1 The three offenses were all committed on the same day, November 6, 1987. Each offense

was the subject of a separate indictment, based on different provisions of law; each was given a

separate cause number. Rodriguez pleaded guilty and was convicted and sentenced in each case

on the same day, April 18, 1988, in the same court.

2 Texas law prohibits the intentional or knowing possession of a short-barrel firearm, which is

defined to include a shotgun with a barrel length of less than eighteen inches or an overall length

of less than twenty-six inches. Tex.Penal Code Ann. §§ 46.01(10), 46.06(a)(3) (Vernon 1989).

The offense is a second degree felony. Id., § 46.06(e). United States Court of Appeals,

Fifth Circuit.

No. 91-4657.

Raul RODRIGUEZ, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Dec. 20, 1993.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before JOHNSON, GARWOOD, and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner Raul

Rodri guez-Mijes (Rodriguez) seeks review of a Board of Immigration Appeals

(BIA) order finding him ineligible for relief from deportati on under section 212(c) of the Immigration

and Nationality Act (INA), 8 U.S.C. § 1182(c). The BIA dismissed his appeal from an immigration

judge's denial of relief and order o f deport at ion. We have jurisdiction pursuant to 8 U.S.C. §

1105a(a). We deny the petition for review.

Facts and Proceeding Below

Rodriguez is a native and citizen of Mexico who has lived continuously in the United States

as a permanent resident alien since April 1968. The facts surrounding his deportation order are not

in dispute. In April 1988, he was convicted in state court in Bexar County, Texas, of three separate

offenses: 1 (1) possession of cocaine; (2) possession of lysergic acid diethylamide (LSD); and (3)

po ssession of a prohibited weapon, a sawed-off shotgun. 2 He received sentences, apparent ly

concurrent, of ten years imprisonment for each offense.3 Sections 241(a)(11) and 241(a)(14), 8 U.S.C. §§ 1251(a)(11), (14), were amended in 1990

and now appear as sections 241(a)(2)(B)(i) and 241(a)(2)(C), respectively. 8 U.S.C. §§

1251(a)(2)(B)(i), 1251(a)(2)(C). Pub.L. No. 101-649, § 602(a). References to these sections in

this opinion will be to the former version, as the 1990 amendments apply only to deportation

proceedings for which notice of a deportation hearing was given on or after March 1, 1991.

Rodriguez was given notice on August 24, 1989.

Previous amendments to section 241(a)(14) in 1988 expanded that section to make

possession of a firearm in violation of any law a deportable offense for aliens whose

convictions occur on or after November 18, 1988. Pub.L. No. 100-690, § 7348(b). Thus

deportable weapons offenses are no longer limited to machine guns and sawed-off

shotguns. Rodriguez was convicted in April 1988 and is not affected by this change.

4 The INS filed an unopposed motion requesting that the transcript of the hearing before the

immigration judge not be sent to the BIA. Rodriguez makes no complaint concerning this

transcript not being before the BIA or this Court. Rodriguez has been represented by counsel at

each stage of his deportation proceedings.

5 Rodriguez is also subject to deportation under section 241(a)(11), 8 U.S.C. § 1251(a)(11),

for his drug convictions. As is discussed below, only the effect of the weapon conviction upon his

eligibility to apply for a waiver of deportation is at issue here. In August 1989, respondent Immigration and Naturalization Service (INS) issued an order

charging that Rodriguez was d eportable pursuant to sections 241(a)(11) (relating to drug convictions)

and 241(a)(14) (relating to firearms convict ion) of the INA, 8 U.S.C. §§ 1251(a)(11) and

1251(a)(14), based on his state court convictions. 3 The order di rected hi m to appear before an

immigration judge and show cause why he should not be deported. 4

At the hearing before the immigration judge, Rodriguez requested an opportuni ty to apply for

a waiver of deportati on pursuant to section 212(c) of the INA, 8 U.S.C. § 1182(c). The judge found

that he was statutorily ineligible for such relief and ordered him to be deported to Mexico. Rodriguez

appealed to the BIA, which agreed with the immigration judge and dismissed the appeal. Rodriguez

petitions us for a review of the BIA order.

Discussion

The issue before us is whether an al i en who has been ordered deported on the basis of

possession of a prohibited weapon under section 241(a)(14) of the INA, 8 U.S.C. § 1251(a)(14), is

eligible for relief from deportati on under section 212(c ), 8 U.S.C. § 1182(c). 5 Our review of

immigration decisions is extremely limit ed. F iallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478,

52 L.Ed.2d 50 (1977) (" "the power over aliens is of a political character and therefore subject only6 Section 212(c) states that the Attorney General may admit "returning" resident aliens

"without regard to the provisions of paragraphs (1)-(25), (30), and (31) of subsection (a) of this

section." 8 U.S.C. § 1182(c). The Attorney General has no discretion to waive the exclusion of

an alien who is determined to be inadmissible for the grounds set forth in paragraphs (26)-(29),

which exclude aliens who lack a passport or visa, who pose a threat to the security of the United

States, who are members of suspect organizations, or who may engage in subversive activities.

Section 212(c) was amended in 1990 to reflect concurrent changes in subsection

(a). Pub.L. No. 101-649, § 601(d)(1). This amendment is effective for individuals

entering the United States on or after June 1, 1991, and is not applicable here.

In addition, a provision was then added to section 212(c), which limits waiver of

exclusion for "an alien who has been convicted of one or more aggravated felonies and has

served for such felony or felonies a term of imprisonment of at least 5 years." 8 U.S.C. §

1182(c) (1993 Supp.). Pub.L. No. 101-649, § 511(a). This amendment likewise does not

affect our decision here, as it applies only to admissions occurring after the date of

enactment, November 29, 1990.

7 See Cabasug v. Immigration and Naturalization Service, 847 F.2d 1321, 1323-1324 (9th

Cir.1988), for an interesting comparison of the grounds for exclusion and deportation. to narrow judicial review' ") (citing Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895,

1904-1905, 48 L.Ed.2d 495 (1976)).

I. Applicability of Section 212(c) Relief

Section 241(a)(14) of the INA, as in effect at the time of Rodriguez's deportation

proceedings, provides that the Attorney General may order deported any alien who

"at any time after entry, shall have been convicted of possessing or carrying in violation of any

law any weapon which shoots or is designed to shoot automatically or semi-automatically

more than one shot without manual reloading, by a single function of the trigger, or a weapon commonly called a sawed-off shotgun." 8 U.S.C. § 1251(a)(14).

Rodriguez concedes that he is deportable for his conviction of pos session of a sawed-off

shotgun. He argues only that he should be given the opportunity to apply for relief from deportation

under section 212(c) of the INA, 8 U.S.C. § 1182(c). Section 212(c) allows the Attorney General

to waive exclusion of aliens who are found to be inadmissible upon cert ain grounds specified in

section 212(a), 8 U .S.C. § 1182(a). 6 Grounds for exclusion include many which are similar to

ground s for deportation set forth in section 241, 8 U.S.C. § 1251, such as conviction for drug

offenses. 7 There is no provision, however, for exclusion of aliens convicted of weapons offenses.

That Rodriguez may even attempt to apply for deportati on relief under section 212(c), which8 Section 212(c) applies to "[a]liens 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...." 8 U.S.C. § 1182(c).

9 Following the 1990 amendments, this provision appears as section 212(a)(2)(A)(i)(II), 8

U.S.C. § 1182(a)(2)(A)(i)(II). Pub.L. No. 101-649, § 601(a). The change affects individuals

entering the United States on or after June 1, 1991. applies on its face only to excludable aliens, 8 is due to judicial and administrative interpretations of

t he INA which have expanded section 212(c) to apply to some grounds of deportation. The BIA

init ially interpreted section 212(c) narrowly to apply only in exclusion pro ceedings and not in

deportation proceedings. M atter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 19 71). This

interpretation drew a distinction between resident aliens who had temporarily left the United States

and were found exclu dable for some reason upon return and those who had never left the United

States and were found to be deportable upon the same grounds.

The Second Circuit found this distinction unconstitutional in Francis v. Immigration &

Naturalization Service, 532 F.2d 268 (2d Cir.1976). In Francis, the petitioner was a resident alien

subject to deportati on under section 241(a)(11) of the INA, 8 U.S.C. § 1251(a)(11), for conviction

of possession of marijuana, which would also be grounds for exclusion. § 212(a)(23) of the INA, 8

U.S.C. § 1182(a)(23). 9 Because section 212(c) relief would be available for an excludable resident

alien convicted of possession of marijuana, the Second Circuit held that denial of the same relief to

the petitioner there would violate the equal protecti on clause of the Fifth Amendment. Francis, 532

F.2d at 273.

The BIA adopted this interpretation of section 212(c) in Matter of Silva, 16 I. & N. Dec. 26

(BIA 1976) (petitioner subject to deportation for conviction of possession of marijuana with intent

to distribute allowed to apply for section 212(c) discretio nary relief). The BIA did not, however,

extend discretionary relief to all grounds for deportati on. Instead, the BIA limited this extension of

section 212(c) relief to deportable resident aliens whose grounds for deportati on are also grounds for

exclusion under section 212(a) for which discretionary relief is available under section 212(c). See

Matter of Wadud, 19 I. & N. Dec. 182 (BIA 1984) (alien subject to deportati on under section

241(a)(5) of the INA, 8 U.S.C. § 1251(a)(5), for conviction of aiding and abetting another alien to10 In order to be eligible for relief under section 244(a)(1) of the INA, 8 U.S.C. § 1254(a)(1),

there must be a showing that the alien is of good moral character and that his deportation would

result in extreme hardship. These showings are not required in order to be eligible for relief under

section 212(c). obtain a visa procured by fraud was not entitled to invoke section 212(c) relief because there is no

analogous ground of exclusion); M atter of Granados, 16 I. & N. Dec. 726 (BIA 1979) (refusing to

extend section 212(c) to allow relief from deportati on for a n alien convicted of possession of an

unregistered sawed-off shotgun because such a conviction is not a section 212(a) ground for

exclusion nor a crime invo lving moral turpitude that would render petitioner excludable under section

212(a)(9) of the INA, 8 U.S.C. § 1182(a)(9)), aff'd, 624 F.2d 191 (9th Cir.1980).

In 1990, the BIA expanded its interpretation of section 212(c) to include all gro unds fo r

deportation, even if not also grounds for exclusion under section 212(a), except for the gro unds

which are expressly precluded from relief by section 212(c). M atter of Hernandez-Casillas, (BIA,

January 11, 1990) ( Hernandez I ). In that case, an alien was convicted of entry without inspection,

a deportable offense under section 241(a)(2) of the INA, 8 U.S.C. § 1251(a)(2), but not grounds for

exclusion under section 21 2(a). The BIA withdrew its decisions in G ranados and Wadud, and

remanded the case to allow the alien to apply for a section 212(c) waiver.

The Attorney General granted the INS's request for review of the BIA decision, disapproved

the decision, and remanded for fur t her proceedings consistent with his decision. M atter of

Hernandez-Casillas, Int. Dec. Att. Gen. March 18, 1991 ( Hernandez II ). The Attorney General

concluded that the BIA lacked statutory authority t o expand section 212(c) relief to grounds of

deportati on that are not also waivable grounds for exclusion. He stated that the BIA's new

interpretation of section 212(c) relief would disrupt the statutory scheme designed by Congress to

govern deporta t io n proceedings by allowing an alien to obtain relief under section 212(c) without

meeting the standards for relief from deportati on set forth in section 244(a)(1) of the INA, 8 U.S.C.

§ 1254(a)(1). 10

Courts reviewing the decisions of the BIA have upheld the init ial expansion of section 212(c)

to grounds for deportation which have corresponding grounds for exclusion, and most courts have11 As noted above, Rodriguez's deportation proceedings were not affected by these

amendments. See notes 3 and 6, supra.

12 Although at the time of the 1990 amendments, the Attorney General had not yet disapproved

of the BIA's decision in Hernandez I allowing section 212(c) relief for all grounds of deportation,

the amendments cannot be interpreted as an adoption of the BIA's position. Campos, 961 F.2d

309, 315 n. 8. taken positions similar to that of the Attorney General and refused to extend section 212(c) relief to

grounds of deportation which are not also grounds for exclusion.

In Zinnanti v. Immigration & Naturalization Service, 651 F.2d 420, 422 (5th Cir. Unit A

1981), this Court summarily denied section 212(c) relief to a petitioner convicted of possession of

a sawed-off shotgun. In addition, the First and Ninth Circuits have recently addressed this issue and

found section 212(c) relief t o be unavailable in this situation. S ee Campos v. Immigration &

Naturalization Service, 961 F.2d 309 (1st Cir.1992) (agreeing with the reasoning of the Attorney

General in Hernandez II and holding that an alie n who was ordered deported on the basis of a

conviction for possession of an unlicensed .22 cal iber pistol was not eligible to apply for section

212(c) relief); C

abasug v. Immi gration & Naturalization Service, 847 F.2d 1321 (9th Cir.1988)

(dis missing the petition for review of an alien convicted of possession of a sawed-off shotgun).

Finally, the Seventh Circuit has recently held section 212(c) relief to be unavailable to a permanent

resident alien found deportable for entering the United States without inspection. Leal-Rodriguez

v. Immigration & Naturalization Service, 990 F.2d 939, 948-51 (7th Cir.1993).

The 1990 amendments to the INA, which affected sections 212(c) and 241, were made after

the Ninth Circuit rendered its decision in Cabasug and after the Attorney General agreed to review

Hern andez I. 1 1 We must assume that Congress was aware of the interpretation given to section

212(c) to extend only to deportati on grounds with analogous waivable grounds for exclusion, and

that Congress could easily have legislated a change to this interpretation had it wished to do so. 12

Rodriguez seeks to distinguish Campos and Cabasug on the grounds that the petitioners in

those cases were subject to deportati on solely for their weapons convictions. He claims that because

he is also subject to deportati on for his drug possession convictions, offenses for which discretionary

relief under section 212(c) is available, his weapons offense may not preclude an application for relief13 In the later opinion, the court held that Marti-Xiques was ineligible for section 212(c) relief

because he had not met the seven-year residency requirement. from deportati on. In support of this argument, he cit es t he o riginal Eleventh Circuit decision in

Marti-Xiques v. Immigration & Naturalization Service, 713 F.2d 1511 (11th Cir.1983), vacated, 724

F.2d 1463 (11th Cir.1984), decided on other grounds, 741 F.2d 350 (11th Cir.1984). The petitioner

in M arti-Xiques was found deportable for entering the United States without inspection and for

kno wingly aiding another alien to enter. Smuggling aliens is an offense which renders an alien

deportable or excludable. Entering without inspection, however, is a gro und of deportation only.

The Eleventh Circuit allowed the alien t o apply for section 212(c) relief on both grounds of

deportability, but the court limit ed its holding to situations where an alien is deportable under two

grounds arising out of the same incident, and where the more serious of the grounds for deportati on

is an enumerated ground for exclusion. This decision was later vacated and the case was decided on

other grounds. 13

Rodriguez contends that the reasoning of the original decision in Marti-Xiques should control

here because he is deportable under two grounds, one of which may be waived pursuant to secti on

212(c). We doubt that the panel opinion in M arti-Xiques has any validity in this respect. Even if it

were good law in certain restricted circumstances, we would not apply it here. The two deportati on

grounds in Marti-Xiques arose out of the same incident and were clos e ly related types of entry

offenses, the offense having no counterpart in § 212(a) being a misdemeanor while the other offense,

which had a § 212(a) counterpart, was a felony. I d., 713 F.2d at 1515-16. By contrast, Rodriguez's

conviction for possession of a sawed-off shotgun is a felony and a distinctly different type of offense

than either of his drug convictions and shares no common element with either of them.

We hold that Rodriguez is ineligible to apply for section 212(c) relief because his conviction

of possession of a s awed-o ff shotgun, a ground for deportation, is not also a waivable ground for

exclusion under section 212(a). His separate convictions for the drug charges do no t mandate a

different result.

II. Constitutional ConsiderationsRodriguez challenges the denial of an opportuni ty to apply for a waiver of deportati on on due

process and equal protecti on grounds. Although resident aliens are entitled to co nst it utional

protecti on, Landon v. Plasencia, 459 U.S. 21, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), this protecti on

is limit ed by Congress's broad powers to control immigration. This Court has recognized Congress's

"unbounded power" in the area of immigration. S ee Matter of Longstaff, 716 F.2d 1439, 1442 (5th

Cir.1983) (in discussion of exclusion, stating that "Congress can bar aliens from entering the United

States for discriminatory and arbitrary reasons, even those that might be condemned as a denial of

equal protecti on or due process if used for purposes other than immigration policy to draw

distinctions among people physically present within the borders of the United States.").

Rodriguez contends that the denial of a n opport unit y to apply for section 212(c) relief

deprives him of his constitutional right to due process. This argument has no merit. Rodriguez is not

entitled to any process because he is not eligible under the statute to apply for discretionary relief.

The denial o f t he opportunity to present evidence in support of an application would violate his

constitutional rights only if he were eligible to apply for relief.

The cases cited by Rodriguez in support of his due process claim are distinguishable. Only

one, Vissian v. Immigration & Naturalization Service, 548 F.2d 325 ( 10t h Cir.1977), involves a

denial of section 212(c) relief. There, the court found that the alien was entitled to present evidence

in support of a waiver of deportation because the INS had m istakenly concluded that he was

ineligible. I

d. at 329-30. Other cases cited by Rodriguez concern asylum claims rather than section

212(c) relief. S ee Shaha ndeh-Pey v. Immigration & Naturalization Service, 831 F.2d 1384 (7th

Cir.1987); Arauz v. Rivkind, 845 F.2d 271 (11th Cir.1988).

Rodriguez claims that allowing some, but not all, deportees to apply for waivers is a violation

of equal protecti on. Specifically, he points to the fact that he is not eligible for waiver of deportation

for "mere" possession of a prohibited firearm, while aliens deportable for trafficking in firearms or

for use of a firearm in committing a crime, such as armed ro bbery o r murder, may be eligible for

relief. Again, we are not persuaded by this argument. Rodriguez is not being treated any differently

from other aliens who are deport able upo n grounds which have no corresponding grounds for14 Even were we to address this issue, however, we would find that Rodriguez is not eligible for

relief under this provision. Section 244(a)(2) gives the Attorney General discretionary power to

suspend the deportation of an alien who "has been physically present in the United States for a

continuous period of not less than ten years immediately following the commission of an act, or

the assumption of a status, constituting a ground for deportation...." 8 U.S.C. § 1254(a)(2).

Because Rodriguez's convictions which were the basis for his deportation order occurred in 1988 exclusion. Campos, 961 F.2d 309, 316.

Congress is not required to treat all aliens alike; it is only required to give a facially legitimate

and bona fide reason for treating th em differently. F iallo v. Bell, 430 U.S. at 794-95, 97 S.Ct. at

1479. S ee also Cabasug, 847 F.2d at 1328 ("The equal protecti on component of the due process

clause does not require that all deportable aliens be treated alike, no matter what they have done")

(Wallace, J., concurring). Because the challenged statute does not employ a suspect classification

or impinge upon fundamental rights, we must uphold it if it is rationall y related to a l egi

ti m ate

governmental purpose. Campos, 961 F.2d 309, 316. As the Ninth Circuit observed in Cabasug,

"Congress gave special attenti on to deporting "racketeers,' and saw machine guns and

sawed-off shotguns as badges of such individuals. The singling out of the machine gun and

sawed-off shotgun offenses in the depo rt at ion statute is a reasonable means by which to

achieve the legitimate purpose of deporting "racketeers.' ... The treatm ent for deportati on purposes of these firearms offenses is a rational means to achieve the legitimate purpose of

deterring possession of the forbidden weapons by aliens." 847 F.2d at 1327.

Although the expansion of t he interpretation of section 212(c) to allow relief from some

grounds of deportati on, an interpretation begun in Francis for equal protecti on reasons, has resulted

in confusing and arbitrary distinctions between deportable aliens, such as those pointed o ut by

Rodriguez, we cannot conclude that these distinctions render the statute unconstitutional. Further,

it is the role of Congress, not of the courts, to rewrite the statute to correct these problems. C ampos,

961 F.2d 309, 317.

III. Applicability of Deportation Relief Provisions

Counsel for Rodriguez made reference during oral argument to the statutory provisions for

relief from deportati on, INA sections 244 and 245, 8 U.S.C. §§ 1254 and 1255. It appears from the

record before us that these grounds for relief were not asserted below. Because Rodriguez failed to

raise this issue before the BIA, he has not exhausted his administrati ve remedies, and we have no

jurisd ict ion t o consider these grounds. 1 4 C ampos-Guardado v. Immigration & Naturalization(and the underlying offenses in 1987), he has not met this time requirement.

Section 245(a), 8 U.S.C. § 1255(a), is inapplicable because it does not provide

relief from deportation. This subsection provides that the Attorney General may, in his

discretion, adjust the status of an alien to that of a permanent resident alien if the applicant

meets certain admissibility requirements. Rodriguez was granted permanent resident

status in 1968.

15 Moreover, grounds for reversal not set forth in a petitioner's (or appellant's) opening brief in

this Court are normally waived. See, e.g., United States v. Miller, 952 F.2d 866, 874 (5th Cir.),

cert. denied, --- U.S. ----, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992). Service, 809 F.2d 285, 291 (5th Cir.1987). 15

Conclusion

We hold that Rodriguez is not eligible for relief from deportati on. Because we find no error

in the decision of the BIA, the petition for review is

DENIED.