Opinion
Civil Action No. 04-3079 SECTION "J" (1).
March 20, 2005
ORDER AND REASONS
Before the Court is a Petition for Habeas Corpus and Request for Stay of Deportation. The petition is opposed by the government. Petitioner claims that the retroactive application of AEDPA § 440(d) and INA § 240A violates his rights under the Due Process Clause. Further, Petitioner asserts that the lack of a record during part of the proceedings violated INA § 240(b)(4)(c) and 18 U.S.C. § 2071(b) as well as his due process rights. Petitioner requests that his case be remanded to the BIA for determination of his 212(c) request, and that the Court vacate his deportation order with prejudice.
Rec. Doc. 1.
Rec. Doc. 5.
AEDPA § 440(d) amended INA § 212(c) to render aliens convicted of an aggravated felony under INA § 241(a)(2)(A)(iii) (now codified at 8 U.S.C. § 1227(a)(2)(A)(iii)), ineligible for § 212(c) relief. See St. Cyr v. I.N.S., 229 F.3d 406, 408-09 (2d Cir. 2000).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 § 304(b) repealed INA § 212(c) and replaced it with INA § 240A, codified at 8 U.S.C. § 1229(b). New INA § 240A consolidates "suspension of deportation" relief with provisions of the old INA § 212(c) to create a new form of relief called "cancellation of removal." Notably, "cancellation of removal" relief is available for aliens whose criminal convictions do not qualify as "aggravated felonies." See Innab v. Reno, 204 F.3d 1318, 1319 (11th Cir. 2000) (citing IIRIRA § 304(a), codified at 8 U.S.C. § 1229(b)).
BACKGROUND
Petitioner, a citizen of Nigeria, entered the United States in 1969, and in 1974 he became a lawful permanent resident. In 1980, Petitioner was convicted for the offense of Attempted Possession of Marijuana. In 1994, Petitioner was convicted in the United States District Court, Southern District of Texas, for conspiracy to defraud the United States and three counts of wire fraud. As a result of the 1994 conviction, Petitioner was sentenced to thirty-seven months in prison and ordered to pay restitution in the amount of $980,000. Petitioner appealed his conviction, which was affirmed by the Fifth Circuit on March 6, 1996.
Government's Response to Petition for Writ of Habeas Corpus, Exh. "1". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "3". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "4". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "5". (Rec. Doc. 5).
On or about March 14, 1996, the Immigration and Naturalization Service, now the Department of Homeland Security, United States Immigration and Customs Enforcement ("the Department") served on Petitioner an order to show cause charging Petitioner as deportable. On January 23, 1997, the Immigration Judge ordered Petitioner's removal to Nigeria, and Petitioner reserved his rights to appeal. On or about February 18, 1997, Petitioner filed his Notice of Appeal with the Board of Immigration Appeals (the "BIA").
Specifically, Petitioner was charged as deportable under the following statutes: INA § 241 (a) (2) (B) (i), which allows for deportation of an immigrant convicted of a violation of any law or regulation relating to a controlled substance; INA § 241 (a) (2) (A) (iii), which provides for deportation of an immigrant convicted of an offense defined as an aggravated felony; INA § 241 (a) (2) (A) (ii), which provides for deportation of an immigrant convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. Government's Response to Petition for Writ of Habeas Corpus, Exh. "6". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "9". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "10". (Rec. Doc. 5).
On October 30, 1998, the BIA returned the case to the Immigration Court because either the transcript of the hearing or the transcript of the Immigration Judge's decision was missing. Because only part of the hearing could be located, the Immigration Judge conducted a full and complete set of hearings once again. On September 29, 1999, the Immigration Judge issued his decision in which he found Petitioner deportable as charged and ordered Petitioner to be deported to his native country, Nigeria. Petitioner appealed the decision to the BIA, and the BIA dismissed the appeal on May 12, 2000. Subsequently, Petitioner filed a motion for reconsideration and for a stay of deportation in which Petitioner explained that he did not have an opportunity to file a brief.
Government's Response to Petition for Writ of Habeas Corpus, p. 3. (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "15". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "16". (Rec. Doc. 5).
On July 28, 2000, the BIA granted Petitioner's request for a stay pending further review and, on September 11, 2000, the BIA granted Petitioner's motion for reconsideration and reinstated his appeal. On November 2, 2000, after Petitioner requested a change in his custody status, the Immigration Judge ordered that Petitioner be released upon posting a $25,000 bond. On May 5, 2003, the BIA dismissed Petitioner's reinstated appeal. The BIA's dismissal decision was returned as undeliverable, and on August 11, 2003, the BIA reissued its May 5, 2003 decision. Responding to the August 11, 2003 issuance, Petitioner filed a motion to reconsider in which he requested relief from deportation in the form of a waiver under INA § 212(c). On November 14, 2003, the BIA denied Petitioner's motion to reconsider after noting that Petitioner never filed an application for a waiver under Section 212(c). Further, the BIA explained that if Petitioner had filed a 212(c) request, he would not be eligible or entitled to such relief.
Government's Response to Petition for Writ of Habeas Corpus, Exh. "18". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "21". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "22". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "22". (Rec. Doc. 5).
On November 12, 2004, Petitioner filed the petition that is presently before the Court. In his petition, Petitioner asserts that he is not deportable, and he requests relief from deportation in the form of a waiver under former Section 212(c) of the Act. The government construes Petitioner's arguments as a request for relief from detention under Zadvydas v. Davis.
Rec. Doc. 1.
Rec. Doc. 1.
Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001).
STANDARD OF REVIEW
Under 28 U.S.C. § 2241 (c) (3), a writ of habeas corpus may extend to any person "in custody in violation of the Constitution or laws or treaties of the United States." Despite comprehensive amendments to judicial review of immigration decisions through the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), federal district courts have jurisdiction to decide habeas corpus petitions filed under 28 U.S.C. § 2241 by aliens subject to deportation.However, a district court's review of administrative immigration decisions under Section 2241 is limited.
First, a district court reviews only the opinion of the [BIA] and does not review both the [BIA]'s and the Immigration Judge's opinions. Second, the standard of review is restricted to purely legal questions. Specifically, a district court may review statutory and constitutional claims as well as claims asserting the erroneous application of legal principles to undisputed facts. However, federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations made by the [BIA].
Gomez v. Bureau of Immigration, 315 F. Supp. 2d 630, 633 (M.D.Pa. Apr. 23, 2004).
Id. at 633 (citing Bakhtriger v. Elwood, 360 F.3d 414, 420) (internal citations omitted).
Thus, a district court may review only the BIA opinion, and the court's review is limited to questions of law. Moreover, a district court's jurisdiction does not extend to review of discretionary determinations made by the BIA.
LAW
"Section 212 of the Immigration and Nationality Act of 1952, which replaced and roughly paralleled § 3 of the 1917 Act, excluded from the United States several classes of aliens, including those convicted of offenses involving moral turpitude or the illicit traffic in narcotics. As with the prior law, this section was subject to a proviso granting the Attorney General broad discretion to admit excludable aliens." Although Section 212 was literally applicable to only exclusion proceedings, the BIA interpreted it to authorize any permanent resident alien with a lawful domicile of seven years to apply for a discretionary waiver from deportation.
The extension of § 212 (c) relief to the deportation context has had great practical importance, because deportable offenses have historically been defined broadly. For example, under the INA, aliens are deportable upon conviction for two crimes of "moral turpitude" (or for one such crime if it occurred within five years of entry into the country and resulted in a jail term of at least one year). See 8 U.S.C. §§ 1227 (a) (2) (A) (i)-(ii) (1994 ed., Supp. V). In 1988, Congress further specified that an alien is deportable upon conviction for any "aggravated felony," Anti-Drug Abuse Act of 1988, 102 Stat. 4469-4470, § 1227 (a) (2) (A) (iii), which was defined to include numerous offenses without regard to how long ago they were committed. Thus, the class of aliens whose continued residence in this country has depended on their eligibility for § 212(c) relief is extremely large, and not surprisingly, a substantial percentage of their applications for § 212(c) relief have been granted. Consequently, in the period between 1989 and 1995 alone, § 212(c) relief was granted to over 10,000 aliens.
I.N.S. v. St. Cyr, 533 U.S. 289, 294-95, 121 S.Ct. 2271, 2276 (2001).
Id. (citing Matter of Silva, 16 I.N.Dec. 26, 30, 1976 WL 32326 (1976) (adopting the position of Francis v. INS, 532 F.2d 268 (2nd Cir. 1976))).
Id. at 295-96.
In 1990 and 1996, Congress significantly reduced the size of the class of aliens eligible for discretionary relief. "In 1990, Congress amended § 212(c) to preclude from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years." In 1996, Congress identified a broad set of offenses for which convictions would preclude such relief. Also in 1996, Congress passed IIRIRA, which repealed INA § 212(c) and replaced it with a new
Id. at 297 (citing Section 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c))).
Id. (citing 110 Stat. 1277 (amending 8 U.S.C. § 1182(c))).
section that gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens, which no longer includes anyone previously "convicted of any aggravated felony." Further, IIRIRA's amendment to the definition of "aggravated felony" clearly states that it applies with respect to "conviction[s] . . . entered before, on, or after" that statute's enactment date.
Id. (citing § 1229b(a) (3) (1994 ed., Supp. V)). The term "aggravated felony" is defined in 8 U.S.C. § 1101 (a) (43).
Id. at 319.
DISCUSSION
As explained above, this Court's jurisdiction is limited to review of the BIA's opinion with respect to purely legal questions. As stated in the BIA's May 5, 2003 opinion, Petitioner raised four issues on appeal. The third issue presented to the BIA — that the Immigration Judge erred in adopting the Service's position that AEDPA applies retroactively to the respondent's 1994 conviction of wire fraud and conspiracy to defraud the United States, thus barring him from relief under Section 212(c) of the Act — is the only issue properly before this Court. Reviewing the BIA's opinion, the Court notes that the BIA denied Petitioner relief under Section 212(c) for three reasons.First, in its May 3, 2003 decision the BIA explained that Petitioner was not entitled to 212(c) relief because he did not file the necessary application requesting such relief. On November 14, 2003, the BIA again addressed Petitioner's argument in its response to Petitioner's motion to reconsider. Notably, the BIA explained that Petitioner's deportation proceedings were commenced on March 14, 1996 and, therefore, subsequent changes to Section 212(c), due to the enactment of AEDPA and IIRIRA, did not apply to the respondent. After reviewing the transcript of the proceedings before the Immigration Judge, the BIA found that Petitioner was provided with multiple opportunities to file for 212(c) relief, but he declined to do so. Consequently, the BIA denied Petitioner relief under 212(c).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "20". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "22". (Rec. Doc. 5).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "22". (Rec. Doc. 5).
Second, the BIA also denied Petitioner relief because his "1994 convictions resulted from a jury trial, and the Supreme Court's ruling in INS v. St. Cyr, 533 U.S. 289 (2001), is of no help to the respondent in relation to eligibility for section 212(c) relief." Notably, the petitioner's conviction in St. Cyr resulted from a guilty plea. In St. Cyr, the Court explained that part of the reason why petitioner pled guilty was to preserve the possibility of relief under 212(c).
Government's Response to Petition for Writ of Habeas Corpus, Exh. "21", p. 3. (Rec. Doc. 5).
St. Cyr, 533 U.S. at 321-24.
Third and finally, the BIA addressed Petitioner's retroactivity claims in general and explained that the last sentence of INA § 101(a)(43) specifically makes the aggravated felony definition retroactive by providing the following language: "Notwithstanding any other provision of law (including any effective date), the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph."
Government's Response to Petition for Writ of Habeas Corpus, Exh. "21", p. 3. (Rec. Doc. 5). See INA § 101 (a) (43).
The BIA determined that although § 212(c) applied to Petitioner, Petitioner was not entitled to § 212(c) discretionary relief. Thus, the BIA exercised its authority and made a discretionary determination that relief is not warranted. As stated above, this Court does not have jurisdiction to review discretionary decisions of the BIA, however, the Court may review Petitioner's constitutional claims.
See supra, text accompanying note 21.
With regard to Petitioner's claim that the application of AEDPA § 440(d) constitutes a violation of his due process rights, the Court notes that a similar argument was raised in Requena-Rodriguez v. Pasquarell. In Requena, the Fifth Circuit explained that "Congress has the authority to make past criminal activity a new ground for deportation, and, before AEDPA, there was a strong tradition of finding that expansions of the criminal bar to § 212(c) relief had no retroactive effect." "A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statutes enactment or upsets expectations based in prior law. Rather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment." The Fifth Circuit concluded that because § 440(d) has no retroactive effect when triggered by pre-AEDPA convictions, it was proper to apply it to Requena's case.
Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir. 1999). Again, the enactment of AEDPA § 440(d) rendered aliens convicted of aggravated felonies ineligible for relief. See supra, note 3.
Requena-Rodriguez, 190 F.3d at 308.
Id. (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 299 (1994) (citation and footnote omitted)).
Id.
Similarly, in the instant matter the application of AEDPA § 440(d) triggered by Petitioner's pre-AEDPA conviction has no retroactive effect and, therefore, does not violate Petitioner's rights under the Due Process Clause. The same reasoning employed by the Fifth Circuit in Requena with respect to AEDPA § 440(d) equally applies to INA § 240A. Therefore, the application of AEDPA § 440(d) and INA § 240A to Petitioner's pre-AEDPA conduct does not violate Petitioner's rights under the Due Process Clause.
Petitioner also asserts that the lack of a record violates INA § 240(b) (4) (c) and 18 U.S.C. § 2071(b). Section 240 (b) (4) (c), codified in 8 U.S.C. § 1229a(b) (4) (c), provides that a complete record shall be kept of all testimony and evidence produced at the deportation proceeding. Further, 18 U.S.C. § 2071(b) provides criminal penalties for removal or destruction of records filed or deposited with any clerk or officer of any court or judicial office of the United States. The BIA acknowledged that the transcript from the original deportation proceeding was lost. As a result of the missing record, a new immigration hearing was conducted and Petitioner was again determined to be deportable. Petitioner appealed to the BIA, which upheld the immigration judge's decision. Subsequently, Petitioner filed a motion for reconsideration based on the grounds that Petitioner had not received a copy of the transcript in order to properly brief the issues on appeal. The BIA granted the motion to allow Petitioner the opportunity to brief the issues on appeal. After considering Petitioner's arguments, the BIA upheld the immigration judge's decision and found the Petitioner deportable as charged and ineligible for relief under Section 212(c).
Government's Response to Petition for Writ of Habeas Corpus, Exh. 11 (Rec. Doc. 5).
See supra, note 12 and accompanying text.
See supra, note 14 and accompanying text.
See supra, note 15 and accompanying text.
See supra, note 17 and accompanying text.
Although the transcript of the original deportation proceeding was lost, Petitioner was afforded a second hearing — in effect, de novo review by the immigration judge — at which Petitioner had an opportunity to present his case once again. Further, on appeal the BIA granted Petitioner's motion for reconsideration to ensure that Petitioner had sufficient time to brief the issues appealed. Consequently, there is no evidence that Petitioner's due process rights were violated because of an incomplete record.
See supra, note 15 and accompanying text.
Last, the government interprets Petitioner's habeas petition as a request for release from custody under Zadvydas v. Davis. In Zadvydas, the United States Supreme Court addressed the legality of post-order detention under INA § 241 (a) (6) and found that the statute permits detention for a period "reasonably necessary" to deport the alien. The presumptive "reasonable period" consists of six months, absent evidence demonstrating that deportation is likely to occur in the reasonably forseeable future beyond that time. With respect to the six month period, the Court explained that "this 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." A reasonable period of immigration detention that provides review with the possibility of release is neither necessarily indefinite, nor is it necessarily unconstitutional. Further, the Fifth Circuit has held that if an alien intentionally prevents the INS from effecting his removal, the removal period would be equitably tolled. Thus, the period does not run while the INS is prevented from effecting the removal or until the alien begins to cooperate with the INS in effecting his removal. As conceded by Petitioner, the Nigerian government is waiting to issue Petitioner's travel documents until Petitioner has exhausted his judicial remedies. Thus, Petitioner's habeas petition is currently acting to prevent his removal. Consequently, the removal period has been tolled while this petition has been pending and Petitioner's argument under Zadvydas fails. Accordingly,
Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491 (2001).
Id. at 682. Specifically, the Court stated "we construe the statute to contain an implicit `reasonable time' limitation, the application of which is subject to federal court review."
Id. at 701.
Id.
See, e.g., Zavydas, 533 U.S. 678.
Balogun v. I.N.S., 9 F.3d 347, 351 (5th Cir. 1993).
Petitioner's Motion for Preliminary Injunction, p. 4 (Rec. Doc. 10).
IT IS ORDERED that the Petition for Habeas Corpus And Request for Stay of Deportation should be and hereby is DENIED; IT IS FURTHER ORDERED that this case is DISMISSED.