despite the INS's failure to charge him with deportability on that ground. The petitioner then filed his motion to reopen his deportation proceedings with the BIA and the present petition for a writ habeas corpus with this Court, contending that he is eligible for relief from his crimes of moral turpitude ground for deportation under section 212(c) and that he is eligible for an adjustment of status to obtain a waiver from his firearms conviction ground for deportation under former INA section 245(a), 8 U.S.C. § 1255(a). See July 23 Order at 2-4. To avoid deportation, the petitioner must demonstrate that he is simultaneously eligible for both types of relief. See Matter of Gabryelsky, 20 I. N. Dec. 750 (BIA 1993) (page numbers unavailable). While the Court determined that the petitioner is eligible to seek a section 212(c) waiver, it requested additional briefing with respect to whether he deserves such relief. The Court also ordered the parties to submit further argument with respect to the petitioner's eligibility for a section 245(a) waiver.
Ultimately, the Court need not consider whether the petitioner deserves a waiver under section 212(c) because he is not eligible for relief under section 245(a). To demonstrate eligibility under section 245(a), the petitioner must: (1) apply for such adjustment; (2) be immediately eligible to receive an immigrant visa at the time his application is filed; (3) be admissible to the United States for permanent residence; and (4) demonstrate that the Attorney General should exercise his discretion to grant relief. See 8 U.S.C. § 1255(a); Henry v. INS, 74 F.3d 1, 4-5 (8th Cir. 1996).
The petitioner did not apply for an adjustment of status until February 9, 2000. At that time, he was no longer immediately eligible to receive an immigrant visa, nor was he admissible to the United States by virtue of his conviction for an aggravated felony. The petitioner's I-130 was terminated as a result of the BIA's 1999 order of deportability. In addition, the petitioner was convicted of an aggravated felony — the assault with a deadly weapon other than a firearm ("the assault conviction") — which renders him inadmissible for permanent residence. See 8 U.S.C. § 1101(a)(43)(F) (defining an aggravated felony as any crime involving a crime of violence as defined in 18 U.S.C. § 16 for which the term of imprisonment is at least one year). The INS's failure to expressly charge the petitioner with deportability as an aggravated felon does not preclude a finding that he is inadmissible, moreover, because the multiple crimes of moral turpitude charge was necessarily based on the assault conviction, which itself qualifies as an aggravated felony. See Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir. 1999) (holding that the INS's failure to explicitly charge an alien with deportability as an aggravated felon did not prevent an order of deportation since the multiple crimes of moral turpitude charge cited a felony that constituted an aggravated felony). The mere fact that an alien committed an aggravated felony is not enough to render him inadmissible if the INS's deportation charge does not cite the felony at all, see id. at 1322-23, but where the INS charges an alien with deportability for multiple crimes of moral turpitude and one of those crimes is an aggravated felony, the INS need not also charge the alien with deportability as an aggravated felon to render the alien inadmissible and thus ineligible for an adjustment of status under section 245(a).
Thus, the BIA's 1999 order was neither an abuse of discretion nor contrary to law, and the IJ's initial decision was proper. Accordingly, the petition for a writ of habeas corpus is DENIED.