
USCA1 Opinion

	




          December 8, 1992                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1721                                   HING CHEUNG WONG,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Robert J.  Napolitano,  on  Memorandum in  Support of  Motion  for            _____________________        Stay, for petitioner.            Stuart  M. Gerson,  Assistant  Attorney General,  Robert  Kendall,            _________________                                 ________________        Jr., Assistant Director,  and Charles E. Pazar,  Office of Immigration        ___                           ________________        Litigation, Civil  Division, Department  of Justice, on  Memorandum in        Opposition to Motion for Stay, for respondent.                                 ____________________                                 ____________________                 Per Curiam.  Petitioner Hing Cheung Wong seeks a stay of                 __________            deportation under  8 U.S.C.   1105a(a)(3)  pending our review            of an order of the Board of Immigration Appeals (BIA) denying            his request for discretionary waiver.  On August 10, 1992, we            stayed the order  of deportation on  a provisional basis  and            directed   the   parties   to   file   memoranda   addressing            petitioner's challenges to  the BIA's decision.   Having  now            reviewed the  administrative record  along with  the parties'            memoranda, we  find  that  the  instant  petition  raises  no            serious legal question.  We therefore vacate the  provisional            stay  and deny  petitioner's application  for a  stay pending            review.                                      I. Background                                       __________                 Petitioner is  a 39-year-old native and  citizen of Hong            Kong  who has been a  legal permanent resident  in the United            States  since  1968.    The  record  discloses  that  he  has            committed  three legal offenses since  his arrival.  In March            1977, he  pled guilty  in Maine  state court  to a  charge of            possessing less than one and one-half ounces of  marijuana--a            civil violation for which he was ordered to perform community            service.    In  May 1979,  he  pled  guilty  to  a charge  of            shoplifting  and was  fined $100.1   And  in August  1984, he            pled guilty  to  the  charge  of  acquiring  scheduled  drugs                                            ____________________            1.  This offense, which  involved the  removal of  a pair  of            sneakers from a department store, led to his conviction under            Me.  Rev.  Stat.  Ann.  tit.  17-A,     353,  for  "theft  by            unauthorized taking."   Crimes  in Maine are  categorized, in            order of decreasing  severity, from Class A to Class  E.  The            shoplifting violation was denominated a Class E offense.             (codeine)  by deception,  for  which he  received a  one-year            suspended sentence and two years of probation.2                 Relying  on these  latter  two convictions,  the INS  in            December 1985 charged petitioner  with being deportable as an            alien  "who at any time  after entry [has  been] convicted of            two crimes  involving moral turpitude,  not arising out  of a            single scheme  of  criminal  misconduct ...."    8  U.S.C.               1251(a)(4)  (since recodified  at id.    1251(a)(2)(A)(ii)).3                                              ___            At  a hearing before an immigration judge (IJ) in March 1987,            petitioner  conceded his  deportability under  this provision            and requested a  discretionary waiver pursuant to 8  U.S.C.              1182(c).  Following the receipt of testimony from petitioner,            his  wife and  his father,  the IJ  denied  such relief  as a            matter  of  discretion,  finding  that  the  adverse  factors            outweighed  the  equities in  petitioner's  favor.   The  BIA            summarily endorsed the IJ's  ruling, and petitioner now seeks            a stay ofthe order of deportationpending review in thiscourt.                                            ____________________            2.  The record reveals  that petitioner obtained  "Tylenol #4            with  codeine" by use of a forged medical prescription.  Such            action  violated Me. Rev. Stat.  Ann. tit. 17-A,    1108, and            constituted a Class C crime.            3.  The   INS   later   filed   an   additional   charge   of            deportability,  contending  that petitioner's  conviction for            acquiring   scheduled   drugs  by   deception   rendered  him            deportable under 8 U.S.C.    1251(a)(11) (since recodified at            id.      1251(a)(2)(B)(i)).     This  provision  applies   to            ___            convictions for various  controlled-substance offenses.   The            immigration    judge,    however,   deemed        1251(a)(11)            inapplicable.   That  ruling  is  not  part  of  the  instant            petition for review.                                         -3-                          II. Availability of Automatic Stay                              ______________________________                 The filing of a petition for review acts as an automatic            stay  of  an  order  of  deportation  "unless  the  alien  is            convicted of an  aggravated felony, in  which case the  [INS]            shall not stay the deportation ... unless the court otherwise            directs."  8  U.S.C.    1105a(a)(3).  The  INS contends  that            petitioner's  1984 state  conviction for  acquiring scheduled            drugs by  deception constitutes  an "aggravated felony."   It            therefore  asserts  that  petitioner  is  ineligible  for  an            automatic stay,  even though the  provision eliminating  such            stays  in cases of aggravated  felons was added  in 1990 (six            years after the conviction involved here).  As petitioner has            not  disputed either of these  points, we pause  only to note            that both appear supportable.                 The term  "aggravated felony" is  defined in 8  U.S.C.              1101(a)(43) as,  inter alia,  "any drug trafficking  crime as                             __________            defined"  in 18 U.S.C.    924(c)(2).  That  provision in turn            defines  a  "drug trafficking  crime"  as,  inter alia,  "any                                                        __________            felony  punishable under  the Controlled  Substances  Act (21            U.S.C. 801 et seq.)."   Under 21 U.S.C.   843(a)(3), it  is a            felony  "to  acquire or  obtain  possession  of a  controlled            substance by misrepresentation, fraud, forgery, deception, or            subterfuge."     This   crime  is   directly   analogous   to            petitioner's 1984 state conviction.  Moreover, the definition            of aggravated felony goes  on to read: "Such term  applies to                                         -4-            offenses  described  in  the  previous  sentence  whether  in            violation  of Federal or State law."  8 U.S.C.   1101(a)(43).            The  fact  that  petitioner's  conviction  occurred  in state            court, therefore,  does not preclude a  finding of aggravated            felony under federal law.                 The  aggravated-felony  provisions  were  introduced  in            1988.  See Anti-Drug  Abuse Act of  1988 (ADAA), Pub. L.  No.                   ___            100-690,  102 Stat. 4181.   The elimination  of the automatic            stay for aggravated felons (along with the inclusion of state            crimes in  the aggravated-felony definition)  was effected by            the  Immigration Act of  1990 (IMMACT), Pub.  L. No. 101-649,            104 Stat. 4978.   Some  initial uncertainty arose  as to  the            degree to which the amendment eliminating the automatic stay,            see  id.   513(a), 104  Stat. 5052, was  retroactive.  IMMACT            ___  ___            provided  that such  change was  applicable to  petitions for            review  "filed  more  than 60  days  after  the  date of  the            enactment of this  Act."  Id.    513(b).  Yet this  directive                                      ___            failed  to specify  when the  conviction must  have occurred.                                          __________            Noting  this  fact, one  court held  that the  1990 amendment            eliminating the automatic stay  for aggravated felons did not            apply  to  persons  whose  convictions  predated  the  ADAA's            effective  date of  November 18, 1988.   See  Ayala-Chavez v.                                                     ___  ____________            INS, 945 F.2d 288 (9th Cir. 1991)            ___                 In December 1991, however, new legislation amended  this            provision  so that  it  would apply  "to convictions  entered                                         -5-            before, on, or after" IMMACT's effective date.  Miscellaneous            and  Technical Immigration  and Naturalization  Amendments of            1991,  Pub. L.  No. 102-232,    306(a)(11),  105 Stat.  1751.            This  amendment  "take[s]  effect   as  if  included  in  the            enactment of the Immigration Act of 1990."  Id.   310(1), 105                                                        ___            Stat.  1759.   Arguably,  some question  still remains  as to            whether  the  automatic  stay  is  inapplicable  (1)  to  all                                                                      ___            aggravated felony convictions, whenever they occurred, or (2)            only  to those occurring after November 18, 1988.  See Ayala-                                                               ___ ______            Chavez, 945  F.2d at 293-94 (discussing  two other provisions            ______            of  IMMACT having  similar "before,  on, or  after" effective            dates).  However, the  Ninth Circuit has since held  that the            Technical Amendments effectively  overruled its  Ayala-Chavez                                                             ____________            decision, and that "a party convicted of an aggravated felony            is precluded from obtaining an automatic stay of deportation,            regardless of the date  of conviction."  Arthurs v.  INS, 959                                                     _______     ___            F.2d 142,  143  (9th Cir.  1992)  (6/88 conviction).    Other            courts have agreed.   See Zegarski v. INS,  965 F.2d 426, 427                                  ___ ________    ___            (7th Cir.  1992) (per curiam) (8/86  convictions); Ignacio v.                                                               _______            INS,  955 F.2d 295, 297-98 (5th Cir. 1992) (per curiam) (9/83            ___            convictions).   Cf. Martins v. INS, 972 F.2d 657, 659-60 (5th                            ___ _______    ___            Cir.  1992)  (per   curiam)  (because  of  4/86   conviction,            petitioner was  an aggravated  felon ineligible to  apply for            asylum).   Moreover, the Arthurs  case involved a  state drug                                     _______            conviction  and  so  held,  by  implication,  that  the  1990                                         -6-            amendment  including  state crimes  within the  definition of            aggravated felony  was also  fully retroactive.4   Cf. United                                                               ___ ______            States  v. Bodre, 948 F.2d  28, 32 (1st  Cir. 1991) (statutes            ______     _____            retroactively making  past criminal activity a  new basis for            deportation have been upheld), cert.  denied, 112 S. Ct. 1487                                           _____________            (1992).  Given this  caselaw, and given his failure  to raise            the  issue, we conclude that petitioner is not entitled to an            automatic stay.                           III. Propriety of Discretionary Stay                              _______________________________                 We have stated in a different context that, where denial            of a stay  "will utterly destroy the status  quo, irreparably            harming"  appellant,   but  granting   a  stay  "will   cause            relatively slight harm" to  appellee, the appellant "need not            show an absolute probability of success" on the merits; it is            enough  if  "there are  serious  legal  questions presented."            Providence  Journal Co. v. FBI,  595 F.2d 889,  890 (1st Cir.            _______________________    ___            1979); accord Cintron-Garcia v. Romero-Barcelo, 671 F.2d 1, 4                   ______ ______________    ______________            n.2 (1st Cir. 1982) (probability of success need not be shown            "where  the harm  to  plaintiffs is  particularly severe  and            disproportionate").   The Fifth Circuit has  suggested such a            lower  standard  might apply  in  the    1105a  context,  see                                                                      ___            Ignacio, 955 F.2d at 299 & n.5, and the INS here has adverted            _______            to the Providence Journal  standard in its memorandum (albeit                   __________________                                            ____________________            4.  That amendment (unlike the  one eliminating the automatic            stay) was made effective "as if included in the enactment of"            the ADAA.  IMMACT,   501(b), 104 Stat. 5048.                                         -7-            without  addressing  its applicability).    Yet  we need  not            decide  which standard should  govern, inasmuch as petitioner            has failed to  present a "serious legal  question," let alone            establish a probability of success.                 In  exercising its  discretion whether  to  grant relief            from  deportation   under  8   U.S.C.     1182(c),   the  BIA            "balance[s]  the  adverse   factors  evidencing  an   alien's            undesirability as  a permanent  resident with the  social and            humane considerations  presented in  his behalf."   Matter of                                                                _________            Marin, 16 I. & N. Dec. 581, 584 (BIA 1978) (quoted in Hazzard            _____                                                 _______            v.  INS, 951 F.2d  435, 438 (1st  Cir. 1991)).   The IJ found                ___            that a  number of factors strongly  militated in petitioner's            favor.   He has resided in  this country since age  15, for a            total  of 24  years.   His  parents,  grandparents, and  four            siblings all reside here as well; he has no relatives in Hong            Kong.  He served in the  Navy from September 1971 to  January            1973.  Petitioner married a native-born United States citizen            in 1985, and the two have  lived together ever since.  At the            time  of the 1987 hearing,  they had had  one child together,            his  wife had a second child from a previous relationship who            lived  with them, and she  was pregnant with  a third.  After            earlier  bouts of underemployment, petitioner resumed working            full-time  at  a  family  restaurant   in  1986  (as  a  food            preparer);  he has been the sole support for his family since            that time.                                         -8-                 Arrayed   against  these  equities  were  the  following            adverse factors.  As mentioned, petitioner was convicted of a            serious drug-related  crime in 1984 and  two less significant            offenses earlier.5  While  he received an honorable discharge            from the  Navy, that  discharge was prompted  by petitioner's            use  of marijuana.  Although petitioner  claimed to have been            rehabilitated from such drug use, the IJ found otherwise.  In            a  July  1986  report,   his  probation  officer  reported  a            "reluctance [on  petitioner's  part] to  deal with  substance            abuse issues," elaborating as follows:                      I have contacted Mr. Wong's  [substance abuse]                 counselor,  who  states  that  Mr.  Wong  has  made                 virtually no progress.  Their assessment is that he                 is  still  in  the  denial stage,  that  he  admits                 continued  regular use  of  marihuana  and that  he                 justifies  his use by insisting that it is a way of                 life in  his culture.   Of even greater  concern is                 that Mr. Wong's  reluctance to deal  with substance                 abuse issues is  apparently longstanding....  Given                 the  problems  that  drug   use  has  caused   this                 individual to date, it is truly unfortunate that he                 shows no insight or willingness to change.                                            ____________________            5.  Petitioner, conceding deportability,  has not  challenged            the denomination  of his shoplifting  offense as a  "crime of            moral  turpitude."   We  note that  such a  characterization,            while not unanimously endorsed,  finds support in the caselaw            of this circuit,  see Pino v. Nicolls, 215 F.2d 237, 245 (1st                              ___ ____    _______            Cir. 1954),  rev'd  on other  grounds,  349 U.S.  901  (1955)                         ________________________            (petty larceny of twelve  golf balls); Tillinghast v. Edmead,                                                   ___________    ______            31 F.2d 81,  83-84 (theft  of fifteen dollars),  and that  of            other courts, see,  e.g., Mattis  v. INS, 774  F.2d 965,  967                          ___   ____  ______     ___            (9th Cir.  1985) (shoplifting); Morasch v. INS,  363 F.2d 30,                                            _______    ___            31 (9th Cir. 1966)  (petty larceny); Ablett v. Brownell,  240                                                 ______    ________            F.2d 625,  630 (D.C. Cir. 1957) (petty theft).  See also 3 C.                                                            ________            Gordon  &  S.  Mailman,   Immigration  Law  and  Procedure                                         ________________________________            71.07[3][d],  at  71-161  & n.306  (1992)  (describing  petty            larceny as crime of  moral turpitude, while noting criticisms            of that view).                                          -9-            And at the hearing, petitioner acknowledged that he continued            to use marijuana  (albeit on  an occasional basis).   The  IJ            determined that, on balance, these adverse factors outweighed            the equities.   The BIA agreed,  concluding that petitioner's            "criminal  record,  his  history   of  drug  abuse,  and  his            continuing disregard of the controlled substance laws of this            country  warrant  a   denial  of  relief   as  a  matter   of            discretion."                 Petitioner advances several  specific challenges to this            decision,  none  of  which  proves  persuasive.    First,  he            contends  that the IJ  accorded excessive weight  to his 1977            marijuana offense, improperly regarding  it as equivalent  in            severity to his 1984  drug conviction.  Petitioner apparently            draws  such an  inference from  the simple  fact that  the IJ            listed both  of these  offenses as separate  adverse factors.            Yet such an  inference is misplaced: the IJ took full note of            the  suggestion   that  the  marijuana   offense  involved  a            noncriminal  violation,6 and  the record  reveals no  lack of                                            ____________________            6.  It is clear that petitioner's offense was not criminal in            nature.  Maine decriminalized the possession of up to one and            one-half ounces of marijuana as of May 1, 1976.  See 1975 Me.                                                             ___            Laws c. 499,   2383 (amending Me. Rev. Stat. Ann.  tit. 22,              2383).   See also  1989 Me.  Laws c. 344,    2  (lowering the                     ________            threshold to one and one-quarter  ounces).  Compare Me.  Rev.                                                        _______            Stat.  Ann. tit. 17-A,   1106(3) (any person in possession of            more than the threshold  amount is presumed to be  unlawfully            "furnishing"  a  scheduled  drug).    The  offense  to  which            petitioner pled guilty  occurred on June  28, 1976, some  two            months after decriminalization took effect.                 Some confusion  has  occurred on  this  point.   At  the            agency hearing, petitioner's  counsel suggested, first,  that                                         -10-            understanding  as  to the  nature of  each  offense.   To the            extent petitioner contends that  the IJ abused his discretion            by regarding  the marijuana offense  as an adverse  factor at            all,   we   likewise    disagree.      Notwithstanding    its            decriminalization in Maine, the  fact remains that  marijuana            possession  continued to be against the  law--both as a civil            violation under state law, see Me. Rev. Stat. Ann. tit. 22,                                         ___            2383(1), and as a criminal  violation under federal law,  see                                                                      ___            21 U.S.C.   844.7   Accordingly, for the purpose  of deciding                                            ____________________            the marijuana offense  was criminal in  nature, then that  it            was  a  civil  violation.    And  the  government, while  not            addressing  the issue  below, erroneously  asserts on  appeal            that  decriminalization  occurred subsequent  to petitioner's            offense.  Although the IJ apparently did not confirm the date            of this change in state law, he did  assume arguendo that the                                                        ________            1976  offense was  civil in  nature.   Any confusion  on this            point was thus without prejudice.                   7.  We note that, in  the interval between the  IJ's decision            and that of the BIA, an increased tolerance for possession of            small  amounts  of  marijuana  was likewise  introduced  into            federal  law.    While  such possession  remains  a  criminal            violation, the ADAA in 1988  added a provision permitting the            Attorney General to seek civil rather than criminal penalties            in  such cases.   See  Pub. L.  No. 100-690,  102 Stat.  4384                              ___            (codified  at 21  U.S.C.    844a).   And while  possession of            marijuana in  whatever amount  formerly provided a  basis for            deportability, see  8 U.S.C.   1251(a)(11)  (Supp. 1989), the                           ___            1990 IMMACT  exempted from  that provision "a  single offense            involving  possession   for  one's   own  use  of   30  grams            [approximately  1.06 ounces] or less  of marijuana."  Pub. L.            No. 101-649,   602(a), 104 Stat. 5080 (recodified at 8 U.S.C.              1251(a)(2)((B)(i)).                 These   developments  (to   which  petitioner   has  not            referred) do  not undermine the  agency's decision here.   As            mentioned,  his  deportability  was  not  predicated  on  his            marijuana offense,  but rather on his  two other convictions.            And  this more  lenient  approach does  not render  marijuana            possession  (or use)  irrelevant in  the context  of deciding            whether  discretionary  relief  from  deportation  should  be                                         -11-            whether  discretionary  relief  from  deportation  should  be            granted,  we   think  the  IJ  was   warranted  in  regarding            petitioner's marijuana offense as a relevant adverse  factor.                 In  a  similar  vein,  petitioner  argues  that  the  IJ            accorded exaggerated weight to  his ongoing use of marijuana.            For  much  the same  reasons  just  discussed, this  argument            likewise   fails.     The   IJ   found   that,  despite   its            decriminalized status, petitioner's  use of marijuana for  at            least   fifteen   years   reflected   a   lack   of   genuine            rehabilitation.  Given the continued illegality of  marijuana            possession,  we  find no  abuse  of  discretion  in the  IJ's            consideration  of such  evidence.   To the  extent petitioner            questions the  IJ's conclusion as to  lack of rehabilitation,            we  note  that  the probation  officer's  statement  strongly            supports that  finding.  Moreover,  petitioner's acknowledged            use of  marijuana  shortly before  the  agency  hearing--some            months  after having been ordered to show cause why he should                    _____            not  be deported--reflects a certain brazenness which further            reinforces the IJ's conclusion.                 Finally,  petitioner complains  that the  BIA failed  to            consider  the  absence  of   negative  information  (and  the            resulting inference of rehabilitation) during  the five years            this  case was pending  before the BIA.   Yet, as  far as the            instant  record  reveals,  petitioner  filed  no  motion   to                                            ____________________            awarded.                                                 -12-            reconsider  or reopen  based on  any such  new evidence.   As            such, the BIA was obviously justified in deciding the case on            the basis of the original record.                 In reviewing the BIA's  discretionary decision to deny a            waiver  under     1182(c),  we  consider  only  whether  that            decision   was  arbitrary,   capricious,  or   an  abuse   of            discretion.   See, e.g., Martinez  v. INS, 970  F.2d 973, 974                          ___  ____  ________     ___            (1st  Cir. 1992); Hazzard, 951 F.2d at  438.  The denial will                              _______            be upheld "unless it was made without a rational explanation,            inexplicably departed from established policies, or rested on            an impermissible basis."  Williams v. INS, 773 F.2d 8, 9 (1st                                      ________    ___            Cir. 1985)  (quoted in Martinez,  970 F.2d at 974).   For the                                   ________            foregoing  reasons, we  find that  the decision  here suffers            from  none  of these  defects.    The agency  considered  all            relevant factors and articulated a  supportable rationale for            its  decision.   As  we find  that  petitioner has  failed to            present a  serious  legal question,  the  motion for  a  stay            pending review is denied.                 The provisional  stay of  deportation entered on  August                 ________________________________________________________            10, 1992  is  vacated, and  petitioner's  motion for  a  stay            _____________________________________________________________            pending review is  denied.  Petitioner's motions  to stay the            _____________________________________________________________            appellate process and to continue the stay of deportation are            _____________________________________________________________            likewise denied.   Petitioner  shall show cause  within three            _____________________________________________________________            weeks from the date of this decision why the instant petition            _____________________________________________________________            should not be dismissed.             ________________________                                         -13-                                         -14-
