Interim Decision #3147 (Part 3)

The ordinary and obvious meaning of a phrase is not to be lightly discounted. INS v. Cardoza-Fonseca , 480 U.S. 421, 431 (1987); see also Russello v. United States , 464 U.S. 16, 21 (1983); Ernst & Ernst v. Hochfelder , 425 U.S. 185, 198-99 (1976). Not only do strict rules of statutory interpretation hold that the plain language of the statute controls its application, but the Supreme Court has held and reaffirmed with regard to this statutory scheme that it is bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used. INS v. Phinpathya , 464 U.S. 183, 189 (1984) (quoting American Tobacco Co. v. Patterson , 456 U.S. 63, 68 (1982), in turn quoting Richards v. United States , 369 U.S. 1, 9 (1962)). It is an axiom of statutory construction that the duty of a court "is to construe a statute consistent with the intent of Congress as expressed in the plain meaning of its language." Sutton v. United States , 819 F.2d 1289, 1292 (5th Cir. 1987). "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. American Trucking Associations , 310 U.S. 534, 543 (1940). The United States Supreme Court has noted on numerous occasions that "in all cases involving statutory construction, 'our starting point must be the language employed by Congress' . . . and we assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.'" American Tobacco Co. v. Patterson , supra (quoting Reiter v. Sonotone Corp. , 442 U.S. 330, 337 (1979), and Richards v. United States , supra ). The "plain meaning" of the words used in a statute must be given effect. See INS v. Phinpathya , supra .

Throughout its decision, the majority consistently has ignored the guideposts of statutory construction. It consistently confuses how the statute reads with how the statute ought to read. In effect, the majority has rewritten section 212(c) in this case in order to satisfy its own sense of fairness, thereby throwing reasonable and judicially accepted standards of statutory construction to the winds. "Where the language and intent of the statute is [sic] clear, courts are without the authority to engage in any creative rewriting of a provision." Reed v. United States , 743 F.2d 481, 484 (7th Cir. 1984), cert. denied , 471 U.S. 1135 (1985); see also United States v. Mayo , 721 F.2d 1084, 1093 (7th Cir. 1983). In the instant case, the language chosen by Congress in section 212(c) is clear and unambiguous and its intent is unmistakable.

In its decision the majority declares "on further contemplation" that "[a]s to the language and legislative history of section 212(c), we simply find that given the unusual history of section 212(c), and the long distance already travelled from the 'plain language' of that statute, it makes little sense here to adhere to strict rules of statutory construction." The operative word in the above quotation is "simply." The majority has indeed "simply" ignored the plain meaning of the statute. The majority has also "simply" ignored the legislative history of the statute. Had the majority diligently studied the congressional reports and historical documents, it would find little solace or support for its "new approach to section 212(c)." The following is an excerpt from a section of the legislative history of the Immigration and Nationality Act of 1952 entitled "Discretionary Authority":

Having concluded that failure by an alien to meet the strict qualitative tests will disqualify him for admission to the United States, the committee is of the opinion that any discretionary authority to waive the grounds for exclusion should be carefully restricted to those cases where extenuating circumstances clearly require such action and that the discretionary authority should be surrounded with strict limitations.

Under present law, in the case of an alien returning after a temporary absence to an unrelinquished United States domicile of seven consecutive years, he may be admitted in the discretion of the Attorney General under such circumstances as the Attorney General may prescribe.

Under existing law the Attorney General is thus empowered to waive the grounds of exclusion in the case of an alien returning under the specified circumstances even though the alien had never been lawfully admitted to the United States. The comparable discretionary authority vested in the Attorney General in section 212(c) of the bill is limited to cases where the alien has been previously admitted for lawful permanent residence and has proceeded abroad voluntarily and not under order of deportation. Under existing law and under the bill, in no case may the discretion be exercised where the ali en is excludable on grounds of public safety or security or as a subversive under paragraphs (27), (28), or (29) of section 212(a).

H. R. Rep. No. 1365, 82d Cong., 2d Sess., reprinted in U.S.C.C.A.N. 1653, 1705-06 (emphasis added).

The legislative history of section 212(c) is clear and succinct in its message that Congress intended to empower the Attorney General to waive grounds of exclusion . If Congress had intended to include grounds of deportability in the waiver provision, neither the language of the statute nor its legislative history give a clue or hint of such intent. Even if a hypothesis were to be fashioned (as the Board has done in other cases) to suggest that Congress intended that a ground of deportability could be waived under section 212(c) if it were equivalent in nature and effect to a ground of exclusion, the application in this case would fail "simply" because entry without inspection has no statutory equivalent or counterpart among the grounds of exclusion. While the majority postures that "it makes little sense now to adhere to strict rules of statutory construction," it is evident that its statutory analysis is not "simply" flawed but virtually nonexistent. "Simply" put, the conclusion of the majority cannot be supported by a strict or an expansive interpretation of section 212(c).

Virtually 37 years have passed since the Board's first precedent decision interpreting the applicability of certain grounds of deportability to section 212(c) waivers. In Matter of T- , 5 I&N Dec. 389, 390 (BIA 1953), the Board held:

The charge contained in the warrant of arrest, to wit: That the respondent entered in violation of the act of February 5, 1917, in that she entered by means of false and misleading statements thereby entering without inspection, is not contained in paragraphs (1) through (25) or paragraphs (30) and (31) of subsection (a) of section 212 of the Immigration and Nationality Act. The "entry without inspection" ground of deportation appears in section 241(a)(2) of the Immigration and Nationality Act. In view of the specification in section 212(c) of the particular sections to which this discretion may be directed, we do not believe that a ground not enumerated therein can be the object of this form of discretionary relief. We therefore find that section 212(c) is inappropriate to waive the ground of deportability set forth in the warrant of arrest, nor is the respondent helped in any way by the documentary waiver for which she would have been eligible if she ha d regularly presented herself for inspection. We find the ground of deportability still exists and we are therefore unable to terminate these proceedings.

Similarly, the Board held in Matter of M- , 5 I&N Dec. 642, 647 (BIA 1954) that "section 212(c) does not contain authority to waive the respondent's entry without inspection, which is a ground of deportation under section 241(a)(2) but not a ground of excludability."

In Matter of Granados , 16 I&N Dec. 726, 728-29 (BIA 1979), aff'd , 624 F.2d 191 (9th Cir. 1980), the Board held:

In the present case, however, the respondent seeks the expansion of section 212(c) relief to a ground of deportation which is not a ground of excludability listed under section 212(a) of the Act. Conviction

for possession of a concealed sawed-off shotgun is not a specified section 212(a) ground of excludability, nor a crime involving moral turpitude that would render the respondent excludable under section 212(a)(9) of the Act. See U.S. ex rel. Andreacchi v. Curran , 38 F.2d 498 (S.D.N.Y. 1926); Ex parte Saraceno , 182 F. 955 (S.D.N.Y. 1910).

We do not reach the respondent's contention that his conviction constitutes a ground of excludability because if deported he would thereafter be immediately excludable. He would be excludable under section 212(a)(17) of the Act because of his deportation, not because of the underlying conviction. However, assuming for the purpose of discussion that the conviction for shotgun possession constitutes some sort of exclusion ground per se, under section 212(a) generally, it is not within the ambit of section 212(c). To adopt the respondent's reasoning would make section 212(c) relief available for all grounds of deportability including the subversive grounds, section 212(a)(27) to (29) of the Act, which were specifically precluded from section 212(c) relief. We see nothing in the plain language or the legislative history of section 212(c) justifying extending such administrative relief beyond the grounds listed under that section. See S. Rep. No. 1137, 82d Cong., 2d Sess. (1952); H.R. Rep. No. 1365, 82d Con g., 2d Sess. (1952); U.S. Code Cong. & Adm. News 1952, pp. 1653, 1705.

Therefore, we conclude that the respondent's conviction for possession of an unregistered sawed-off shotgun does not come within the grounds of excludability which are subject to a section 212(c) waiver. (Footnote omitted.)

Upon an analysis of the Board's precedent decisions spanning almost 4 decades, I find them well reasoned, consistent, and solidly based in law and fact. There is indeed no administrative support in these decisions for the majority's approach in this case. The majority would, however, overrule these decisions because they are inconsistent with its current approach. That approach, I might add, has no support in the statute or the legislative history or in the courts, as I will demonstrate later.

The majority's approach follows two lines of reasoning. The first line is that fairness and equal protection dictate that aliens who are deportable on various grounds should be permitted to seek a waiver of inadmissibility under section 212(c) under the same terms as certain aliens, who are excludable under the statute. The majority, however, does not conclude that the statute is violative of the constitutional right of equal protection of certain aliens, nor does it espouse the view that Congress did n ot intend disparate treatment for separate and distinct classes of aliens, i.e., excludable aliens and deportable aliens. I find that fairness and equal protection are not the issues in this case since Congress, acting under the authority of a sovereign government to create laws affecting immigration, may create different classes of aliens and provide different procedures and remedies for each class.

The second line of reasoning expressed by the majority follows the notion that section 212(c) has been interpreted by the courts and by the Board in various ways over the years so that "as currently applied [it] bears little resemblance to the statute as written" and therefore lends itself to an expansive interpretation under the facts of this case. I find this reasoning specious because the majority has yet to identify the authoritative basis for its "new" interpretation. The fact that the statute has undergone various interpretations does not, by itself, justify a misinterpretation or an interpretation which has no foundation in the statute or in case law.

Since the enactment of the Immigration and Nationality Act of 1952, there has been no significant initiative on the part of Congress to amend the substantive provisions of section 212(c). Likewise, extremely few federal courts have addressed the issue posed in this case. However, the Board's decision in Matter of Granados , supra , was affirmed in a table case by the United States Court of Appeals for the Ninth Circuit in Granados-Gonzalez v. INS , 624 F.2d 191 (9th Cir. 1980). The issue was also discussed, but not decided, in Gutierrez v. INS , 745 F.2d 548 (9th Cir. 1984). In Gutierrez , the alien was charged with deportability under both section 241(a)(11), and under section 241(a)(2) for unlawful entry. The court noted that it was a "difficult constitutional issue" whether fifth amendment due process equal protection requires that section 212(c) relief be available for aliens deportable for entry without inspection. The court thus clearly implied that perhaps it should be made so available, but it specifically declined to decide that issue. Thus the suggestion in Gutierrez was obviously dicta. Four years later the Ninth Circuit addressed the issue and decided it in Cabasug v. INS , 847 F.2d 1321 (9th Cir. 1988). In Cabasug , the alien was deportable under section 241(a)(14) of the Act for possession of a sawed-off shotgun. The court held that that ground of deportability could not be waived by section 212(c). In so holding, the court concluded that Congress had intended that section 212(c) relief only be available to waive certain grounds of excludability under section 212 of the Act, and that it could not waive a ground of deportability for which there is no "substantially identical" ground of exclusion. While the court in Cabasug did not address an entry without inspection charge, it used broad language which limited section 212(c) availability to grounds of deportation which have equivalents under the section 212 exclusion grounds. Moreover, the court specifically stated that it was reaching the constitutional issue it had reserved in Gutierrez v. INS , supra , a case which did involve an entry without inspection charge. The court concluded in Cabasug as follows:

Appellant would have us hold that the INS, rather than Congress, has created an arbitrary distinction by its refusal to extend § 1182(c) discretion to all grounds for deportation except those explicitly excluded in § 1182(c). This is merely a rhetorical device to avoid an explicit challenge to the statute. Congress, as explained above, clearly expressed its intention that § 1182(c) relief applies only to § 1182, the exclusion statute. The Francis and Tapia-Acuna decisions held that this distinction, in combination with the administrative practice of applying the exclusion statute nunc pro tunc to aliens who had previously traveled outside the country, violated the Constitution insofar as it required different treatment for drug offenses covered under both the exclusion and deportation statutes. We are not about to overturn an Act of Congress under the pretense that we are merely correcting an administrative aberration.

Cabasug v. INS , supra , at 1326.

In the majority's decision it states that its "new approach to section 212(c) is somewhat in conflict with . . ." the Cabasug decision. (Emphasis added.) I would submit that the majority's approach is clearly and completely in conflict with Cabasug . I also find that Marti-Xiques v. INS , 713 F.2d 1511 (11th Cir. 1983), a decision advanced by the majority to support its decision, is factually and legally distinguishable from this case. In Marti-Xiques , the alien was charged with two grounds of deportability arising out of the same incident, i.e., entry without inspection and alien smuggling, the latter having a statutory equivalent in section 212(c). In this case, the alien was only charged with entry without inspection which, as previously stated, has no counterpart in the enumerated grounds of exclusion under section 212(c). In view of this important distinction between the two cases, I find little support in Marti-Xiques for the majority's approach. Moreover, the decision in Marti-Xiques was vacated and hence is no longer the law of the jurisdiction in which it was decided. See Marti-Xiques v. INS , 724 F.2d 1463 (11th Cir. 1984).

Throughout this decision, I have attempted to show the inherent weaknesses in the rationale of the majority. Above all, it should be quite clear that there is virtually no authoritative support for the majority's approach. The majority has boldly invaded the province of the Congress and for that there is no excuse. Accordingly, for the foregoing reasons, I would dismiss the respondent's appeal.

DISSENTING OPINION : James P. Morris, Board Member

I concur in the foregoing dissenting opinion.