Peter Richard Bowe v. Immigration and Naturalization Service

597 F.2d 1158 Peter Richard BOWE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 78-1496. United States Court of Appeals, Ninth Circuit. Feb. 7, 1979. Revised Opinion April 23, 1979. Rehearing Denied June 4, 1979. Michael D. Finnegan, Simmons & Ungar, San Francisco, Cal., for petitioner. Philip P. Leadbetter, Trial Atty., San Francisco, Cal., for respondent. Petition for Review of an Order of the Board of Immigration Appeals. Before CARTER, BRIGHT, * and CHOY, Circuit Judges. CHOY, Circuit Judge: 1 Bowe appeals from the order of the Board of Immigration Appeals refusing to grant a waiver of deportability under § 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1182 (c). Bowe "does not dispute that he is deportable as charged" under § 241(a)(11) of the Act, 8 U.S.C. § 1251 (a)(11), providing for deportation of aliens convicted of criminal laws dealing with drug offenses. But Bowe contends that the immigration judge, affirmed by the Board, failed to afford him a full and fair hearing on the § 212(c) waiver by not allowing him to present certain evidence concerning his alleged rehabilitation from drug activities. He…

Bowe appeals from the order of the Board of Immigration Appeals refusing to grant a waiver of deportability under § 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1182 (c). Bowe “does not dispute that he is deportable as charged” under § 241(a)(11) of the Act, 8 U.S.C. § 1251 (a)(11), providing for deportation of aliens convicted of criminal laws dealing with drug offenses. But Bowe contends that the immigration judge, affirmed by the Board, failed to afford him a full and fair hearing on the § 212(c) waiver by not allowing him to present certain evidence concerning his alleged rehabilitation from drug activities. He claims that he has a constitutional and statutory right to present such evidence. Bowe also claims that the Board and immigration judge abused their discretion in refusing the waiver.

We need not determine the constitutional and statutory rights, if any, of an alien proceeding under § 212(c) to present evidence in his own behalf. This court has recently noted:

Nicholas v. Immigration & Naturalization Service, 590 F.2d 802, 808 (9th Cir. 1979); see Dunn v. Immigration & Naturalization Service, 499 F.2d 856, 857-58 (9th Cir. 1974), cert, denied, 419…

dissenting.

I respectfully dissent. According to the majority, any lack of due process in petitioner Bowe’s hearing before the Immigration and Naturalization Service (the Service) was harmless error because, under pri- or decisions of this court, the Service possesses no discretion to grant Bowe’s request for a waiver of deportation as a convicted drug offender. The majority decides this case upon a basis that neither party presented on this appeal.

This court must recognize that, as I note below, the Service in fact exercises discretionary power in some cases to waive deportability of drug offenders, under section 212(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182 (c) (1976), notwithstanding this circuit’s decisions denying the existence of such power. In that circumstance, I believe it is error to rule that the Service’s failure to award Bowe a procedurally adequate hearing did not prejudice him, as the Service may well have granted Bowe’s application for relief had it allowed him to fully present his case. In my view, the cases relied upon by the majority are inapplicable to the issues before us. I would reverse and remand the case to the Service for a…