USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUITT
____________________
No. 93-1274
UNITED STATES OF AMERICA,
Appellee,
v.
AURELIO VIEIRA-CANDELARIO,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Boudin, Circuit Judge,
_____________
Coffin and Campbell, Senior Circuit Judges.
_____________________
____________________
Damon M. D'Ambrosio, by Appointment of the Court, with
_____________________
Martin D. Harris, Esquire, Ltd. was on brief for appellant.
_______________________________
Stephanie S. Browne, Assistant United States Attorney, with

___________________
Edwin J. Gale, United States Attorney, and Craig N. Moore, Assist
_____________
_______________
United States Attorney, was on brief for the United States.
____________________
September 28, 1993
____________________

CAMPBELL,
appellant

Aurelio

Senior
Circuit Judge.
_______________________
Vieira-Candelario

was

Defendant-

indicted

in

the

United States District Court for the District of Rhode Island

for

unlawful

reentry

into

deportation, in violation of
to

quash

the

indictment

the

United

8 U.S.C.
and

to

States

following

1326.

Vieira moved

dismiss,

collaterally

attacking the deportation order upon which the indictment was

based.

The district court denied the motions.

United States
_____________

v. Vieira-Candelario, 797 F. Supp. 117 (D.R.I. 1992).

_________________

Vieira

entered into a plea

agreement in which he pleaded

the

reserved the

indictment but

denials
dismiss.

of

his

motions

right

to quash

the

guilty to

to appeal
indictment

from the
and

to

We affirm.
I.
I.
Vieira,

Republic, lived in
resident

native

United

offenses.

One

States

Dominican

as a lawful

permanent

citizens,

was convicted
of these

the

twenty-six years.

served in the United States Army

Vieira, however,

citizen of

the United States

alien for almost

children are

and

and

His

wife and

Vieira

himself

during the Vietnam-war era.

in 1989 of

was for possession

two drug-related
of heroin

with

intent to deliver, an aggravated felony.

Vieira's convictions made him deportable
Immigration

and

Naturalization

Act

241(a)(4)(B) (aggravated felony), now

under the

("the Act").

See
___

codified as 8 U.S.C.

-2-

1251(a)(2)(A)(iii)(1991);

and

241(a)(11)

(controlled

substance

violation),

1251(a)(2)(B)(i)
September

and

20, 1989,

deporting Vieira.

now

codified

(ii)(1991).

as

After

an immigration

hearing

on

an order

The judge ruled that Vieira was ineligible

relief under

U.S.C.

aggravated felons were

1182(c), as
The

U.S.C.

judge entered

to seek discretionary

such relief.

212(c) of

the Act,

ineligible for

judge advised Vieira that any

appeal from

this order had to be filed by October 2, 1989.

The next day, Vieira filed a
the

notice of appeal with

Board of Immigration Appeals ("the BIA"). As grounds for

the appeal, Vieira specifically challenged the judge's ruling

on the unavailability of
was wrong as a matter

of law.

because on October 24,

appeal.

At all

212(c) relief, claiming the

That issue was

judge

never reached

1989, Vieira voluntarily withdrew his

times

during

this

process,

Vieira

was

represented by counsel.
Vieira was
24,

1992,

INS

deported on October 27, 1989.

agents

found Vieira

in

On March

Providence,

Rhode

Island, took him into custody, and charged him with violating
8

U.S.C.

seeks

1326.

In the present criminal proceeding, Vieira

collaterally

deportation,

to

arguing that

attack

the

it cannot

basis for his indictment under

-3-

1326.

original

order

properly serve

of

as the

II.
II.
Under section 212(c) of the Act, certain aliens who
have

legally resided in the United States for seven years or

more may seek relief from deportation because of family ties,

long term
like.

As written,

to long-term

United States
upon

in the

armed forces,

See generally, Matter of Marin, 16 I. &

_____________ ________________

(1978).
only

residence, service

return

section 212(c) literally affords relief

legal

aliens who

result

for

immigration law,

reasons

of

temporarily leave

have not

Francis v. I.N.S.,
_______
______

violation
in

for which

of

the

law.

history

is also available
but who

of

to some
become

of criminal convictions.

961 F.2d 309, 312-13 (1st

Cir. 1992);

532 F.2d 268 (2d Cir. 1976).

Such relief

is only available, however, if the ground

one

the

left the country

deportation as a result

See Campos v. I.N.S.,

___ ______
______

some

buried

212(c) relief

legal aliens who

subject to

N. Dec. 581

and who, but for 212(c), would be inadmissible

as

Nevertheless,

and the

an alien

from the country under

for deportation is

could initially have

been excluded
________

section 212(a) of the Act, 8 U.S.C.

1182(a).

See Campos, 961 F.2d at 312-15 (refusing to extend

___ ______

212(c) relief to

alien charged with illegal

possession of a

firearm, an offense not listed in 212(a)).

At

Vieira's

deportation hearing,

the immigration

judge held that Vieira was, as a matter of law, ineligible to

apply

for discretionary

relief under

section 212(c).

The

-4-

immigration judge believed,

erroneously as

it now

appears,

that Vieira's aggravated felony conviction was an offense for

which

there was

no

under

section 212(a).

corresponding ground
The

judge based his

of

excludability
decision on the

BIA opinions of Matter of Wadud, 19 I. & N. Dec.

________________
and Matter of Granados, 16 I.
__________________
felons

were held to be

182 (1984)

& N. Dec. 726 (1979), in which

ineligible for section 212(c) relief

because their offenses (which were

of a type different

from

Vieira's heroin offense here) were not specifically listed in

section 212(a).

The

district court

found, and the

concedes, that the immigration

he

determined that

excludability in
offense.
1991).

See
___

there

judge was mistaken insofar as

was no

corresponding ground

section 212(a) of Vieria's

Matter of Meza,
______________

Had Vieira

been allowed

government now

aggravated drug

Int. Dec. 3146

(BIA May

pursued his appeal, he would

to seek discretionary section

for

22,

likely have

212(c) relief

although with what result on the merits we cannot, of course,

know.
In

seeking

to

quash

and

dismiss

his

present

indictment for unlawful reentry following deportation, Vieira

does not attack the
was

error at

denied him
but

deportation order on the ground

the time

of the

deportation hearing

an opportunity to petition

rather contends

that, while

that it
to have

under section 212(c),

the denial

may

have been

-5-

correct
change in

then, it
the law.

was subsequently

rendered incorrect

by a

In 1990, after Vieira had been deported,

Congress amended section 212(c) to provide that discretionary

relief

would not
___

convicted of an

be

an

alien who

aggravated felony and had

or more in prison.
No. 101-649,

available to

See
___

511(a),

had

been

served five years

The Immigration Act of 1990, Pub. L.

104 Stat. 4978, 5052.

that

this amendment

mean

that aggravated felons who had not served five years in

___

prison

like

relief

even if

must be

Vieira

construed, by

Vieira argues

were eligible

their offenses

were

implication, to

for section

not listed

212(c)

in section

212(a).
Vieira

points to

(BIA May 22, 1991),

Matter of Meza, Int.

_______________

as the indicator of the

Dec. 3146

changed policy.

There, in a case very similar to Vieira's, the BIA allowed an

alien

who had

been convicted

felony to apply for

of a

drug-related aggravated

212(c) relief.

Vieira argues that the

purported change in INS

Wadud and Granados
_____
________

and the

robbed him of judicial

the allegedly

policy between the earlier cases

later case

review.

changed policy of

of Meza
____

In effect, he

of

effectively
contends that

the 1990 amendment

and the

Meza case should be applied retroactively so as to invalidate

____
his deportation order rendered without a

212(c) hearing.

We do not find this argument persuasive.

amendments and

Meza
____

do

not appear

to

have

The 1990

signaled

any

-6-

material

change in

amendment,

by

incarcerated
implication

INS

cutting
for

policy.
off

five

that some

To

relief

or

more

be

to

sure,

the

aggravated

years,

1990
felons

recognized

aggravated felons might

by

otherwise be

eligible for 212(c) relief and, indeed, that this eligibility

might continue to be true for those not incarcerated for five
or more

years.

But as we

"said nothing about wanting

under
only

212(c)."

noted in

Campos, the
______

amendment

to enlarge the relief authorized

Campos, 961 F.2d

______

at 315.

Congress "can

be said to have expressed a continued desire to limit

212(c) relief to the listed grounds of exclusion."

Id.
___

To understand Meza, there is no need to hypothesize

____
any fundamental
related
_______

policy change.

aggravated

convicted,

were

212(a) describing

felonies,

The BIA
for

included within
drug-related

one of
a

found that
which

specific

offenses.

Meza

drug_____
was

subsection of

Meza, Int.
____

Dec.

3146
could

at 3

(holding

provide

recodified

the

as

that a
basis

drug-related aggravated
for relief

under

1182(a)(2)(A)(i)(II)).

212(a)(23),
Meza
____

straightforward application of the existing law that

relief was
listed

available solely

in

212(a).

and Granados,
________

neither

to those

felony

was

212(c)

offenses specifically

Meza was entirely consistent with Wadud

____
_____
of which

cases

involved

felonies of the particular kind mentioned in

aggravated

212(a).

-7-

That Meza did not

____
policy is

confirmed

Dec. Att. Gen.

indicate a change in deportation

by Matter of Hernandez-Casillas,
_____________________________

March 18, 1991.

The Attorney

Int.

General of the

United States reversed a decision of the BIA overruling Wadud

_____
and Granados and maintained that
________

212(c) relief continued to

be available only for

in

section 212(a).

those offenses specifically identified

This

General's construction

Court recently upheld the Attorney

of section 212(c).

Campos, 961 F.2d

______

at 314-15.
We

agree

with

the

district

court

and

the

prosecution that the immigration judge appears simply to have

misapplied
have

212(c) under

offered

Vieira

discretionary relief.
presumably

would

then-existing doctrine.
an

opportunity

to

He should

petition

for

Had Vieira pursued his appeal, the BIA

have overruled

allowed Vieira to apply for

the immigration

judge and

212(c) relief, as it did when a

similar issue was appealed in Meza.

____
The immigration

judge appears regrettably

to have

committed an error of law in this respect, but it was not the

type of error
on

that provides any basis for

the judge's

deportation order

prosecution brought under 8 U.S.C.

basis, the error
rights,

being

in a
1326.

must have violated the

"so

fundamental"

that

collateral attack
subsequent criminal
To provide such a
alien's due process
it

"effectively

eliminates the right of the alien to obtain judicial review."

-8-

United States v. Mendoza-Lopez, 481 U.S.

_____________
_____________
107 S.

Ct.

2148, 95

establish

that

L.

where

administrative proceeding
subsequent imposition

Ed. 2d

772

828, 837-39 & n.17,

(1987).

determination

"Our
made

is to play a critical

of a criminal sanction,

cases
in

an

role in the
there must be

some meaningful review of the administrative proceeding." Id.

____
___
at 837-38 (citations omitted) (emphasis in original).
Here,

in

contrast to

Lopez, the immigration

_____
did

not

withdrew

the

throughout.

notice of
appeal.

As

situation

in Mendoza________

judge's putatively erroneous decision

"effectively" rob

Vieira filed

the

Vieira of
appeal.
He

was

his right
He

later

represented

Vieira voluntarily

to review.
deliberately
by

abandoned his

counsel
right to

obtain review of the deportation order, we see no way to hold

that

he

was

deprived

of

meaningful

review

of

the

administrative proceeding contrary to the due process clause.

The order

entered in

and binding on

that proceeding was,

Vieira, who violated it at

illegally reentered the United States.

Affirmed.
________

therefore, valid
his peril when he

-9-