building containing over 2,100 pounds of marijuana, approximately 29 pounds ofmethamphetamine,

and 10.5 kilograms of cocaine.

DISCUSSION

Defendant claims that a change in the Immigration Act of 1990 retroactively precluded his
ability to obtain a 212(c) waiver. The prosecution argues and the court agrees that defendant’s 1998
firearms conviction precluded 212(c) waiver relief under the Immigration Act in effect at the time
of his conviction -- the Immigration Act of 1988.

Section 212(c) relief has never been available to defendant as an alien convicted of a
firearms offense. See See Leal-Rodriguez v. INS, 990 F.2d 939, 949, 952 (‘7th Cir. 1979); Matter
of Chow, 20I&N Dec. 647 (BIA 1993). Prior to 1988, the Act provided for the deportation of aliens
who possessed sawed-off shotguns or automatic and semi-automatic weapons. Section 241(a)(14),
8 U.S.C. §1251(a)(14). As of November 18, 1988, well before defendant's plea, the act was
amended to include any firearm or destructive device defined in 18 U.S.C. §921 (a) 3 or 4. Section
921 (a) 3 defined a firearm as any weapon (including a starter gun) which will or is designed to or
may readily be converted to expel a projectile by action ofan explosive. Thus deportable weapons
offenses were no longer limited to machine guns and sawed-off shotguns. The 1988 act provided
that it applied to aliens convicted on or after the date of enactment. Matter of Chow, at 5. It therefore

applied to defendant.

Section 212(c) of the INA allows the Attorney General to waive exclusion of aliens who are
found to be inadmissible upon certain grounds specified in section 212(a), 8 U.S.C. § 1182(a).

Grounds for exclusion include many which are similar to grounds for deportation set forth in section


This firearms conviction rendered defendant ineligible for a discretionary waiver of deportation. The
immigration judge advised defendant and counsel that the proper forum to make any collateral
claims concerning the voluntariness of defendant's plea to the firearms charge were in state court or

in the federal court if counsel or defendant believed a constitutional violation occurred.

In a decision dated June 23, 1994, the Immigration Judge found defendant to be
deportable based upon his conviction of an aggravated felony, conviction for controlled
substance violation, and conviction of a firearms violation. After informing defendant and his
counsel of his decision to deny defendant's petition for § 212(c) relief, the immigration judge
informed defendant and his counsel that defendant had a right to appeal the decision to the Board

of Immigration Appeals.

Defendant, represented by counsel, filed an appeal with the Bureau of Immigration Appeals
challenging the finding that he was ineligible for a waiver of inadmissibility pursuant to section
212(c) of the Immigration and Naturalization Act, 8 United States Code, 1182(c). On February 7,
1996, the Bureau of Immigration Appeals denied the appeal. On July 30, 1998 defendant was
removed from the United States. Defendant filed no direct appeal of the BIA decision to the United
States District Court or the Ninth Circuit Court of Appeals, nor did defendant file any habeas corpus

petition.

Defendant re-entered the country illegally again on March 1, 1999, just seven months after

his removal. On August 26, 2000, he was arrested in Chicago under a false name after he exited a


241, 8 U.S.C. §. There is no provision, however, for exclusion of aliens convicted of weapons
offenses, That an alien may even attempt to apply for deportation relief under section 212(c), which
applies on its face only to excludable aliens, is due to judicial and administrative interpretations of
the INA which have expanded section 212(c) to apply to some grounds of deportation. The BIA
initially interpreted section 212(c) narrowly to apply only in exclusion proceedings and not in
deportation proceedings. Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971). This interpretation
drew a distinction between resident aliens who had temporarily left the United States and, upon their
retum, were found excludable for some reason, 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 deportation 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). [FN9] 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 deportable petitioner there

would violate the equal protection clause of the Fifth Amendment. Francis, 532 F.2d at 273.

An alien, however, is not eligible to apply for waiver of deportation where his conviction
is not also a waivable ground for exclusion. Matter of Granados, 16 I. & N. Dec. 726 (BIA 1979)
(refusing to extend section 212(c) to allow relief from deportation for an 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 involving 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).

5


Minate Order Form (06°97)

United States District Court, Northern District of Dlinois

Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 CR 157 DATE 8/28/2003
CASE USA vs. ELIO SIMENEZ-BALDERAS
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Qo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) im Answer brief to motion due . Reply to answer brief due :
(4) ao Ruling/Hearing on set for at
(5) i | Status hearing set for 9/22/2003 at 10:00 A.M..
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__——setfor_——sat_
(©) im Trial[set for/re-set for}on___—_aat
(8) oO [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
CUFRCP4(m) OlLocalRule 41.1 OFRCP41(a\(1) OO FRCP41(@\(2).
(10) Ml [Otherdocket entry] Enter memorandum opinion and order: Defendant’s motion to dismiss [18-1]
is denied.

dl) ff [For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required,
number of notices,

SEP 0 3 2003

date docketed

Notices mailed by judge’s staff.

Notified counsel by telephone,

/ | Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.
zoey
courtro Ql rif{by Z- daS 0
cG deputy's
initials AC
cota eres Office railing deputy initials



Courts reviewing the decisions of the BIA have upheld the initial expansion of section 212(c) to
grounds for deportation which have corresponding grounds for exclusion, and most courts have 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. Because there was no ground of
excludability for a firearms offense either at the time defendant entered his plea in state court to the
firearms charge or at the time of his deportation hearing, the defendant never had a substantive right
to relief from deportation.

For the foregoing reasons the defendant’s motion to dismiss is denied.

SO ORDERED ENTERED: fal 9/27

Mach de Jagr

RONALD A. GuzMANw/
United States Judge



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
)
United States Of America, )
) No. 03 CR 157
Plaintiff )
)
v. ) Judge Ronald A. Guzman
)
ELIO JIMENEZ-BALDERAS, ) DOCKETED
Defendant )

SEP 0 3 2003

MEMORANDUM OPINION AND ORDER

Defendant stands indicted for illegal re-entry following his arrest for possession of
controlled substances in Chicago. Defendant now seeks to dismiss the indictment asserting that
his prior deportation was invalid and therefore he may not be prosecuted for re-entry after having
been deported. With respect to his prior deportation defendant does not attack the Immigration
Judge's finding that he was a deportable alien based upon his two prior controlled substance
convictions. Rather, he asserts that he was denied due process when he was unable to avail
himself of the discretionary waiver of deportation that was once available to certain deportable

aliens prior to a 1990 amendment to the immigration law.

FACTS AND PRIOR PROCEEDINGS
Defendant is a native and citizen of Mexico who illegally entered the United States on
three separate occasions in 1976. After each such apprehension, defendant agreed to voluntarily

depart the United States. In March 1979, defendant re-entered the United States as an immigrant

ao


and spouse of U.S. Citizen, and as such was granted resident alien status. On November 21,
1990, defendant was convicted in California of possession of heroin. On September 19, 1991,

defendant was convicted in California of possession of cocaine.

On October 29, 1992, the Immigration and Naturalization Service ("INS") initiated
deportation proceedings against defendant, charging him with deportability as an alien who had
been convicted of two prior controlled substance felonies, and an aggravated felony. On April 5,
1994, Defendant appeared before an immigration judge waived his right to counsel and admitted
to the underlying charges and all of the allegations set forth in the notice of hearing. The
immigration judge found by clear and convincing evidence that the defendant was subject to

deportation based upon his convictions for controlled substance.

Defendant asked for an opportunity to apply for a waiver of deportation. During the hearing
on defendant's application for a waiver of deportation the government presented evidence that
defendant had used cocaine the prior year while he was on parole, and had a prior firearms
conviction on July 21, 1989. The prior firearms conviction was proven by a certified copy of
defendant's prior conviction for possessing and displaying a firearm. On June 14, 1994, the INS
lodged the firearms conviction as an additional ground for deportability. Defendant's counsel argued
that at the time defendant entered a plea ofno contest to the firearms offense he had no notice of any
possible immigration consequences and therefore the plea was invlaid. However, paragraph 8 of
defendant's written plea agreement explicitly provided.

I understand that if I am not a citizen, the conviction of the offense for which I have been

charged may have the consequence of deportation, exclusion from admission to the United
States, or denial of naturalization pursuant to the laws of the United States.

2