The opinion of the court was delivered by: BUCKLO
Petitioner, Regino Hernandez-Gonzalez, is a Cuban native and citizen who was paroled
into the United States on June 6, 1980. While living in the United States, Mr. Hernandez-Gonzalez has been convicted of several offenses in Illinois. In 1980, he was convicted of aggravated battery and sentenced to two years' incarceration; in 1989, he was convicted of armed robbery and aggravated unlawful restraint and sentenced to seven years' incarceration; and in 1993, he was sentenced to four years' incarceration for unlawful use of a weapon and nine months' incarceration for possession of a controlled substance with intent to deliver. In August, 1994, an immigration judge found Mr. Hernandez-Gonzalez excludable under 8 U.S.C. § 1182(a)(9) because he had been convicted of a crime involving moral turpitude.
The judge ordered the petitioner excluded and deported from the United States.
Subsequently, Mr. Hernandez-Gonzalez filed this petition for habeas corpus pursuant to 8 U.S.C. § 1105a(b) seeking judicial review of the BIA's final order of exclusion. The respondent, A.D. Moyer, INS District Director, has moved to dismiss the petition. For the reasons discussed below, the respondent's motion will be granted.
The Petitioner's Arguments
Mr. Hernandez-Gonzalez argues that respondent's motion to dismiss must be denied for several reasons. He first argues that the immigration judge and the BIA should have taken into account that his leaving the United States would cause hardship to his wife who had undergone heart surgery several times and was still ill. On this ground, the petitioner believes that he should be able to avoid exclusion under 8 U.S.C. §§ 1182(c), (h), 1254(a)(1).
Section 1254(a)(1), which permits the Attorney General to "suspend deportation and adjust the status to that of an alien lawfully admitted" for certain aliens, does not apply to the petitioner. "Deportation" is different from "exclusion." Individuals who are seeking admission into the United States are subject to exclusion proceedings while those who have been admitted into the country but want to avoid being expelled benefit from deportation proceedings. Sale v. Haitian Centers Council, Inc., 125 L. Ed. 2d 128, 113 S. Ct. 2549, 2560-61 (1993). As a parolee, Mr. Hernandez-Gonzalez was permitted to remain in the United States without being officially admitted. Leng May Ma v. Barber, 357 U.S. 185, 186-90, 2 L. Ed. 2d 1246, 78 S. Ct. 1072 (1958); Gerrero v. Moyer, 738 F. Supp. 1164, 1165 (1990) (citing Leng May Ma v. Barber, supra, 357 U.S. at 187-90). Consequently, he was subject to the exclusion provisions in 8 U.S.C. §§ 1221-1230 rather than the laws governing deportation which are codified at 8 U.S.C. §§ 1251-1260. See Mejia-Ruiz v. Immigration and Naturalization Service, 51 F.3d 358, 360 n.1 (2nd Cir. 1995). Mr. Hernandez-Gonzalez is not eligible for suspension of deportation under 8 U.S.C. § 1254(a)(1).
8 U.S.C. § 1182(c) states that the class of excludable aliens does not include
aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years.
As a parolee, Mr. Hernandez-Gonzalez was never lawfully admitted for permanent residence in the United States. Accordingly, section 1182(c) cannot provide him relief.
Under 8 U.S.C. § 1182(h), an individual who is excluded for being convicted of crimes involving moral turpitude may avoid exclusion if (1) his departure would cause extreme hardship to his American citizen spouse and (2) "the Attorney General . . . has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status." The petitioner does not assert and the documents submitted to the court do not indicate that the Attorney General has consented to him applying for an immigrant visa for admission to the United States or for adjustment of status. Section 1182(h) cannot assist Mr. Hernandez-Gonzalez.
Mr. Hernandez-Gonzalez further argues that he should be granted asylum and withholding of deportation on the grounds that he has a well-founded fear that he will be persecuted if he is excluded from the United States. Asylum and withholding of deportation are not available to individuals who are a danger to the community as a result of having been convicted of a particularly serious crime. 8 C.F.R. §§ 208.14(d)(1), 208.16(c); 8 U.S.C. § 1253(h)(2)(B);
see e.g. Garcia v. Immigration and Naturalization Service, 7 F.3d 1320, 1323 (7th Cir. 1993); Urbina-Mauricio v. Immigration and Naturalization Service, 989 F.2d 1085, 1088 (9th Cir. 1993). "An alien who has been convicted of an aggravated felony is considered to have committed a particularly serious crime." 8 U.S.C. § 1253(h)(2)(D). 8 U.S.C. § 1101(43)(F) defines "aggravated felony" to include "a theft offense . . . for which the term of imprisonment imposed . . . is at least 5 years." The petitioner was sentenced to seven years' incarceration for the offense of armed robbery and, therefore, has committed a particularly serious crime. Even prior to the amendment adding section 1101(43)(F), the BIA deemed armed robbery a particularly serious crime. See Matter of Carballe, 19 I. & N. Dec. 357, 360-361 (BIA 1986), modified on other grounds, Matter of Gonzalez, 19 I. & N. Dec. 682 (BIA 1988).
This offense is especially heinous because it involved the use of a firearm. Thus, the petitioner's conviction for committing the crime of armed robbery, a particularly serious crime, renders him a danger to the community of the United States. Consequently, Mr. Hernandez-Gonzalez may not be granted relief under these provisions.
Finally, the petitioner maintains that his status should be adjusted to that of an alien lawfully admitted for permanent residence under 8 U.S.C. § 1255 because his spouse is a United States citizen. To obtain an adjustment in status, an alien must (1) apply for such adjustment, (2) be eligible to receive an immigrant visa, (3) be admissible to the United States for permanent residence and (4) have an immigrant visa immediately available to him at the time of filing an application for adjustment in status. 8 U.S.C. § 1255(a). Mr. Hernandez-Gonzalez is not admissible to this country for permanent residence. His convictions for at least three crimes involving moral turpitude -- armed robbery, aggravated battery and unlawful aggravated restraint -- render him ineligible for ...