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Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

 


Case Name:
ALBILLO-FIGUEROA V INS

Case Number:

Date Filed:

98-71239

08/04/00



FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDY PAUL ALBILLO-FIGUEROA,
Petitioner,                                           No. 98-71239

v.                                                    INS No.
                                                     A37-743-587
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

On Petition for Review of a Decision of the
Board of Immigration Appeals

Argued and Submitted
April 25, 2000--San Francisco, California

Filed August 4, 2000

Before: Betty B. Fletcher, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Hawkins

_________________________________________________________________



COUNSEL

Michael Franquinha, Stender & Larkin, Phoenix, Arizona, for
the petitioner.

Anthony W. Norwood (argued) and Nancy E. Friedman,
Office of Immigration Litigation, U.S. Department of Justice,
Washington, D.C., for the respondent.

_________________________________________________________________

OPINION

HAWKINS, Circuit Judge:

Fredy Paul Albillo-Figueroa ("Albillo"), a native and citi-
zen of Guatemala, petitions for review of the denial of his
application for relief from deportation under section 212(c) of
the Immigration and Nationality Act ("INA"), 8 U.S.C.
S 1182(c) (1996) by the Board of Immigration Appeals
("BIA"). His petition presents this court with a question of
first impression: whether a conviction for possession of coun-
terfeit obligations of the United States, in violation of 18
U.S.C. S 472, is an offense "relating to . . . counterfeiting" for
the purposes of section 101(a)(43)(R) of the INA, 8 U.S.C.
S 1101(a)(43)(R). Because we answer this question in the
affirmative, we dismiss the petition for lack of jurisdiction.

BACKGROUND

Albillo entered the United States as a legal immigrant on
December 7, 1982. On May 24, 1996, Albillo pled guilty to
one count of possession of counterfeit obligations of the
United States and one count of aiding and abetting, in viola-
tion of 18 U.S.C. S 2. On September 18, 1996, the U.S. Dis-
trict Court for the District of Nevada sentenced Albillo to 15
months imprisonment. On December 13, 1996, the INS issued
an Order to Show Cause alleging that Albillo was deportable

                               9543


under section 241(a)(2)(A)(iii) of the INA, 8 U.S.C. 
S 1227(a)(2)(A)(iii),1 for being an alien "convicted of an
aggravated felony" after entry into the United States.

On May 22, 1997, the Immigration Judge ("IJ") issued an
order terminating Albillo's deportation proceedings. The IJ
found that Albillo's crime was not an "aggravated felony" as
defined by INA S 101(a)(43)(R), 8 U.S.C. S 1101(a)(43)(R)
(1996). Recognizing that the issue was one of first impres-
sion, the IJ certified its decision to the BIA to determine
"whether or not possession of a counterfeit obligation is in
fact a crime which relates to counterfeiting itself."

The BIA held that a violation of 18 U.S.C. S 472 is an "ag-
gravated felony" for the purposes of INA S 101(a)(43)(R). It
then remanded the case back to the IJ, who subsequently
found Albillo deportable as charged and denied his applica-
tion for relief from deportation under section 212(c) of the
INA. Albillo appealed this decision to the BIA. On September
24, 1998, the BIA affirmed the decision of the IJ and dis-
missed the appeal. This petition for review followed.

STANDARD OF REVIEW

The question of whether a conviction under federal law is
a deportable offense is reviewed de novo. In Coronado-
Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997), we held that
de novo review was the appropriate standard when reviewing
whether a conviction under state law is a deportable offense.
See id. at 1324. Addressing a similar immigration statute, we
noted that Chevron deference is only appropriate when a
"matter is consigned to the INS's discretion in the first place,"
and held that the INS was not granted such discretion to
decide whether a given crime was one "relating to " a con-
_________________________________________________________________
1 8 U.S.C. S 1257 was formerly codified at 8 U.S.C. S 1251. The transfer
of section numbers occurred pursuant to Pub. L. 104-208, div. C, title III,
S 305(a)(2), Sept. 30, 1996, 110 Stat. 3009-598.

                               9544


trolled substance. See id. at 1324 n.1; see also Crandon v.
United States, 494 U.S. 152, 177 (1990) (Scalia, J., concur-
ring) ("[T]he vast majority of administrative interpretation
that exists . . . is not . . . entitled to deference under Chevron
. . . . The law in question, a criminal statute, is not adminis-
tered by any agency but by the courts.").

ANALYSIS

I. Jurisdiction

Prior to the passage of the Illegal Immigration and Immi-
grant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No.
104-208, 110 Stat. 3009 (Sept. 30, 1996), most orders of
deportation were subject to direct judicial review in the circuit
courts of appeals under INA S 106(a), 8 U.S.C.S 1105(a)(1)
(1995). IIRIRA repealed section 106 of the INA, see IIRIRA
S 306(b), and replaced it with a substantially restricted
scheme, now codified at 8 U.S.C. S 1252 et seq. The effective
date of most of these new provisions is April 1, 1997. See
IIRIRA S 309(a).

Section 309(c)(1) of IIRIRA exempts from the new judicial
review provisions those aliens whose exclusion or deportation
proceedings commenced before April 1, 1997. For these indi-
viduals, judicial review is still conducted under section 106(a)
of the INA. See IIRIRA S 309(c)(1).

[1] Section 309(c)(4), however, contains various exceptions
to section 309(c)(1). These exceptions, collectively known as
"transitional rules," apply to cases which were commenced
before April 1, 1997, and in which a final order of deportation
was filed after October 30, 1996. See IIRIRAS 309(c)(4);
Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997) ("As to
cases in which a final deportation or exclusion order was filed
after October 30, 1996, and which were pending before April
1, 1997, IIRIRA's transitional rules apply."). The INS initi-
ated deportation proceedings against Albillo on December 13,

                               9545


1996, when it served him with an Order to Show Cause. The
BIA entered a final order of deportation against Albillo on
September 24, 1998. The case is therefore governed by
IIRIRA's transitional rules.

[2] The applicable transitional rule is section 309(c)(4)(G)
of IIRIRA, which states in pertinent part:

      there shall be no appeal permitted in the case of an
      alien who is inadmissible or deportable by reason of
      having committed a criminal offense covered in sec-
      tion . . . 241(a)(2)(A)(iii) . . . of the Immigration and
      Nationality Act . . . .

Section 241(a)(2)(A)(iii) of the INA states that"[a]ny alien
who is convicted of an aggravated felony at any time after
entry is deportable." 8 U.S.C. S 1227(a)(2)(A)(iii). An "aggra-
vated felony," in turn, is defined in part in INA
S 101(a)(43)(R) as "an offense relating to . . . counterfeiting
. . . ." 8 U.S.C. S 1101(a)(43)(R).

Notwithstanding section 309(c)(4)(G) of IIRIRA, we retain
jurisdiction to determine if jurisdiction exists. See Aragon-
Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000). As the above
statutory explanation indicates, the jurisdictional question col-
lapses into the substantive analysis: If a conviction under 18
U.S.C. S 472 is an aggravated felony for the purposes of INA
S 101(a)(43)(R), then section 309(c)(4)(G) of IIRIRA pre-
vents us from exercising jurisdiction over Albillo's petition.
Conversely, if the conviction is not an "aggravated felony,"
not only do we have jurisdiction over the appeal, but Albillo's
deportation order must be reversed.

II. Aggravated Felony and 18 U.S.C. S 472

[3] Albillo was convicted of one count of Possession of
Counterfeit Obligations of the United States, in violation of
18 U.S.C. S 472, which reads:

                               9546


      Whoever, with intent to defraud, passes, utters, pub-
      lishes, or sells, or attempts to pass, utter, publish, or
      sell, or with like intent brings into the United States
      or keeps in possession or conceals any falsely made,
      forged, counterfeited, or altered obligation or other
      security of the United States, shall be fined under
      this title or imprisoned not more than fifteen years,
      or both.

To support a conviction under 18 U.S.C. S 472, the govern-
ment must prove that "a counterfeit bill was passed or pos-
sessed by the defendant, who knew the bill was counterfeit,
and that the defendant passed or possessed the bill with intent
to defraud." United States v. McCall, 592 F.2d 1066, 1068
(9th Cir. 1979); see also United States v. Rodriguez, 761 F.2d
1339 (9th Cir. 1985). This requisite knowledge and intent to
defraud is sufficient to make a conviction under 18 U.S.C.
S 472 one that is "related to" the act of counterfeiting itself.2
By penalizing those who knowingly use or possess counterfeit
bills with the intent to defraud, the statute seeks to discourage
counterfeiting through the criminalization of the use of its end
product.

Moreover, Albillo's argument that a conviction under 18
U.S.C. S 472 is not a crime relating to counterfeiting imper-
missibly reads the term "relating to" out of section
101(a)(43)(R). See Burrey v. Pacific Gas & Elec. Co., 159
F.3d 388, 394 (9th Cir. 1998) ("In interpreting a statutory pro-
vision, we must avoid any construction that renders some of
its language superfluous."). Section 101(a)(43)(R) necessarily
covers a range of activities beyond those of counterfeiting or
forgery itself. The crime of counterfeiting is covered in 18
_________________________________________________________________
2 Albillo's guilty plea constituted an admission of all elements of the
offense charged. See United States v. Cazares , 121 F.3d 1241, 1246-1247
(9th Cir. 1997). Albillo does not argue, nor does any evidence suggest,
that his plea suffered from any defects, including any failure to admit to
the element of intent.

                               9547


U.S.C. S 471, which provides that "[w]hoever, with intent to
defraud, falsely makes, forges, counterfeits, or alters any obli-
gation or other security of the United States, shall be fined
under this title or imprisoned not more than fifteen years, or
both."

Nor does our decision in Coronado-Durazo support Albil-
lo's construction of section 101(a)(43)(R) of the INA.
Coronado-Durazo construes section 241(a)(2)(B)(i) of the
INA, 8 U.S.C. S 1227(a)(2)(B)(i), which provides that an
alien who is convicted of a "violation of (or a conspiracy or
attempt to violate) any law or regulation . . . relating to a con-
trolled substance" may be deported. There we held that the
"statute's structure [was] clear: aliens who have been con-
victed of violating laws aimed at the regulation or prohibition
of controlled substances are deportable, as are aliens who
have been convicted of conspiracy or attempt to violate such
laws." 123 F.3d at 1325. As noted, a law criminalizing the
possession of counterfeit money, where such a conviction
requires an intent to defraud and knowledge that the money
is counterfeit, is clearly "aimed at the . . . prohibition" of
counterfeiting.

Moreover, a conviction for possession of a counterfeit obli-
gation is, unlike solicitation, far from a generic crime.
Coronado-Durazo, then, lends support to our holding that a
conviction under 18 U.S.C. S 472 is an aggravated felony for
the purposes of section 101(a)(43)(R) of the INA.

[4] Because Albillo has been convicted of an aggravated
felony, section 309(c)(4)(G) of IIRIRA bars our jurisdiction
over his petition for review as well as Albillo's claim that the
BIA's application of section 440(d) of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.
104-132, 110 Stat. 1214,3 violated his Fifth Amendment right
_________________________________________________________________
3 Albillo sought relief from deportation under section 212(c) of the INA,
8 U.S.C. S 1182(c), which provides the Attorney General with discretion

                               9548


to equal protection. See Magana-Pizano v. INS , 200 F.3d 603,
607 (9th Cir. 1999). Accordingly, the petition for review is
DISMISSED.

_________________________________________________________________
to grant relief from deportation to lawful permanent residents who have
resided in the United States for seven consecutive years. Section 440(d)
of AEDPA amended section 212(c) to exclude from eligibility for relief
"an alien who is deportable by reason of having committed any criminal
offense covered in section 241(a)(2)(A)(iii) [of the INA] . . . ." 8 U.S.C.
S 1182(c) (1996), as amended by AEDPAS 440(d).
                               9549



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