Opinion
INS No. A17-265-431, Case No. C 00-2944 MJJ
March 29, 2001
Marc Van Der Hout (California Bar #80778), Zachary Nightingale (California Bar #184501), Trina Realmuto (California #201088), Van Der Hout Brigagliano, San Francisco, California, for Petitioners.
NOTICE OF VOLUNTARY DISMISSAL
Petitioners, Onesimo De La Torre and the De La Torre Family, hereby move to voluntarily dismiss the above-captioned case pursuant to Federal Rule of Civil Procedure 41(a)(1). Defendants have not yet served an answer to Petitioners' petition for a writ of habeas corpus, filed on August 15, 2000 pursuant to 28 U.S.C. § 2241. Following the filing of Petitioners' habeas petition, on March 5, 2001, the Board of Immigration Appeals remanded Petitioner Onesimo De La Torre's case to the Immigration Judge to provide him with an opportunity to establish eligibility for relief from removal under former § 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c)(1995) in accordance with the Ninth Circuit's decision in Richards-Diaz v. Fasano, 233 F.3d 1160 (9th Cir. 2000). A copy of the decision is attached as Exhibit A. The remand of Petitioner's case to the Immigration Judge to establish his eligibility for relief from removal has rendered the instant challenge to Petitioner Onesimo De La Torre's April 27, 2000 order of removal moot. Thus, Petitioners have been granted the relief they sought in this action and, therefore, request that the Court voluntarily dismiss the instant action.
EXHIBIT A
U.S. Department of Justice
Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A17-265-431 — Lompoc, California Date: March 5, 2001
In re: *F-DE LA TORRE-CRUZ, ONESIMO
IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: VAN DER HOUT, MARC
This removal case arises in the Ninth Circuit and involves a respondent who was convicted of an aggravated felony, pursuant to a plea of guilty, prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-546 ("IIRIRA"). At the hearing the respondent attempted to file an application for a waiver of inadmissibility under former section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(c) (1994). At the time the respondent appealed, the respondent was otherwise eligible for such discretionary relief but for the repeal of section 212(c) by § 304(b) of IIRIRA and the bar imposed on such relief by AEDPA and IIRIRA for the commission of an aggravated felony. See Matter of Davis, Interim Decision 3439 (BIA 2000).
Subsequent to the Immigration Judge hearing and the respondent's appeal, the United States Court of Appeals for the Ninth Circuit issued a decision on December 27, 1999, holding that AEDPA § 440(d)'s bar of discretionary relief previously afforded by INA § 212(c) should not apply to aliens whose deportation proceedings were pending when AEDPA became law or who can demonstrate that they entered guilty or nolo contendere pleas in reliance upon the relief afforded by INA § 212(c). Magana-Pizano v. INS, 200 F.3d 603, 613-14 (9th Cir. 1999) ("We leave open the possibility that, under a specific factual showing that a plea was entered in reliance on the availability of discretionary waiver under § 212(c), a petitioner may be able to establish that AEDPA § 440(d) has an impermissible retroactive application as to him."). See also Mattis v. Reno, 212 F.3d 31, 36 (1st Cir. 2000) (holding that AEDPA § 440(d) would have a retroactive effect if applied to aliens who pled to or did not contest criminal charges in actual and reasonable reliance on the availability of § 212(c) relief).
More recently, the United States Court of Appeals for the Ninth Circuit issued a decision holding that notwithstanding the repeal of section 212(c), AEDPA § 440(d)'s bar of discretionary relief previously afforded by INA § 212(c) should not apply to aliens in removal proceedings who can demonstrate that they entered guilty or nolo contendere pleas in specific reliance upon the availability of the relief afforded by INA § 212(c). Richards-Diaz v. Fasano, 233 F.3d 1160 (9th Cir. 2000) ("Although such a showing of reliance can only be made in a rare circumstance, see id., without an evidentiary hearing, we are unable to determine whether the circumstances here warrant such relief").
Under these circumstances, this case will be remanded to the Immigration Judge to provide the respondent an opportunity to establish that the respondent actually and specifically relied upon the availability of section 212(c) discretionary relief at the time the plea was entered. If such specific reliance is established, the respondent will be entitled to a hearing on the merits of an application for a waiver under section 212(c), at which the respondent must demonstrate that the relief is warranted as a matter of discretion. Accordingly,
IT IS ORDERED that the record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion.
______________ FOR THE BOARD