choeum v. ins, 1st cir. (1997)

7/26/2019 Choeum v. INS, 1st Cir. (1997)

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USCA1 Opinion

United States Court of Appeals United States Court of Appeals

For the First Circuit For the First Circuit

____________________

Nos. 96-1446, 97-1552

RAN CHOEUM,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,


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Respondent.

____________________

ON PETITION FOR REVIEW OF FINAL ORDERS OF THE

BOARD OF IMMIGRATION APPEALS

____________________

Before

Torruella, Chief Judge, ___________

Bownes, Senior Circuit Judge, ____________________

and Lynch, Circuit Judge. _____________

____________________

Richelle S. Kennedy, with whom Steven W. Hansen and Bingha___________________ ________________ ______

& Gould LLP were on brief, for petitioner. ___________

David V. Bernal, Senior Litigation Counsel, Office of Immi _______________

Litigation, Civil Division, Department of Justice, with whom P _


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McNeill Jones, Assistant Director, and Frank Hunger, As ______________ _____________

Attorney General, Civil Division, Department of Justice,

brief, for respondent.

____________________

November 5, 1997

____________________


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LYNCH, Circuit Judge. The difficulty of wendi LYNCH, Circuit Judge. ______________

through this country's immigration laws -- for the immigran

involved, for the courts, and even for the federal agenci

charged with enforcing the laws -- is illustrated by t

case. For the courts, what is involved is proper

ascertaining congressional intent in light of constitution

guarantees in decision of cases. For this Cambodi

immigrant, Ran Choeum, what is involved is whether she wi

be deported, possibly back to that war-torn land she le

when she was a child. She petitions for review of t

decisions of the Board of Immigration Appeals ("BIA"), o

dated February 9, 1996, denying her applications for asyl

and withholding and for discretionary waiver, and one dat


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April 22, 1997, denying her motions to reopen.

In the interim, the complexity of the immigrati

laws was enhanced by two new statutes. On April 24, 199

the Antiterrorism and Effective Death Penalty Act, Pub.

104-132, 110 Stat. 1214 (1996) ("AEDPA"), was signed in

law. On September 30, 1996, (the same day Choeum moved

reopen before the BIA) the Illegal Immigration Reform a

Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 30

(1996) ("IIRIRA"), was signed into law. Both statut

contain jurisdiction-stripping provisions removing from t

federal circuit courts of appeals their previous jurisdicti

over certain categories of final orders of deportation.

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This case was originally argued on May 9, 1997.

a decision dated July 2, 1997, we upheld the decisions of t

BIA on reasoning which rejected particular arguments by bo

sides. Each party filed petitions for rehearing. T

Immigration and Naturalization Service (INS), in i

rehearing petition, for the first time raised a new argume

that this court lacked jurisdiction to review both of the B


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orders because AEDPA 440(a) precludes jurisdiction o

deportations for "aggravated felonies" under IIRIRA 321.

It would have been vastly preferable, of cours

for the INS to have asserted this jurisdictional argume

initially, and we have some concern about the government

burdening of immigrants with the obligation to respond

new-found statutory interpretations by the INS after a ca

has been heard and decided.1 Nonetheless, because reheari

was timely sought and parties may not waive issues of subje

matter jurisdiction,2 we granted rehearing on particul

issues. We withdraw our earlier opinion and restate in t

opinion those of our earlier conclusions which rema

____________________


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1. In another sense, however, Choeum is the beneficiary

the government's shifting position. Because mandate

never issued, and because Choeum has not been deported duri

the pendency of this appeal, the effect of the government

delay in making its new jurisdictional argument has been

delay Choeum's deportation.

2. See United States v. Baucum, 80 F.3d 539, 541 (D.C. Ci ___ _____________ ______

1996); Michigan Employment Security Comm'n v. Wolverine Ra ___________________________________ ____________

Co., Inc., 930 F.2d 1132, 1137-38 (6th Cir. 1991); Escob _________ ____

Ruiz v. INS, 813 F.2d 283, 286 n.3 (9th Cir. 1987). ____ ___

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pertinent. We conclude that we have jurisdiction to revi

the first decision of the BIA, which requires deportatio

and sustain that decision on its merits. We conclude that

lack jurisdiction over the second BIA decision, denyi

Choeum's petition to reopen.

I.

Ran Choeum, an immigrant from Cambodia, plea

guilty in New York state court to charges of burglary a

kidnapping. The charges stemmed from a crime in whi

Choeum's boyfriend, seeking to settle a family grievanc

murdered two elderly relatives of his sister's fianc

Choeum, who left the scene before the murders took plac


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pleaded guilty to burglary and kidnapping in order to avoi

possible murder conviction under the felony murder rul

While Choeum was in prison, deportation proceedings again

her commenced.

Choeum seeks review of the BIA order of deportati

of April 24, 1996. She argues that AEDPA changes t

standard for determining whether an alien is eligible f

withholding of deportation. She also argues that t

Attorney General's regulation under which her application f

asylum was denied exceeds the authority delegated to t

Attorney General by Congress. Finally, she contends that t

BIA abused its discretion in failing to grant

discretionary relief from deportation. She also petitio


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for review of the BIA's decision of April 22, 1997, denyi

her motion to reopen.

The INS, for its part, argues that, under AEDP

this court lacks jurisdiction to review Choeum's petition

The jurisdictional argument comes in two parts. First, t


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INS argues that this court has no jurisdiction over eit

petition for review because AEDPA 440(a), 8 U.S.C.

1105a(a)(10), removes jurisdiction over deportations f

"aggravated felonies" as that term is more broadly defined

IIRIRA 321(a), 8 U.S.C. 1101(a)(43). In light of t

effective date provided in IIRIRA 321(c), we agree t

there is no jurisdiction over the second petition on t

ground, but the first petition survives this attack. Secon

the INS argues there is still no jurisdiction over the fir

petition for review because she is an alien who has committ

a firearms offense under 8 U.S.C. 1251(a)(2)(C), in t

case, burglary, and AEDPA 440(a) does not permit review

deportations based on such grounds. We hold that judici

review remains available because in the agency deportati


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proceedings, Choeum was charged with deportability based on

on her kidnapping offense, which is a crime of mor

turpitude under 8 U.S.C. 1251(a)(2)(A)(i), and not wit

firearms offense.

We further hold that the INS may not substitu

alternative grounds for deportation at this stage in t

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proceedings, and that its argument fails both as a matter

statutory construction and because it raises due proce

concerns under the Constitution. Therefore, AEDPA does n

deprive this court of jurisdiction to hear Choeum's fir

petition. Choeum's legal arguments, however, while ab

made, do not convince us that the BIA erred in denying Choe

the various forms of relief sought. Accordingly, the BI

decision is affirmed.

II.

Ran Choeum was born in a small Cambodian village

1969. She was one of twelve children; her father was

soldier and her mother supported the family by rice farmin


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In 1973, her father was killed. The Khmer Rouge came

power in the area in 1975, and Choeum's mother, feari

retaliation for her husband's military activities, fled wi

her children to another village. Choeum's mother died

1978 of starvation and illness. In 1979, Choeum's olde

sister brought Choeum and two other sisters, the on

surviving members of the family, to a refugee camp

Thailand; they lived in various camps for the next fi

years.

On March 27, 1985, Choeum and her sisters we

admitted to the United States as refugees; Choeum was lat

granted permanent resident status, retroactive to that dat

The Choeums' sponsors helped them to obtain welfare a


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housing. Choeum, who was fifteen at the time, had never be

to school in Cambodia and spoke no English. Choeum brief

attended high school in Brooklyn, but dropped out when s

became pregnant by her boyfriend, a Cambodian immigrant na

Lak Ling. Choeum's son Wicky was born on January 2, 198


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At Lak Ling's request, Choeum and her son moved

Philadelphia to live with his relatives.

In June 1988, Lak Ling, Choeum and the ba

travelled to New York for Ling's sister's engagement part

When they arrived at Ling's parents' house, they learned t

the sister, who was only fourteen, and her fianc , a twent

eight year old Cambodian man, had disappeared and that t

fianc 's family had not paid the $2,000 dowry owed Lin

family.

The next night, June 5, Choeum went outside to b

ice cream for her son. She saw Ling in a car with thr

Chinese men she did not know. Ling told her to get in t

car, and told her that they were going to get his siste

When they arrived at a large apartment house on Ocean Avenu


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Brooklyn, they all went upstairs and Ling told Choeum

knock on the door of the apartment where Ling's sister

fianc 's parents lived. No one answered. After drivi

around, they returned to the house and the Chinese

knocked on the door. One of the men was carrying a pap

bag.

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This time, the door was opened. The men went i

and Choeum followed. The Chinese men began searching t

apartment, while Ling talked to his sister's fianc

parents. The Chinese men began piling up money and jewelry

the floor in front of the parents. One of the Chinese

brought two young children into the room. Ling instruct

them to tie the children up. Ling assured Choeum that he

just trying to scare the parents into revealing where

sister was. The men brought the children into another roo

took out a knife, cut the telephone cord, and bound t

children with it. One of the children says that Choe

helped tie up the children and put tape on their mout


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According to Choeum, she merely watched, and then she notic

that her boyfriend was holding a gun. Choeum asserts t

she became scared, went back into the other room, and unti

the children; the Immigration Judge, however, did not cre

this testimony. One of the men yelled at her to get out w

he saw her near the children. All four men then screamed

Choeum to leave and wait in the car. She went outside a

waited. When the men returned to the car fifteen minut

later, she asked if anything had happened; Ling assured

that everything was fine. Choeum returned to Ling's parent

house.

The next morning, Choeum was arrested. It was t

that she learned that the two adults at the Ocean Aven


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apartment had been murdered. She was charged with a varie

of crimes, but agreed to cooperate with the police and

help them find Ling. Facing a possible murder convictio

Choeum pleaded guilty to kidnapping in the third degree a

burglary in the first degree, with a three to nine ye


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sentence.

While in prison, Choeum received favorab

performance assessments, particularly from her teachers. S

made rapid progress in English, and came close to achievin

GED despite her complete lack of formal education. Choe

was released in September 1991. She moved to Lowel

Massachusetts to live with her sisters and their childre

She enrolled in job training programs, eventually findin

manufacturing job. The social services professionals

worked with her were impressed by her eagerness to work a

to improve herself.

In 1993, Choeum gave birth to a second son, Davi

David's father left her after she became pregnant and has

contact with his son. Choeum quit her job when she beca


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pregnant with David, and receives welfare and food stamp

Choeum still resides near her sisters in Lowell, and hel

them, as none of the others are proficient in Englis

Choeum's older son, Wicky, lives in Philadelphia with L

Ling's parents, who gained custody of him during Choeu

imprisonment. Choeum does not see Wicky often, but speaks

-9- 9


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him monthly on the phone. Choeum asserts in her most rece

affidavit that she is pregnant with a third child. She al

asserts that, because she fears for their safety, she wou

leave Wicky and David in this country were she to be deport

to Cambodia.

III.

Deportation proceedings were initiated again

Choeum with the issuance of an Order to Show Cause ("OSC")

September 18, 1990. The OSC charged Choeum wi

deportability pursuant to the then-current version of Secti

241(a)(4)3 of the Immigration and Nationality Act ("INA"),

that she had been convicted of a crime of moral turpitu


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committed within five years after entry and sentenced

imprisonment for a year or more. The OSC stated that t

crime of moral turpitude was kidnapping. The OSC did n

refer to Choeum's burglary conviction either in the factu

allegations or in the grounds for deportability.

In her responsive pleadings, filed March 31, 199

Choeum admitted the factual allegations in the OSC a

conceded deportability as charged. She also sought t

opportunity to apply for asylum, withholding of deportatio

and waiver of deportability pursuant to INA 212(c),

U.S.C. 1182(c).

____________________

3. The section has been amended several times since the

the current version of the provision is Secti


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241(a)(2)(A)(i), 8 U.S.C. 1251(a)(2)(A)(i).

-10- 10

A hearing was held before an Immigration Judge

August 7, 1992. The facts and circumstances of Choeu

crime were fully explored, including through testimony

Choeum's defense attorney. The Immigration Judge denied

applications for asylum under INA 208(a), 8 U.S.C.


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1158(a), and for withholding of deportation under I

243(h), 8 U.S.C. 1253(h), on the grounds that su

applications must be denied if the alien, having be

convicted of a particularly serious crime in the Unit

States, constitutes a danger to the community. T

Immigration Judge found that, based on all the eviden

concerning Choeum's burglary and kidnapping convictions, s

had "in fact been convicted of a particularly serious crime

He noted that the BIA has interpreted the statutory langua

to mean that an alien convicted of a particularly serio

crime necessarily constitutes a danger to the communit

Therefore, he ruled, Choeum was not eligible for asylum

withholding of deportation.

Regarding Choeum's application for a discretiona


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waiver under INA 212(c), the Immigration Judge engaged in

careful balancing of the equities. Going through facto

identified as significant by the BIA, the Immigration Ju

found that Choeum's separation from Wicky and her sisters a

the conditions in Cambodia were significant factors, b

those facts did not overcome the egregious and horrib

-11- 11


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nature of her crime. On this ground, the Judge deni

Choeum's application for discretionary waiver as well.

Choeum appealed the decision to the BIA, argui

that the equities, including the birth of her second chi

after the hearing, warranted an exercise of favorab

discretion under INA 212(c), and that the Immigration Ju

should have made a separate determination that Choeum pose

danger to the community before denying her applications f

asylum and withholding of deportation. In a decision dat

February 9, 1996, the BIA dismissed Choeum's appea

reaffirming its view that an alien who has been convicted

a particularly serious crime necessarily constitutes a dan


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to the community and is ineligible for withholding

deportation and asylum. The BIA further found that t

Immigration Judge gave proper consideration to t

discretionary factors in denying Choeum's request for Secti

212(c) relief.

AEDPA was signed into law on April 24, 199

Choeum's petition for review was filed with this court on

9, 1996. On September 30, 1996, Choeum filed a motion

reopen with the BIA, based on new evidence, particularly t

birth of David and the expectation of a third child, and

the argument that AEDPA 413(f), 8 U.S.C. 1253(h), remo

the bar to withholding of deportation for aliens convicted

particularly serious crimes. The BIA denied Choeum's moti


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to reopen on April 22, 1997, finding that under AE

440(d), Choeum was now statutorily ineligible for I

212(c) relief, and rejecting her interpretation of AE

413(f). Choeum has asked this court to review t

decision as well.


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IV.

A. Jurisdiction: The Effective Date of IIRIRA 321(c) ____________________________________________________

Correctly pointing out that Congress in the IIRI

expanded the definition of "aggravated felonies" a

precluded judicial review over deportations for aggravat

felonies, the INS argues this court lacks jurisdiction o

both petitions. Because we agree that kidnapping, the bas

for the order deporting Choeum is an "aggravated felony,

the decisive question has to do with when this new definiti

became effective and the application of that effective da

to the facts of this case.

IIRIRA 321(c) establishes the "effective dat

after which these definitions of "aggravated felony" a


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binding:

____________________

4. Under IIRIRA 321(a), an "aggravated felony" is "a cri

of violence (as defined in section 16 of Title 18, but n

including a purely political offense) for which the term

imprisonment at least one year." 8 U.S.C. 1101(a)(43)(F).

"crime of violence" is defined as "an offense that has as

element the use, attempted use, or threatened use of physic

force against the person or property of another." 18 U.S.

16(a). Because kidnapping satisfies the terms of 8 U.S.

16(a) and Choeum's term of imprisonment exceeded one yea

Choeum committed an aggravated felony under IIRIRA 321(a).

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The amendments made by this section shall

apply to actions taken on or after the ______________

date of the enactment of this Act,

regardless of when the conviction

occurred . . . .

IIRIRA 321(c) (emphasis added). The IIRIRA was enacted

September 30, 1996, so federal courts may not hear appea

from "actions taken" regarding final orders for deportati

occurring after September 30, 1996 where the basis f

deportation is commission (at any time) of an "aggravat

felony."

IIRIRA 321(c) does not itself define "actio

taken." Neither of the interpretations offered by t


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parties appear appropriate. Choeum argues that the mo

sensible interpretation of "actions taken" is that it refe

to immigration proceedings brought against the immigran

Choeum thus characterizes "actions" in the immigrati

context as analogous to a civil action. Choeum cites Blac

_____

Law Dictionary in support of this proposition, that "actio

should be defined in its "usual sense" as a "lawsuit brou

in court" -- i.e., the filing of the complaint. Under t ____

definition, "actions taken" would refer only to remo

proceedings begun after September 30, 1996, with_____

retroactive application to pending proceedings. The I

began removal proceedings against Choeum in 1990.

The INS argues that "actions taken" means a


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action taken regarding the case constitutes an "acti

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taken." The INS argues that judicial review is such

action. Thus, this court's exercising of jurisdiction o

the matter (by hearing the case in May, 1997), the I


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argues, causes the court to be divested of jurisdiction. T

INS relies for support on a two page, per curiam opinion

Mendez-Morales v. INS, 119 F.3d 738 (8th Cir. 1997), whi ______________ ___

decides that "[b]ecause judicial review by this court wou

be an 'action taken' for purposes of IIRIRA 321(c), we ha

no jurisdiction to hear [petitioner's] appeal." Id. at 73 ___

That court did not explain this statement nor cite

authority. As to the second petition, the INS says that t

court has no jurisdiction because, in any event, the BI

denial of Choeum's motion to reopen her case constitutes

"action taken" after the September 30, 1996 date. We agr

only with the latter argument.

Both sides present untenable definitions in the


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arguments. It is not obvious that "action" in t

immigration context does or should have the same meaning

an "action" in the civil context. The court of appea

review actions by the administrative agency in deportati

cases and Choeum attacks four different actions on revie

Choeum's position assumes there can be only one action, a

that is the initial filing in a matter. The INS's positi

is also flawed: it is unlikely Congress intended the ve

act of exercising jurisdiction to trigger the destruction

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that jurisdiction. If Congress had intended to affect eve

petition pending in a court, there was much clearer langua

available to express such an intent. Neither does it ma

sense that federal jurisdiction should be dependent on when

court schedules a hearing on a particular petition.

example, it seems irrational that a federal court would ha

jurisdiction over a matter if it heard argument on Septemb

29, 1996, but would not have jurisdiction if it postponed t ___ ____

argument until October 1, 1996.


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Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Ci __________________ ___

1997) is the only other opinion we have found that conside

the definition of "actions taken" under IIRIRA 321(c). T

facts are similar to this case. The INS sought to deport

alien because he had committed burglary, a crime of "mor

turpitude;" the INS then argued that AEDPA 440(a) preclu

judicial review of the final order of deportation because t

crime was also an "aggravated felony" under 8 U.S.

1101(a)(43). There was no question that the alien

offense would constitute an "aggravated felony" if t

revised definition were applicable under IIRIRA 321(c

hence the precise issue upon which jurisdiction depended

whether an "action" had been "taken" after September 3

1996.


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The court offered three potential definitions

"actions taken." "Actions taken" could refer to: (l) orde

-16- 16

and decisions issued against an alien by the Attorney Gener

acting through the BIA or Immigration Judge, (2) steps ta


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by the alien, such as applying for discretionary relief, (

to any action by anyone, including a circuit court. Id.___

856. The court did not consider Choeum's propos

definition: that "actions taken" refers exclusively to t

commencement of deportation proceedings against the alien.

We largely agree with the holding of Valderra ________

Fonseca. The third reading is improbable: it makes no sen _______

that federal jurisdiction should be based on the or

argument calendar. The second definition is plausible,

IIRIRA 309(c)(4)(A) refers to an "action for judici

review," which would be initiated by the client herself. B

we need not decide the issue on the facts of this cas

Choeum filed her first petition for review on May 9, 19


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well before the effective date. The first definition is t

strongest and most sensible: that "actions taken" refers

actions and decisions of the Attorney General. "This ma

logical and practical sense, as 'actions taken' is easi

understood to encompass things done by an agency to

alien." Id. This interpretation is also consistent with___

the word "actions" is used in another section of the I

limiting federal court jurisdictional section of the INA,

U.S.C. 1252(g):

Except as provided in this section and

notwithstanding any other provision of

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law, no court shall have jurisdiction to

hear any cause or claim by or on behalf

of any alien arising from the decision or

action by the Attorney General to

commence proceedings, adjudicate cases,

or execute removal orders against any

alien under this chapter.

We conclude that jurisdiction over Choeum's fir

petition is not removed by virtue of AEDPA 440(a). T

decision of the immigration judge and the BIA's affirman

all occurred prior to October 1, 1996, so the revis


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"aggravated felony" rules in IIRIRA 321(a) do not appl

By the same reasoning, this court does not have jurisdicti ___

over Choeum's second petition, because the BIA's denial

Choeum's motion to reopen occurred on April 22, 1997, whi

is after the October 1, 1996 triggering date f _____

applicability of the "aggravated felony" rules. We dismi

the second petition.

B. Jurisdiction: AEDPAand Basis for BIA's Deportation Or ______________________________________________________

The INS also filed a motion to dismiss with t

court, arguing that Section 440(a) of AEDPA, apart fr

IIRIRA, deprives this court of jurisdiction to hear t

case. That section ousts the jurisdiction of the feder

courts to review the deportation petitions of, among ot


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classes of aliens, aliens deportable by reason of firear

offenses under 8 U.S.C. 1251(a)(2)(C). The INS conten

that Choeum's burglary conviction was such an offens

However, at the deportation proceedings, the INS did n

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assert the burglary offense as a basis for deportatio


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Instead, the INS rested on the kidnapping offense, althou

the INS did not argue that the kidnapping was also a firear

offense. The INS's argument seems to be that because

might have sought to deport Choeum based on her burglar _____

firearms conviction, even though it chose not to do so, t ___

court lacks jurisdiction to review Choeum's deportation bas

upon her kidnapping non-firearms offense because this cou

lacks jurisdiction over a burglary-firearms bas

deportation, even though this was not the basis f

deportation.

Section 440(a) of AEDPA amended Section 106(a)(1

of the INA, 8 U.S.C. 1105a(a)(10),5 to provide that fin

orders of deportation against aliens who are "deportable


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reason of having committed" certain types of crimin

offenses, including firearms offenses, "shall not be subje

to review by any court." AEDPA 440(a), 110 Stat. at 127

77. This provision of AEDPA applies to pending case

____________________

5. Section 106 of the INA, 8 U.S.C. 1105a was repealed

306(b) of the Illegal Immigration Reform and Immigra

Responsibility Act of 1996, Pub. L. 104-208, 110 Stat. 300

546 ("IIRIRA"); IIRIRA substitutes new judicial revi

provisions. See IIRIRA 306(a), 8 U.S.C. 1252. Howeve ___

this repeal applies only to final orders of deportation a

motions to reopen filed on or after April 1, 1997. S

IIRIRA 306(c), 309, 110 Stat. at 3009-612, 625, as amen _______

by Pub. L. 104-302, 110 Stat. 3656 (Oct. 11, 1996)(technic __

amendment clarifying that judicial review provisions

IIRIRA are not effective upon enactment). IIRIRA al

provides transitional rules for certain classes of cases, s

infra.


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_____

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Kolster v. INS, 101 F.3d 785, 790 (1st Cir. 1996). Un _______ ___

AEDPA, judicial review remains available to aliens who ha

committed other types of offenses, including aliens who ha

been convicted of only one crime of moral turpitude. S

AEDPA 440(a); 8 U.S.C. 1251(a)(2)(A). The INS conten


50/103

that the first degree burglary charge to which Choeum plea

guilty was a firearms offense as defined by Secti

241(a)(2)(C) of the INA, which renders deportable any ali

who "is convicted under any law of . . . using . . . a

weapon . . . which is a firearm . . . in violation of a

law." 8 U.S.C. 1251(a)(2)(C). Therefore, the I

contends, Choeum is "deportable by reason of havi

committed" a firearms offense and Section 440(a) of AE

deprives this court of jurisdiction to hear her petition.

Choeum makes two responses to the INS's argumen

First, Choeum argues that she was not, in fact, convicted

a firearms offense, as her plea colloquy reveals that s

herself did not "use" a handgun.6 Second, Choeum points ou


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____________________

6. Under New York law, a person is guilty of burglary in t

first degree "when he knowingly enters or remains unlawful

in a dwelling with intent to commit a crime therein, and w

in effecting entry or while in the dwelling or in immedia

flight therefrom, he or another participant in the crime: ________________________________

1. Is armed with explosives or a deadly weapon; or

2. Causes physical injury to any person who is not

participant in the crime; or

3. Uses or threatens the immediate use of a dangero

instrument; or

4. Display what appears to be a pistol, revolver, rifl

shotgun, machine gun, or other firearm . . . ."

N.Y. Penal Law 140.30 (emphasis added).

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correctly, that the OSC only referenced the kidnappi

conviction.

It is undisputed that the burglary conviction

not charged as a basis for deportation in the OSC, and t

Choeum's concession of deportability only encompassed t

grounds charged in the OSC, i.e. that she was in fa ____

deportable because the kidnapping conviction was a crime

moral turpitude. The Immigration Judge did, as the I

points out, hear extensive testimony on the nature

Choeum's crime. Notably, however, he did not attempt

determine whether Choeum had used a firearm, because that


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not an issue in the proceedings before him.

The INS's argument is essentially a linguistic on

According to the INS, for purposes of jurisdiction, alie

"deportable by reason of" having committed firearms offens ____

are not only those aliens who have been ordered deported f __________________________

firearms offenses, but also those aliens who could______

deported for that reason. As a matter of statuto

construction, that argument is somewhat illogical: T

contested phrase comes from Section 440(a) of AEDPA,

statutory section solely concerned with final orders

deportation. The section therefore applies, by its ve

terms, only to aliens who have actually been adjud


54/103

____________________

Thus, under New York law, Choeum could be convicted

burglary in the first degree simply by virtue of Ling's u

of the gun.

-21- 21

deportable. It is therefore highly doubtful that, in t

context, Congress meant "deportable by reason of" to mean,

the INS would have it, "potentially susceptible to bei


55/103

deported by reason of . . ."

The reading of the statute that the INS propos

also raises due process concerns. "It is well establis

that the Fifth Amendment entitles aliens to due process

law in deportation proceedings." Reno v. Flores, 507 U. ____ ______

292, 306 (1993). At the core of these due process rights

the right to notice of the nature of the charges and

meaningful opportunity to be heard. See, e.g., Kwong H ___ ____ ______

Chew v. Colding, 344 U.S. 590, 596-98 (1953); Kaczmarczyk____ _______ ___________

INS, 933 F.2d 588, 596 (7th Cir. 1991)(citing cases).___

We do not need to determine what form of noti

would be constitutionally required, because the statutory a


56/103

regulatory scheme under which deportation proceedings a

conducted mandate specific procedures. The INA itse

provides that, in deportation proceedings, written notice

referred to as an order to show cause -- shall be given

the alien specifying, among other things, "[t]he char

against the alien and the statutory provisions alleged to

have been violated." 8 U.S.C. 1252b(a)(1)(D). I

regulations permit the INS to lodge additional charges

deportability "at any time during a hearing" before

Immigration Judge, but specifically state that these char

-22- 22


57/103

must be submitted in writing for service on the alien and f

entry into the record, that the Immigration Judge shall re

the additional charges to the alien and explain them to he

and that the alien may have a reasonable time, includi

requesting a continuance, to respond to additional charge

8 C.F.R. 242.16(d). It is undisputed that the INS did no

at any time, reopen deportation proceedings to comply wi

these statutory and regulatory formalities.

In United States v. Hirsch, 308 F.2d 562 (9th Ci


58/103

_____________ ______

1962), the BIA had ordered petitioner deported on the bas

of crimes which were admitted into evidence at

deportation hearing, but which were never added to the INS

charge against him. The court found that this procedure n

only violated INS regulations similar to the ones discuss

above, but also contravened basic notions of procedural

process:

[A]t all pertinent times, petitioner was

entitled to a statement of the charges

against him, to a hearing of those

charges, and to answer them.

Procedural due process requires no

less, and such due process is required in

such a hearing. We have frequently

commented upon the severity of the remedy

of deportation, with the consequent

requirement that prescribed procedures

must be followed for the protection of


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the alien. Surely being advised of the

charges upon which the proceeding is

based is fundamental to due process.

Id. at 566-67 (internal citations omitted). ___

-23- 23

Here the INS is not actually attempting to depo


60/103

the petitioner on uncharged grounds, but rather usi

uncharged grounds to cut off judicial review. However, t

court has found that even arguably lesser deprivations

notice and the opportunity to be heard "ran afoul

petitioner's procedural rights." Gebremicheal v. INS,____________ ___

F.3d 28, 39 (1st Cir. 1993) (holding that BIA could not re

on extra-record facts concerning human rights in Ethiop

without affording petitioner an opportunity to respond).

these circumstances, where the word "deportable" has

meaning that the context makes plain, and the INS asks us

choose a different interpretation, we are influenced by t

maxim of statutory construction that tells us to interpr

statutes so as to avoid constitutional concerns. See, e. ___ __


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Frisby v. Schultz, 487 U.S. 474, 483 (1988); United States______ _______ _____________

Three Juveniles, 61 F.3d 86, 90 (1st Cir. 1995).________________

therefore reject the INS's suggested interpretation

Section 440(a)'s use of "deportable by reason of."

The INS suggests that this court can make t

necessary determination that Choeum's offense was a firear

offense, implying that briefing and argument before t

court provide sufficient notice. The INS points out that

Kolster, we termed deportability "a largely mechanic _______

determination based on facts that can often be objective

ascertained." 101 F.3d at 789. That description, of cours

-24- 24


62/103

assumes that the necessary facts will be before the decisi

maker. Use of a firearm not being an issue in t

proceedings below, the record before this court cannot

considered complete and the INS argument fails on pragmat

grounds.7 More importantly, it is not the institutional ro

of this court to serve as a factfinding body on issues

first impression.


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We hold that the INS cannot, consistent with

process and the statutory and regulatory requiremen

governing its own proceedings, substitute new grounds f

deportation at this stage in the proceedings, solely for t

purposes of depriving the federal courts of jurisdiction

____________________

7. The INS draws our attention to Yang v. INS, 109 F.3d 11 ____ ___

(7th Cir. 1997). In that case, petitioner contested t

administrative finding that he was deportable by reason

having committed certain crimes, crimes which would ren

him ineligible, under AEDPA, for judicial review of

deportation order. The Seventh Circuit asserted that

court has jurisdiction to determine whether it

jurisdiction" and reviewed the record to see if the law

been properly applied to petitioner's case. Id. at 119 ___

That situation, where the court reviews the administrati

record to determine if the law has been correctly applied

petitioner's case, is not analogous to the situation her

where the question to be answered was not addressed in t


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proceedings below.

8. To the extent that Abdel-Razek v. INS, 114 F.3d 831 (9 ___________ ___

Cir. 1997), takes a different position on this issue, we fi

it unpersuasive. But we do not believe that Abdel-Raz ________

really conflicts with our conclusion. Abdel-Razek, a ___________

Mendez-Morales v. INS, 119 F.3d 738 (9th Cir. 1997), whi ______________ ___

the INS also cites, both involve aliens who had committe

single crime which was the sole basis for their respecti

deportations, and the issue was whether the INS cou

substitute one ground for deportation, i.e., commission of____

crime of moral turpitude, for another, i.e., an aggravat ____

-25- 25


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We therefore need not determine whether or not Choeu

conviction for burglary in the first degree constitutes

firearms offense. We turn to Choeum's claims of legal erro

based on the grounds on which the INS actually proceeded.

V.

Choeum appeals the February 9, 1996 denial of

applications for three separate types of relief fr

deportation: (1) withholding of deportation under Secti

243(h) of the INA, 8 U.S.C. 1253(h); (2) asylum under

U.S.C. 1158;9 and (3) discretionary waiver of deportabili

under Section 212(c) of the INA, 8 U.S.C. 1182(c).10


66/103

address each of these claims in turn.

____________________

felony. This a different situation than we have in t

present case, where Choeum had committed two differe

crimes, and the INS wishes to use one crime as the basis f

deportation but then the other crime as the basis for denyi

_____

this court jurisdiction. By citing Abdel-Razek as authori ___________

that opposes this conclusion, the INS confuses the le

grounds for deportation with its underlying factual basis.

9. Withholding of deportation and asylum are similar in t

both offer relief from deportation based on the likelihood

persecution in the alien's home country. Asylum requires

greater showing than withholding, and carries with it t

entitlement to become a lawful permanent resident, a

eventually a citizen. Withholding, on the other hand, do

not give the alien the automatic right to remain in t

United States; the alien may still be deported to a thi

country in which she would not face persecution. See INS___ ___

Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987).

_______________

10. Section 212(c), by its express terms, permits t


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Attorney General to waive the exclusion of otherwi

excludable aliens; a longstanding interpretation extends t

discretionary authority to the waiver of deportatio

Kolster, 101 F.3d at 787.

_______

-26- 26

A. Withholding of Deportation _____________________________

Choeum's argument with regard to withholding

deportation again requires us to consider the effect


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AEDPA's amendments to the immigration laws. Secti

243(h)(1) of the INA, 8 U.S.C. 1253(h)(1), provides that:

The Attorney General shall not deport or

return any alien . . . to a country if

the Attorney General determines that such

alien's life or freedom would be

threatened in such country on account of

race, religion, nationality, membership

in a particular social group, or

political opinion.

An alien who meets this standard of eligibility, and who do

not fall under a statutory exception, is entitled________

withholding of deportation; the Attorney General does n

have discretion in Section 243(h) proceedings. Cardoz _____

Fonseca, 480 U.S. at 429. However, Section 243(h)(2) do _______

enumerate several classes of aliens to whom Section 243(h)(


69/103

does not apply. 8 U.S.C. 1253(h)(2). One such excepti

is where "the alien, having been convicted by a fin

judgment of a particularly serious crime, constitutes

danger to the community of the United States." 8 U.S.C.

1253(h)(2)(B)("the Particularly Serious Crime Exception").

The BIA has interpreted this exception to requi

only a determination of whether an alien's crime

"particularly serious"; according to the BIA, an ali

convicted of a particularly serious crime necessari

-27- 27


70/103

constitutes a danger to the community. See, e.g., Matter___ ____ ______

K-, 20 I. & N. Dec. 418, 1991 WL 353530, *3 (BIA Nov.__

1991); Matter of Carballe, 19 I. & N. Dec. 357, 360 (B __________________

1986)("The phrase 'danger to the community' is an aid

defining 'particularly serious crime,' not a mandate t

administrative agencies or the courts determine whether

alien will become a recidivist."). This court, whi

acknowledging that there is "considerable logical force"


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the argument that the Particularly Serious Crime Excepti

requires a separate determination of dangerousness to t

community, has upheld the agency's interpretation un

Chevron U.S.A., Inc. v. Natural Resources Defense Counci _____________________ ________________________________

Inc., 467 U.S. 837 (1984). See Mosquera-Perez v. INS, 3 F. ____ ___ ______________ ___

553 (1st Cir. 1993).

The Immigration Judge here made a specific findi

that Choeum's crime was a particularly serious one, and the

applying the BIA interpretation of the Exception, determin

that Choeum was ineligible for withholding of deportatio

The BIA similarly rejected Choeum's argument that she

entitled to a separate determination of whether she poses

danger to the community. Were it not for AEDPA, that, un


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Mosquera-Perez, would be the end of it. ______________

However, in Section 413(f) of AEDPA, Congre

amended Section 243(h) of the INA to include a new subsecti

(h)(3). The new provision states, in relevant part:

-28- 28

Notwithstanding any other provision of


73/103

law, paragraph (1) [the withholding

provision] shall apply to any alien if

the Attorney General determines, in the

discretion of the Attorney General, that

. . .

(B) the application of paragraph (1) to

such alien is necessary to ensure

compliance with the 1967 United Nations

Protocol Relating to the Status of

Refugees.

8 U.S.C. 1253(h)(3).

Choeum argues that, by directing that t

withholding provisions be applied so as to "ensu

compliance" with the 1967 United Nations Protocol Relating

the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 65

(the "Protocol"), "not withstanding any other provision

law," Congress incorporated the Protocol into United Stat

statutory law. The Protocol, Choeum argues, requires


74/103

separate, individualized determination that the alien

currently a danger to the community. Thus, according_________

Choeum, Section 413(f) of AEDPA expressed a congression

intent to reject the BIA's rulings that Section 243(h)(

requires only a determination that the alien has be

convicted of a particularly serious crime.11

____________________

11. The INS initially argued that Section 413(f) of AE

did not apply to Choeum's case, as AEDPA Section 413(

instructed that the amendments made by Section 413(f) shou

apply only to those applications on which final action

not been taken before the date of AEDPA's enactment, i. _

April 30, 1996. See AEDPA 413(g), 110 Stat. 1269-70. T ___

BIA denied Choeum's application for withholding on Februa

9, 1996; the INS argued that this - not judicial revie

constituted "final action" on Choeum's application, and t

-29-


75/103

29

The Protocol binds its signatories to complian

with the substantive provisions of the 1951 United Natio

Convention Relating to the Status of Refugees, 189 U.N.T.

150, 176 (1954), 19 U.S.T. 6259, 6278, T.I.A.S. No. 65

(1968) (the "Convention"). Article 33.1 of the Conventi

prohibits the "refoulement" -- the forced return


76/103

expulsion -- of a refugee to territories where his life

freedom would be threatened on account of his race, religio

nationality, membership in a particular social group,

political opinion. Art. 33.1, 19 U.S.T. at 6276. Artic

33.2 of the Convention provides an exception to t

principle of "nonrefoulement":

The benefit of the present provision may

not, however, be claimed by a refugee for

whom there are reasonable grounds for

regarding as a danger to the security of

the country in which he is, or who, ____

having been convicted by a final judgment _________________________________________

of a particularly serious crime,

_________________________________________

constitutes a danger to the community of _________________________________________

that country. ____________

Art. 33.2, 19 U.S.T. at 6276(emphasis added).

The United States statutory law on withholdin


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including the Particularly Serious Crime Exception, t

closely mirrors the language of the Convention. (This is n

surprising, as Congress, when it enacted the releva

provisions of Section 243(h) in 1980, specifically inten

____________________

Section 413(f) was therefore inapplicable to Choeum's cas

We need not decide whether the INS's interpretation

"final action" is the correct one.

-30- 30


78/103

to bring United States refugee law into conformance with t

Protocol. See Cardoza-Fonseca, 480 U.S. at 436-37; Mosquer ___ _______________ ______

Perez, 3 F.3d at 556.) As the express terms of t _____

Convention do not differ from those of the United State

Particularly Serious Crime Exception, the explicit referen

to the Protocol in AEDPA's Section 413(f) would not appear

modify that Exception.

Choeum argues, however, that Section 413(

expresses a congressional intent to incorporate the Unit

Nations' interpretation of the Protocol's withholdi

provisions into United States immigration law. She refe


79/103

this court to an advisory opinion on AEDPA issued

Representative Anne Willem Bijleveld of the United Natio

High Commissioner for Refugees ("UNHCR") to the Americ

Immigration Lawyers Association, and to the UNHCR Handbook________

Procedures and Criteria for Determining Refugee Stat __________________________________________________________

(1979)("UNHCR Handbook").

Mr. Bijleveld's opinion takes the position that t

Protocol requires a signatory state to make a separa

determination that the refugee it seeks to expel is a dan

to the community. The UNHCR Handbook, for its part, does n

unambiguously support Choeum's position. The UNHCR Handboo

while requiring an individualized determination of t

applicability of Article 33.2's exclusion clause, focusses


80/103

the definition of "serious non-political crime" and does n

-31- 31

explicitly require a separate dangerousness determinatio

See UNHCR Handbook, supra, 154-57, at 36-37. ___ _____

The INS, in contrast, points this court to Matt ___


81/103

of Q-T-M-T-, Interim Dec. 3300, 1996 WL 784581, *16 (BIA De ___________

21, 1996). In Matter of Q-T-M-T-, the BIA held that Secti ___________________

413(f) of AEDPA did not require a separate dangerousne

determination:

[W]e have consistently held that neither

the Convention and Protocol nor section

243(h)(2)(B) of the Act requires a

separate "dangerousness" determination

"focusing on the likelihood of future

misconduct on the part of the alien." . .

. [E]very reviewing court reaching this

issue has sustained our prior holding in

this regard. Indeed, in 1995, the

Attorney General issued a regulation

adopting this construction of section

243(h)(2)(B). 8 C.F.R.

208.16(c)(2)(ii)(1995). Moreover, there

is nothing in the legislative history of

either the AEDPA or the IIRIRA suggesting

that Congress had any intent to override

this well-settled construction of the

law. And, particularly in enacting the


82/103

IIRIRA, Congress reflected its ability to

clearly address and override Board and

judicial constructions of the law which

it deemed erroneous. Thus, we do not

find our ruling on this issue [to be]

affected by section 243(h)(3) of the Act.

Id.___

The INS further argues that the reason for enacti

Section 413(f) was that AEDPA expanded the definition

"aggravated felony" to include crimes that might

considered less serious than those the Protocol intended

cover in its exclusion clause. Section 243(h)(2) of the I

-32- 32


83/103

8 U.S.C. 1253(h)(2), expressly states that, for withholdi

purposes, "an alien convicted of an aggravated felony sha

be considered to have committed a particularly serio

crime." The INS contends that AEDPA Section 413(f) was t

intended to preserve the Attorney General's flexibility

assessing whether crimes now defined as aggravated feloni

were, in fact, "particularly serious" within the meaning

the Protocol.

In interpreting Section 413(f) of AEDPA, we mu


84/103

first determine if the statutory language makes the intent

Congress clear and unambiguous; if the statute is ambiguou

we give deference to the BIA's interpretation of t

immigration laws, unless that interpretation is arbitrar

capricious, or contrary to the statute. Chevron, 467 U.S.________

842-45 (1984); Mosquera-Perez, 3 F.3d at 554. ______________

The plain language of Section 413(f) is not ve

illuminating. It directs the Attorney General to ensu

compliance with the Protocol, yet as noted, the language

the Protocol's withholding provisions has already be

codified as United States statutory law. Section 413(f) t

appears, at first glance, to be surplusage. The legislati

history of AEDPA is similarly unhelpful.


85/103

The import of Section 413(f) is thus ambiguous, a

we turn to the agency interpretation. The reasoning behi

the BIA's interpretation is fairly persuasive. Congress

-33- 33

presumed to be aware of the BIA's longstanding constructi

of the Particularly Serious Crime Exception. See Mosquer ___ ______


86/103

Perez, 3 F.3d at 559. If Section 413(f) of AEDPA were mea _____

to correct that construction, Congress certainly would ha

done so in a less oblique fashion. We also note that Secti

413 of AEDPA, as a whole, is entitled "Denial of Other Reli

to Alien Terrorists," and that the legislation shows few,

any, indications of having intended to expand the rights______

criminal aliens. In this context, the INS's explanation

why Section 413(f) was enacted is certainly a reasonable on

In turn, Choeum's arguments are unpersuasive.

noted, the UNHCR Handbook does not unambiguously support

interpretation of the Protocol. Moreover, the Supreme Cour

while acknowledging that the UNHCR Handbook is "useful

giving content to the obligations that the Protoc


87/103

establishes," expressly disclaimed the suggestion that t

Handbook had "the force of law or in any way binds the INS

Cardoza-Fonseca, 480 U.S. at 439 n.22._______________

In this context, where the statute is ambiguou

and the BIA has offered a reasonable interpretation of i

provisions, it would be improper for this court to substitu

the advisory opinion of an international body for t

reasoned judgment of the domestic administrative agency wi

primary responsibility for administering the statut

Accordingly, we find that the interpretation of Secti

-34- 34


88/103

243(h)(2)(B) and Section 243(h)(3) adopted by the BIA is n

unreasonable, arbitrary, or capricious. Consequently,

separate inquiry into Choeum's dangerousness to the communi

was not required. See Mosquera-Perez, 3 F.3d at 559. Choe ___ ______________

was not eligible for withholding of deportation.

B. Asylum _________

Choeum next argues that the regulation under whi


89/103

she was deemed ineligible for asylum exceeds the authori

delegated to the Attorney General by Congress.

An INS regulation provides that: "An applicati

for asylum shall be denied if . . . [t]he alien, having be

convicted by a final judgment of a particularly serious cri

in the United States, constitutes a danger to the community

. . ." 8 C.F.R. 208.14(d)(1).12 This regulation

promulgated pursuant to then-current Section 208(a) of t

INA, 8 U.S.C. 1158(a),13 which provided:

The Attorney General shall establish a

procedure for an alien . . . to apply for

asylum, and the alien may be granted

asylum in the discretion of the Attorney

____________________

12. 8 C.F.R. 208.14(d) previously appeared at 8 C.F.R.

208.14(c), and is referred to by its former designation


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the administrative proceedings in this case, and in the cas

discussed herein.

13. Section 604 of IIRIRA, "Asylum Reform," substantial

amends Section 208 of the INA, 8 U.S.C. 1158. Howeve

Section 604 of IIRIRA applies only to applications for asyl

filed on or after April 1, 1997. See IIRIRA 604(c), 1 ___

Stat. 3009-694. References in this opinion are to t

earlier version of 8 U.S.C. 1158, which may be found at

U.S.C.A. 1158 (West 1996).

-35- 35


91/103

General if the Attorney General

determines that such alien is a refugee

within the meaning of . . . this title.

Choeum points out that, in 1990, the same year t

the challenged regulation was adopted, Congress enacted w

was then 8 U.S.C. 1158(d), which provided that "[a]n ali

who has been convicted of an aggravated felony . . . may n

apply for or be granted asylum." 8 U.S.C. 1158(d). Choe

argues that, by negative implication, Congress did not inte

a similar per se bar for aliens convicted of particular ___ __

serious crimes, and that the Attorney General exceeded t

authority delegated by Congress in barring a larger class

aliens than that barred by statute.

The statute expressly conferred broad authority


92/103

the Attorney General to "establish a procedure" for asyl

applications, and the granting of asylum is explicitly le

to the Attorney General's discretion. Under Chevron, whe _______

Congress "explicitly left a gap for the agency to fill," a

where there is thus "an express delegation of authority

the agency to elucidate a specific provision of the statu

by regulation," we should uphold a gap-filling regulati

unless it is "arbitrary, capricious, or manifestly contra

to the statute." Chevron, 467 U.S. at 843-44. _______

The Attorney General's determination that alie

convicted of particularly serious crimes should be ineligib

for asylum is not unreasonable. Applying Chevron, we do n _______


93/103

-36- 36

find that the regulation exceeds the broad grant of authori

conferred by the enabling statute. Accordingly, Choeu

application for asylum was properly denied. We note that t

two other circuits to have considered the argument made he

by Choeum have also upheld the regulation. See Ahmetovic

___ _________

INS, 62 F.3d 48, 51 (2d Cir. 1995)(finding that Congress


94/103

___

not intend to limit agency's power to impose a hig

standard on asylum seekers); Komarenko v. INS, 35 F.3d 43 _________ ___

436 (9th Cir. 1994)(noting similarity of asylum regulation

statutory withholding provisions for aliens who ha

committed particularly serious crimes).14

C. 212(c) Waiver ________________

Choeum also argues that the BIA abused i

discretion in denying her application for a waiver

deportation under Section 212(c) of the INA, 8 U.S.C.

1182(c).

The BIA denied Choeum's application for Secti

212(c) relief twice, first when affirming the Immigrati


95/103

Judge's decision and again when denying Choeum's motion

reopen. We consider only the first of these denials. See__

U.S.C. 1105a(a)(6)("[W]henever a petitioner seeks review

____________________

14. We also note that, in the asylum provisions of IIRI

Congress has made aliens who have been convicted

particularly serious crimes ineligible for asylum, a

explicitly stated that the Attorney General may provide,__________

regulation, additional limitations and conditions on t

consideration of an application for asylum. See 8 U.S.C.___

1158(b)(2)(A)(ii); 1158(d)(5)(B) (1997 version).

-37- 37


96/103

an order under this section, any review sought with respe

to a motion to reopen or reconsider such an order shall

consolidated with the review of the order.").15

We only have jurisdiction to review the BI

initial denial of Section 212(c) relief. Relief un

Section 212(c) is discretionary, and review by this court

for abuse of discretion. See, e.g., Hazzard v. INS, 951 F. ___ ____ _______ ___

435, 438 (1st Cir. 1991). We will uphold such a deni

unless it was made "without a rational explanatio

inexplicably departed from established policies, or rested


97/103

an impermissible basis." Id.___

Here, the BIA found that the Immigration Ju

"gave proper consideration to the discretionary factors."

agree, and can find no abuse of discretion. Choeum's cri

was, as the Immigration Judge found, profoundly disturbin

Choeum argues that the Immigration Judge improper

determined that she showed little remorse. However, t

Immigration Judge observed her demeanor and heard

testimony. This finding essentially turns on Choeu

credibility and does not provide a basis to overrule the BI

Choeum also argues that the Immigration Judge improper

emphasized her reliance on welfare, by failing to consi

____________________


98/103

15. As noted, IIRIRA repealed 8 U.S.C. 1105a. See sup ___ __

note 2. IIRIRA does adopt a consolidation provision that

substantially similar to the old provision. See IIRIRA___

306(a)(2) (current 8 U.S.C. 1252(b)(6)).

-38- 38

the circumstances that have made it difficult for her

work. Many of these circumstances are of Choeum's o

making. Moreover, many, if not most immigrants, fa


99/103

language and educational barriers that make findi

employment challenging.

Choeum's only argument of substance is that,

affirming the decision of the Immigration Judge "based up

and for the reasons set forth in that decision," the B

apparently did not consider the new evidence of the pos

hearing birth of her son David. The INS replies that the B

is an appellate body and that Choeum failed to comply wi

the proper procedure for presenting new evidence, which is

move to reopen proceedings before the Immigration Judge, s

8 C.F.R. 3.2.

While the BIA may, in its discretion, consider n

evidence presented for the first time on appeal, it


100/103

certainly appropriate for the BIA to insist on complian

with the proper procedures. Fair proceedings are be

assured through proper entry into the record of all releva

evidence, and through the ability of the factfinder to si

that evidence. The BIA has given notice, in earli

decisions, that it may refuse to consider new evidence t

is not part of the record before the Immigration Judge. Se _

e.g., Matter of C-, 20 I. & N. Dec. 529, 1992 WL 200361,____ ____________

(BIA May 28, 1992). In these circumstances, the BI

-39- 39


101/103

insistence that the procedural formalities be observed cann

be considered an abuse of discretion.16

Accordingly, the decisions of the BIA challenged

the first petition are affirmed. The second petition________

dismissed.


102/103

____________________

16. We also note that the birth of a second child

unlikely to substantially shift the equities of petitioner

case. While it is true that Choeum has a second child, he


103/103

very young, allegedly has no relationship with his fathe

and presumably does not yet have significant ties to t

United States. Additionally, the BIA, by relying on t

record before the Immigration Judge, did not consider t

other post-hearing events in Choeum's life, includi

quitting her job, returning to reliance on welfare, a

failing to pursue further her GED or other education

avenues.

-40- 40

choeum v. ins, 1st cir. (1997)

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