Choeum v. INS, 1st Cir. (1997)
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Transcript of Choeum v. INS, 1st Cir. (1997)
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USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
____________________
Nos. 96-1446, 97-1552
RAN CHOEUM,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
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Respondent.
____________________
ON PETITION FOR REVIEW OF FINAL ORDERS OF THE
BOARD OF IMMIGRATION APPEALS
____________________
Before
Torruella, Chief Judge, ___________
Bownes, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Richelle S. Kennedy, with whom Steven W. Hansen and Bingha___________________ ________________ ______
& Gould LLP were on brief, for petitioner. ___________
David V. Bernal, Senior Litigation Counsel, Office of Immi _______________
Litigation, Civil Division, Department of Justice, with whom P _
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McNeill Jones, Assistant Director, and Frank Hunger, As ______________ _____________
Attorney General, Civil Division, Department of Justice,
brief, for respondent.
____________________
November 5, 1997
____________________
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LYNCH, Circuit Judge. The difficulty of wendi LYNCH, Circuit Judge. ______________
through this country's immigration laws -- for the immigran
involved, for the courts, and even for the federal agenci
charged with enforcing the laws -- is illustrated by t
case. For the courts, what is involved is proper
ascertaining congressional intent in light of constitution
guarantees in decision of cases. For this Cambodi
immigrant, Ran Choeum, what is involved is whether she wi
be deported, possibly back to that war-torn land she le
when she was a child. She petitions for review of t
decisions of the Board of Immigration Appeals ("BIA"), o
dated February 9, 1996, denying her applications for asyl
and withholding and for discretionary waiver, and one dat
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April 22, 1997, denying her motions to reopen.
In the interim, the complexity of the immigrati
laws was enhanced by two new statutes. On April 24, 199
the Antiterrorism and Effective Death Penalty Act, Pub.
104-132, 110 Stat. 1214 (1996) ("AEDPA"), was signed in
law. On September 30, 1996, (the same day Choeum moved
reopen before the BIA) the Illegal Immigration Reform a
Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 30
(1996) ("IIRIRA"), was signed into law. Both statut
contain jurisdiction-stripping provisions removing from t
federal circuit courts of appeals their previous jurisdicti
over certain categories of final orders of deportation.
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This case was originally argued on May 9, 1997.
a decision dated July 2, 1997, we upheld the decisions of t
BIA on reasoning which rejected particular arguments by bo
sides. Each party filed petitions for rehearing. T
Immigration and Naturalization Service (INS), in i
rehearing petition, for the first time raised a new argume
that this court lacked jurisdiction to review both of the B
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orders because AEDPA 440(a) precludes jurisdiction o
deportations for "aggravated felonies" under IIRIRA 321.
It would have been vastly preferable, of cours
for the INS to have asserted this jurisdictional argume
initially, and we have some concern about the government
burdening of immigrants with the obligation to respond
new-found statutory interpretations by the INS after a ca
has been heard and decided.1 Nonetheless, because reheari
was timely sought and parties may not waive issues of subje
matter jurisdiction,2 we granted rehearing on particul
issues. We withdraw our earlier opinion and restate in t
opinion those of our earlier conclusions which rema
____________________
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1. In another sense, however, Choeum is the beneficiary
the government's shifting position. Because mandate
never issued, and because Choeum has not been deported duri
the pendency of this appeal, the effect of the government
delay in making its new jurisdictional argument has been
delay Choeum's deportation.
2. See United States v. Baucum, 80 F.3d 539, 541 (D.C. Ci ___ _____________ ______
1996); Michigan Employment Security Comm'n v. Wolverine Ra ___________________________________ ____________
Co., Inc., 930 F.2d 1132, 1137-38 (6th Cir. 1991); Escob _________ ____
Ruiz v. INS, 813 F.2d 283, 286 n.3 (9th Cir. 1987). ____ ___
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pertinent. We conclude that we have jurisdiction to revi
the first decision of the BIA, which requires deportatio
and sustain that decision on its merits. We conclude that
lack jurisdiction over the second BIA decision, denyi
Choeum's petition to reopen.
I.
Ran Choeum, an immigrant from Cambodia, plea
guilty in New York state court to charges of burglary a
kidnapping. The charges stemmed from a crime in whi
Choeum's boyfriend, seeking to settle a family grievanc
murdered two elderly relatives of his sister's fianc
Choeum, who left the scene before the murders took plac
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pleaded guilty to burglary and kidnapping in order to avoi
possible murder conviction under the felony murder rul
While Choeum was in prison, deportation proceedings again
her commenced.
Choeum seeks review of the BIA order of deportati
of April 24, 1996. She argues that AEDPA changes t
standard for determining whether an alien is eligible f
withholding of deportation. She also argues that t
Attorney General's regulation under which her application f
asylum was denied exceeds the authority delegated to t
Attorney General by Congress. Finally, she contends that t
BIA abused its discretion in failing to grant
discretionary relief from deportation. She also petitio
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for review of the BIA's decision of April 22, 1997, denyi
her motion to reopen.
The INS, for its part, argues that, under AEDP
this court lacks jurisdiction to review Choeum's petition
The jurisdictional argument comes in two parts. First, t
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INS argues that this court has no jurisdiction over eit
petition for review because AEDPA 440(a), 8 U.S.C.
1105a(a)(10), removes jurisdiction over deportations f
"aggravated felonies" as that term is more broadly defined
IIRIRA 321(a), 8 U.S.C. 1101(a)(43). In light of t
effective date provided in IIRIRA 321(c), we agree t
there is no jurisdiction over the second petition on t
ground, but the first petition survives this attack. Secon
the INS argues there is still no jurisdiction over the fir
petition for review because she is an alien who has committ
a firearms offense under 8 U.S.C. 1251(a)(2)(C), in t
case, burglary, and AEDPA 440(a) does not permit review
deportations based on such grounds. We hold that judici
review remains available because in the agency deportati
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proceedings, Choeum was charged with deportability based on
on her kidnapping offense, which is a crime of mor
turpitude under 8 U.S.C. 1251(a)(2)(A)(i), and not wit
firearms offense.
We further hold that the INS may not substitu
alternative grounds for deportation at this stage in t
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proceedings, and that its argument fails both as a matter
statutory construction and because it raises due proce
concerns under the Constitution. Therefore, AEDPA does n
deprive this court of jurisdiction to hear Choeum's fir
petition. Choeum's legal arguments, however, while ab
made, do not convince us that the BIA erred in denying Choe
the various forms of relief sought. Accordingly, the BI
decision is affirmed.
II.
Ran Choeum was born in a small Cambodian village
1969. She was one of twelve children; her father was
soldier and her mother supported the family by rice farmin
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In 1973, her father was killed. The Khmer Rouge came
power in the area in 1975, and Choeum's mother, feari
retaliation for her husband's military activities, fled wi
her children to another village. Choeum's mother died
1978 of starvation and illness. In 1979, Choeum's olde
sister brought Choeum and two other sisters, the on
surviving members of the family, to a refugee camp
Thailand; they lived in various camps for the next fi
years.
On March 27, 1985, Choeum and her sisters we
admitted to the United States as refugees; Choeum was lat
granted permanent resident status, retroactive to that dat
The Choeums' sponsors helped them to obtain welfare a
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housing. Choeum, who was fifteen at the time, had never be
to school in Cambodia and spoke no English. Choeum brief
attended high school in Brooklyn, but dropped out when s
became pregnant by her boyfriend, a Cambodian immigrant na
Lak Ling. Choeum's son Wicky was born on January 2, 198
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At Lak Ling's request, Choeum and her son moved
Philadelphia to live with his relatives.
In June 1988, Lak Ling, Choeum and the ba
travelled to New York for Ling's sister's engagement part
When they arrived at Ling's parents' house, they learned t
the sister, who was only fourteen, and her fianc , a twent
eight year old Cambodian man, had disappeared and that t
fianc 's family had not paid the $2,000 dowry owed Lin
family.
The next night, June 5, Choeum went outside to b
ice cream for her son. She saw Ling in a car with thr
Chinese men she did not know. Ling told her to get in t
car, and told her that they were going to get his siste
When they arrived at a large apartment house on Ocean Avenu
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Brooklyn, they all went upstairs and Ling told Choeum
knock on the door of the apartment where Ling's sister
fianc 's parents lived. No one answered. After drivi
around, they returned to the house and the Chinese
knocked on the door. One of the men was carrying a pap
bag.
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This time, the door was opened. The men went i
and Choeum followed. The Chinese men began searching t
apartment, while Ling talked to his sister's fianc
parents. The Chinese men began piling up money and jewelry
the floor in front of the parents. One of the Chinese
brought two young children into the room. Ling instruct
them to tie the children up. Ling assured Choeum that he
just trying to scare the parents into revealing where
sister was. The men brought the children into another roo
took out a knife, cut the telephone cord, and bound t
children with it. One of the children says that Choe
helped tie up the children and put tape on their mout
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According to Choeum, she merely watched, and then she notic
that her boyfriend was holding a gun. Choeum asserts t
she became scared, went back into the other room, and unti
the children; the Immigration Judge, however, did not cre
this testimony. One of the men yelled at her to get out w
he saw her near the children. All four men then screamed
Choeum to leave and wait in the car. She went outside a
waited. When the men returned to the car fifteen minut
later, she asked if anything had happened; Ling assured
that everything was fine. Choeum returned to Ling's parent
house.
The next morning, Choeum was arrested. It was t
that she learned that the two adults at the Ocean Aven
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apartment had been murdered. She was charged with a varie
of crimes, but agreed to cooperate with the police and
help them find Ling. Facing a possible murder convictio
Choeum pleaded guilty to kidnapping in the third degree a
burglary in the first degree, with a three to nine ye
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sentence.
While in prison, Choeum received favorab
performance assessments, particularly from her teachers. S
made rapid progress in English, and came close to achievin
GED despite her complete lack of formal education. Choe
was released in September 1991. She moved to Lowel
Massachusetts to live with her sisters and their childre
She enrolled in job training programs, eventually findin
manufacturing job. The social services professionals
worked with her were impressed by her eagerness to work a
to improve herself.
In 1993, Choeum gave birth to a second son, Davi
David's father left her after she became pregnant and has
contact with his son. Choeum quit her job when she beca
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pregnant with David, and receives welfare and food stamp
Choeum still resides near her sisters in Lowell, and hel
them, as none of the others are proficient in Englis
Choeum's older son, Wicky, lives in Philadelphia with L
Ling's parents, who gained custody of him during Choeu
imprisonment. Choeum does not see Wicky often, but speaks
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him monthly on the phone. Choeum asserts in her most rece
affidavit that she is pregnant with a third child. She al
asserts that, because she fears for their safety, she wou
leave Wicky and David in this country were she to be deport
to Cambodia.
III.
Deportation proceedings were initiated again
Choeum with the issuance of an Order to Show Cause ("OSC")
September 18, 1990. The OSC charged Choeum wi
deportability pursuant to the then-current version of Secti
241(a)(4)3 of the Immigration and Nationality Act ("INA"),
that she had been convicted of a crime of moral turpitu
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committed within five years after entry and sentenced
imprisonment for a year or more. The OSC stated that t
crime of moral turpitude was kidnapping. The OSC did n
refer to Choeum's burglary conviction either in the factu
allegations or in the grounds for deportability.
In her responsive pleadings, filed March 31, 199
Choeum admitted the factual allegations in the OSC a
conceded deportability as charged. She also sought t
opportunity to apply for asylum, withholding of deportatio
and waiver of deportability pursuant to INA 212(c),
U.S.C. 1182(c).
____________________
3. The section has been amended several times since the
the current version of the provision is Secti
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241(a)(2)(A)(i), 8 U.S.C. 1251(a)(2)(A)(i).
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A hearing was held before an Immigration Judge
August 7, 1992. The facts and circumstances of Choeu
crime were fully explored, including through testimony
Choeum's defense attorney. The Immigration Judge denied
applications for asylum under INA 208(a), 8 U.S.C.
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1158(a), and for withholding of deportation under I
243(h), 8 U.S.C. 1253(h), on the grounds that su
applications must be denied if the alien, having be
convicted of a particularly serious crime in the Unit
States, constitutes a danger to the community. T
Immigration Judge found that, based on all the eviden
concerning Choeum's burglary and kidnapping convictions, s
had "in fact been convicted of a particularly serious crime
He noted that the BIA has interpreted the statutory langua
to mean that an alien convicted of a particularly serio
crime necessarily constitutes a danger to the communit
Therefore, he ruled, Choeum was not eligible for asylum
withholding of deportation.
Regarding Choeum's application for a discretiona
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waiver under INA 212(c), the Immigration Judge engaged in
careful balancing of the equities. Going through facto
identified as significant by the BIA, the Immigration Ju
found that Choeum's separation from Wicky and her sisters a
the conditions in Cambodia were significant factors, b
those facts did not overcome the egregious and horrib
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nature of her crime. On this ground, the Judge deni
Choeum's application for discretionary waiver as well.
Choeum appealed the decision to the BIA, argui
that the equities, including the birth of her second chi
after the hearing, warranted an exercise of favorab
discretion under INA 212(c), and that the Immigration Ju
should have made a separate determination that Choeum pose
danger to the community before denying her applications f
asylum and withholding of deportation. In a decision dat
February 9, 1996, the BIA dismissed Choeum's appea
reaffirming its view that an alien who has been convicted
a particularly serious crime necessarily constitutes a dan
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to the community and is ineligible for withholding
deportation and asylum. The BIA further found that t
Immigration Judge gave proper consideration to t
discretionary factors in denying Choeum's request for Secti
212(c) relief.
AEDPA was signed into law on April 24, 199
Choeum's petition for review was filed with this court on
9, 1996. On September 30, 1996, Choeum filed a motion
reopen with the BIA, based on new evidence, particularly t
birth of David and the expectation of a third child, and
the argument that AEDPA 413(f), 8 U.S.C. 1253(h), remo
the bar to withholding of deportation for aliens convicted
particularly serious crimes. The BIA denied Choeum's moti
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to reopen on April 22, 1997, finding that under AE
440(d), Choeum was now statutorily ineligible for I
212(c) relief, and rejecting her interpretation of AE
413(f). Choeum has asked this court to review t
decision as well.
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IV.
A. Jurisdiction: The Effective Date of IIRIRA 321(c) ____________________________________________________
Correctly pointing out that Congress in the IIRI
expanded the definition of "aggravated felonies" a
precluded judicial review over deportations for aggravat
felonies, the INS argues this court lacks jurisdiction o
both petitions. Because we agree that kidnapping, the bas
for the order deporting Choeum is an "aggravated felony,
the decisive question has to do with when this new definiti
became effective and the application of that effective da
to the facts of this case.
IIRIRA 321(c) establishes the "effective dat
after which these definitions of "aggravated felony" a
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binding:
____________________
4. Under IIRIRA 321(a), an "aggravated felony" is "a cri
of violence (as defined in section 16 of Title 18, but n
including a purely political offense) for which the term
imprisonment at least one year." 8 U.S.C. 1101(a)(43)(F).
"crime of violence" is defined as "an offense that has as
element the use, attempted use, or threatened use of physic
force against the person or property of another." 18 U.S.
16(a). Because kidnapping satisfies the terms of 8 U.S.
16(a) and Choeum's term of imprisonment exceeded one yea
Choeum committed an aggravated felony under IIRIRA 321(a).
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The amendments made by this section shall
apply to actions taken on or after the ______________
date of the enactment of this Act,
regardless of when the conviction
occurred . . . .
IIRIRA 321(c) (emphasis added). The IIRIRA was enacted
September 30, 1996, so federal courts may not hear appea
from "actions taken" regarding final orders for deportati
occurring after September 30, 1996 where the basis f
deportation is commission (at any time) of an "aggravat
felony."
IIRIRA 321(c) does not itself define "actio
taken." Neither of the interpretations offered by t
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parties appear appropriate. Choeum argues that the mo
sensible interpretation of "actions taken" is that it refe
to immigration proceedings brought against the immigran
Choeum thus characterizes "actions" in the immigrati
context as analogous to a civil action. Choeum cites Blac
_____
Law Dictionary in support of this proposition, that "actio
should be defined in its "usual sense" as a "lawsuit brou
in court" -- i.e., the filing of the complaint. Under t ____
definition, "actions taken" would refer only to remo
proceedings begun after September 30, 1996, with_____
retroactive application to pending proceedings. The I
began removal proceedings against Choeum in 1990.
The INS argues that "actions taken" means a
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action taken regarding the case constitutes an "acti
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taken." The INS argues that judicial review is such
action. Thus, this court's exercising of jurisdiction o
the matter (by hearing the case in May, 1997), the I
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argues, causes the court to be divested of jurisdiction. T
INS relies for support on a two page, per curiam opinion
Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997), whi ______________ ___
decides that "[b]ecause judicial review by this court wou
be an 'action taken' for purposes of IIRIRA 321(c), we ha
no jurisdiction to hear [petitioner's] appeal." Id. at 73 ___
That court did not explain this statement nor cite
authority. As to the second petition, the INS says that t
court has no jurisdiction because, in any event, the BI
denial of Choeum's motion to reopen her case constitutes
"action taken" after the September 30, 1996 date. We agr
only with the latter argument.
Both sides present untenable definitions in the
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arguments. It is not obvious that "action" in t
immigration context does or should have the same meaning
an "action" in the civil context. The court of appea
review actions by the administrative agency in deportati
cases and Choeum attacks four different actions on revie
Choeum's position assumes there can be only one action, a
that is the initial filing in a matter. The INS's positi
is also flawed: it is unlikely Congress intended the ve
act of exercising jurisdiction to trigger the destruction
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that jurisdiction. If Congress had intended to affect eve
petition pending in a court, there was much clearer langua
available to express such an intent. Neither does it ma
sense that federal jurisdiction should be dependent on when
court schedules a hearing on a particular petition.
example, it seems irrational that a federal court would ha
jurisdiction over a matter if it heard argument on Septemb
29, 1996, but would not have jurisdiction if it postponed t ___ ____
argument until October 1, 1996.
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Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Ci __________________ ___
1997) is the only other opinion we have found that conside
the definition of "actions taken" under IIRIRA 321(c). T
facts are similar to this case. The INS sought to deport
alien because he had committed burglary, a crime of "mor
turpitude;" the INS then argued that AEDPA 440(a) preclu
judicial review of the final order of deportation because t
crime was also an "aggravated felony" under 8 U.S.
1101(a)(43). There was no question that the alien
offense would constitute an "aggravated felony" if t
revised definition were applicable under IIRIRA 321(c
hence the precise issue upon which jurisdiction depended
whether an "action" had been "taken" after September 3
1996.
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The court offered three potential definitions
"actions taken." "Actions taken" could refer to: (l) orde
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and decisions issued against an alien by the Attorney Gener
acting through the BIA or Immigration Judge, (2) steps ta
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by the alien, such as applying for discretionary relief, (
to any action by anyone, including a circuit court. Id.___
856. The court did not consider Choeum's propos
definition: that "actions taken" refers exclusively to t
commencement of deportation proceedings against the alien.
We largely agree with the holding of Valderra ________
Fonseca. The third reading is improbable: it makes no sen _______
that federal jurisdiction should be based on the or
argument calendar. The second definition is plausible,
IIRIRA 309(c)(4)(A) refers to an "action for judici
review," which would be initiated by the client herself. B
we need not decide the issue on the facts of this cas
Choeum filed her first petition for review on May 9, 19
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well before the effective date. The first definition is t
strongest and most sensible: that "actions taken" refers
actions and decisions of the Attorney General. "This ma
logical and practical sense, as 'actions taken' is easi
understood to encompass things done by an agency to
alien." Id. This interpretation is also consistent with___
the word "actions" is used in another section of the I
limiting federal court jurisdictional section of the INA,
U.S.C. 1252(g):
Except as provided in this section and
notwithstanding any other provision of
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law, no court shall have jurisdiction to
hear any cause or claim by or on behalf
of any alien arising from the decision or
action by the Attorney General to
commence proceedings, adjudicate cases,
or execute removal orders against any
alien under this chapter.
We conclude that jurisdiction over Choeum's fir
petition is not removed by virtue of AEDPA 440(a). T
decision of the immigration judge and the BIA's affirman
all occurred prior to October 1, 1996, so the revis
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"aggravated felony" rules in IIRIRA 321(a) do not appl
By the same reasoning, this court does not have jurisdicti ___
over Choeum's second petition, because the BIA's denial
Choeum's motion to reopen occurred on April 22, 1997, whi
is after the October 1, 1996 triggering date f _____
applicability of the "aggravated felony" rules. We dismi
the second petition.
B. Jurisdiction: AEDPAand Basis for BIA's Deportation Or ______________________________________________________
The INS also filed a motion to dismiss with t
court, arguing that Section 440(a) of AEDPA, apart fr
IIRIRA, deprives this court of jurisdiction to hear t
case. That section ousts the jurisdiction of the feder
courts to review the deportation petitions of, among ot
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classes of aliens, aliens deportable by reason of firear
offenses under 8 U.S.C. 1251(a)(2)(C). The INS conten
that Choeum's burglary conviction was such an offens
However, at the deportation proceedings, the INS did n
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assert the burglary offense as a basis for deportatio
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Instead, the INS rested on the kidnapping offense, althou
the INS did not argue that the kidnapping was also a firear
offense. The INS's argument seems to be that because
might have sought to deport Choeum based on her burglar _____
firearms conviction, even though it chose not to do so, t ___
court lacks jurisdiction to review Choeum's deportation bas
upon her kidnapping non-firearms offense because this cou
lacks jurisdiction over a burglary-firearms bas
deportation, even though this was not the basis f
deportation.
Section 440(a) of AEDPA amended Section 106(a)(1
of the INA, 8 U.S.C. 1105a(a)(10),5 to provide that fin
orders of deportation against aliens who are "deportable
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reason of having committed" certain types of crimin
offenses, including firearms offenses, "shall not be subje
to review by any court." AEDPA 440(a), 110 Stat. at 127
77. This provision of AEDPA applies to pending case
____________________
5. Section 106 of the INA, 8 U.S.C. 1105a was repealed
306(b) of the Illegal Immigration Reform and Immigra
Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 300
546 ("IIRIRA"); IIRIRA substitutes new judicial revi
provisions. See IIRIRA 306(a), 8 U.S.C. 1252. Howeve ___
this repeal applies only to final orders of deportation a
motions to reopen filed on or after April 1, 1997. S
IIRIRA 306(c), 309, 110 Stat. at 3009-612, 625, as amen _______
by Pub. L. 104-302, 110 Stat. 3656 (Oct. 11, 1996)(technic __
amendment clarifying that judicial review provisions
IIRIRA are not effective upon enactment). IIRIRA al
provides transitional rules for certain classes of cases, s
infra.
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_____
-19- 19
Kolster v. INS, 101 F.3d 785, 790 (1st Cir. 1996). Un _______ ___
AEDPA, judicial review remains available to aliens who ha
committed other types of offenses, including aliens who ha
been convicted of only one crime of moral turpitude. S
AEDPA 440(a); 8 U.S.C. 1251(a)(2)(A). The INS conten
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that the first degree burglary charge to which Choeum plea
guilty was a firearms offense as defined by Secti
241(a)(2)(C) of the INA, which renders deportable any ali
who "is convicted under any law of . . . using . . . a
weapon . . . which is a firearm . . . in violation of a
law." 8 U.S.C. 1251(a)(2)(C). Therefore, the I
contends, Choeum is "deportable by reason of havi
committed" a firearms offense and Section 440(a) of AE
deprives this court of jurisdiction to hear her petition.
Choeum makes two responses to the INS's argumen
First, Choeum argues that she was not, in fact, convicted
a firearms offense, as her plea colloquy reveals that s
herself did not "use" a handgun.6 Second, Choeum points ou
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____________________
6. Under New York law, a person is guilty of burglary in t
first degree "when he knowingly enters or remains unlawful
in a dwelling with intent to commit a crime therein, and w
in effecting entry or while in the dwelling or in immedia
flight therefrom, he or another participant in the crime: ________________________________
1. Is armed with explosives or a deadly weapon; or
2. Causes physical injury to any person who is not
participant in the crime; or
3. Uses or threatens the immediate use of a dangero
instrument; or
4. Display what appears to be a pistol, revolver, rifl
shotgun, machine gun, or other firearm . . . ."
N.Y. Penal Law 140.30 (emphasis added).
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correctly, that the OSC only referenced the kidnappi
conviction.
It is undisputed that the burglary conviction
not charged as a basis for deportation in the OSC, and t
Choeum's concession of deportability only encompassed t
grounds charged in the OSC, i.e. that she was in fa ____
deportable because the kidnapping conviction was a crime
moral turpitude. The Immigration Judge did, as the I
points out, hear extensive testimony on the nature
Choeum's crime. Notably, however, he did not attempt
determine whether Choeum had used a firearm, because that
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not an issue in the proceedings before him.
The INS's argument is essentially a linguistic on
According to the INS, for purposes of jurisdiction, alie
"deportable by reason of" having committed firearms offens ____
are not only those aliens who have been ordered deported f __________________________
firearms offenses, but also those aliens who could______
deported for that reason. As a matter of statuto
construction, that argument is somewhat illogical: T
contested phrase comes from Section 440(a) of AEDPA,
statutory section solely concerned with final orders
deportation. The section therefore applies, by its ve
terms, only to aliens who have actually been adjud
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____________________
Thus, under New York law, Choeum could be convicted
burglary in the first degree simply by virtue of Ling's u
of the gun.
-21- 21
deportable. It is therefore highly doubtful that, in t
context, Congress meant "deportable by reason of" to mean,
the INS would have it, "potentially susceptible to bei
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deported by reason of . . ."
The reading of the statute that the INS propos
also raises due process concerns. "It is well establis
that the Fifth Amendment entitles aliens to due process
law in deportation proceedings." Reno v. Flores, 507 U. ____ ______
292, 306 (1993). At the core of these due process rights
the right to notice of the nature of the charges and
meaningful opportunity to be heard. See, e.g., Kwong H ___ ____ ______
Chew v. Colding, 344 U.S. 590, 596-98 (1953); Kaczmarczyk____ _______ ___________
INS, 933 F.2d 588, 596 (7th Cir. 1991)(citing cases).___
We do not need to determine what form of noti
would be constitutionally required, because the statutory a
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regulatory scheme under which deportation proceedings a
conducted mandate specific procedures. The INA itse
provides that, in deportation proceedings, written notice
referred to as an order to show cause -- shall be given
the alien specifying, among other things, "[t]he char
against the alien and the statutory provisions alleged to
have been violated." 8 U.S.C. 1252b(a)(1)(D). I
regulations permit the INS to lodge additional charges
deportability "at any time during a hearing" before
Immigration Judge, but specifically state that these char
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must be submitted in writing for service on the alien and f
entry into the record, that the Immigration Judge shall re
the additional charges to the alien and explain them to he
and that the alien may have a reasonable time, includi
requesting a continuance, to respond to additional charge
8 C.F.R. 242.16(d). It is undisputed that the INS did no
at any time, reopen deportation proceedings to comply wi
these statutory and regulatory formalities.
In United States v. Hirsch, 308 F.2d 562 (9th Ci
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_____________ ______
1962), the BIA had ordered petitioner deported on the bas
of crimes which were admitted into evidence at
deportation hearing, but which were never added to the INS
charge against him. The court found that this procedure n
only violated INS regulations similar to the ones discuss
above, but also contravened basic notions of procedural
process:
[A]t all pertinent times, petitioner was
entitled to a statement of the charges
against him, to a hearing of those
charges, and to answer them.
Procedural due process requires no
less, and such due process is required in
such a hearing. We have frequently
commented upon the severity of the remedy
of deportation, with the consequent
requirement that prescribed procedures
must be followed for the protection of
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the alien. Surely being advised of the
charges upon which the proceeding is
based is fundamental to due process.
Id. at 566-67 (internal citations omitted). ___
-23- 23
Here the INS is not actually attempting to depo
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the petitioner on uncharged grounds, but rather usi
uncharged grounds to cut off judicial review. However, t
court has found that even arguably lesser deprivations
notice and the opportunity to be heard "ran afoul
petitioner's procedural rights." Gebremicheal v. INS,____________ ___
F.3d 28, 39 (1st Cir. 1993) (holding that BIA could not re
on extra-record facts concerning human rights in Ethiop
without affording petitioner an opportunity to respond).
these circumstances, where the word "deportable" has
meaning that the context makes plain, and the INS asks us
choose a different interpretation, we are influenced by t
maxim of statutory construction that tells us to interpr
statutes so as to avoid constitutional concerns. See, e. ___ __
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Frisby v. Schultz, 487 U.S. 474, 483 (1988); United States______ _______ _____________
Three Juveniles, 61 F.3d 86, 90 (1st Cir. 1995).________________
therefore reject the INS's suggested interpretation
Section 440(a)'s use of "deportable by reason of."
The INS suggests that this court can make t
necessary determination that Choeum's offense was a firear
offense, implying that briefing and argument before t
court provide sufficient notice. The INS points out that
Kolster, we termed deportability "a largely mechanic _______
determination based on facts that can often be objective
ascertained." 101 F.3d at 789. That description, of cours
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assumes that the necessary facts will be before the decisi
maker. Use of a firearm not being an issue in t
proceedings below, the record before this court cannot
considered complete and the INS argument fails on pragmat
grounds.7 More importantly, it is not the institutional ro
of this court to serve as a factfinding body on issues
first impression.
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We hold that the INS cannot, consistent with
process and the statutory and regulatory requiremen
governing its own proceedings, substitute new grounds f
deportation at this stage in the proceedings, solely for t
purposes of depriving the federal courts of jurisdiction
____________________
7. The INS draws our attention to Yang v. INS, 109 F.3d 11 ____ ___
(7th Cir. 1997). In that case, petitioner contested t
administrative finding that he was deportable by reason
having committed certain crimes, crimes which would ren
him ineligible, under AEDPA, for judicial review of
deportation order. The Seventh Circuit asserted that
court has jurisdiction to determine whether it
jurisdiction" and reviewed the record to see if the law
been properly applied to petitioner's case. Id. at 119 ___
That situation, where the court reviews the administrati
record to determine if the law has been correctly applied
petitioner's case, is not analogous to the situation her
where the question to be answered was not addressed in t
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proceedings below.
8. To the extent that Abdel-Razek v. INS, 114 F.3d 831 (9 ___________ ___
Cir. 1997), takes a different position on this issue, we fi
it unpersuasive. But we do not believe that Abdel-Raz ________
really conflicts with our conclusion. Abdel-Razek, a ___________
Mendez-Morales v. INS, 119 F.3d 738 (9th Cir. 1997), whi ______________ ___
the INS also cites, both involve aliens who had committe
single crime which was the sole basis for their respecti
deportations, and the issue was whether the INS cou
substitute one ground for deportation, i.e., commission of____
crime of moral turpitude, for another, i.e., an aggravat ____
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We therefore need not determine whether or not Choeu
conviction for burglary in the first degree constitutes
firearms offense. We turn to Choeum's claims of legal erro
based on the grounds on which the INS actually proceeded.
V.
Choeum appeals the February 9, 1996 denial of
applications for three separate types of relief fr
deportation: (1) withholding of deportation under Secti
243(h) of the INA, 8 U.S.C. 1253(h); (2) asylum under
U.S.C. 1158;9 and (3) discretionary waiver of deportabili
under Section 212(c) of the INA, 8 U.S.C. 1182(c).10
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address each of these claims in turn.
____________________
felony. This a different situation than we have in t
present case, where Choeum had committed two differe
crimes, and the INS wishes to use one crime as the basis f
deportation but then the other crime as the basis for denyi
_____
this court jurisdiction. By citing Abdel-Razek as authori ___________
that opposes this conclusion, the INS confuses the le
grounds for deportation with its underlying factual basis.
9. Withholding of deportation and asylum are similar in t
both offer relief from deportation based on the likelihood
persecution in the alien's home country. Asylum requires
greater showing than withholding, and carries with it t
entitlement to become a lawful permanent resident, a
eventually a citizen. Withholding, on the other hand, do
not give the alien the automatic right to remain in t
United States; the alien may still be deported to a thi
country in which she would not face persecution. See INS___ ___
Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987).
_______________
10. Section 212(c), by its express terms, permits t
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Attorney General to waive the exclusion of otherwi
excludable aliens; a longstanding interpretation extends t
discretionary authority to the waiver of deportatio
Kolster, 101 F.3d at 787.
_______
-26- 26
A. Withholding of Deportation _____________________________
Choeum's argument with regard to withholding
deportation again requires us to consider the effect
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AEDPA's amendments to the immigration laws. Secti
243(h)(1) of the INA, 8 U.S.C. 1253(h)(1), provides that:
The Attorney General shall not deport or
return any alien . . . to a country if
the Attorney General determines that such
alien's life or freedom would be
threatened in such country on account of
race, religion, nationality, membership
in a particular social group, or
political opinion.
An alien who meets this standard of eligibility, and who do
not fall under a statutory exception, is entitled________
withholding of deportation; the Attorney General does n
have discretion in Section 243(h) proceedings. Cardoz _____
Fonseca, 480 U.S. at 429. However, Section 243(h)(2) do _______
enumerate several classes of aliens to whom Section 243(h)(
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does not apply. 8 U.S.C. 1253(h)(2). One such excepti
is where "the alien, having been convicted by a fin
judgment of a particularly serious crime, constitutes
danger to the community of the United States." 8 U.S.C.
1253(h)(2)(B)("the Particularly Serious Crime Exception").
The BIA has interpreted this exception to requi
only a determination of whether an alien's crime
"particularly serious"; according to the BIA, an ali
convicted of a particularly serious crime necessari
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constitutes a danger to the community. See, e.g., Matter___ ____ ______
K-, 20 I. & N. Dec. 418, 1991 WL 353530, *3 (BIA Nov.__
1991); Matter of Carballe, 19 I. & N. Dec. 357, 360 (B __________________
1986)("The phrase 'danger to the community' is an aid
defining 'particularly serious crime,' not a mandate t
administrative agencies or the courts determine whether
alien will become a recidivist."). This court, whi
acknowledging that there is "considerable logical force"
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the argument that the Particularly Serious Crime Excepti
requires a separate determination of dangerousness to t
community, has upheld the agency's interpretation un
Chevron U.S.A., Inc. v. Natural Resources Defense Counci _____________________ ________________________________
Inc., 467 U.S. 837 (1984). See Mosquera-Perez v. INS, 3 F. ____ ___ ______________ ___
553 (1st Cir. 1993).
The Immigration Judge here made a specific findi
that Choeum's crime was a particularly serious one, and the
applying the BIA interpretation of the Exception, determin
that Choeum was ineligible for withholding of deportatio
The BIA similarly rejected Choeum's argument that she
entitled to a separate determination of whether she poses
danger to the community. Were it not for AEDPA, that, un
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Mosquera-Perez, would be the end of it. ______________
However, in Section 413(f) of AEDPA, Congre
amended Section 243(h) of the INA to include a new subsecti
(h)(3). The new provision states, in relevant part:
-28- 28
Notwithstanding any other provision of
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law, paragraph (1) [the withholding
provision] shall apply to any alien if
the Attorney General determines, in the
discretion of the Attorney General, that
. . .
(B) the application of paragraph (1) to
such alien is necessary to ensure
compliance with the 1967 United Nations
Protocol Relating to the Status of
Refugees.
8 U.S.C. 1253(h)(3).
Choeum argues that, by directing that t
withholding provisions be applied so as to "ensu
compliance" with the 1967 United Nations Protocol Relating
the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 65
(the "Protocol"), "not withstanding any other provision
law," Congress incorporated the Protocol into United Stat
statutory law. The Protocol, Choeum argues, requires
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separate, individualized determination that the alien
currently a danger to the community. Thus, according_________
Choeum, Section 413(f) of AEDPA expressed a congression
intent to reject the BIA's rulings that Section 243(h)(
requires only a determination that the alien has be
convicted of a particularly serious crime.11
____________________
11. The INS initially argued that Section 413(f) of AE
did not apply to Choeum's case, as AEDPA Section 413(
instructed that the amendments made by Section 413(f) shou
apply only to those applications on which final action
not been taken before the date of AEDPA's enactment, i. _
April 30, 1996. See AEDPA 413(g), 110 Stat. 1269-70. T ___
BIA denied Choeum's application for withholding on Februa
9, 1996; the INS argued that this - not judicial revie
constituted "final action" on Choeum's application, and t
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29
The Protocol binds its signatories to complian
with the substantive provisions of the 1951 United Natio
Convention Relating to the Status of Refugees, 189 U.N.T.
150, 176 (1954), 19 U.S.T. 6259, 6278, T.I.A.S. No. 65
(1968) (the "Convention"). Article 33.1 of the Conventi
prohibits the "refoulement" -- the forced return
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expulsion -- of a refugee to territories where his life
freedom would be threatened on account of his race, religio
nationality, membership in a particular social group,
political opinion. Art. 33.1, 19 U.S.T. at 6276. Artic
33.2 of the Convention provides an exception to t
principle of "nonrefoulement":
The benefit of the present provision may
not, however, be claimed by a refugee for
whom there are reasonable grounds for
regarding as a danger to the security of
the country in which he is, or who, ____
having been convicted by a final judgment _________________________________________
of a particularly serious crime,
_________________________________________
constitutes a danger to the community of _________________________________________
that country. ____________
Art. 33.2, 19 U.S.T. at 6276(emphasis added).
The United States statutory law on withholdin
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including the Particularly Serious Crime Exception, t
closely mirrors the language of the Convention. (This is n
surprising, as Congress, when it enacted the releva
provisions of Section 243(h) in 1980, specifically inten
____________________
Section 413(f) was therefore inapplicable to Choeum's cas
We need not decide whether the INS's interpretation
"final action" is the correct one.
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to bring United States refugee law into conformance with t
Protocol. See Cardoza-Fonseca, 480 U.S. at 436-37; Mosquer ___ _______________ ______
Perez, 3 F.3d at 556.) As the express terms of t _____
Convention do not differ from those of the United State
Particularly Serious Crime Exception, the explicit referen
to the Protocol in AEDPA's Section 413(f) would not appear
modify that Exception.
Choeum argues, however, that Section 413(
expresses a congressional intent to incorporate the Unit
Nations' interpretation of the Protocol's withholdi
provisions into United States immigration law. She refe
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this court to an advisory opinion on AEDPA issued
Representative Anne Willem Bijleveld of the United Natio
High Commissioner for Refugees ("UNHCR") to the Americ
Immigration Lawyers Association, and to the UNHCR Handbook________
Procedures and Criteria for Determining Refugee Stat __________________________________________________________
(1979)("UNHCR Handbook").
Mr. Bijleveld's opinion takes the position that t
Protocol requires a signatory state to make a separa
determination that the refugee it seeks to expel is a dan
to the community. The UNHCR Handbook, for its part, does n
unambiguously support Choeum's position. The UNHCR Handboo
while requiring an individualized determination of t
applicability of Article 33.2's exclusion clause, focusses
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the definition of "serious non-political crime" and does n
-31- 31
explicitly require a separate dangerousness determinatio
See UNHCR Handbook, supra, 154-57, at 36-37. ___ _____
The INS, in contrast, points this court to Matt ___
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of Q-T-M-T-, Interim Dec. 3300, 1996 WL 784581, *16 (BIA De ___________
21, 1996). In Matter of Q-T-M-T-, the BIA held that Secti ___________________
413(f) of AEDPA did not require a separate dangerousne
determination:
[W]e have consistently held that neither
the Convention and Protocol nor section
243(h)(2)(B) of the Act requires a
separate "dangerousness" determination
"focusing on the likelihood of future
misconduct on the part of the alien." . .
. [E]very reviewing court reaching this
issue has sustained our prior holding in
this regard. Indeed, in 1995, the
Attorney General issued a regulation
adopting this construction of section
243(h)(2)(B). 8 C.F.R.
208.16(c)(2)(ii)(1995). Moreover, there
is nothing in the legislative history of
either the AEDPA or the IIRIRA suggesting
that Congress had any intent to override
this well-settled construction of the
law. And, particularly in enacting the
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IIRIRA, Congress reflected its ability to
clearly address and override Board and
judicial constructions of the law which
it deemed erroneous. Thus, we do not
find our ruling on this issue [to be]
affected by section 243(h)(3) of the Act.
Id.___
The INS further argues that the reason for enacti
Section 413(f) was that AEDPA expanded the definition
"aggravated felony" to include crimes that might
considered less serious than those the Protocol intended
cover in its exclusion clause. Section 243(h)(2) of the I
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8 U.S.C. 1253(h)(2), expressly states that, for withholdi
purposes, "an alien convicted of an aggravated felony sha
be considered to have committed a particularly serio
crime." The INS contends that AEDPA Section 413(f) was t
intended to preserve the Attorney General's flexibility
assessing whether crimes now defined as aggravated feloni
were, in fact, "particularly serious" within the meaning
the Protocol.
In interpreting Section 413(f) of AEDPA, we mu
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first determine if the statutory language makes the intent
Congress clear and unambiguous; if the statute is ambiguou
we give deference to the BIA's interpretation of t
immigration laws, unless that interpretation is arbitrar
capricious, or contrary to the statute. Chevron, 467 U.S.________
842-45 (1984); Mosquera-Perez, 3 F.3d at 554. ______________
The plain language of Section 413(f) is not ve
illuminating. It directs the Attorney General to ensu
compliance with the Protocol, yet as noted, the language
the Protocol's withholding provisions has already be
codified as United States statutory law. Section 413(f) t
appears, at first glance, to be surplusage. The legislati
history of AEDPA is similarly unhelpful.
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The import of Section 413(f) is thus ambiguous, a
we turn to the agency interpretation. The reasoning behi
the BIA's interpretation is fairly persuasive. Congress
-33- 33
presumed to be aware of the BIA's longstanding constructi
of the Particularly Serious Crime Exception. See Mosquer ___ ______
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Perez, 3 F.3d at 559. If Section 413(f) of AEDPA were mea _____
to correct that construction, Congress certainly would ha
done so in a less oblique fashion. We also note that Secti
413 of AEDPA, as a whole, is entitled "Denial of Other Reli
to Alien Terrorists," and that the legislation shows few,
any, indications of having intended to expand the rights______
criminal aliens. In this context, the INS's explanation
why Section 413(f) was enacted is certainly a reasonable on
In turn, Choeum's arguments are unpersuasive.
noted, the UNHCR Handbook does not unambiguously support
interpretation of the Protocol. Moreover, the Supreme Cour
while acknowledging that the UNHCR Handbook is "useful
giving content to the obligations that the Protoc
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establishes," expressly disclaimed the suggestion that t
Handbook had "the force of law or in any way binds the INS
Cardoza-Fonseca, 480 U.S. at 439 n.22._______________
In this context, where the statute is ambiguou
and the BIA has offered a reasonable interpretation of i
provisions, it would be improper for this court to substitu
the advisory opinion of an international body for t
reasoned judgment of the domestic administrative agency wi
primary responsibility for administering the statut
Accordingly, we find that the interpretation of Secti
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243(h)(2)(B) and Section 243(h)(3) adopted by the BIA is n
unreasonable, arbitrary, or capricious. Consequently,
separate inquiry into Choeum's dangerousness to the communi
was not required. See Mosquera-Perez, 3 F.3d at 559. Choe ___ ______________
was not eligible for withholding of deportation.
B. Asylum _________
Choeum next argues that the regulation under whi
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she was deemed ineligible for asylum exceeds the authori
delegated to the Attorney General by Congress.
An INS regulation provides that: "An applicati
for asylum shall be denied if . . . [t]he alien, having be
convicted by a final judgment of a particularly serious cri
in the United States, constitutes a danger to the community
. . ." 8 C.F.R. 208.14(d)(1).12 This regulation
promulgated pursuant to then-current Section 208(a) of t
INA, 8 U.S.C. 1158(a),13 which provided:
The Attorney General shall establish a
procedure for an alien . . . to apply for
asylum, and the alien may be granted
asylum in the discretion of the Attorney
____________________
12. 8 C.F.R. 208.14(d) previously appeared at 8 C.F.R.
208.14(c), and is referred to by its former designation
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the administrative proceedings in this case, and in the cas
discussed herein.
13. Section 604 of IIRIRA, "Asylum Reform," substantial
amends Section 208 of the INA, 8 U.S.C. 1158. Howeve
Section 604 of IIRIRA applies only to applications for asyl
filed on or after April 1, 1997. See IIRIRA 604(c), 1 ___
Stat. 3009-694. References in this opinion are to t
earlier version of 8 U.S.C. 1158, which may be found at
U.S.C.A. 1158 (West 1996).
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General if the Attorney General
determines that such alien is a refugee
within the meaning of . . . this title.
Choeum points out that, in 1990, the same year t
the challenged regulation was adopted, Congress enacted w
was then 8 U.S.C. 1158(d), which provided that "[a]n ali
who has been convicted of an aggravated felony . . . may n
apply for or be granted asylum." 8 U.S.C. 1158(d). Choe
argues that, by negative implication, Congress did not inte
a similar per se bar for aliens convicted of particular ___ __
serious crimes, and that the Attorney General exceeded t
authority delegated by Congress in barring a larger class
aliens than that barred by statute.
The statute expressly conferred broad authority
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the Attorney General to "establish a procedure" for asyl
applications, and the granting of asylum is explicitly le
to the Attorney General's discretion. Under Chevron, whe _______
Congress "explicitly left a gap for the agency to fill," a
where there is thus "an express delegation of authority
the agency to elucidate a specific provision of the statu
by regulation," we should uphold a gap-filling regulati
unless it is "arbitrary, capricious, or manifestly contra
to the statute." Chevron, 467 U.S. at 843-44. _______
The Attorney General's determination that alie
convicted of particularly serious crimes should be ineligib
for asylum is not unreasonable. Applying Chevron, we do n _______
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find that the regulation exceeds the broad grant of authori
conferred by the enabling statute. Accordingly, Choeu
application for asylum was properly denied. We note that t
two other circuits to have considered the argument made he
by Choeum have also upheld the regulation. See Ahmetovic
___ _________
INS, 62 F.3d 48, 51 (2d Cir. 1995)(finding that Congress
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___
not intend to limit agency's power to impose a hig
standard on asylum seekers); Komarenko v. INS, 35 F.3d 43 _________ ___
436 (9th Cir. 1994)(noting similarity of asylum regulation
statutory withholding provisions for aliens who ha
committed particularly serious crimes).14
C. 212(c) Waiver ________________
Choeum also argues that the BIA abused i
discretion in denying her application for a waiver
deportation under Section 212(c) of the INA, 8 U.S.C.
1182(c).
The BIA denied Choeum's application for Secti
212(c) relief twice, first when affirming the Immigrati
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Judge's decision and again when denying Choeum's motion
reopen. We consider only the first of these denials. See__
U.S.C. 1105a(a)(6)("[W]henever a petitioner seeks review
____________________
14. We also note that, in the asylum provisions of IIRI
Congress has made aliens who have been convicted
particularly serious crimes ineligible for asylum, a
explicitly stated that the Attorney General may provide,__________
regulation, additional limitations and conditions on t
consideration of an application for asylum. See 8 U.S.C.___
1158(b)(2)(A)(ii); 1158(d)(5)(B) (1997 version).
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an order under this section, any review sought with respe
to a motion to reopen or reconsider such an order shall
consolidated with the review of the order.").15
We only have jurisdiction to review the BI
initial denial of Section 212(c) relief. Relief un
Section 212(c) is discretionary, and review by this court
for abuse of discretion. See, e.g., Hazzard v. INS, 951 F. ___ ____ _______ ___
435, 438 (1st Cir. 1991). We will uphold such a deni
unless it was made "without a rational explanatio
inexplicably departed from established policies, or rested
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an impermissible basis." Id.___
Here, the BIA found that the Immigration Ju
"gave proper consideration to the discretionary factors."
agree, and can find no abuse of discretion. Choeum's cri
was, as the Immigration Judge found, profoundly disturbin
Choeum argues that the Immigration Judge improper
determined that she showed little remorse. However, t
Immigration Judge observed her demeanor and heard
testimony. This finding essentially turns on Choeu
credibility and does not provide a basis to overrule the BI
Choeum also argues that the Immigration Judge improper
emphasized her reliance on welfare, by failing to consi
____________________
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15. As noted, IIRIRA repealed 8 U.S.C. 1105a. See sup ___ __
note 2. IIRIRA does adopt a consolidation provision that
substantially similar to the old provision. See IIRIRA___
306(a)(2) (current 8 U.S.C. 1252(b)(6)).
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the circumstances that have made it difficult for her
work. Many of these circumstances are of Choeum's o
making. Moreover, many, if not most immigrants, fa
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language and educational barriers that make findi
employment challenging.
Choeum's only argument of substance is that,
affirming the decision of the Immigration Judge "based up
and for the reasons set forth in that decision," the B
apparently did not consider the new evidence of the pos
hearing birth of her son David. The INS replies that the B
is an appellate body and that Choeum failed to comply wi
the proper procedure for presenting new evidence, which is
move to reopen proceedings before the Immigration Judge, s
8 C.F.R. 3.2.
While the BIA may, in its discretion, consider n
evidence presented for the first time on appeal, it
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certainly appropriate for the BIA to insist on complian
with the proper procedures. Fair proceedings are be
assured through proper entry into the record of all releva
evidence, and through the ability of the factfinder to si
that evidence. The BIA has given notice, in earli
decisions, that it may refuse to consider new evidence t
is not part of the record before the Immigration Judge. Se _
e.g., Matter of C-, 20 I. & N. Dec. 529, 1992 WL 200361,____ ____________
(BIA May 28, 1992). In these circumstances, the BI
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insistence that the procedural formalities be observed cann
be considered an abuse of discretion.16
Accordingly, the decisions of the BIA challenged
the first petition are affirmed. The second petition________
dismissed.
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____________________
16. We also note that the birth of a second child
unlikely to substantially shift the equities of petitioner
case. While it is true that Choeum has a second child, he
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very young, allegedly has no relationship with his fathe
and presumably does not yet have significant ties to t
United States. Additionally, the BIA, by relying on t
record before the Immigration Judge, did not consider t
other post-hearing events in Choeum's life, includi
quitting her job, returning to reliance on welfare, a
failing to pursue further her GED or other education
avenues.
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