Gutierrez-Chavez v. INS: 9th Circuit Rules Habeas Jurisdiction Not Available to Review...

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

GUTIERREZ-CHAVEZ V. INS: 9TH CIRCUIT RULES HABEAS JURISDICTION NOT AVAILABLE TO REVIEW CHALLENGES TO BIA EXERCISE OF DISCRETION
Immigrants' Rights Update, Vol. 16, No. 5, September 10, 2002

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has ruled that federal habeas jurisdiction to review decisions made by the Board of Immigration Appeals in deportation cases does not extend to challenges to the BIA's exercise of discretion. The majority of the panel concluded that habeas jurisdiction in immigration cases under 28 U.S.C. section 2241 encompasses claims of constitutional or statutory error, but not challenges to the exercise of discretion. Judge Margaret McKeown filed a concurring opinion, agreeing with the result in this particular case, but disagreeing with the majority "to the extent that its opinion can be read to bar habeas review…in all cases that implicate abuse of discretion."

The petitioner in this case, a Mr. Gutierrez-Chavez, is a Colombian national who was admitted to the United States as a lawful permanent resident in 1979, when he was 13 years old. In 1990 he suffered an injury at work that disabled him, and when his disability payments stopped in the following year, he became desperate for money. Having little other recourse, he sold drugs over a period of approximately six months in 1991. That same year he was arrested and charged with possession of cocaine with intent to sell. After pleading guilty, he was sentenced to three years' incarceration but released on parole after serving approximately two years.

In 1992 the Immigration and Naturalization Service commenced deportation proceedings against Gutierrez based on his conviction for an aggravated felony. At his deportation hearing in 1994, Gutierrez applied for a waiver under section 212(c) of the Immigration and Nationality Act. His wife and parents also testified in support of the application. However, the immigration judge denied the waiver, finding that Gutierrez "failed to demonstrate sufficient favorable equities which offset the negative factors in his case, in particular his 1991 conviction for an aggravated felony." The IJ also found that Gutierrez's deportation to Colombia would not cause great hardship because all of his family members were from Colombia and were still primarily Spanish speakers. Gutierrez appealed the ruling to the BIA.

On appeal, Gutierrez raised three claims. He claimed that (1) the IJ incorrectly weighed the equities in his case in denying a 212(c) waiver; (2) the language interpretation provided at the hearing was inadequate, thereby denying him due process; and (3) the IJ was biased against him because Gutierrez was from Cali, Colombia. The BIA affirmed the IJ in a per curium opinion, rejecting all three claims.

In August 1996, Gutierrez filed a petition for review of the BIA's ruling. The Ninth Circuit dismissed the petition for lack of jurisdiction, citing section 440(a) of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (which eliminated jurisdiction over petitions for review filed by individuals who were deportable based on specified criminal convictions, including aggravated felonies). Gutierrez then filed a habeas petition in federal district court, raising the three claims that he had made with the BIA.

The district court concluded that claims of abuse of discretion may be raised in a habeas petition under 28 U.S.C. section 2241. However, the court concluded that in this case the BIA did not abuse its discretion, noting that to mitigate his serious criminal offense, Gutierrez would have to show unusual or outstanding equities. The district court also rejected Gutierrez's due process claims, finding that he did not show that better interpretation service at his hearing would have made any difference to his case, nor that the IJ was biased against him. Gutierrez appealed this decision to the Ninth Circuit.

As noted above, a majority of the three-judge panel found that jurisdiction under section 2241 is limited to claims of constitutional or statutory error and does not extend to review of "purely discretionary decisions." The majority did note that "[h]abeas is available to claim that the INS (sic) somehow failed to exercise discretion in accordance with federal law or did so in an unconstitutional manner." However, "[h]abeas is not available to claim that the INS (sic) simply came to an unwise, yet lawful, conclusion when it did exercise its discretion." The court therefore found that it lacks jurisdiction to review Gutierrez's claim that the BIA did not properly weigh the equities in denying him 212(c) relief. The court found that habeas jurisdiction does properly encompass the due process claims raised by Gutierrez, but agreed with the district court that Gutierrez failed to establish these claims.

In Judge McKeown's concurring opinion, she disagreed with the majority to the extent that its opinion might be read to bar habeas review of any claim of abuse of discretion. She noted that the Supreme Court, in its recent decision in INS v. St. Cyr, 533 U.S. 289, 303-04 (2001), specifically discussed "the historical use of habeas corpus to remedy unlawful executive action," including "the improper exercise of official discretion." She distinguished between "manifest abuse of discretion," which is a violation of law reviewable by habeas, and claims such as Gutierrez's that seek to challenge the BIA's reasoned exercise of discretion. "I have no quibble with the long-standing proposition that we will not disturb the BIA's discretion under section 212(c), as long as it considered relevant factors, explained its outcome, and is consistent with its own precedent," Judge McKeown wrote. But, she noted, the standard and scope of review that is available should not be confused with a lack of jurisdiction to review. She concluded that, to the extent that the majority's opinion could be read to limit jurisdiction over discretionary decisions only to those cases where the BIA completely fails to exercise discretion, it is unduly narrow.

Gutierrez-Chavez v. INS, No. 00-56149 (9th Cir. July 31, 2002).