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Keywords

precedentappealmotiondeportationnaturalizationadministrative lawliens
precedentappealmotiondeportationnaturalizationadministrative lawliens

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Esposito v. Immigration and Naturalization Service

Facts

Petitioner Antonio Esposito, a native and citizen of Italy, had been a lawful permanent resident of the United States since 1970. He was convicted in Virginia state court of unlawful possession of cocaine with the intent to distribute, unlawful possession of marijuana, and unlawful possession of a sawed-off shotgun. The Immigration and Naturalization Service issued an order to show cause charging petitioner as deportable under 8 U.S.C. 1251(a)(11) for having been convicted of a narcotics offense, and under 1251(a)(14) for the weapons charge. An administrative law judge found petitioner to be deportable based on his criminal convictions and denied his application for waiver of deportation under 1182(c) because there existed no ground of exclusion comparable to the deportation charge for possession of the shotgun.

Petitioner Antonio Esposito, a native and citizen of Italy, had been a lawful permanent resident of the United States since 1970. He was convicted in Virginia state court of unlawful possession of cocaine with the intent to distribute, unlawful possession of marijuana, and unlawful possession of a sawed-off shotgun. The Immigration and Naturalization Service issued an order to show cause charging petitioner as deportable under 8 U.S.C. 1251(a)(11) for having been convicted of a narcotics offense, and under 1251(a)(14) for the weapons charge. An administrative law judge found petitioner to be deportable based on his criminal convictions and denied his application for waiver of deportation under 1182(c) because there existed no ground of exclusion comparable to the deportation charge for possession of the shotgun.

Issue

Whether the aggregate suspended sentences of five years or more to which Esposito was subjected were actually imposed within the meaning of 1182(a)(2)(B), and if so, whether an immigrant who has a conviction for weapons possession is nonetheless ineligible for 1182(c) relief because that conviction standing alone provides a ground for deportation.

Whether the aggregate suspended sentences of five years or more to which Esposito was subjected were actually imposed within the meaning of 1182(a)(2)(B), and if so, whether an immigrant who has a conviction for weapons possession is nonetheless ineligible for 1182(c) relief because that conviction standing alone provides a ground for deportation.

Rule

Under the precedent decisions of the Board of Immigration Appeals, a 1182(c) waiver is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of excludability.

Under the precedent decisions of the Board of Immigration Appeals, a 1182(c) waiver is available in deportation proceedings only to those aliens who have been found deportable under a ground of deportability for which there is a comparable ground of excludability.

Analysis

The court analyzed whether Esposito's aggregate suspended sentences constituted 'actually imposed' sentences under 1182(a)(2)(B). It noted that there is conflicting authority on this issue, and that the BIA had not previously ruled on whether Esposito's conviction for weapons possession, which could provide a ground for exclusion, also resulted in a ground for deportation that has no counterpart in 1182.

The court analyzed whether Esposito's aggregate suspended sentences constituted 'actually imposed' sentences under 1182(a)(2)(B). It noted that there is conflicting authority on this issue, and that the BIA had not previously ruled on whether Esposito's conviction for weapons possession, which could provide a ground for exclusion, also resulted in a ground for deportation that has no counterpart in 1182.

Conclusion

The court vacated the decision of the BIA dismissing Esposito's appeal from the order denying his motion to reopen and reconsider his order of deportation, and remanded the matter to the BIA for further determination.

The court vacated the decision of the BIA dismissing Esposito's appeal from the order denying his motion to reopen and reconsider his order of deportation, and remanded the matter to the BIA for further determination.

Who won?

The court of appeals vacated the BIA's decision, allowing Esposito to pursue his claims regarding ineffective assistance of counsel and the applicability of his suspended sentences.

The court of appeals vacated the BIA's decision, allowing Esposito to pursue his claims regarding ineffective assistance of counsel and the applicability of his suspended sentences.

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