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Case Name:
Case Number: Date Filed: 
99-70440 03/27/01 



Petitioner,                                           No. 99-70440

v.                                                    I&NS No.
SERVICE,                                              OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
February 16, 2001--San Francisco, California

Filed March 27, 2001

Before: Betty B. Fletcher, Ferdinand F. Fernandez, and
Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

James A. Stanton, Stanton, Clay, Tom, Chapman & Crump-
ton, Honolulu, Hawaii, for the petitioner.

Ronald E. LeFevre, Immigration & Naturalization Service,
San Francisco, California, for the respondent.

Mark C. Walters, Norah Ascoli Schwarz, and Alice E. Lough-
ran, Office of Immigration Litigation, Washington, D.C., for
the respondent.

PAEZ, Circuit Judge:

Petitioner Carlo Hernaez, a citizen of the Philippines, is
HIV-positive and a homosexual. An Immigration Judge ("IJ")
ordered him deported on the bases of overstaying his visa and
his drug addiction. The Board of Immigration Appeals
("BIA") affirmed, denying his motions to remand for consid-
eration of an application for suspension of deportation and to
reopen for consideration of an asylum application. The case
presents a threshold question under the transitional rules of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"): Does Hernaez's status as an admit-
ted drug addict preclude this court from exercising jurisdic-
tion over his petition for review? We hold that because drug
addiction cannot be considered a criminal offense, we have
jurisdiction over Hernaez's case. But we affirm the denial of
his motions to remand and reopen.


Petitioner Hernaez arrived in Hawaii on a six-month visitor
visa on September 13, 1987. On March 10, 1988, just before

his visa expired, he married a United States citizen, who filed
a visa petition on his behalf. Within a year, however, the cou-
ple divorced, and Petitioner's wife notified the Immigration
and Naturalization Service ("INS") that the marriage had been
fraudulent and withdrew the petition. On August 24, 1989, the
INS mailed Petitioner a notice that his visa application had
been denied and that he had until September 13, 1989, to vol-
untarily depart. Petitioner claims he never received that

A. Initial Deportation Proceedings

Nearly two years later, on May 22, 1991, Petitioner applied
to the INS for an alien registration receipt card because he had
never received one. On May 30, 1991, he submitted the fol-
lowing handwritten statement to the INS:

      I, Carlo P. Hernaez, a Filipino citizen who came to
      Hawaii on September 13, 1988 as a tourist with a
      multiple indefinite visa . . . . I got married to Connie
      Balidio on March 12, 1989. The married [sic] didn't
      work out after a year so I filed a divorce after we did
      all the means to save it . . . . Last year, until the
      month of March this year, I'd been heavily involved
      in my drug use. Then, I seek some help . . . in a reha-
      bilitate [sic] center.1

He gave his address as the drug treatment facility.

The INS did not respond to Petitioner's request, and in
March 1992, he went to the INS in person with the following

      I, Carlo P. Hernaez, was in A Second Chance, a drug
1 It is unclear why Petitioner wrote this statement eight days after his ini-
tial inquiry. He claims he was "induced into writing" it, but does not say
who persuaded him.

      and alcohol rehabilitation program in the month of
      March to September 1991 for treatment. I do have a
      drug problem that I had decided to get help [sic].
      Now, I'm . . . presently covered by welfare. I came
      today to ask for a note in order for me to get a state
      I.D. in which enable me to have an identification
      card. My main goal at this time is to get a job and
      be a part of the society. I want to live a new life.

Petitioner was arrested as an "alien not lawfully entitled to be
or remain in the United States." He was advised of his rights,
including the right to counsel and that "any statement made
might be used against him in subsequent administrative pro-
ceedings," and was provided with a list of free legal services.
After being advised of these rights, Petitioner agreed to make
the following statement under oath:

      I, Carlo P. Hernaez, a citizen of the Philippines,
      came to Hawaii on [S]eptember 13, 1987, as a tourist
      . . . . From August of 1990 to about March 1991 I've
      been heavily involved in my drug use, crystal
      methamphetamine, I seek some help. I received
      treatment from March 27, 1991 to August 13, 1991
      at "A SECOND CHANCE" . . . . It's up to me now
      to stay away from drugs. I am on welfare and desire
      to seek employment.

The INS instituted deportation proceedings against Peti-
tioner by issuing an order to show cause ("OSC") alleging
that Petitioner had been notified that the visa petition filed by
his ex-wife had been withdrawn, that he had failed to volun-
tarily depart, and that he had been a drug abuser. Petitioner
was charged with deportability for violation of the
Immigration and Nationality Act ("INA") S 241(a)(1)(B)
(codified at 8 U.S.C. S 1227(a)(1)(B)) (overstay), and INA

S 241(a)(2)(B)(ii) (codified at 8 U.S.C. S 1227(a)(2)(B)(ii))
(having been a drug abuser or addict).2 

At a hearing before the IJ on December 9, 1992, Petitioner
admitted all the allegations in the OSC but denied deporta-
bility and alienage, claiming citizenship through his parents,
who were born in the Philippines during a time when it was
a territory of the United States. He has since abandoned that
claim, as well as his challenge to the denial of voluntary

At the conclusion of the hearing, the IJ found Petitioner
deportable based on the charges in the OSC and Petitioner's
admissions. The IJ also found that Petitioner was ineligible
for voluntary departure because his drug abuse prevented him
from making the requisite showing of good moral character,
as required by INA SS 241(a)(2)(B)(ii), 244(a) (codified at 8
U.S.C. SS 1227(a)(2)(b)(ii), 1254(a)).

B. Appeal to the Board of Immigration Appeals

Petitioner timely appealed to the BIA, claiming that as a
United States citizen, he was not subject to deportation. Peti-
tioner also claimed that because he was not convicted of a
drug offense, his drug abuse did not disqualify him from vol-
untary departure. The INS opposed the appeal on both

1. Motion to remand for consideration of application for
      suspension of deportation

On May 14, 1996, while his appeal was pending, Petitioner
filed an application for suspension of deportation under for-
2 These sections, formerly codified at 8 U.S.C. S 1251, were transferred
to S 1227 by the Illegal Immigration Reform and Immigrant Responsibil-
ity Act S 305(a)(2), Pub. L. 104-208, 110 Stat. 3009-546, 3009-598 (Sept.
30, 1996), amended by Pub. L. 104-302, 110 Stat. 3656 (Oct. 11, 1996).

mer INA S 244(a)(1) (codified at 8 U.S.C.S 1254(a)(1) and
repealed by the Illegal Immigration Reform and Responsibil-
ity Act ("IIRIRA") S 308(b)(7), Pub. L. 104-208, 110 Stat.
3009-546, 3009-615 (Sept. 30, 1996), amended by  Pub. L.
104-302, 110 Stat. 3656 (Oct. 11, 1996)), and moved to have
his case remanded to the IJ to consider the merits of his sus-
pension application. He withdrew his claim to citizenship, and
instead argued that he was eligible for suspension of deporta-
tion because he had overstayed his visa long enough to
acquire the seven years in the United States required to estab-
lish permanent residency. Former S 244(a)(1) provided for
permanent residency for aliens living in the United States for
a continuous period of seven years, if they were "of good
moral character" and if deportation would "result in extreme
hardship." Former S 244(a)(2) provided for permanent resi-
dency for aliens deportable on specific grounds, including
drug abuse or addiction, if they had lived in the United States
for ten years following commission of the act upon which
deportation was based and met the other requirements of for-
mer S 244(a)(1).

Petitioner's claim to extreme hardship was that he was an
HIV-positive homosexual who had acquired this disease after
arriving in the United States. Petitioner claimed that medical
treatment would be unavailable to him in the Philippines and
he would either have to hide his homosexuality or bear the
"brunt of discrimination, maltreatment, and being ostracized."
He alleged that he would be condemned by the Catholic
Church in the Philippines. Petitioner supplemented his appli-
cation with documentation of the treatment of homosexuals in
the Philippines. On August 8, 1996, the INS opposed remand,
arguing that petitioner was subject to former S 244(a)(2) and
was statutorily ineligible for suspension of deportation
because he had not lived in the United States for ten years
after his disqualifying act of drug abuse.

2. Motion to reopen to apply for asylum and withholding
      of deportation

On September 27, 1996, Petitioner filed an application for
asylum and withholding of deportation and a motion to
reopen to consider the application. Petitioner claimed that his
"fear of homophobic persecution from the church, or from
members of the public, is a valid ground upon which " to
apply for asylum. Petitioner claimed that medical treatment
for HIV is not available in the Philippines and that he has a
well-founded fear of persecution in that country. He resubmit-
ted some of the material included in his suspension applica-
tion. The INS opposed reopening, arguing that Petitioner had
failed to meet the requirements for reopening because he sub-
mitted no new previously unavailable evidence. 8 C.F.R.
S 3.2(c)(1).

3. The BIA's Decision

On March 23, 1999, the BIA dismissed Petitioner's appeal
and denied his motions to reopen and remand. The BIA found
that Petitioner had failed to qualify for remand to consider his
application for suspension of deportation because he had not
made a prima facie showing of eligibility: "As the respondent
has not been present in the United States for 10 years after his
drug use, he is statutorily ineligible for suspension of deporta-

Second, the BIA found that Petitioner had failed to estab-
lish a reasonable likelihood of success on the merits of his
asylum claim because he failed to show that he would be per-
secuted or had a well-founded fear of persecution based on his
status as an HIV-positive homosexual. Rather, the BIA found
that Petitioner's evidence showed nothing more than occa-
sional discrimination and harassment, which alone do not
constitute persecution. The BIA further found that there was
no evidence to show that the Filipino government engages in
persecution or is unwilling or unable to control groups that

may engage in such conduct. Therefore, the BIA denied Peti-
tioner's motion to reopen.

Petitioner timely appeals.


Subject to the restrictions of IIRIRA, which we address
below, we review the BIA's interpretation of purely legal
questions de novo. Ladha v. INS, 215 F.3d 889, 896 (9th Cir.
2000). However, the BIA's interpretations and application of
the immigration laws are entitled to deference. Id.  The BIA's
factual findings are reviewed under the substantial evidence
standard. Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000); see
also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (holding
that the BIA's findings of fact can be reversed only if the evi-
dence presented is "such that a reasonable factfinder would
have to conclude" otherwise).


A. Jurisdiction

[1] The INS instituted removal proceedings against
Hernaez on March 3, 1992, before IIRIRA went into effect.
But because the BIA entered its decision after September 30,
1996, judicial review is governed by IIRIRA's transition
rules. IIRIRA S 309(c)(4), 110 Stat. at 3009-626 -- 3009-627.
The INS first contends that this court lacks jurisdiction to hear
Hernaez's appeal under the transition rules. We disagree.

[2] We review the jurisdictional limits of IIRIRA de novo.
Luu-Le v. INS, 224 F.3d 911, 914 (9th Cir. 2000). IIRIRA's
transitional rules prohibit appeals "in the case of an alien who
is . . . deportable by reason of having committed a criminal
offense covered in" several sections of the INA, including
S 241(a)(2)(B). IIRIRA S 309(c)(4)(G), 110 Stat. at 3009-626.
Petitioner argues that we retain jurisdiction over his petition

for review because the ground for his deportation, INA
S 241(a)(2)(B)(ii) (drug abuse or addiction), is not a "criminal

The INS relies on Alarcon-Serrano v. INS, 220 F.3d 1116
(9th Cir. 2000), for the proposition that we lack jurisdiction
because INA S 241(a)(2)(B)(ii) (codified at 8 U.S.C.
S 1227(a)(2)(B)(ii)) does not require a conviction to demon-
strate deportability and a lack of federal appellate jurisdiction.
The deportation in Alarcon-Serrano was based on INA
S 212(a)(2)(C) (codified at 8 U.S.C. S 1182(a)(2)(C)), which
"[u]nlike other provisions of INA section 212(a)(2) . . . does
not require a conviction to demonstrate inadmissibility and
. . . a lack of federal appellate review." 220 F.3d at 1119;
see also  8 U.S.C. S 1182(a)(2)(C) (designating as inadmissi-
ble "[a]ny alien who the consular or immigration officer
knows or has reason to believe is or has been an illicit traf-
ficker in any such controlled substance . . ." ). Similarly, 8
U.S.C. S 1227(a)(2)(B)(ii), which makes drug addiction
grounds for deportation, does not require a conviction, unlike
the other provisions of that section. Cf. 8 U.S.C.
S 1227(a)(2)(B)(i) ("Any alien who . . . has been convicted of
a violation of . . . any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance
. . . is deportable.") (emphasis added). See also In re Perez,
Int. Dec. 3389, 1999 WL 293944 (BIA May 12, 1999)
("[W]hen Congress intends a conviction to control eligibility
for cancellation of removal, it has expressly said so . . . .
[T]his distinction between the commission and the conviction
of offenses occurs repeatedly throughout the Act."). Congress
could have required a conviction for use or possession of ille-
gal drugs as a prerequisite to deportation, but it did not. This
conclusion is in accord with the position of the BIA, which
has observed that inadmissibility (or deportation) for con-
trolled substances offenses "may be established by a convic-
tion, but . . . may also be established by the admission to the
commission of . . . one of those offenses." In re Perez, supra
(emphasis added). Therefore, the INS is correct that no con-

viction is required under INA S 241(a)(2)(B)(ii) for the pur-
pose of deportation. However, Petitioner's argument is not
that a conviction is required to strip this court of jurisdiction.
Rather, he contends that IIRIRA S 309(c)(4)(G), the
jurisdiction-stripping provision, applies only to criminal
offenses, which drug addiction is not.

[3] The language of the transition rules that removes this
court's jurisdiction is different from the language of the sec-
tions of the INA establishing grounds for deportation. Under
IIRIRA S 309(c)(4)(G), Petitioner must have committed a
"criminal offense" to divest this court of jurisdiction. As the
INS argues, under Alarcon-Serrano, such a criminal offense
could be proven without a conviction. But the issue here is the
more fundamental question whether drug addiction is actually
a "criminal offense."

The legislative history of IIRIRA provides little guidance
in answering the question. Congress was obviously concerned
with speeding up the deportation of criminal aliens, particu-
larly those who had committed drug offenses. See , e.g., 142
Cong. Rec. H11,071-02, *H11,085 (daily ed. Sept. 25, 1996)
(statement of Rep. Gilman) ("We have a strong obligation in
protecting our citizens from illegal criminal aliens, who prey
on them with drugs . . . . Nearly one-fourth of our Nation's
jail cells . . . are occupied by criminal aliens, mostly those
who have engaged in drug related offenses."). But Congress
did seem to be focused particularly on aliens who had actually
been convicted of crimes. See, e.g., 142 Cong. Rec. S3328-04,
*3328 (daily ed. April 15, 1996) (statement of Sen. Abraham)
("[A]lmost half a million felons are living in this country ille-
gally. These aliens have been convicted of murder, rape, drug
trafficking . . . ." ); 142 Cong. Rec. S11,711-01, *11,711
(daily ed. Sept. 28, 1996) (statement of Sen. Simpson)
("There is a streamlined system for deporting aliens convicted
of crimes.").

[4] Most importantly, the Supreme Court has recognized
that drug addiction is an illness and that "a law which made
a criminal offense of such a disease would doubtless be uni-
versally thought to be an infliction of cruel and unusual pun-
ishment in violation of the Eighth and Fourteenth
Amendments." Robinson v. California, 370 U.S. 660, 666-67
(1962).3 Based on Robinson , we now hold that mere "drug
abuse[ ] or addict[ion]" cannot be considered a "criminal
offense" for purposes of removing jurisdiction from this

[5] One wrinkle in this case, however, is that Hernaez
admitted to using crystal methamphetamine, which is an ille-
gal drug. See, e.g., 21 U.S.C. S 812 (making methamphet-
amine a "controlled substance"). Under Alarcon-Serrano, the
transitional rules only require that petitioner have "committed
a criminal offense" to strip this court of jurisdiction; they do
not require conviction. But the OSC never charged Petitioner
with having committed a criminal offense involving metham-
phetamine. Nor did the IJ and BIA find him deportable on the
basis of committing such an offense. We have previously held
that we cannot sua sponte find that a petitioner has committed
a criminal offense for the purpose of IIRIRA S 309(c)(4)(G):
"In the Order to Show Cause . . . , the INS must charge the
crimes for which an alien is subject to deportation under
IIRIRA S 309(c)(4)(G) . . . . Because the INS did not charge
[Petitioner] with any crime . . . in the OSC, IIRIRA
S 309(c)(4)(G) does not divest this court of jurisdiction."
Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.
2000) (internal citations omitted). Here, too, the INS only
3 The Court limited its Robinson holding in Powell v. Texas, 392 U.S.
514 (1968). There, the Court found that imprisoning an alcoholic for pub-
lic drunkenness was constitutional because the "appellant was convicted,
not for being a chronic alcoholic, but for being in public while drunk on
a particular occasion." 392 U.S. at 532. In contrast, extending IIRIRA
S 309(c)(4)(G) to cover drug addiction would treat "mere status," Powell,
392 U.S. at 532, rather than a specific act, as a criminal offense, in contra-
vention of the Robinson decision.

charged Petitioner with being a drug addict. Any criminal
offenses we might suppose he committed cannot divest us of
jurisdiction. Because mere drug addiction cannot be consid-
ered a criminal offense, we have jurisdiction to consider
Hernaez's petition for review.

B. Motion to remand to consider claim for suspension of

[6] The BIA concluded that Petitioner is ineligible for sus-
pension of deportation because he had not accrued 10 years
of residency in the United States after his drug abuse ended.
Because, under IIRIRA, we no longer have jurisdiction to
review "any discretionary decision under section . . . 244,"
S 309(c)(4)(E), 110 Stat. at 3009-626, our review is limited to
the question of Petitioner's statutory eligibility for suspension
of deportation. At oral argument, Petitioner's counsel con-
ceded he is ineligible for suspension of deportation under
IIRIRA's "stop-time rule," which requires aliens to meet the
continuous physical presence requirement before their depor-
tation proceedings commence. INA S 240A(d)(1) (codified at
8 U.S.C. S 1229b(d)(1)). See also Ram v. INS, No. 99-70918,
2001 WL 173309, amended by 2001 WL 253195 (9th Cir.
Feb. 8, 2001). Because Petitioner had been in the United
States less than five years, and out of drug treatment less than
a year, before deportation proceedings were instituted against
him, we agree that his petition must be denied on this ground.

C. Motion to reopen to apply for asylum and withholding of

[7] Lastly, Petitioner appeals the denial of his motion to
reopen for consideration of his application for asylum and
withholding of deportation. "A motion to reopen shall not be
granted unless it appears . . . that [the] evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former hearing. " 8 C.F.R.

S 3.2(c)(1). We hold that Hernaez has not met his burden, and
the BIA's denial of the motion to reopen was not in error.

[8] Since at least 1990, two years before the present depor-
tation proceedings were instituted, it has been clear that the
petitioner's sexual orientation can form the basis of an asylum
claim. See In re Tobaso-Alfonso, 20 I & N Dec. 819, 820-23,
1990 WL 547189 (BIA 1990). Petitioner presented no new
evidence in support of his motion to reopen. The documenta-
tion he presented was the same evidence he used in support
of his earlier motion to remand. There is no reason he could
not have raised his asylum claim at the time of his initial hear-
ing or at the time of the motion to remand. Therefore,
Hernaez's petition must be denied on this ground, and we do
not reach the merits of his asylum claim.


We have jurisdiction over Hernaez's petition for review
because his admitted drug addiction cannot be considered a
"criminal offense" for the purpose of the jurisdiction-stripping
provision of IIRIRA S 309(c)(4)(G). However, the BIA did
not err in denying Hernaez's motions to remand and reopen.



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