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,
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 Bingham, Dana ___________________ ________________ ______________
& Gould LLP were on brief, for petitioner. ___________
David V. Bernal, Senior Litigation Counsel, Office of Immigration _______________
Litigation, Civil Division, Department of Justice, with whom Philemina _________
McNeill Jones, Assistant Director, and Frank Hunger, Assistant ______________ _____________
Attorney General, Civil Division, Department of Justice, were on
brief, for respondent.
____________________
November 5, 1997
____________________
LYNCH, Circuit Judge. The difficulty of wending LYNCH, Circuit Judge. ______________
through this country's immigration laws -- for the immigrants
involved, for the courts, and even for the federal agencies
charged with enforcing the laws -- is illustrated by this
case. For the courts, what is involved is properly
ascertaining congressional intent in light of constitutional
guarantees in decision of cases. For this Cambodian
immigrant, Ran Choeum, what is involved is whether she will
be deported, possibly back to that war-torn land she left
when she was a child. She petitions for review of two
decisions of the Board of Immigration Appeals ("BIA"), one
dated February 9, 1996, denying her applications for asylum
and withholding and for discretionary waiver, and one dated
April 22, 1997, denying her motions to reopen.
In the interim, the complexity of the immigration
laws was enhanced by two new statutes. On April 24, 1996,
the Antiterrorism and Effective Death Penalty Act, Pub. L.
104-132, 110 Stat. 1214 (1996) ("AEDPA"), was signed into
law. On September 30, 1996, (the same day Choeum moved to
reopen before the BIA) the Illegal Immigration Reform and
Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009
(1996) ("IIRIRA"), was signed into law. Both statutes
contain jurisdiction-stripping provisions removing from the
federal circuit courts of appeals their previous jurisdiction
over certain categories of final orders of deportation.
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This case was originally argued on May 9, 1997. In
a decision dated July 2, 1997, we upheld the decisions of the
BIA on reasoning which rejected particular arguments by both
sides. Each party filed petitions for rehearing. The
Immigration and Naturalization Service (INS), in its
rehearing petition, for the first time raised a new argument
that this court lacked jurisdiction to review both of the BIA
orders because AEDPA 440(a) precludes jurisdiction over
deportations for "aggravated felonies" under IIRIRA 321.
It would have been vastly preferable, of course,
for the INS to have asserted this jurisdictional argument
initially, and we have some concern about the government's
burdening of immigrants with the obligation to respond to
new-found statutory interpretations by the INS after a case
has been heard and decided.1 Nonetheless, because rehearing
was timely sought and parties may not waive issues of subject
matter jurisdiction,2 we granted rehearing on particular
issues. We withdraw our earlier opinion and restate in this
opinion those of our earlier conclusions which remain
____________________
1. In another sense, however, Choeum is the beneficiary of
the government's shifting position. Because mandate has
never issued, and because Choeum has not been deported during
the pendency of this appeal, the effect of the government's
delay in making its new jurisdictional argument has been to
delay Choeum's deportation.
2. See United States v. Baucum, 80 F.3d 539, 541 (D.C. Cir. ___ _____________ ______
1996); Michigan Employment Security Comm'n v. Wolverine Radio ___________________________________ _______________
Co., Inc., 930 F.2d 1132, 1137-38 (6th Cir. 1991); Escobar _________ _______
Ruiz v. INS, 813 F.2d 283, 286 n.3 (9th Cir. 1987). ____ ___
-3- 3
pertinent. We conclude that we have jurisdiction to review
the first decision of the BIA, which requires deportation,
and sustain that decision on its merits. We conclude that we
lack jurisdiction over the second BIA decision, denying
Choeum's petition to reopen.
I.
Ran Choeum, an immigrant from Cambodia, pleaded
guilty in New York state court to charges of burglary and
kidnapping. The charges stemmed from a crime in which
Choeum's boyfriend, seeking to settle a family grievance,
murdered two elderly relatives of his sister's fianc .
Choeum, who left the scene before the murders took place,
pleaded guilty to burglary and kidnapping in order to avoid a
possible murder conviction under the felony murder rule.
While Choeum was in prison, deportation proceedings against
her commenced.
Choeum seeks review of the BIA order of deportation
of April 24, 1996. She argues that AEDPA changes the
standard for determining whether an alien is eligible for
withholding of deportation. She also argues that the
Attorney General's regulation under which her application for
asylum was denied exceeds the authority delegated to the
Attorney General by Congress. Finally, she contends that the
BIA abused its discretion in failing to grant her
discretionary relief from deportation. She also petitions
-4- 4
for review of the BIA's decision of April 22, 1997, denying
her motion to reopen.
The INS, for its part, argues that, under AEDPA,
this court lacks jurisdiction to review Choeum's petitions.
The jurisdictional argument comes in two parts. First, the
INS argues that this court has no jurisdiction over either
petition for review because AEDPA 440(a), 8 U.S.C.
1105a(a)(10), removes jurisdiction over deportations for
"aggravated felonies" as that term is more broadly defined in
IIRIRA 321(a), 8 U.S.C. 1101(a)(43). In light of the
effective date provided in IIRIRA 321(c), we agree that
there is no jurisdiction over the second petition on this
ground, but the first petition survives this attack. Second,
the INS argues there is still no jurisdiction over the first
petition for review because she is an alien who has committed
a firearms offense under 8 U.S.C. 1251(a)(2)(C), in this
case, burglary, and AEDPA 440(a) does not permit review of
deportations based on such grounds. We hold that judicial
review remains available because in the agency deportation
proceedings, Choeum was charged with deportability based only
on her kidnapping offense, which is a crime of moral
turpitude under 8 U.S.C. 1251(a)(2)(A)(i), and not with a
firearms offense.
We further hold that the INS may not substitute
alternative grounds for deportation at this stage in the
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proceedings, and that its argument fails both as a matter of
statutory construction and because it raises due process
concerns under the Constitution. Therefore, AEDPA does not
deprive this court of jurisdiction to hear Choeum's first
petition. Choeum's legal arguments, however, while ably
made, do not convince us that the BIA erred in denying Choeum
the various forms of relief sought. Accordingly, the BIA's
decision is affirmed.
II.
Ran Choeum was born in a small Cambodian village in
1969. She was one of twelve children; her father was a
soldier and her mother supported the family by rice farming.
In 1973, her father was killed. The Khmer Rouge came to
power in the area in 1975, and Choeum's mother, fearing
retaliation for her husband's military activities, fled with
her children to another village. Choeum's mother died in
1978 of starvation and illness. In 1979, Choeum's oldest
sister brought Choeum and two other sisters, the only
surviving members of the family, to a refugee camp in
Thailand; they lived in various camps for the next five
years.
On March 27, 1985, Choeum and her sisters were
admitted to the United States as refugees; Choeum was later
granted permanent resident status, retroactive to that date.
The Choeums' sponsors helped them to obtain welfare and
-6- 6
housing. Choeum, who was fifteen at the time, had never been
to school in Cambodia and spoke no English. Choeum briefly
attended high school in Brooklyn, but dropped out when she
became pregnant by her boyfriend, a Cambodian immigrant named
Lak Ling. Choeum's son Wicky was born on January 2, 1987.
At Lak Ling's request, Choeum and her son moved to
Philadelphia to live with his relatives.
In June 1988, Lak Ling, Choeum and the baby
travelled to New York for Ling's sister's engagement party.
When they arrived at Ling's parents' house, they learned that
the sister, who was only fourteen, and her fianc , a twenty-
eight year old Cambodian man, had disappeared and that the
fianc 's family had not paid the $2,000 dowry owed Ling's
family.
The next night, June 5, Choeum went outside to buy
ice cream for her son. She saw Ling in a car with three
Chinese men she did not know. Ling told her to get in the
car, and told her that they were going to get his sister.
When they arrived at a large apartment house on Ocean Avenue,
Brooklyn, they all went upstairs and Ling told Choeum to
knock on the door of the apartment where Ling's sister's
fianc 's parents lived. No one answered. After driving
around, they returned to the house and the Chinese men
knocked on the door. One of the men was carrying a paper
bag.
-7- 7
This time, the door was opened. The men went in,
and Choeum followed. The Chinese men began searching the
apartment, while Ling talked to his sister's fianc 's
parents. The Chinese men began piling up money and jewelry on
the floor in front of the parents. One of the Chinese men
brought two young children into the room. Ling instructed
them to tie the children up. Ling assured Choeum that he was
just trying to scare the parents into revealing where his
sister was. The men brought the children into another room,
took out a knife, cut the telephone cord, and bound the
children with it. One of the children says that Choeum
helped tie up the children and put tape on their mouths.
According to Choeum, she merely watched, and then she noticed
that her boyfriend was holding a gun. Choeum asserts that
she became scared, went back into the other room, and untied
the children; the Immigration Judge, however, did not credit
this testimony. One of the men yelled at her to get out when
he saw her near the children. All four men then screamed at
Choeum to leave and wait in the car. She went outside and
waited. When the men returned to the car fifteen minutes
later, she asked if anything had happened; Ling assured her
that everything was fine. Choeum returned to Ling's parents'
house.
The next morning, Choeum was arrested. It was then
that she learned that the two adults at the Ocean Avenue
-8- 8
apartment had been murdered. She was charged with a variety
of crimes, but agreed to cooperate with the police and to
help them find Ling. Facing a possible murder conviction,
Choeum pleaded guilty to kidnapping in the third degree and
burglary in the first degree, with a three to nine year
sentence.
While in prison, Choeum received favorable
performance assessments, particularly from her teachers. She
made rapid progress in English, and came close to achieving a
GED despite her complete lack of formal education. Choeum
was released in September 1991. She moved to Lowell,
Massachusetts to live with her sisters and their children.
She enrolled in job training programs, eventually finding a
manufacturing job. The social services professionals who
worked with her were impressed by her eagerness to work and
to improve herself.
In 1993, Choeum gave birth to a second son, David.
David's father left her after she became pregnant and has no
contact with his son. Choeum quit her job when she became
pregnant with David, and receives welfare and food stamps.
Choeum still resides near her sisters in Lowell, and helps
them, as none of the others are proficient in English.
Choeum's older son, Wicky, lives in Philadelphia with Lak
Ling's parents, who gained custody of him during Choeum's
imprisonment. Choeum does not see Wicky often, but speaks to
-9- 9
him monthly on the phone. Choeum asserts in her most recent
affidavit that she is pregnant with a third child. She also
asserts that, because she fears for their safety, she would
leave Wicky and David in this country were she to be deported
to Cambodia.
III.
Deportation proceedings were initiated against
Choeum with the issuance of an Order to Show Cause ("OSC") on
September 18, 1990. The OSC charged Choeum with
deportability pursuant to the then-current version of Section
241(a)(4)3 of the Immigration and Nationality Act ("INA"), in
that she had been convicted of a crime of moral turpitude
committed within five years after entry and sentenced to
imprisonment for a year or more. The OSC stated that the
crime of moral turpitude was kidnapping. The OSC did not
refer to Choeum's burglary conviction either in the factual
allegations or in the grounds for deportability.
In her responsive pleadings, filed March 31, 1992,
Choeum admitted the factual allegations in the OSC and
conceded deportability as charged. She also sought the
opportunity to apply for asylum, withholding of deportation,
and waiver of deportability pursuant to INA 212(c), 8
U.S.C. 1182(c).
____________________
3. The section has been amended several times since then;
the current version of the provision is Section
241(a)(2)(A)(i), 8 U.S.C. 1251(a)(2)(A)(i).
-10- 10
A hearing was held before an Immigration Judge on
August 7, 1992. The facts and circumstances of Choeum's
crime were fully explored, including through testimony by
Choeum's defense attorney. The Immigration Judge denied her
applications for asylum under INA 208(a), 8 U.S.C.
1158(a), and for withholding of deportation under INA
243(h), 8 U.S.C. 1253(h), on the grounds that such
applications must be denied if the alien, having been
convicted of a particularly serious crime in the United
States, constitutes a danger to the community. The
Immigration Judge found that, based on all the evidence
concerning Choeum's burglary and kidnapping convictions, she
had "in fact been convicted of a particularly serious crime."
He noted that the BIA has interpreted the statutory language
to mean that an alien convicted of a particularly serious
crime necessarily constitutes a danger to the community.
Therefore, he ruled, Choeum was not eligible for asylum or
withholding of deportation.
Regarding Choeum's application for a discretionary
waiver under INA 212(c), the Immigration Judge engaged in a
careful balancing of the equities. Going through factors
identified as significant by the BIA, the Immigration Judge
found that Choeum's separation from Wicky and her sisters and
the conditions in Cambodia were significant factors, but
those facts did not overcome the egregious and horrible
-11- 11
nature of her crime. On this ground, the Judge denied
Choeum's application for discretionary waiver as well.
Choeum appealed the decision to the BIA, arguing
that the equities, including the birth of her second child
after the hearing, warranted an exercise of favorable
discretion under INA 212(c), and that the Immigration Judge
should have made a separate determination that Choeum posed a
danger to the community before denying her applications for
asylum and withholding of deportation. In a decision dated
February 9, 1996, the BIA dismissed Choeum's appeal,
reaffirming its view that an alien who has been convicted of
a particularly serious crime necessarily constitutes a danger
to the community and is ineligible for withholding of
deportation and asylum. The BIA further found that the
Immigration Judge gave proper consideration to the
discretionary factors in denying Choeum's request for Section
212(c) relief.
AEDPA was signed into law on April 24, 1996.
Choeum's petition for review was filed with this court on May
9, 1996. On September 30, 1996, Choeum filed a motion to
reopen with the BIA, based on new evidence, particularly the
birth of David and the expectation of a third child, and on
the argument that AEDPA 413(f), 8 U.S.C. 1253(h), removed
the bar to withholding of deportation for aliens convicted of
particularly serious crimes. The BIA denied Choeum's motion
-12- 12
to reopen on April 22, 1997, finding that under AEDPA
440(d), Choeum was now statutorily ineligible for INA
212(c) relief, and rejecting her interpretation of AEDPA
413(f). Choeum has asked this court to review this
decision as well.
IV.
A. Jurisdiction: The Effective Date of IIRIRA 321(c) ____________________________________________________
Correctly pointing out that Congress in the IIRIRA
expanded the definition of "aggravated felonies" and
precluded judicial review over deportations for aggravated
felonies, the INS argues this court lacks jurisdiction over
both petitions. Because we agree that kidnapping, the basis
for the order deporting Choeum is an "aggravated felony,"4
the decisive question has to do with when this new definition
became effective and the application of that effective date
to the facts of this case.
IIRIRA 321(c) establishes the "effective date"
after which these definitions of "aggravated felony" are
binding:
____________________
4. Under IIRIRA 321(a), an "aggravated felony" is "a crime
of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment at least one year." 8 U.S.C. 1101(a)(43)(F). A
"crime of violence" is defined as "an offense that has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another." 18 U.S.C.
16(a). Because kidnapping satisfies the terms of 8 U.S.C.
16(a) and Choeum's term of imprisonment exceeded one year,
Choeum committed an aggravated felony under IIRIRA 321(a).
-13- 13
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 on
September 30, 1996, so federal courts may not hear appeals
from "actions taken" regarding final orders for deportation
occurring after September 30, 1996 where the basis for
deportation is commission (at any time) of an "aggravated
felony."
IIRIRA 321(c) does not itself define "actions
taken." Neither of the interpretations offered by the
parties appear appropriate. Choeum argues that the most
sensible interpretation of "actions taken" is that it refers
to immigration proceedings brought against the immigrant.
Choeum thus characterizes "actions" in the immigration
context as analogous to a civil action. Choeum cites Black's _____
Law Dictionary in support of this proposition, that "action"
should be defined in its "usual sense" as a "lawsuit brought
in court" -- i.e., the filing of the complaint. Under this ____
definition, "actions taken" would refer only to removal
proceedings begun after September 30, 1996, with no _____
retroactive application to pending proceedings. The INS
began removal proceedings against Choeum in 1990.
The INS argues that "actions taken" means any ___
action taken regarding the case constitutes an "action
-14- 14
taken." The INS argues that judicial review is such an
action. Thus, this court's exercising of jurisdiction over
the matter (by hearing the case in May, 1997), the INS
argues, causes the court to be divested of jurisdiction. The
INS relies for support on a two page, per curiam opinion in
Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997), which ______________ ___
decides that "[b]ecause judicial review by this court would
be an 'action taken' for purposes of IIRIRA 321(c), we have
no jurisdiction to hear [petitioner's] appeal." Id. at 739. ___
That court did not explain this statement nor cite to
authority. As to the second petition, the INS says that this
court has no jurisdiction because, in any event, the BIA's
denial of Choeum's motion to reopen her case constitutes an
"action taken" after the September 30, 1996 date. We agree
only with the latter argument.
Both sides present untenable definitions in their
arguments. It is not obvious that "action" in the
immigration context does or should have the same meaning as
an "action" in the civil context. The court of appeals
review actions by the administrative agency in deportation
cases and Choeum attacks four different actions on review.
Choeum's position assumes there can be only one action, and
that is the initial filing in a matter. The INS's position
is also flawed: it is unlikely Congress intended the very
act of exercising jurisdiction to trigger the destruction of
-15- 15
that jurisdiction. If Congress had intended to affect every
petition pending in a court, there was much clearer language
available to express such an intent. Neither does it make
sense that federal jurisdiction should be dependent on when a
court schedules a hearing on a particular petition. For
example, it seems irrational that a federal court would have
jurisdiction over a matter if it heard argument on September
29, 1996, but would not have jurisdiction if it postponed the ___ ____
argument until October 1, 1996.
Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. __________________ ___
1997) is the only other opinion we have found that considers
the definition of "actions taken" under IIRIRA 321(c). The
facts are similar to this case. The INS sought to deport an
alien because he had committed burglary, a crime of "moral
turpitude;" the INS then argued that AEDPA 440(a) precluded
judicial review of the final order of deportation because the
crime was also an "aggravated felony" under 8 U.S.C.
1101(a)(43). There was no question that the alien's
offense would constitute an "aggravated felony" if the
revised definition were applicable under IIRIRA 321(c);
hence the precise issue upon which jurisdiction depended was
whether an "action" had been "taken" after September 30,
1996.
The court offered three potential definitions of
"actions taken." "Actions taken" could refer to: (l) orders
-16- 16
and decisions issued against an alien by the Attorney General
acting through the BIA or Immigration Judge, (2) steps taken
by the alien, such as applying for discretionary relief, (3)
to any action by anyone, including a circuit court. Id. at ___
856. The court did not consider Choeum's proposed
definition: that "actions taken" refers exclusively to the
commencement of deportation proceedings against the alien.
We largely agree with the holding of Valderrama- ___________
Fonseca. The third reading is improbable: it makes no sense _______
that federal jurisdiction should be based on the oral
argument calendar. The second definition is plausible, as
IIRIRA 309(c)(4)(A) refers to an "action for judicial
review," which would be initiated by the client herself. But
we need not decide the issue on the facts of this case.
Choeum filed her first petition for review on May 9, 1996
well before the effective date. The first definition is the
strongest and most sensible: that "actions taken" refers to
actions and decisions of the Attorney General. "This makes
logical and practical sense, as 'actions taken' is easily
understood to encompass things done by an agency to an
alien." Id. This interpretation is also consistent with how ___
the word "actions" is used in another section of the INA
limiting federal court jurisdictional section of the INA, 8
U.S.C. 1252(g):
Except as provided in this section and
notwithstanding any other provision of
-17- 17
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 first
petition is not removed by virtue of AEDPA 440(a). The
decision of the immigration judge and the BIA's affirmance
all occurred prior to October 1, 1996, so the revised
"aggravated felony" rules in IIRIRA 321(a) do not apply.
By the same reasoning, this court does not have jurisdiction ___
over Choeum's second petition, because the BIA's denial of
Choeum's motion to reopen occurred on April 22, 1997, which
is after the October 1, 1996 triggering date for _____
applicability of the "aggravated felony" rules. We dismiss
the second petition.
B. Jurisdiction: AEDPAand Basis for BIA's Deportation Order _________________________________________________________
The INS also filed a motion to dismiss with this
court, arguing that Section 440(a) of AEDPA, apart from
IIRIRA, deprives this court of jurisdiction to hear this
case. That section ousts the jurisdiction of the federal
courts to review the deportation petitions of, among other
classes of aliens, aliens deportable by reason of firearms
offenses under 8 U.S.C. 1251(a)(2)(C). The INS contends
that Choeum's burglary conviction was such an offense.
However, at the deportation proceedings, the INS did not
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assert the burglary offense as a basis for deportation.
Instead, the INS rested on the kidnapping offense, although
the INS did not argue that the kidnapping was also a firearms
offense. The INS's argument seems to be that because it
might have sought to deport Choeum based on her burglary- _____
firearms conviction, even though it chose not to do so, this ___
court lacks jurisdiction to review Choeum's deportation based
upon her kidnapping non-firearms offense because this court
lacks jurisdiction over a burglary-firearms based
deportation, even though this was not the basis for
deportation.
Section 440(a) of AEDPA amended Section 106(a)(10)
of the INA, 8 U.S.C. 1105a(a)(10),5 to provide that final
orders of deportation against aliens who are "deportable by
reason of having committed" certain types of criminal
offenses, including firearms offenses, "shall not be subject
to review by any court." AEDPA 440(a), 110 Stat. at 1276-
77. This provision of AEDPA applies to pending cases.
____________________
5. Section 106 of the INA, 8 U.S.C. 1105a was repealed by
306(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009-
546 ("IIRIRA"); IIRIRA substitutes new judicial review
provisions. See IIRIRA 306(a), 8 U.S.C. 1252. However, ___
this repeal applies only to final orders of deportation and
motions to reopen filed on or after April 1, 1997. See ___
IIRIRA 306(c), 309, 110 Stat. at 3009-612, 625, as amended __________
by Pub. L. 104-302, 110 Stat. 3656 (Oct. 11, 1996)(technical __
amendment clarifying that judicial review provisions of
IIRIRA are not effective upon enactment). IIRIRA also
provides transitional rules for certain classes of cases, see ___
infra. _____
-19- 19
Kolster v. INS, 101 F.3d 785, 790 (1st Cir. 1996). Under _______ ___
AEDPA, judicial review remains available to aliens who have
committed other types of offenses, including aliens who have
been convicted of only one crime of moral turpitude. See ___
AEDPA 440(a); 8 U.S.C. 1251(a)(2)(A). The INS contends
that the first degree burglary charge to which Choeum pleaded
guilty was a firearms offense as defined by Section
241(a)(2)(C) of the INA, which renders deportable any alien
who "is convicted under any law of . . . using . . . any
weapon . . . which is a firearm . . . in violation of any
law." 8 U.S.C. 1251(a)(2)(C). Therefore, the INS
contends, Choeum is "deportable by reason of having
committed" a firearms offense and Section 440(a) of AEDPA
deprives this court of jurisdiction to hear her petition.
Choeum makes two responses to the INS's argument.
First, Choeum argues that she was not, in fact, convicted of
a firearms offense, as her plea colloquy reveals that she
herself did not "use" a handgun.6 Second, Choeum points out,
____________________
6. Under New York law, a person is guilty of burglary in the
first degree "when he knowingly enters or remains unlawfully
in a dwelling with intent to commit a crime therein, and when
in effecting entry or while in the dwelling or in immediate
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 a
participant in the crime; or
3. Uses or threatens the immediate use of a dangerous
instrument; or
4. Display what appears to be a pistol, revolver, rifle,
shotgun, machine gun, or other firearm . . . ."
N.Y. Penal Law 140.30 (emphasis added).
-20- 20
correctly, that the OSC only referenced the kidnapping
conviction.
It is undisputed that the burglary conviction was
not charged as a basis for deportation in the OSC, and that
Choeum's concession of deportability only encompassed the
grounds charged in the OSC, i.e. that she was in fact ____
deportable because the kidnapping conviction was a crime of
moral turpitude. The Immigration Judge did, as the INS
points out, hear extensive testimony on the nature of
Choeum's crime. Notably, however, he did not attempt to
determine whether Choeum had used a firearm, because that was
not an issue in the proceedings before him.
The INS's argument is essentially a linguistic one.
According to the INS, for purposes of jurisdiction, aliens
"deportable by reason of" having committed firearms offenses ____
are not only those aliens who have been ordered deported for __________________________
firearms offenses, but also those aliens who could be _________
deported for that reason. As a matter of statutory
construction, that argument is somewhat illogical: The
contested phrase comes from Section 440(a) of AEDPA, a
statutory section solely concerned with final orders of
deportation. The section therefore applies, by its very
terms, only to aliens who have actually been adjudged
____________________
Thus, under New York law, Choeum could be convicted of
burglary in the first degree simply by virtue of Ling's use
of the gun.
-21- 21
deportable. It is therefore highly doubtful that, in that
context, Congress meant "deportable by reason of" to mean, as
the INS would have it, "potentially susceptible to being
deported by reason of . . ."
The reading of the statute that the INS proposes
also raises due process concerns. "It is well established
that the Fifth Amendment entitles aliens to due process of
law in deportation proceedings." Reno v. Flores, 507 U.S. ____ ______
292, 306 (1993). At the core of these due process rights is
the right to notice of the nature of the charges and a
meaningful opportunity to be heard. See, e.g., Kwong Hai ___ ____ _________
Chew v. Colding, 344 U.S. 590, 596-98 (1953); Kaczmarczyk v. ____ _______ ___________
INS, 933 F.2d 588, 596 (7th Cir. 1991)(citing cases). ___
We do not need to determine what form of notice
would be constitutionally required, because the statutory and
regulatory scheme under which deportation proceedings are
conducted mandate specific procedures. The INA itself
provides that, in deportation proceedings, written notice --
referred to as an order to show cause -- shall be given to
the alien specifying, among other things, "[t]he charges
against the alien and the statutory provisions alleged to be
have been violated." 8 U.S.C. 1252b(a)(1)(D). INS
regulations permit the INS to lodge additional charges of
deportability "at any time during a hearing" before an
Immigration Judge, but specifically state that these charges
-22- 22
must be submitted in writing for service on the alien and for
entry into the record, that the Immigration Judge shall read
the additional charges to the alien and explain them to her,
and that the alien may have a reasonable time, including
requesting a continuance, to respond to additional charges.
8 C.F.R. 242.16(d). It is undisputed that the INS did not,
at any time, reopen deportation proceedings to comply with
these statutory and regulatory formalities.
In United States v. Hirsch, 308 F.2d 562 (9th Cir. _____________ ______
1962), the BIA had ordered petitioner deported on the basis
of crimes which were admitted into evidence at his
deportation hearing, but which were never added to the INS's
charge against him. The court found that this procedure not
only violated INS regulations similar to the ones discussed
above, but also contravened basic notions of procedural due
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
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 deport
the petitioner on uncharged grounds, but rather using
uncharged grounds to cut off judicial review. However, this
court has found that even arguably lesser deprivations of
notice and the opportunity to be heard "ran afoul of
petitioner's procedural rights." Gebremicheal v. INS, 10 ____________ ___
F.3d 28, 39 (1st Cir. 1993) (holding that BIA could not rely
on extra-record facts concerning human rights in Ethiopia
without affording petitioner an opportunity to respond). In
these circumstances, where the word "deportable" has a
meaning that the context makes plain, and the INS asks us to
choose a different interpretation, we are influenced by the
maxim of statutory construction that tells us to interpret
statutes so as to avoid constitutional concerns. See, e.g., ___ ____
Frisby v. Schultz, 487 U.S. 474, 483 (1988); United States v. ______ _______ _____________
Three Juveniles, 61 F.3d 86, 90 (1st Cir. 1995). We ________________
therefore reject the INS's suggested interpretation of
Section 440(a)'s use of "deportable by reason of."
The INS suggests that this court can make the
necessary determination that Choeum's offense was a firearms
offense, implying that briefing and argument before this
court provide sufficient notice. The INS points out that in
Kolster, we termed deportability "a largely mechanical _______
determination based on facts that can often be objectively
ascertained." 101 F.3d at 789. That description, of course,
-24- 24
assumes that the necessary facts will be before the decision
maker. Use of a firearm not being an issue in the
proceedings below, the record before this court cannot be
considered complete and the INS argument fails on pragmatic
grounds.7 More importantly, it is not the institutional role
of this court to serve as a factfinding body on issues of
first impression.
We hold that the INS cannot, consistent with due
process and the statutory and regulatory requirements
governing its own proceedings, substitute new grounds for
deportation at this stage in the proceedings, solely for the
purposes of depriving the federal courts of jurisdiction.8
____________________
7. The INS draws our attention to Yang v. INS, 109 F.3d 1185 ____ ___
(7th Cir. 1997). In that case, petitioner contested the
administrative finding that he was deportable by reason of
having committed certain crimes, crimes which would render
him ineligible, under AEDPA, for judicial review of his
deportation order. The Seventh Circuit asserted that "a
court has jurisdiction to determine whether it has
jurisdiction" and reviewed the record to see if the law had
been properly applied to petitioner's case. Id. at 1192. ___
That situation, where the court reviews the administrative
record to determine if the law has been correctly applied to
petitioner's case, is not analogous to the situation here,
where the question to be answered was not addressed in the
proceedings below.
8. To the extent that Abdel-Razek v. INS, 114 F.3d 831 (9th ___________ ___
Cir. 1997), takes a different position on this issue, we find
it unpersuasive. But we do not believe that Abdel-Razek ___________
really conflicts with our conclusion. Abdel-Razek, and ___________
Mendez-Morales v. INS, 119 F.3d 738 (9th Cir. 1997), which ______________ ___
the INS also cites, both involve aliens who had committed a
single crime which was the sole basis for their respective
deportations, and the issue was whether the INS could
substitute one ground for deportation, i.e., commission of a ____
crime of moral turpitude, for another, i.e., an aggravated ____
-25- 25
We therefore need not determine whether or not Choeum's
conviction for burglary in the first degree constitutes a
firearms offense. We turn to Choeum's claims of legal error,
based on the grounds on which the INS actually proceeded.
V.
Choeum appeals the February 9, 1996 denial of her
applications for three separate types of relief from
deportation: (1) withholding of deportation under Section
243(h) of the INA, 8 U.S.C. 1253(h); (2) asylum under 8
U.S.C. 1158;9 and (3) discretionary waiver of deportability
under Section 212(c) of the INA, 8 U.S.C. 1182(c).10 We
address each of these claims in turn.
____________________
felony. This a different situation than we have in the
present case, where Choeum had committed two different
crimes, and the INS wishes to use one crime as the basis for
deportation but then the other crime as the basis for denying _____
this court jurisdiction. By citing Abdel-Razek as authority ___________
that opposes this conclusion, the INS confuses the legal
grounds for deportation with its underlying factual basis.
9. Withholding of deportation and asylum are similar in that
both offer relief from deportation based on the likelihood of
persecution in the alien's home country. Asylum requires a
greater showing than withholding, and carries with it the
entitlement to become a lawful permanent resident, and
eventually a citizen. Withholding, on the other hand, does
not give the alien the automatic right to remain in the
United States; the alien may still be deported to a third
country in which she would not face persecution. See INS v. ___ ___
Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987). _______________
10. Section 212(c), by its express terms, permits the
Attorney General to waive the exclusion of otherwise
excludable aliens; a longstanding interpretation extends this
discretionary authority to the waiver of deportation.
Kolster, 101 F.3d at 787. _______
-26- 26
A. Withholding of Deportation _____________________________
Choeum's argument with regard to withholding of
deportation again requires us to consider the effect of
AEDPA's amendments to the immigration laws. Section
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 does
not fall under a statutory exception, is entitled to ________
withholding of deportation; the Attorney General does not
have discretion in Section 243(h) proceedings. Cardoza- ________
Fonseca, 480 U.S. at 429. However, Section 243(h)(2) does _______
enumerate several classes of aliens to whom Section 243(h)(1)
does not apply. 8 U.S.C. 1253(h)(2). One such exception
is where "the alien, having been convicted by a final
judgment of a particularly serious crime, constitutes a
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 require
only a determination of whether an alien's crime is
"particularly serious"; according to the BIA, an alien
convicted of a particularly serious crime necessarily
-27- 27
constitutes a danger to the community. See, e.g., Matter of ___ ____ _________
K-, 20 I. & N. Dec. 418, 1991 WL 353530, *3 (BIA Nov. 5, __
1991); Matter of Carballe, 19 I. & N. Dec. 357, 360 (BIA __________________
1986)("The phrase 'danger to the community' is an aid to
defining 'particularly serious crime,' not a mandate that
administrative agencies or the courts determine whether an
alien will become a recidivist."). This court, while
acknowledging that there is "considerable logical force" to
the argument that the Particularly Serious Crime Exception
requires a separate determination of dangerousness to the
community, has upheld the agency's interpretation under
Chevron U.S.A., Inc. v. Natural Resources Defense Council, _____________________ ___________________________________
Inc., 467 U.S. 837 (1984). See Mosquera-Perez v. INS, 3 F.3d ____ ___ ______________ ___
553 (1st Cir. 1993).
The Immigration Judge here made a specific finding
that Choeum's crime was a particularly serious one, and then,
applying the BIA interpretation of the Exception, determined
that Choeum was ineligible for withholding of deportation.
The BIA similarly rejected Choeum's argument that she was
entitled to a separate determination of whether she poses a
danger to the community. Were it not for AEDPA, that, under
Mosquera-Perez, would be the end of it. ______________
However, in Section 413(f) of AEDPA, Congress
amended Section 243(h) of the INA to include a new subsection
(h)(3). The new provision states, in relevant part:
-28- 28
Notwithstanding any other provision of
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 the
withholding provisions be applied so as to "ensure
compliance" with the 1967 United Nations Protocol Relating to
the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577
(the "Protocol"), "not withstanding any other provision of
law," Congress incorporated the Protocol into United States
statutory law. The Protocol, Choeum argues, requires a
separate, individualized determination that the alien is
currently a danger to the community. Thus, according to _________
Choeum, Section 413(f) of AEDPA expressed a congressional
intent to reject the BIA's rulings that Section 243(h)(2)
requires only a determination that the alien has been
convicted of a particularly serious crime.11
____________________
11. The INS initially argued that Section 413(f) of AEDPA
did not apply to Choeum's case, as AEDPA Section 413(g)
instructed that the amendments made by Section 413(f) should
apply only to those applications on which final action had
not been taken before the date of AEDPA's enactment, i.e. ____
April 30, 1996. See AEDPA 413(g), 110 Stat. 1269-70. The ___
BIA denied Choeum's application for withholding on February
9, 1996; the INS argued that this - not judicial review -
constituted "final action" on Choeum's application, and that
-29- 29
The Protocol binds its signatories to compliance
with the substantive provisions of the 1951 United Nations
Convention Relating to the Status of Refugees, 189 U.N.T.S.
150, 176 (1954), 19 U.S.T. 6259, 6278, T.I.A.S. No. 6577
(1968) (the "Convention"). Article 33.1 of the Convention
prohibits the "refoulement" -- the forced return or
expulsion -- of a refugee to territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership in a particular social group, or
political opinion. Art. 33.1, 19 U.S.T. at 6276. Article
33.2 of the Convention provides an exception to this
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 withholding,
including the Particularly Serious Crime Exception, thus
closely mirrors the language of the Convention. (This is not
surprising, as Congress, when it enacted the relevant
provisions of Section 243(h) in 1980, specifically intended
____________________
Section 413(f) was therefore inapplicable to Choeum's case.
We need not decide whether the INS's interpretation of
"final action" is the correct one.
-30- 30
to bring United States refugee law into conformance with the
Protocol. See Cardoza-Fonseca, 480 U.S. at 436-37; Mosquera- ___ _______________ _________
Perez, 3 F.3d at 556.) As the express terms of the _____
Convention do not differ from those of the United States'
Particularly Serious Crime Exception, the explicit reference
to the Protocol in AEDPA's Section 413(f) would not appear to
modify that Exception.
Choeum argues, however, that Section 413(f)
expresses a congressional intent to incorporate the United
Nations' interpretation of the Protocol's withholding
provisions into United States immigration law. She refers
this court to an advisory opinion on AEDPA issued by
Representative Anne Willem Bijleveld of the United Nations
High Commissioner for Refugees ("UNHCR") to the American
Immigration Lawyers Association, and to the UNHCR Handbook on ___________
Procedures and Criteria for Determining Refugee Status _____________________________________________________________
(1979)("UNHCR Handbook").
Mr. Bijleveld's opinion takes the position that the
Protocol requires a signatory state to make a separate
determination that the refugee it seeks to expel is a danger
to the community. The UNHCR Handbook, for its part, does not
unambiguously support Choeum's position. The UNHCR Handbook,
while requiring an individualized determination of the
applicability of Article 33.2's exclusion clause, focusses on
the definition of "serious non-political crime" and does not
-31- 31
explicitly require a separate dangerousness determination.
See UNHCR Handbook, supra, 154-57, at 36-37. ___ _____
The INS, in contrast, points this court to Matter ______
of Q-T-M-T-, Interim Dec. 3300, 1996 WL 784581, *16 (BIA Dec. ___________
21, 1996). In Matter of Q-T-M-T-, the BIA held that Section ___________________
413(f) of AEDPA did not require a separate dangerousness
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
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 enacting
Section 413(f) was that AEDPA expanded the definition of
"aggravated felony" to include crimes that might be
considered less serious than those the Protocol intended to
cover in its exclusion clause. Section 243(h)(2) of the INA,
-32- 32
8 U.S.C. 1253(h)(2), expressly states that, for withholding
purposes, "an alien convicted of an aggravated felony shall
be considered to have committed a particularly serious
crime." The INS contends that AEDPA Section 413(f) was thus
intended to preserve the Attorney General's flexibility in
assessing whether crimes now defined as aggravated felonies
were, in fact, "particularly serious" within the meaning of
the Protocol.
In interpreting Section 413(f) of AEDPA, we must
first determine if the statutory language makes the intent of
Congress clear and unambiguous; if the statute is ambiguous,
we give deference to the BIA's interpretation of the
immigration laws, unless that interpretation is arbitrary,
capricious, or contrary to the statute. Chevron, 467 U.S. at ________
842-45 (1984); Mosquera-Perez, 3 F.3d at 554. ______________
The plain language of Section 413(f) is not very
illuminating. It directs the Attorney General to ensure
compliance with the Protocol, yet as noted, the language of
the Protocol's withholding provisions has already been
codified as United States statutory law. Section 413(f) thus
appears, at first glance, to be surplusage. The legislative
history of AEDPA is similarly unhelpful.
The import of Section 413(f) is thus ambiguous, and
we turn to the agency interpretation. The reasoning behind
the BIA's interpretation is fairly persuasive. Congress is
-33- 33
presumed to be aware of the BIA's longstanding construction
of the Particularly Serious Crime Exception. See Mosquera- ___ _________
Perez, 3 F.3d at 559. If Section 413(f) of AEDPA were meant _____
to correct that construction, Congress certainly would have
done so in a less oblique fashion. We also note that Section
413 of AEDPA, as a whole, is entitled "Denial of Other Relief
to Alien Terrorists," and that the legislation shows few, if
any, indications of having intended to expand the rights of ______
criminal aliens. In this context, the INS's explanation of
why Section 413(f) was enacted is certainly a reasonable one.
In turn, Choeum's arguments are unpersuasive. As
noted, the UNHCR Handbook does not unambiguously support her
interpretation of the Protocol. Moreover, the Supreme Court,
while acknowledging that the UNHCR Handbook is "useful in
giving content to the obligations that the Protocol
establishes," expressly disclaimed the suggestion that the
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 ambiguous,
and the BIA has offered a reasonable interpretation of its
provisions, it would be improper for this court to substitute
the advisory opinion of an international body for the
reasoned judgment of the domestic administrative agency with
primary responsibility for administering the statute.
Accordingly, we find that the interpretation of Section
-34- 34
243(h)(2)(B) and Section 243(h)(3) adopted by the BIA is not
unreasonable, arbitrary, or capricious. Consequently, a
separate inquiry into Choeum's dangerousness to the community
was not required. See Mosquera-Perez, 3 F.3d at 559. Choeum ___ ______________
was not eligible for withholding of deportation.
B. Asylum _________
Choeum next argues that the regulation under which
she was deemed ineligible for asylum exceeds the authority
delegated to the Attorney General by Congress.
An INS regulation provides that: "An application
for asylum shall be denied if . . . [t]he alien, having been
convicted by a final judgment of a particularly serious crime
in the United States, constitutes a danger to the community .
. . ." 8 C.F.R. 208.14(d)(1).12 This regulation was
promulgated pursuant to then-current Section 208(a) of the
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 in
the administrative proceedings in this case, and in the cases
discussed herein.
13. Section 604 of IIRIRA, "Asylum Reform," substantially
amends Section 208 of the INA, 8 U.S.C. 1158. However,
Section 604 of IIRIRA applies only to applications for asylum
filed on or after April 1, 1997. See IIRIRA 604(c), 110 ___
Stat. 3009-694. References in this opinion are to the
earlier version of 8 U.S.C. 1158, which may be found at 8
U.S.C.A. 1158 (West 1996).
-35- 35
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 that
the challenged regulation was adopted, Congress enacted what
was then 8 U.S.C. 1158(d), which provided that "[a]n alien
who has been convicted of an aggravated felony . . . may not
apply for or be granted asylum." 8 U.S.C. 1158(d). Choeum
argues that, by negative implication, Congress did not intend
a similar per se bar for aliens convicted of particularly ___ __
serious crimes, and that the Attorney General exceeded the
authority delegated by Congress in barring a larger class of
aliens than that barred by statute.
The statute expressly conferred broad authority on
the Attorney General to "establish a procedure" for asylum
applications, and the granting of asylum is explicitly left
to the Attorney General's discretion. Under Chevron, where _______
Congress "explicitly left a gap for the agency to fill," and
where there is thus "an express delegation of authority to
the agency to elucidate a specific provision of the statute
by regulation," we should uphold a gap-filling regulation
unless it is "arbitrary, capricious, or manifestly contrary
to the statute." Chevron, 467 U.S. at 843-44. _______
The Attorney General's determination that aliens
convicted of particularly serious crimes should be ineligible
for asylum is not unreasonable. Applying Chevron, we do not _______
-36- 36
find that the regulation exceeds the broad grant of authority
conferred by the enabling statute. Accordingly, Choeum's
application for asylum was properly denied. We note that the
two other circuits to have considered the argument made here
by Choeum have also upheld the regulation. See Ahmetovic v. ___ _________
INS, 62 F.3d 48, 51 (2d Cir. 1995)(finding that Congress did ___
not intend to limit agency's power to impose a higher
standard on asylum seekers); Komarenko v. INS, 35 F.3d 432, _________ ___
436 (9th Cir. 1994)(noting similarity of asylum regulation to
statutory withholding provisions for aliens who have
committed particularly serious crimes).14
C. 212(c) Waiver ________________
Choeum also argues that the BIA abused its
discretion in denying her application for a waiver of
deportation under Section 212(c) of the INA, 8 U.S.C.
1182(c).
The BIA denied Choeum's application for Section
212(c) relief twice, first when affirming the Immigration
Judge's decision and again when denying Choeum's motion to
reopen. We consider only the first of these denials. See 8 ___
U.S.C. 1105a(a)(6)("[W]henever a petitioner seeks review of
____________________
14. We also note that, in the asylum provisions of IIRIRA,
Congress has made aliens who have been convicted of
particularly serious crimes ineligible for asylum, and
explicitly stated that the Attorney General may provide, by __________
regulation, additional limitations and conditions on the
consideration of an application for asylum. See 8 U.S.C. ___
1158(b)(2)(A)(ii); 1158(d)(5)(B) (1997 version).
-37- 37
an order under this section, any review sought with respect
to a motion to reopen or reconsider such an order shall be
consolidated with the review of the order.").15
We only have jurisdiction to review the BIA's
initial denial of Section 212(c) relief. Relief under
Section 212(c) is discretionary, and review by this court is
for abuse of discretion. See, e.g., Hazzard v. INS, 951 F.2d ___ ____ _______ ___
435, 438 (1st Cir. 1991). We will uphold such a denial
unless it was made "without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis." Id. ___
Here, the BIA found that the Immigration Judge
"gave proper consideration to the discretionary factors." We
agree, and can find no abuse of discretion. Choeum's crime
was, as the Immigration Judge found, profoundly disturbing.
Choeum argues that the Immigration Judge improperly
determined that she showed little remorse. However, the
Immigration Judge observed her demeanor and heard her
testimony. This finding essentially turns on Choeum's
credibility and does not provide a basis to overrule the BIA.
Choeum also argues that the Immigration Judge improperly
emphasized her reliance on welfare, by failing to consider
____________________
15. As noted, IIRIRA repealed 8 U.S.C. 1105a. See supra ___ _____
note 2. IIRIRA does adopt a consolidation provision that is
substantially similar to the old provision. See IIRIRA ___
306(a)(2) (current 8 U.S.C. 1252(b)(6)).
-38- 38
the circumstances that have made it difficult for her to
work. Many of these circumstances are of Choeum's own
making. Moreover, many, if not most immigrants, face
language and educational barriers that make finding
employment challenging.
Choeum's only argument of substance is that, by
affirming the decision of the Immigration Judge "based upon
and for the reasons set forth in that decision," the BIA
apparently did not consider the new evidence of the post-
hearing birth of her son David. The INS replies that the BIA
is an appellate body and that Choeum failed to comply with
the proper procedure for presenting new evidence, which is to
move to reopen proceedings before the Immigration Judge, see ___
8 C.F.R. 3.2.
While the BIA may, in its discretion, consider new
evidence presented for the first time on appeal, it is
certainly appropriate for the BIA to insist on compliance
with the proper procedures. Fair proceedings are best
assured through proper entry into the record of all relevant
evidence, and through the ability of the factfinder to sift
that evidence. The BIA has given notice, in earlier
decisions, that it may refuse to consider new evidence that
is not part of the record before the Immigration Judge. See, ___
e.g., Matter of C-, 20 I. & N. Dec. 529, 1992 WL 200361, *6 ____ ____________
(BIA May 28, 1992). In these circumstances, the BIA's
-39- 39
insistence that the procedural formalities be observed cannot
be considered an abuse of discretion.16
Accordingly, the decisions of the BIA challenged in
the first petition are affirmed. The second petition is ________
dismissed.
____________________
16. We also note that the birth of a second child was
unlikely to substantially shift the equities of petitioner's
case. While it is true that Choeum has a second child, he is
very young, allegedly has no relationship with his father,
and presumably does not yet have significant ties to the
United States. Additionally, the BIA, by relying on the
record before the Immigration Judge, did not consider the
other post-hearing events in Choeum's life, including
quitting her job, returning to reliance on welfare, and
failing to pursue further her GED or other educational
avenues.
-40- 40