Colombino A. Headley v. IMMIGRATION & NATURALIZATION SERVICE Appeal from the United States District Court…

* Hon. Daniel M. Friedman, United States Senior Circuit Judge for the Federal Circuit,
sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
03-2148
___________
COLOMBINO A. HEADLEY,
Appellant
v.
IMMIGRATION & NATURALIZATION SERVICE
___________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civil Action No. 1:02-CV-1988)
District Judge: The Honorable W illiam W. Caldwell
___________
Submitted Under Third Circuit LAR 34.1(a) (1993)
December 2, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Opinion Filed: March 19, 2004)

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OPINION
FRIEDMAN, Circuit Judge.
In this appeal from a district court’s denial of habeas corpus for an alien ordered
removed from the United States, the alien challenges, as a denial of equal protection, a
provision of the immigration laws that denies lawful permanent resident aliens but
permits non-lawful permanent resident aliens to obtain waivers of removal. Because this
court previously has upheld this statutory distinction against the same equal protection
challenge, we affirm.
I
The facts, as set forth in the memorandum of the district court, are undisputed.
The appellant Columbino A. Headley, a Panamanian citizen, has been a lawful permanent
resident of the United States for more than forty years. He was convicted in 2001 on his
guilty plea of possession with intent to distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1) (2000), and was sentenced to fifteen months imprisonment. The Immigration
and Naturalization Service then instituted proceedings to remove him from the United
States pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an
aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B). The immigration judge
ordered Headley removed, and the Board of Immigration Appeals affirmed.
Headley then filed a petition for habeas corpus in the United States District Court
for the Middle District of Pennsylvania, challenging as an unconstitutional denial of equal

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protection the provision in 8 U.S.C. § 1182(h) that prohibits a waiver of removal for an
alien “who has previously been admitted to the United States as an alien lawfully
admitted for permanent residence if either since the date of such admission the alien has
been convicted of an aggravated felony,” 8 U.S.C. § 1182(h), but that permits such a
waiver for aliens who had not been lawfully admitted for permanent residence.
The district court denied the petition. It relied on De Leon-Reynoso v. Ashcroft,
293 F.3d 633 (3d Cir. 2002), where this court upheld § 1182(h) against the same equal
protection constitutional challenge.
II
In De Leon-Reynoso, this court rejected the same equal protection challenge made
to another provision of § 1182(h) that denied a waiver of removal to aliens who had not
been legally resident in the United States for seven years and had been convicted of
crimes involving moral turpitude. Noting that three other courts of appeals had rejected
such a challenge to the constitutionality of the provision, this court held: “Because
Congress conceivably had good reasons to create the § 1182(h) distinction, we hold that
the distinction survives rational basis scrutiny.” Id. at 640. It explained:
First, Congress could have concluded that LPRs
[lawful permanent residents] who commit crimes of moral
turpitude, despite rights and privileges based on their status
that illegal aliens do not share, are “uniquely poor candidates”
for waiver. Second, LPRs with employment and family ties
to the United States, who are still willing to commit serious
crimes, are a higher risk for recidivism than non-LPRs who
commit serious crimes but lack ties to the United States.
Although these two rationales do not command enthusiasm,
they form a plausible justification for the distinction made by
Congress. In legislation aimed at the legitimate government

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interest of expediting the deportation of immigrants who
commit serious crimes in this country, we cannot say that the
distinction between the two classes of aliens is irrational.
Id.
The court referred to Lara-Ruiz v. Immigration & Naturalization Service, 241 F.3d
934 (7th Cir. 2001), one of the other cases in which the same equal protection challenge
to § 1182(h) was rejected and in which the alien had been convicted of an aggravated
felony. It stated:
The Court [there] also noted that LPRs have rights and
privileges based on their status that are not shared by non-
LPRs, and that LPRs have closer ties to the United States
through work and family. Id. [at 947]. “Therefore, Congress
may rationally have concluded that LPRs who commit serious
crimes despite these factors are uniquely poor candidates for .
. . waiver of inadmissibility.” Id.
Finally, the Court stated that in making LPRs ineligible
for waiver, “Congress might well have found it significant
that . . . such aliens have already demonstrated that closer ties
to the United States and all of the benefits attending LPR
status were insufficient to deter them from committing serious
crimes.” Id. at 948. Thus, it concluded that LPRs were a
higher risk for recidivism and less deserving of a second
chance than non-LPRs.
De Leon-Reynoso, 293 F.3d at 639.
This holding and reasoning are equally applicable to the present case. It is
immaterial to the constitutional analysis that this case involves an alien ineligible for
waiver who had been a lawful permanent resident for more than forty years and had been
convicted of an aggravated felony, whereas De Leon-Reynoso was ineligible for waiver
because he had been a lawful permanent resident for less than seven years and had been
convicted of a crime involving moral turpitude. In both cases the critical consideration is

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that there is a rational basis for the distinction Congress drew between aliens who are
lawful permanent residents and those who are not.
Indeed, Headley himself recognizes in his brief that in De Leon-Reynoso this court
“rejected the claim which is now being advanced by the petitioner. The appellate panel
which hears this case will therefore be required to apply De Leon-Reynoso precedent, and
to affirm the order of the district court.” Headley explains that “[t]he issue presented is
being raised so as to preserve it for review in the Supreme Court.”
The order of the district court denying the petition for habeas corpus is affirmed.

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