Gustavo Gutierrez-Chavez v. Immigration and Naturalization Service

298 F.3d 824 Gustavo GUTIERREZ-CHAVEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE; et al., Respondents-Appellees. No. 00-56149. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 16, 2001. Filed July 31, 2002. Victor D. Nieblas (argued), Law Office of Victor D. Nieblas Pradis, Los Angeles, CA, for the petitioner-appellant. Cindy S. Ferrier (argued), United States Department of Justice, Appearances only by David W. Ogden, United States Department of Justice, Civil Division, Kristen A. Chapman, United States Department of Justice, Office of Immigration Litigation, and John P. Moran, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for the respondents-appellees. Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding, D.C. No. CV-99-07228 DDP. Before B. FLETCHER, D.W. NELSON, and McKEOWN, Circuit Judges. OPINION D.W. NELSON, Circuit Judge. 1 Gustavo Gutierrez-Chavez challenges the manner in which the BIA exercised its discretion in denying his request for a 212(c) waiver of deportation. We must decide if he can do so in a 28…

Concurring in the Judgment:

Although I find myself in agreement with much of the majority’s opinion, including the ultimate result, I respectfully part company with the majority to the extent that its opinion can be read to bar habeas review under § 2241 in all cases that implicate abuse of discretion. It is one thing to acknowledge that Congress repealed direct judicial review of certain immigration orders; it is quite another to restrict habeas review for manifest abuse of discretion.

The Supreme Court and the Ninth Circuit have both held that the repeal of judicial review of final deportation orders does not affect the court’s jurisdiction to review such orders under the general ha-beas statute, 28 U.S.C. § 2241 . INS v. St. Cyr, 533 U.S. 289, 307-08 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001); Magana-Pizano v. INS, 200 F.3d 603, 607 (9th Cir.1999). Although I agree with the majority that St. Cyr offers no definitive resolution to the scope of habeas review, 533 U.S. at 298 , 121 S.Ct. 2271 , it counsels against total abdication of jurisdiction to review discretionary determinations for egregious abuse. The court specifically discussed “the historical use of habeas corpus to…

Gustavo Gutierrez-Chavez challenges the manner in which the BIA exercised its discretion in denying his request for a 212(c) waiver of deportation. We must decide if he can do so in a 28 U.S.C. § 2241 petition for habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

Gutierrez was admitted to the United States as a legal permanent resident in 1979 at the age of thirteen. After holding several odd jobs, Gutierrez began working at a company called Stack Equipment in 1986. Gutierrez testified before the Immigration Judge (“IJ”) that sometime in 1990, while still working at Stack Equipment, he injured his back on the job and had to have an operation. He further testified that, because he was unable to work, he became desperate for money once his disability payments stopped in 1991. This desperation, according to Gutierrez, led him to start selling drugs.

Gutierrez testified that he sold drugs for approximately six months in 1991; during those six months, he participated in ten transactions, feach transaction involving one kilo of cocaine. Gutierrez testified that he made approximately $200 to $300 per transaction. He was eventually caught by the police and pled guilty to…