Salazar-Regino v. Trominski

415 F.3d 436

Laura Estela SALAZAR-REGINO, Petitioner-Appellant, v. E.M. TROMINSKI, District Director, Immigration and Naturalization Service; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Teodulo Cantu-Delgadillo, Petitioner-Appellant, v. E.M. Trominski, District Director, Immigration and Naturalization Service; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Daniel Carrizales-Perez, Petitioner-Appellant, v. Aaron Cabrera, Acting Director, Immigration and Naturalization Service, Acting Director HLG/DO; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Manuel Sandoval-Herrera, Petitioner-Appellant,

Aaron Cabrera, Acting Director, Immigration and Naturalization Service; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Raul Hernandez Pantoja, Petitioner-Appellant, v. Alberto R. Gonzales, Attorney General of the United States; Charles Arendale, Acting Director, Respondents-Appellees.

Jose Martin Oviedo-Sifuentes, Petitioner-Appellant, v. Charles Arendale, Acting Director; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Cesar Lucio, Petitioner-Appellant, Charles Arendale, Acting Director; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Praxedis Rodriguez, Petitioner-Appellant, v. Aaron Cabrera; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

Nohemi Rangel-Rivera, Petitioner-Appellant, v. Aaron Cabrera; Alberto R. Gonzales, Attorney General of the United States, Respondents-Appellees.

No. 03-41492.

United States Court of Appeals, Fifth Circuit.

June 30, 2005.

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Lisa S. Brodyaga (argued), Refugio de Rio Grande, San Benito, TX, Jodilyn Marie Goodwin, Jodi Goodwin Law Office, Harlingen, TX, for Petitioners-Appellants.

Margaret J. Perry, OIL, Paul Fiorino (argued), Civ. Div., Imm. Lit., U.S. Dept. of Justice, Washington, DC, for Respondents-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, SMITH and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The petitioners are lawful permanent resident aliens who pleaded guilty to marihuana possession offenses and received deferred adjudication in state court. Based on their guilty pleas, the government successfully sought their removal from the United States. Although at the time of their guilty pleas the Board of Immigration Appeals ("BIA") interpreted the relevant immigration statutes as not requiring removal for this type of deferred adjudication (or at least as allowing for discretionary relief from removal), the petitioners were found to be removable and ineligible for discretionary relief based on precedent that developed after entry of their pleas. They filed for habeas corpus relief, which was denied by the district court. Finding no error, we affirm.

I.

Laura Estela Salazar-Regino and Nohemi Rangel-Rivera are lawful permanent residents who filed habeas petitions in federal district court regarding findings that they were removable and ineligible for discretionary relief from removal; the habeas petitions were consolidated with seven other similar petitions. The district court denied the petitions, and all the petitioners appealed. Salazar-Regino and Rangel-Rivera's cases were selected as the lead cases for briefing and argument. We examine the facts of each of their cases in turn.

A.

Salazar-Regino pleaded guilty on January 7, 1997, in Texas state court of third-degree-felony possession of a controlled substance (intentional and knowing possession of 5 to 50 pounds of marihuana). It was her first offense, and she received deferred adjudication of guilty and was placed on probation for 10 years. On August 10, 1998, the Immigration and Naturalization Service ("INS")¹ commenced removal proceedings against her on the grounds that she was (1) an alien who has been "convicted" of a controlled substance offense pursuant to 8 U.S.C. § 1227(a)(2)(B)(i),² and (2) an alien who has been "convicted" of an "aggravated felony" pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), namely a "drug trafficking crime" as defined by 8 U.S.C. § 1101(a)(43)(B) and 18 U.S.C. § 924(c).

Salazar-Regino denied deportability and moved to terminate the proceedings, contending she was not "convicted" for immigration purposes under the state first-offender exception created in Matter of Manrique, 1995 WL 314732, 21 I. & N. Dec. 58 (BIA 1995), which held that a first-time state drug offense of simple possession should not be considered a conviction for immigration purposes if the alien would have hypothetically been eligible for treatment under the Federal First Offender Act ("FFOA")³ had he been prosecuted under federal narcotics laws. The immigration judge ("IJ") agreed that Salazar-Regino's deferred adjudication was not a "conviction" and concluded that her crime of drug possession would not be punishable as a felony under federal law, and thereby was not an aggravated felony under Matter of L-G-, 1994 WL 619790, 20 I. & N. Dec. 905 (BIA 1994).

The INS appealed the termination of the removal proceedings, and the BIA reversed, concluding that Salazar-Regino was deportable on either ground. The BIA found that the deferred adjudication did constitute a "conviction" for immigration purposes under the statutory definition of conviction enacted by Congress in 1996, after Manrique but before Salazar-Regino's guilty plea.⁴ The BIA pointed to its conclusion in Matter of Roldan, 1999 WL 126433, 22 I. & N. Dec. 512 (BIA 1999), that the 1996 statutory definition superseded Manrique. Furthermore, the BIA concluded that Salazar-Regino was alternatively removable because her state felony drug-possession crime constituted an "aggravated felony" under United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997) (which held that a state felony drug possession crime constitutes an aggravated felony for federal sentencing purposes), and United States v. Hernandez-Avalos, 251 F.3d 505, 508-10 (5th Cir.2001) (which extended the definition to immigration proceedings and explicitly rejected Matter of L-G-). Salazar-Regino filed a habeas petition in federal district court, challenging the BIA's conclusion. The denial of that petition is the subject of the instant appeal.

B.

Rangel-Rivera pleaded guilty on March 9, 1999, in Texas state court to felony possession of marihuana (between 50 and 2000 pounds) and was granted deferred adjudication. The INS placed her in removal proceedings and charged her with being deportable as an alien convicted of a controlled substances offense. She conceded that she was deportable as charged⁵ and applied for discretionary relief pursuant to 8 U.S.C. § 1229b.⁶ On May 11, 1999, the IJ found that she deserved relief as a matter of discretion.

The INS appealed, and the BIA reversed, concluding that based on intervening precedent since the time of the prior decision, Rangel-Rivera's crime of felony drug possession was an aggravated felony under Matter of Yanez-Garcia, 2002 WL 993589, 23 I. & N. Dec. 390 (BIA 2002), which adopted the construction set forth in Hernandez-Avalos. Because the BIA found that Rangel-Rivera had committed an aggravated felony, it decided that the IJ had abused his discretion by granting discretionary relief. Rangel-Rivera filed a habeas petition in federal district court challenging the BIA's conclusion. Its denial is the subject of the instant appeal.

II.

We review questions of law as to jurisdiction and merits de novo. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir.1999). We review the INS's constructions of the law it administers deferentially, under the test established by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

On reviewing an Agency's construction of a statute it administers, we must perform the well-known two-step inquiry:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Moosa v. INS, 171 F.3d 994, 1005 (5th Cir.1999) (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778).

III.

The INS argues that the district court erred when it held that it (the district court) had jurisdiction over Salazar-Regino's petition. The essence of the INS's argument is that we, as the court of appeals, had jurisdiction to review her appeal from the BIA's decision directly, and her habeas petition should therefore have been dismissed because she failed to exhaust her other available remedies before filing that petition.⁷

A.

In resolving this jurisdictional question, the first issue to address is whether we would have had jurisdiction to review Salazar-Regino's claims on direct appeal. As a threshold matter, 8 U.S.C. § 1252(a)—the statute governing review of final orders of removal—states that review of such orders shall take place in the courts of appeals by means of petitions for direct review. Section 1252(a)(2)(C), however, eliminates jurisdiction to review final orders of removal involving aliens who are deportable for conviction of certain crimes, including controlled substances...