The opinion of the court was delivered by: GRADY
Petitioner Killet George Shamoun, a native and citizen of Iraq, brought this habeas corpus petition, pursuant to 8 U.S.C. § 1105a(b), for relief from a final order of exclusion entered against him by the Board of Immigration Appeals ("BIA"). The respondent moves to dismiss the petition or alternatively for summary judgment. For the reasons stated in this opinion, the respondent's motion for summary judgment is granted, and the petition is dismissed.
Shamoun was conditionally admitted to the United States as a refugee on May 19, 1976, pursuant to § 203(a)(7) of the Immigration and Nationality Act ("INA"). Shamoun is an Assyrian Christian who claims he fled Iraq due to racial, religious and political persecution in his native country. Petition for Writ of Habeas Corpus, P 13. Shamoun now lives in Chicago, his wife is a United States citizen, and they have two children who are citizens by birth. Id. at P 14. On March 29, 1993, Shamoun was convicted in the Circuit Court of Cook County of delivery of a controlled substance (cocaine), was sentenced to four years in prison, and was released after serving about 18 months. Id. at 16.
On August 23, 1994, the Immigration and Naturalization Service placed Shamoun in exclusion proceedings for a controlled substance violation, controlled substance trafficking, and lack of a valid immigrant visa under 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1182(a)(2)(C) and 1182(a)(7)(A)(i)(I). Respondent's Answer and Memorandum of Law, at 2. Shamoun was placed in exclusion proceedings, rather than deportation proceedings, because he had never changed his immigration status from that of a conditional entrant into the United States. Id. at 2 n.1. After a hearing before an immigration judge on October 11, 1994, the immigration judge found Shamoun to be excludable under both the above-cited narcotics provisions of the exclusion statute and under the INS regulation for the exclusion of aliens, 8 C.F.R. § 236.5(c). Id. at 2. Shamoun appealed the immigration judge's decision to the BIA, arguing that the immigration judge was precluded from ordering his exclusion under 8 C.F.R. § 236.5(c) because his single drug conviction was not a "compelling reason of national security or public order" that required his exclusion. Id.
On September 8, 1995, the BIA affirmed the immigration judge's decision to exclude Shamoun and dismissed his appeal. The BIA held that Shamoun was properly placed in exclusion proceedings, because neither he nor the INS had ever adjusted his conditional entrant status. Administrative Record, Decision of the Board of Immigration Appeals, In re Shamoun, # A21579196, at 4-5 (citing Dhine v. Slattery, 3 F.3d 613, 617-18 (2d Cir. 1993) (exclusion proceedings apply to conditional entrants)). The BIA also held that the immigration judge properly held that Shamoun's drug trafficking conviction made him excludable under the exclusion statute and was a "compelling reason of national security or public order" for exclusion under 8 C.F.R. § 236.5(c). Id. at 8-13. The BIA noted that the lone drug trafficking conviction could provide the "compelling reason" for exclusion under the INS regulation, because of the executive and congressional policy against allowing criminal aliens, especially drug offenders, to remain in the United States. Id. at 10.
Shamoun brings this petition for habeas corpus relief from the BIA's order, pursuant to 8 U.S.C. § 1105a(b). The respondent now moves to dismiss the petition or, alternatively, for summary judgment.
In deciding a motion to dismiss, the court must assume the truth of all facts alleged in the complaint, construing the allegations liberally and viewing them in the light most favorable to the plaintiff. See Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th Cir. 1994). Dismissal is properly granted "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Cushing v. City of Chicago, 3 F.3d 1156, 1159 (7th Cir. 1993). Where matters outside of the pleadings are presented to and not excluded by the court, a motion to dismiss shall be treated as one for summary judgment under Rule 56. Fed. R. Civ. P. 12. Both parties must have a reasonable opportunity to present pertinent material before summary judgment may be entered against a party when a motion is converted. See Burick v. Edward Rose & Sons, 18 F.3d 514, 516 (7th Cir. 1994).
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (1986). A "genuine issue of material fact exists only where 'there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'" Wallace v. Tilley, 41 F.3d 296, 299 (7th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). In considering such a motion, the court must view all inferences in the light most favorable to the nonmoving party. See Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir.), cert. denied, 515 U.S. 1160, 132 L. Ed. 2d 856, 115 S. Ct. 2613 (1995). The court will enter summary judgment against a party who does not come forward with evidence that would reasonably permit a finder of fact to find in his or her favor on a material question. McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995).
The respondent filed his motions to dismiss and for summary judgment contemporaneously and in the alternative. Because the parties rely on materials outside the petition, and petitioner has had the opportunity to review and respond to the evidence presented by the respondent, we treat the motion before us as one for summary judgment.
We note at the outset that we have jurisdiction over Shamoun's habeas corpus petition. Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") of 1996, an alien against whom a final order of exclusion had been entered would obtain judicial review of the exclusion order by a writ of habeas corpus, pursuant to 8 U.S.C. § 1105a(b). Under IIRIRA's transition provisions, an alien such as Shamoun whose order of exclusion was final before September 30, 1996, still can obtain judicial review of the exclusion order by a writ of habeas corpus. See IIRIRA § 309(c)(1), Pub L. No. 104-208, 110 Stat. 3009; see also Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir. 1997) (noting that § 309(c) provides judicial review of exclusion and deportation orders that were final before April 1, 1997).
Our consideration of Shamoun's habeas petition is limited solely to a review of the administrative record from the proceedings below. See De Brown v. Department of Justice, 18 F.3d 774, 776 (9th Cir. 1994). Legal interpretations of the BIA are reviewed de novo, but we give due consideration to the BIA's construction of statutes that are unclear when its interpretation is reasonable. See Bereza v. INS, 115 F.3d 468, 1997 WL 286142, at *3 (7th Cir. 1997); Garcia v. INS, 7 F.3d 1320, 1323 (7th Cir. 1993). The BIA's construction of INS regulations is entitled to substantial deference, unless it is clearly erroneous or inconsistent with the regulation. Perez-Rodriguez v. INS, 3 F.3d 1074, 1079 (7th Cir. 1993).
Shamoun's petition for habeas corpus raises four issues of law: (1) whether the immigration judge erred in her interpretation of 8 C.F.R. § 236.5(c) when she held that the drug conviction was a "compelling reason of public order" for exclusion; (2) whether a hearing is required under 8 C.F.R. § 236.5(c) to determine whether a "compelling reason of public order" exists and requires exclusion; (3) whether the immigration judge erred in failing to designate a country of deportation; and (4) whether this court should order a separate hearing on Shamoun's danger to the community under the ...