
USCA1 Opinion

	




          October 31, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                         ____________________        No. 95-1728                               GUARIONEX A. MARMOLEJOS,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF FINAL ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Guarionex A.  Marmolejos  on Application  for  Review  of a  Final            ________________________        Order of Deportation and Memorandum in Support of Motion for Review of        Final Order of Deportation, pro se.            Vernon Benet Miles,  Attorney, Office  of Immigration  Litigation,            __________________        Civil  Division, U.S.  Department of  Justice,  on Motion  for Summary        Dismissal  and  Motion  to  Dismiss  for  Lack  of  Jurisdiction,  for        respondent.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner, Guarionex A.  Marmolejos,                      __________            petitions for review  of a  final order of  deportation.   He            currently is incarcerated pursuant  to a state conviction for            drug trafficking  offenses.   He  does not  dispute that  his            conviction renders  him an  aggravated felon for  purposes of            the  Immigration and  Nationality  Act  ("INA").   Petitioner            raises essentially two issues on review.                      1.  Petitioner  contends that  the Immigration  and            Naturalization Service  ("INS") violated his  Fifth Amendment            due process rights by delaying both the issuance of the order            to  show cause and the scheduling of the deportation hearing.            Specifically, by the  time of the hearing  -- when petitioner            first  indicated his  intention  to  apply  for a  waiver  of            deportation  under    212(c), 8  U.S.C.    1182(c) --  he was            ineligible  for such  relief,  having served  more than  five            years of  his  sentence.1   Although  the  show  cause  order                                            ____________________            1.  Section 212(c), in relevant part, provides:                        Aliens lawfully  admitted for permanent                      resident [sic]  who temporarily proceeded                      abroad voluntarily and not under an order                      of deportation, and  who are returning to                      a lawful unrelinquished domicile of seven                      consecutive years, may be admitted in the                      discretion   of   the  Attorney   General                      without  regard  to  the   provisions  of                      subsection  (a)  of  this section  (other                      than paragraphs  (3) and (9)(C)) .  . . .                      The  first  sentence  of this  subsection                      _________________________________________                      shall not apply to  an alien who has been                      _________________________________________                      convicted  of  one  or   more  aggravated                      _________________________________________                      felonies  and has served  for such felony                      _________________________________________                      or felonies a term  of imprisonment of at                      _________________________________________                                         -2-            issued prior to  the five-year cut-off, petitioner  maintains                   _____ __            that had it been issued  earlier, he would have been  able to            secure  legal   assistance  and   make  a  timely      212(c)            application.   Also,  petitioner argues  that the  show cause            order   was  constitutionally  deficient   because  it  never            informed him that there was a time limit for applying for the            waiver.                      Before proceeding, we note what is not  at stake in                                                         ___            this  case.    Petitioner   does  not  contest  that  he   is            deportable, nor does he dispute that  he was ordered deported            only  after  a  hearing  which complied  with  statutory  and            regulatory requirements.   Petitioner  also does not  contend            that  he never received notice of his  right to apply for a              212(c) waiver.  Rather, he  complains about the timeliness of            the  procedures used by the INS in initiating and hearing the            matter of his deportability.  With  this in mind, we turn  to            the merits.                      A  review of  the statutes and  regulations reveals            that  neither Congress nor the  INS has required  that a show            cause order  should  issue in  sufficient  time to  allow  an            aggravated felon to apply  for a   212(c) waiver  or that the            order should include  notice of  the time limit  on    212(c)            eligibility.  Although   242(i),  8 U.S.C.   1252(i), directs                                            ____________________                      least 5 years.                      _____________            (Emphasis added).                                         -3-            the Attorney General to  "begin any deportation proceeding as            expeditiously as possible after  the date of the conviction,"            Congress has  clarified that    242(i)  does not  create "any            substantive or  procedural right  or benefit that  is legally            enforceable by any  party" against the INS.   See Immigration                                                          ___            and Nationality  Technical Corrections  Act of 1994,  Pub. L.            No. 103-416,   225,  108 Stat. 4305,  4324 (1994).  See  also                                                                ___  ____            Campos v.  INS, 62 F.3d 311, 314 (9th Cir. 1995) (  225 makes            ______     ___            clear that    242(i) does  not place any  obligations on  the            government).  See generally  INS v. Miranda, 459 U.S.  14, 18                          ___ _________  ___    _______            (1982); Pimental-Romero v.  INS, 954 F.2d 564, 564  (1st Cir.                    _______________     ___            1991).                      2.   Petitioner's  second  contention  is that  his            conviction  did not  become  final  for immigration  purposes            until  the  Massachusetts Supreme  Judicial Court  denied his            request  for  further  appellate  review  of his  conviction.            Because the denial occurred  on September 8, 1993, petitioner            argues that the five-year period in   212(c) did not begin to            run until then.   Thus, he concludes, he still is eligible to            apply for a   212(c) waiver.                      Petitioner is  correct that his conviction  did not            become final until September 8, 1993.  It is settled that "an            alien is not deemed to have been `convicted' of a crime under            the  [INA] until  his conviction  has attained  a substantial            degree of  finality."  Marino v.  INS, 537 F.2d 686,  691 (2d                                   ______     ___                                         -4-            Cir. 1976).  This occurs when "direct appellate review of the            conviction  has either been  exhausted or waived."   White v.                                                                 _____            INS, 17 F.3d  475, 479 (1st Cir. 1994).   Here, as petitioner            ___            points out, his conviction could only be considered final  as            of  September 8,  1993.   This,  however,  does not  end  the            matter.                      The last sentence  of   212(c) states that an alien            is ineligible to apply for a waiver of deportability if he or            she "has  been convicted of  one or more  aggravated felonies            and  has served  for  such  felony  or  felonies  a  term  of            ___            imprisonment  of at  least  5 years."    8 U.S.C.     1182(c)            (emphasis added).  Plainly,  two conditions must exist before            an alien is barred from applying for a   212(c) waiver -- his            or her felony conviction  must be final for INA  purposes and            he or  she must have been imprisoned  for the felony for five            years.                      Thus, the five-year requirement applies to a  "term            of imprisonment,"  not to a "conviction."  The ordinary usage            of the phrase  "term of  imprisonment" refers,  we think,  to            time  actually  spent in  prison  for  a particular  offense.            Petitioner does not, nor would  he for ordinary purposes such            as  parole,  contend that  his  "term  of imprisonment"  only            commenced  on September  8,  1993, when  the  SJC denied  the            appeal of his conviction.   In sum, the term  of imprisonment                                         -5-            can begin before  the conviction  is affirmed  on appeal  and            that is what happened in this case.                      It might be a closer question whether the five-year            term should run from the date on which a petitioner  was held            for  trial and from which he received credit against his term            following conviction.   This is  not a  distinction urged  by            petitioner  in this  case; no  plain error  is  involved; and            given the apparent  purpose of  the statute, it  is at  least            doubtful whether  petitioner could be granted  a waiver since            he  has now served more than five  years from the date of his            conviction, even if the pre-conviction period is discarded.                      Based on  the foregoing the  motion of the  INS for            summary  dismissal is  granted.   See Local  Rule 27.1.   The                                   _______    ___            motion of  petitioner for  in forma  pauperis status  and the            motion of the  INS to  dismiss for lack  of jurisdiction  are            denied as moot.            ______                                         -6-
