Naim Butros v. United States Immigration and Naturalization Service

with whom BRUNETTI, Circuit Judge joins, dissenting:

Naim Butros, a permanent resident alien, pleaded guilty to possession of cocaine on July 19, 1987 — almost six years ago. On January 21, 1988, an Order to Show Cause was promptly issued by the Immigration *1147 and Naturalization Service charging him with deportability based on his conviction. Butros admitted the allegations of fact, conceded deportability, and sought discretionary relief under Section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 (c).

Butros attempted to pull the wool over the eyes of the immigration judge hearing his case. He manufactured excuses for his use of cocaine, falsely claimed he had learned his lesson, and presented himself as completely rehabilitated. However, the INS rebutted Butros’s claims with a witness who conclusively established that But-ros had sold cocaine on three occasions while on probation for the crime which triggered the deportation proceedings. Evidence was also admitted that Butros had been arrested by an undercover agent in mid-January 1988 in connection with these recent sales. The Opinion of the immigration judge summarizes his view of these revelations and…

Naim Butros petitions for review of a decision of the Board of Immigration Appeals (Board) dismissing his motion to reopen a denial of waiver of deportation. We grant the petition for review and remand for further proceedings.

BACKGROUND

Naim Butros entered the United States in February 1975. He was six years old. His status at the time of entry was that of a lawful permanent resident, that is, one *1143 having the “status of having been lawfully-accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101 (a)(20) (1988).

Since the date of his entry, Butros has lived continuously in the United States. His mother, father, brothers, and sister also live in the United States, and he presently resides at home with his family and is gainfully employed.

In 1987 he was convicted of a drug offense in Oregon, and the Immigration and Naturalization Service (INS) moved to deport him. At the hearing he conceded de-portability and moved for discretionary relief under section 212(c) of the Immigration and Naturalization Act, 8 U.S.C. § 1182 (c), which reads as follows:

Under…

with whom BEEZER and HALL, Circuit Judges, join, concurring:

I concur in the majority opinion and write separately to explicate my reasons for doing so.

As I understand it, the majority holds that “finality” in some cosmic sense is not really the issue here. Nor must we truly decide what lawful permanent residence means as that phrase is used in 8 U.S.C. § 1182 (c) and defined in 8 U.S.C. § 1101 (a)(20). Rather, the issue is a simple procedural one; it is a question of whether a determination of the BIA can be reopened and reconsidered at any time, regardless of the type of issue involved. As I see it the majority says, “yes.” I do not see that as a radical or shocking answer, so I agree.

We all know that finality is a somewhat fluid concept in law, as it is in nature — at least until the entropy of the universe. For example, in a civil case a decision of a district court on any issue can be reconsidered and upset long after it has become final. Fed.R.Civ.P. 60(b). Moreover, even criminal decisions, long since final, can be overturned in habeas corpus proceedings. Similarly, the INS in its wisdom has adopted a regulation whose plain words state that any decision is subject to…

990 F.2d 1142 61 USLW 2630 Naim BUTROS, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 91-70372. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 21, 1993. Decided April 9, 1993. Paul R. Hribernick, Black Helterline, Portland, OR, for petitioner. David M. McConnell, Office of Immigration Litigation, Washington, DC, for respondent. Lauri Steven Filppu, Deputy Director, Office of Immigration Litigation, Washington, DC, for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before: WALLACE, Chief Judge, CANBY, REINHARDT, BEEZER, HALL, BRUNETTI, NOONAN, O'SCANNLAIN, LEAVY, TROTT and FERNANDEZ, Circuit Judges. NOONAN, Circuit Judge: 1 Naim Butros petitions for review of a decision of the Board of Immigration Appeals (Board) dismissing his motion to reopen a denial of waiver of deportation. We grant the petition for review and remand for further proceedings. BACKGROUND 2 Naim Butros entered the United States in February 1975. He was six years old. His status at the time of entry was that of a lawful permanent resident, that is, one having the "status of having been lawfully accorded the…